By James Brown, LL.M. Candidate at University of Michigan Law School, United States.
Victims of conflict are displaced by the millions yearly. However, escaping conflict is seemingly not enough to be granted the protection of a refugee, with the requisite qualification of personal persecution. Therefore, this article will discuss the shortcomings of international refugee law and that the reform of which is a sine qua non, so that many devastated families and people finding themselves in grave situations around the world don’t slip through the net of refugee protection.
The Current Protection Of Refugees
The United Nations Convention Relating to the Status of Refugees 1951 was introduced in a post-war climate to deal with the influx of European refugees. This was then amended by the 1967 Protocol.
This convention offers a number of key protections:
- The ‘non-refoulment clause in Article 33 provides that any country a refugee has arrived at, regardless of whether they have ratified the convention, cannot send a refugee back to the place they may face persecution or serious human rights abuses, such as torture.
- Article 17 provides that states should allow refugees to work and earn a wage.
- Articles 20-24 give refugees the same entitlements to the state welfare system as any national.
Shortcomings of the 1951 Convention
The definition of a refugee is provided in Article 1(a)(2) as somebody who “outside the country of his nationality” is “unable or… unwilling to avail himself of the protection of that country” due to a “well-founded fear of being persecuted”. The fear of persecution must be due to reasons of “race, religion, nationality, membership of a particular social group or political opinion”. The 1951 Convention limited the timeline of persecution, stating that it must have taken place before January 1st, 1951. However, the 1967 Protocol removed the timeline criterion.
Nevertheless, the scope of who can be a refugee and thus qualify for the associated protections is particularly limited. Firstly, the potential grounds of persecution are provided by the instrument in an exhaustive list. ‘Persecution’ has been best defined as “a threat to life or freedom” or “[o]ther serious violations of human rights” by the UN High Commissioner for Refugees (“UNHCR”)(See page 13, paragraph 51). Furthermore, persecution requires a subjective element; or that the person must have felt personally persecuted, and this requires “an evaluation of the opinions and feelings of the person concerned” according to the UNHCR (see above at paragraph 52). Accordingly, a refugee seems to be legally defined as somebody who was a victim of personal persecution, and more specifically, as de Lima Madureira asserts, have had their civil and political rights breached, such as the right to life and liberty and freedom from torture. Persecution is unfortunately too high a threshold to meet for those who may suffer breaches of their social and economic rights, such as a lack of water and subsistence. Furthermore, the requirement for a personal element of persecution poses a barrier to asylum seekers escaping conflict who, while not being personally persecuted by any belligerent forces due to race, religion, etc, are fleeing in order to escape the dangers of bombings, food shortages and any other vicissitude of conflict.
The Israeli delegate to the 1951 Convention even stated that while the Convention did not cover natural events such as natural disasters;
“Nor did the text cover all man-made events. There was no provision, for example, for refugees fleeing from hostilities unless they were otherwise covered by article 1 of the Convention.”
This statement identifies, that even at its advent - 70 years ago, the Convention was omitting protection to many while they found themselves in dangerous situations, could not prove persecution. As Holzer suggests, this statement indicates that the level of victimhood in situations of conflict can be differentiated. The Convention ranks the level of ‘victim’ hierarchically, with those who can fulfill the criteria in Article 1(a)(2) as entitled to refugee protection, and those who cannot as unentitled. There is further evidence of this conscience within the UN – as a proposal from the International Committee of the Red Cross was rejected during the drafting of the Convention. The proposal, on page 3, demanded that “[e]very person forced by grave events to seek refuge outside of his country of ordinary residence is entitled to be received”. The rejection of this substantiates that the drafters concurred that to be a refugee, there must be more exceptional circumstances than merely fleeing conflict.
To illustrate, the Office for the UN High Commissioner for Human Rights states that many people cannot fit the Convention’s definition of a refugee, which of course was intended to deal with persecuted refugees in the Second World War, such as Jewish people. The Office states that while not qualifying as a refugee, many flee due to reasons such as “civil conflicts, massive violations of their human rights, foreign aggression, and occupation”, but under current laws, they would be deemed an economic migrant, who equal around 80-90% of all asylum seekers.
As it has been established, not all victims of conflict are necessarily persecuted and therefore a refugee under international law. Nevertheless, the shortcomings of the 1951 Convention in this regard are being recognized and addressed regionally in some areas of the world. The African Union expanded the definition of refugee in 1969 in the OAU Convention. This came after Africa faced numerous civil conflicts throughout the decolonization process. The OAU Convention provides at Article 1(2):
“The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.”
The Central American Cartagena Declaration on Refugees 1984, at Article III(3), also expands the definition of refugee to include those fleeing:
“because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”.
Clearly, the regions of the world most affected by conflict are realising that the international protection of the 1951 Convention is not sufficient for those who are deserving of refugee protection. However, the steps these regions have taken are limited regionally, limiting the refugees to nearby countries, which are often equally troubled, to find asylum.
Conclusion
While the current international refugee protection framework under the 1951 Convention and its 1967 Protocol appears prima facie well-structured - in truth, many deserving recipients slip through the net due to a lack of personal persecution, as they are rather victims of generalised, and not targeted violence. This problem is being recognised and has been addressed in some regions, but in an era of international entanglement in conflict, it is paramount that all countries have a responsibility to share, and thus regional frameworks are not providing sufficient protection to worldwide refugees. For instance, many victims of generalised conflict in the middle east are unable to enjoy the expanded meaning of refugee that we regard in Africa and Central America and thus the expanded definitions must be harmonised into the international refugee regime.
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