What is a refugee?
According to the 1951 Convention relating to the Status of Refugees, a
refugee is a person who
"owing to a well-founded fear of being persecuted for reasons
of race, religion, nationality, membership in a particular social group, or political
opinion, is outside the country of his nationality, and is unable to or, owing to such
fear, is unwilling to avail himself of the protection of that country."
While this is not the only definition for a refugee it is
unconditionally the most crucial. Its origins are to be found in the protection
instruments drafted by the international community, in view of events prior to 1951.
The emergence of the refugee definition
Statelessness
The first refugee definitions emerged in the aftermath of the First
World War, which is considered to be the apogee of the nation building process (Taylor
1993). There were approximately 1.5 million refugees (UNHCR 1994). Marrus (1988) estimates
that half a million Armenians were displaced following massacres and deportations in
Turkey. They subsequently sought refuge in the Middle East, the Soviet Union, or in the
West. Furthermore, war between Greece and Turkey led to the forcible exchange of hundreds
of thousands of people. The situation had already been exacerbated by those displaced
following the demise of Tsarist Russia, the Russo-Polish War and the collapse of the
Ottoman empire. Joly (1996) in Asylum Haven or Hell described them as being
destitute and unable to earn a living, without the protection of their state and unable to
ameliorate their position in life. Consequently they were unable to attain travel
documents that were necessary in order to cross national boundaries. This led to the first
definition of a refugee and to the emergence of international protection.
Hathaway (1991) claims the initial definitions were formulated in view
of this new international dilemma, which rose once a person was denied state protection
and thus, was based on what Hathaway terms "a judicial perspective". The
withdrawal of de jure protection results in the malfunction in the international
legal system (Hathaway 1991). Thus in 1920 the international community under the auspices
of the League of Nations sought to resolve the dilemma.
Initially the League had provided assistance by authorising Fridtjof
Nansen, a Norwegian explorer, to organise the repatriation of half a million prisoners of
war and the supervision of relief efforts aimed at preventing the starvation on 30 million
people in the winter of 1921 in the USSR. However, just before this was undertaken, Nansen
was appointed to a newly created position, ‘High Commissioner’ on behalf of the
League. He was charged with amending the legal status of Russian refugees in Europe and
with assisting in their repatriation. This was to ensure that there would be a focal point
for the co-ordination of humanitarian operations. Joly et al. (1992) asserts that Nansen
only received administrative aid from the League, leaving relief to be dealt with by Non
Governmental Organisations (NGOs). However, he did establish an advisory committee
comprised of voluntary agencies and remained in close contact with governments through
conferences and presentations at Council and Assembly sessions (Skran 1995).
The League of Nations formulated the first definitions and shaped them
in order to amend "anomalies" in the new international system. They focused on
the ethnic and territorial origin of displaced persons with emphasis being placed
specifically on statelessness. Corrections of these anomalies came in the form of the
‘Nansen passport’. It was subsequently granted to particular national groups who
had lost the protection of their country of origin i.e. to Russian refugees in (1922),
Armenians (in 1924), Assyrians, Assyro-Chaldeans, Syrians, Kurds and Turks (all in 1928)
(Joly et al., 1992).
Humanitarian determination
Initially Nansen’s office was perceived as being temporary.
However, events in mainland Europe persuaded the League to the contrary. For example, two
flows of refugees were identified following the Nazi victory of 1933. 10,000 to 20,000
recently arrived immigrants were forcibly removed to mostly Poland. German Jews
increasingly suffered discrimination and hardship. Zolberg et al. (1989) maintains that
these measures had the desired affect because they had uprooted 150,000 refugees by 1938,
and another 126,500 had fled Austria following the Anschluss. Nearly half a
million Spaniards, both soldiers and civilians, escaped to France following the collapse
of the Republicans in early 1939; of these, however, about 150,000 to 200,000 were soon
repatriated,"(Zolberg et al., 1989, p.19). Hence, Hathaway (1991) argues that
subsequent definitions in agreements adopted between 1935 and 1939 focused on the safety
and well being of refugees, rather than correcting an anomaly in the international system.
"The substantive scope of this era’s definitions was defined by an en bloc
reference to general, situation-specific categories of persons affected by the adverse
social or political or phenomena,"(Hathaway, 1991, p.4).
Individual determination
The shift from humanitarian protection to individual determinism
occurred in the aftermath of WW II. According to Proudfoot (1957) there were 40 million
people displaced in 21 countries. He outlines the causes of these movements below,
"These forced movements,.... were the result of the
persecution, forcible deportation, or flight of Jews and the political opponents of the
authoritarian governments; the transference of ethnic populations back to their homeland
or to newly created provinces acquired by war or treaty; the arbitrary rearrangement of
pre-war boundaries of sovereign states; the mass flight of civilians under the terror of
bombardment from the air and under the threat or pressure of the advance or retreat of
armies over immense areas of Europe; the forced removal of populations from coastal or
defence areas under military dictation; and the deportations for forced labour to bolster
the German war effort,"(p.32).
