The UN Refugee Convention
The UN Refugee Convention relating to the Status of Refugees (1951) was originally signed by twenty-six state parties, heavily representing Europe and North America. Today there are 146 state parties to the Convention and 147 to the Protocol since the USA has signed the Protocol but not the Convention. The universalisation of the refugee status through the 1967 Protocol has given rise to a series of discrepancies between the letter of the Convention and the purposes it is being asked to serve. In particular, the identity of the five protected categories specified by the Convention (race, religion, nationality, political opinion and particular social group) have come under criticism at times.
The 1951 Convention does not recognize conditions of extreme poverty and material deprivation as grounds for legitimate asylum. Economic migrants are considered individuals who raise spurious claims to protection and refuge. The binary between “deserving refugees” and “undeserving migrants” is one that governs popular imagination as well as state policy. But how valid is this distinction? Why are extreme poverty and material deprivation not legitimate ground for seeking opportunities to escape from them?
Persecution on the basis of race, religion, and nationality as well as political opinion result in unemployment or underemployment, job discrimination, and economic marginalization. Particularly under conditions of global economic interdependence when the policies of developed economies as well as so-called BRIC (Brazil, Russia, India, and China) countries which cause damage to the environment all over the globe have far-reaching consequences, critics ask how can such a sharp distinction between economic starvation versus a “well-founded” fear of persecution on the basis of race, religion, nationality, and the like be made?
The restriction of the scope of article 1 (A) “to events occurring in Europe before 1 January 1951,” was changed with the 1967 Protocol, and the refugee status was universalized, since “… new refugee situations … have arisen since the Convention was adopted and … the refugees concerned may therefore not fall within the scope of the Convention.”
Regional variations
Latin America
The Cartagena Declaration on Refugees is a non-binding regional instrument adopted in 1984. Compared to the 1951 Convention and the 1967 Protocol, the Cartagena Declaration allows a broader category of persons in need of international protection to be considered as refugees. The Declaration, in Conclusion III, adds five situational events to the definition of the 1951 Convention and the 1967 Protocol. Similar additions were made in the 1969 Refugee Convention, but the Cartagena Declaration has further extended them. Refugees are those:
“persons who have fled their country because their lives, security 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”.
This definition allows a broader temporal and geographical scope for the risks refugees find themselves in and additionally covers some of the indirect effects such as poverty, economic decline, inflation, violence, disease, food insecurity, malnourishment and displacement.
Since 1984 the signatories of the Declaration meet every 10 years and they have even extended its reach to include Caribbean countries. Three successor declarations were made: the 1994 San José Declaration, the 2004 Mexico Declaration and the 2014 Brazil Declaration (with twenty-eight countries and three territories of Latin America and the Caribbean). No other continent or region has such a forum.
Africa
The cornerstone of refugee protection in Africa is the Convention Governing the Specific Aspects of Refugee Problems in Africa (1969). This constitutes the ‘regional complement’ to the 1951 Refugee Convention and applies alongside it. It has been widely ratified by African states and its terms are increasingly being incorporated into states’ domestic legislation. The 1969 Convention has been widely praised for expanding eligibility for refugee status, widening the principle of non-refoulement and formalising critical refugee protection principles, such as the humanitarian nature of asylum and the voluntary character of repatriation.
The 1969 Convention is frequently said to be better suited than the 1951 Convention to responding to mass influx situations. This is due in large part to its expanded refugee definition, which emphasises conditions in the country of origin, and the related use of prima facie refugee status determination by African states. At a time when the continued relevance of the 1951 Refugee Convention is being challenged politically and practically, regional regimes such as the African Convention can offer a more humane and pragmatic approach to refugee protection.
Unfortunately, however, the high hopes set for the 1969 Convention have rarely been met in practice, where implementation by African states has been compromised by limited resources and a lack of political will. In international refugee law scholarship, too, African regional refugee law is largely ignored, perhaps due to the lack of preparatory works to the 1969 Convention and the dearth of information on state practice.
Europe
The Dublin Regulation (Dublin III) is EU law setting out which country is responsible for looking at an individual’s asylum application. This is usually the country where the asylum seeker first arrives in the EU. The Dublin Regulation applies to EU Member States and Iceland, Norway, Switzerland and Liechtenstein. The UK was bound by the Dublin Regulation until 31 December 2020.
In September 2020, the EU adopted the New Pact on Migration and Asylum after consultations with the European Parliament, Member States and others. The New Pact sets out that no Member State should disproportionately take responsibility but that all should participate.
In 2021, the UK Government announced plans to overhaul its asylum system. These plans have been met with criticism and concern from some EU Member States and the UN. As the UK is no longer bound by the Dublin Regulation there are significant questions regarding whether the UK can return asylum seekers to the EU without a replacement returns mechanism.