The United Nations Relief and Rehabilitation Agency (UNRRA) was
established in 1943 with the principal objective of resettling refugees displaced by the
war. The situation was then compounded by the expulsion of 12 million ethnic Germans from
the Eastern bloc, a number of whom did not wish to be repatriated. The Western Allies
supported this entreaty, for they claimed that they were persons who, for reasons of race,
religious or political opinion, could not return to their country of origin. However, the
Soviet Union did not agree with this and argued that all displaced persons should
repatriated (Melander, 1988). Finally, it was decided that those with valid objections to
repatriation were not compelled to return. The mandate of the UNRRA which was initially
limited to six months was then extended.
The International Refugee Organisation (IRO) replaced the UNRRA in 1947
and was charged with the resettlement and repatriation of the remaining 1 million
refugees. The substantive scope of the definition moved from humanitarian determination to
more precise legal criteria based on individual determinism. The Constitution of the IRO
provided protection for certain groups who had valid objections to seeking state
protection from their country of origin, a practice inherent in previous instruments.
"Refugees thus included victims of the Nazi, Fascist, or Quisling regimes which had
opposed the United Nations, certain persons of Jewish origin, or foreigners or stateless
persons who had been victims of Nazi persecution, as well as persons considered as
refugees before the outbreak of the Second World War for reasons of race, religion,
nationality, or political opinion"(Goodwin-Gill, 1996, p.6). Joly (1996) attributes
the shift to individual determinism to the fact that it "covered all the main
categories likely to need protection at the time,"(p.6).
Geneva Convention
The IRO was succeeded by the United Nations High Commissioner for
Refugees (UNHCR) as the primary agency for dealing with refugees on January 1 1951.
Initially it had a limited life-span of three years, however, it was since expanded. The
1951 Geneva Convention was also drawn up in that year. Martin (1997) states that when it
was being drafted, the international committee agreed to move away from the categorical
approach adopted by the League of Nations. Rather they adopted an "abstract
concept" for defining a refugee which had previously been outlined in UNHCR’s
statute. Article 1 provides a general definition of the term ‘refugee’. The term
applies to any person who
"as a result of events occurring before 1 January 1951 and
owing to well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of
his nationality and is unable, or owing to such fear, is unwilling to avail himself of the
protection of that country; or who, not having a nationality and being outside the country
of his former habitual residence as a result of such events, is unable or, owing to such
fear, is unwilling to return to it".
Enshrined in the convention is the notion of non-refoulement i.e. the
prohibition of remove a refugee ‘in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or political opinion’.
"It may be affirmed that the new prohibition on the return of refugees to countries
of persecution has established itself as a general principle of international law; binding
on states automatically and independently of any specific assent,"(Goodwin-Gil, 1978,
p.141).
Hathaway (1991) argues that the most strategic dimension of the
definition was that it provided protection to those induced to leave their country of
origin due to ‘pro-Western political values’. "The intention was to protect
persons from countries under communist domination and the definition was meant to describe
the situation in those countries. A strong political element had been inserted in defining
the term refugee"(Melander, 1988, p.9). The Convention does not provide protection to
anyone who commits ‘a crime against peace, a war crime, or a crime against
humanity’, ‘a serious non-political crime outside the country of refuge before
being admitted as a refugee, and guilty of acts contrary to the purposes of the purposes
and principles of the United Nations’.
The Convention was limited historically to events before 1951, and
geographically to Europe. This was due to the fact all refugees at the time had been
uprooted by events prior to 1951. The 1967 Protocol removed these limitations to extend
protection to refugees outside Europe and after 1951. However, Lambert (1995) asserts that
the drafters of the Protocol missed this opportunity to broaden the substantive content of
the definition. This was to prevent refugees from becoming a burden for the international
community.
Lambert (1995) affirms that there is no specific reference given to
asylum in either the 1951 Convention and the 1967 Protocol and has thus remained a concept
or recommendation. Indeed, given the fact that there are no procedures outlined for the
determination of refugee status, "contracting parties are, therefore, free to
interpret the terms of the Convention Protocol and to set up their own national
procedures, subject to various instruments,"(Lambert, 1995, p.3).
References
Goodwin-Gill, Guy. (1978) International law and the movement of
persons between states, Oxford: Clarendon Press.
Goodwin-Gill, Guy.(1996) The Refugee in International Law, London:
Clarendon Paperbacks, 2nd ed.
Hathaway, James. (1991) The Law of Refugee Status, Toronto:
Butterworks.
Joly, D. with Clive Nettleton and Hugh Poulton (1992) Refugees:
asylum in Europe? London: MRG.
Joly, Daničle. (1996) Haven or hell: asylum policies and refugees
in Europe, London: MacMillan Press.
Lambert, Hélčne. (1995) Seeking asylum comparative law and
practice in selected European countries, London: Martinus Nijhoff Publishers.
Marrus, Micheal. (1988) "Introduction" in Bramwell, Anna.