The New York Declaration
The New York Declaration (2016) identified commitments both to address issues at that time and to prepare for future challenges. These commitments included:
a) Protect the human rights of all refugees and migrants, regardless of status. This includes the rights of women and girls and promoting their full, equal and meaningful participation in finding solutions.
b) Ensure that all refugee and migrant children are receiving education within a few months of arrival.
c) Prevent and respond to sexual and gender-based violence.
d) Support those countries rescuing, receiving and hosting large numbers of refugees and migrants.
e) Work towards ending the practice of detaining children for the purposes of determining their migration status.
f) Strongly condemn xenophobia against refugees and migrants and support a global campaign to counter it.
g) Strengthen the positive contributions made by migrants to economic and social development in their host countries.
h) Improve the delivery of humanitarian and development assistance to those countries most affected, including through innovative multilateral financial solutions, with the goal of closing all funding gaps.
j) Implement a comprehensive refugee response, based on a new framework that sets out the responsibility of Member States, civil society partners and the UN system, whenever there is a large movement of refugees or a protracted refugee situation.
k) Find new homes for all refugees identified by UNHCR as needing resettlement; and expand the opportunities for refugees to relocate to other countries through, for example, labour mobility or education schemes.
l) Strengthen the global governance of migration by bringing the International Organization for Migration into the UN system.
The Global Compact on Refugees
The Global Compact on Refugees (2018) agreed in Marrakesh is a framework for more predictable and equitable responsibility-sharing, recognising that a sustainable solution to refugee situations cannot be achieved without international cooperation. It rests on two simple ideas: First, migration has always been with us – but in a world where it is ever more inevitable and necessary, it should be well managed and safe, not irregular and dangerous.
Second, national policies are far more likely to succeed with international cooperation.
It provides a blueprint for governments, international organisations, and other stakeholders to ensure that host communities get the support they need and that refugees can lead productive lives. Its four key objectives are to:
1] Ease the pressures on host countries,
2] Enhance refugee self-reliance,
3] Expand access to third-country solutions,
4] Support conditions in countries of origin for return in safety and dignity.
The Compact is not legally binding and allows countries to remain in charge of their own immigration policy but commits signatories to improving co-operation on international migration. All 193 members agreed it, except the United States but only 164 countries have formally adopted it. Among those who refused to adopt the deal – in addition to the United States – were Hungary, Austria, Italy, Poland, Slovakia, Chile and Australia.
Dealing with false myths
In introducing the Compact, Antonio Guterres, UN Secretary-General, set about dispelling familiar false myths.
1] The Compact will allow the United Nations to impose migration policies on Member States, infringing on their sovereignty.
False: The Compact is not a treaty. Moreover, it is not legally binding. It is a framework for international cooperation, rooted in an inter-governmental process of negotiation in good faith, that specifically reaffirms the principle of State sovereignty, including “the sovereign right of States to determine their national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law.”
2] The Compact would establish a new right to migrate allowing everyone to choose where to go and when to go.
False: The Compact only reaffirms that migrants should enjoy human rights, and independently of their status. And it would be ironic if, on the day we commemorate the 70th anniversary of the Universal Declaration of Human Rights, we would consider that migrants are to be excluded from the scope of the Declaration.
3] Migration is essentially a movement of people from the South to the global North.
False: South-South migration today is larger than South-to-North migration. For example, there are more African migrants in other African countries than in Europe.
4] Developed countries do not need migration.
False: In the many places where fertility is declining and life expectancy is rising, economies will stagnate, and people will suffer without migration.
The Global Refugee Forum
The Global Refugee Forum (2023) will be the opportunity to build on the progress made by States and stakeholders towards the implementation of the Global Compact on Refugees and of pledges and initiatives announced since the first Forum in 2019.
Six states, Colombia, France, Japan, Jordan, Niger and Uganda, together with UNHCR will co-convene the Forum. Co-hosted by UNHCR and Switzerland, it will take place in Geneva on 13 to 15 December 2023, with an advance day for side events on 12 December 2023.
The Forum is envisaged to facilitate the announcement of concrete pledges and contributions, and consider opportunities, challenges, and ways in which burden- and responsibility-sharing in support of the objectives of the Global Compact on Refugees (GCR) can be enhanced.
Terminology: refugees, asylum seekers and migrants
Refugees are people fleeing armed conflicts or persecution. They are recognised as such in their host country on the basis of a well-founded fear of persecution for reasons of race, religion, nationality, politics or membership of a particular social group.
Asylum seekers are people who claim to be refugees but haven’t been recognised as such yet. Currently, they must apply for protection in the first EU country they enter. They receive refugee status or a different form of international protection only once a positive decision has been made by national authorities. This means that not every asylum seeker will be recognised as a refugee.
Migrants, on the other hand, generally choose to move not because of a direct threat or persecution but mainly to improve their life: finding work, seeking better education, reuniting with family. Refugees are protected by international law, specifically the 1951 Refugee Convention, whereas national governments handle migrants under their own immigration laws and processes.
Human Rights influences on the Refugee Convention
The impact of the Universal Declaration of Human Rights on the Refugee Convention can be detected here:
1] Article 13 of the UDHR reads: “Everyone has the right of freedom of movement and residence within the borders of each state.” The second clause of the Article states: “Everyone has the right to leave any country, including his own, and to return to his country.”
2] Article 14 encodes “the right to asylum”: “Everyone has the right to seek and enjoy in other countries asylum from persecution.” The second clause places certain limitations by stipulating that “this right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts to the contrary to the purposes and principles of the United Nations.”
3] Article 15 seeks to guarantee against “denaturalization” or “loss of citizenship” by stating that “everyone has the right to a nationality,” and further, “no one shall be arbitrarily deprived of his nationality nor be denied the right to change his nationality.” This is reiterated in Article 34 of the 1951 Refugee Convention.
David Wardrop, 5 July 2023
PERSPECTIVES 