C. (ed.) Refugees in the Age of Total War, London: Unwin Hyman, pp.1-6.
Martin, David. (1997) "Refugees and Migration" in Joyner,
Christopher (ed.) The United Nations and International Law, Cambridge University
Press, pp.155-180.
Melander, Göran. (1988) "The concept of the term refugee"
in Bramwell, Anna. C. (ed.) Refugees in the Age of Total War, London: Unwin Hyman,
pp.7-14.
Proudfoot, Malcolm. J.(1957) European Refugees: 1939-52 A Study in
Forced Population Movement, London: Faber & Faber Ltd.
Skran, Claudena. M. (1995) Refugees in Inter-War Europe The
Emergence of a Regime, Oxford: Clarendon Press.
Taylor, Peter. J. (1993) Political Geography World Economy,
Nation-State and Locality, Essex: Longman., 3rd ed.
UNHCR. (1994) "The foundation of refugee protection:
1920-1950", Information Paper.
Zolberg, Astride. R., Suhrke, Astri. & Aguayo, Sergio (1989) Escape
From Violence Conflict and the Refugee Crisis in the Developing World, Oxford University
Press.
Other forms of status
"In spite of the continent giving birth to the original Geneva
Convention definition, a host of categories and statuses have since been developed in
different countries for people moving in a variety of ‘refugee-like
circumstances’, such that a simple legal definition of a ‘refugee’ is often
inadequate,"(Escalona & Black, 1995, p368). "During the 1970’s, in
addition to the refugee concept inherent in the 1951 Convention, many European countries
introduced the concept of "de facto refugees" in their respective national
legislation (e.g. refugees from violence, draft resisters and other who do not meet all
the requirements of the Geneva Convention"(Swedish Government Official Reports, 1994,
p.75-76). Once applications began to rise, some states reverted back to their original
criteria. Only four countries retain de facto status (Denmark, Finland, Sweden and
Switzerland). However, most countries do grant some form of status on humanitarian grounds
if a particular case does not meet the criterion of the Geneva Convention, and yet still
warrants some form of protection. It is often referred to as "humanitarian status to
remain" or "exceptional leave to remain" in the UK and "Duldung"
in Germany.
References
Escalona, Ana. & Black, Richard. (1995) "Refugees in
Western Europe: bibliographic review and state of the art" in Journal of Refugee
Studies, Vol. 8, No.4.
Swedish Government Official Reports. (1994) The key to Europe- a
comparative analysis of entry and asylum policies in Western countries, Stockholm:
Ministry of Culture.
Regional Instruments
Over the years the Convention has remained the primary instrument of
international protection in Europe. However, in 1977, 92 states met to convene over a
draft convention on asylum, the Declaration on Territorial Asylum. The scope of this
Convention was broader and specified that each contracting state may provide protection to
a person seeking asylum, if he, being faced with a definite possibility of:
‘(a) Persecution for reasons of race, colour, national or ethnic
origin, religion, nationality, kinship, membership of a particular social group or
political opinion, including the struggle against colonialism and apartheid, foreign
occupation, alien domination and all forms of racism; or
(b) Prosecution or punishment for reasons directly related to the
persecution set forth in (a);
is unable or willing to return to the country of his nationality or, if
he has no nationality, the country of his former domicile or habitual residence.’
The Convention failed to be implemented because only 47 of the
contracting states voted to approve it. While this Convention was a failure, it did
represent the desire of a significant number of states to expand the scope of the
definition.
Africa
Due to the restrictive nature of the Geneva Convention, other regions
of the world sought to formulate their own definitions and draft international protection
instruments. It was envisioned that these instruments would protect those fleeing refugee
generating circumstances not covered in previous Conventions. In the aftermath of
decolonisation and independence insurrections, the Organisation of African Unity
Convention Governing the Specific Aspects of Refugee Problems in Africa was adopted in
1969. The second paragraph of article 1 of the African Convention provides that the
‘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 his country of origin or nationality’.
Protection is based on a collective basis. However, asylum was to be
granted on a temporary basis implying that refugees should return to their country of
origin once events permit.
Latin America
Refugee protection in Latin America predated the Geneva Convention. The
first instruments of protection were the 1928 Havana Convention on Asylum, the 1933
Montevideo Convention on Political Asylum and the 1954 Caracas Conventions on Territorial
Asylum and Diplomatic Asylum. However, these treaties became increasingly redundant as
they did not cover events in the 1970’s and 1980’s. Thus, the 1984 Cartagena
Declaration by the Organisation of American States. The definition of a
"refugee" in the Declaration is similar to that of the Organisation of African
Unity. It states a refugee as being
"persons who have fled their country because their lives,
safety or freedom have been threatened by generalised violence, foreign aggression,
internal conflicts, massive violation of human rights of other circumstances which have
seriously disturbed public order" (part III, para, 3).
The Cartegena Declaration is not binding on states and has only been by
a number of nations in Latin America. However, some states have managed to incorporate it
into domestic legislation to some degree.
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