Asylum is a human right
8. The world has a very short memory. In the aftermath of World War II, most countries agreed to protect refugees through the 1951 Refugee Convention, and through UN agencies like the UNHCR.
Barbed wire fences and chronic underfunding have left that vision of a better world in tatters. By ignoring the warning signs, world leaders have allowed a huge, global humanitarian crisis to unfold. Ultimately, it will be resolved by ending the conflicts and persecution that forced people to flee in the first place.
But no one knows when that will be. Meanwhile, we need radical solutions, visionary leadership and global co-operation on a scale not seen for 70 years. That involves setting up strong refugee systems: allowing people to apply for asylum, treating their refugee claims fairly, resettling the most vulnerable of all, and providing basics like education and healthcare.
None of these eight solutions are impossible to achieve, if politicians listen to the millions of people saying “I welcome refugees”, and put solidarity and compassion above petty wrangling over who should host a few thousand refugees.
The term "refugee," like the people it describes, can cover a lot of ground. Politicians, aid workers, academics, and the press often approach the word from different angles, and with varying ideas of the rights, roles, and responsibilities the term implies. Such divergent views fuel the global debate about how best to manage and protect refugees, who by some counts number over 13 million.
The complexity of the problem, as well as the many and vocal interest groups concerned, makes it difficult to sort out global refugee issues without answering two main questions. First, who qualifies as a refugee? Second, what are the most pressing issues facing them and the many institutions with which they interact? The most accurate answers can be had by zeroing in on the legal definition of "refugee," then backing away for a broader look at those whom the definition encompasses, and the issues connected to their situation.
Who Is a Refugee?
Understanding the problems confronting refugees — and those striving to protect them — depends on grasping precise legal definitions. These definitions determine who qualifies for the protections, both legal and physical, that national and international bodies have developed to deal with people pushed across borders by conflict and persecution. They also play a critical role in efforts to collect and interpret refugee statistics.
The core definition of a "refugee" is contained in the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol Relating to the Status of Refugees, which define a refugee as an individual who: "owing to a 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 — unwilling to avail himself of the protection of that country."
"Understanding the problems confronting refugees - and those striving to protect them - depends on grasping precise legal definitions."
Recognizing that this definition of so-called "statutory refugees" did not cover situations of mass flight from war, regional bodies such as the Organization for African Unity developed agreements like the OAU Convention of 1969. These expanded the definition of refugees to include not only individuals subject to persecution, but also every person who — in the words of the OAU Convention — "owing to external aggression, occupation, foreign domination, or events seriously disturbing the public order...is compelled to leave...to seek refuge in another place outside his country of origin or nationality." The Cartagena Declaration, adopted in 1984 by a group of Latin American states, added massive human rights violations to this list. Though it is not a treaty, the declaration carries considerable moral force in the region and beyond.
On this basis, people who move as a group across international boundaries to escape war or civil conflict are also generally recognized as refugees on a group or prima facie basis in Africa and Latin America, and frequently in Asia and the Middle East as well. Poorer countries in these regions use the broader definition of refugees in part because they lack the administrative capacity to determine whether or not each individual meets the criteria for refugee status. Those in mass flight in industrial regions, however, are not automatically recognized as refugees, and instead may be subject to "individual status determination" using the narrower statutory (Convention) definition of a refugee.
The concept of refugees as people fleeing persecution is central to efforts to aid and protect them. However, debates exist about what constitutes "persecution." Some parties ask whether the persecution must be state-sponsored and focused on individuals, or whether widespread social practices and attitudes also qualify as grounds for persecution. Further arguments surround what constitutes a human rights abuse and what is a "cultural practice."
Such questions arise particularly in gender-related cases; for example, women subjected to female genital cutting, women under the Taliban regime whose education was blocked, or gays and lesbians from countries where their sexual orientation is prohibited by law and subject to severe punishment. Gender-based factors have, on a case-by-case basis, been recognized as grounds for granting asylum and refugee status to individuals, but there remains no international consensus or standard for doing so.
Who Is Not a Refugee?
In its narrow usage, the term "refugee" does not apply to a number of groups. This may have profound implications for everything from their mobility to their survival.
The term "people in refugee-like situations" is used to describe those — such as the Bedouin in Kuwait or Iraq, and Burmese in Thailand or Malaysia — who are stateless or denied the protection of the government in their countries of citizenship or habitual residence, but who have not been recognized as refugees. Centuries or even decades ago, when borders were less secure or mapped out, their lack of status meant less. In an era when "security" is of mounting importance, however, many such people find their situation increasingly precarious. Two conventions on statelessness supervised by the United Nations High Commissioner for Refugees (UNHCR) have done little to alleviate their plight.
The term "internally displaced people" (IDPs) is used in reference to those who may have moved for the same reasons as refugees but have not crossed an international boundary. There is no single agency charged with looking out for IDPs, but upon request, the UNHCR may take responsibility for them, in which case they are included in statistics on "people of concern to UNHCR."
The international legal definition of the term "refugee" also excludes those who move not as a result of persecution, but as a consequence of natural disasters (such as drought, floods, or earthquakes), environmental factors, or famine. They are excluded even though they may need international protection and assistance because their home country cannot or will not provide these things. The terms "forced migrants" or "forced displacement" are used to describe people in these circumstances.
Similarly, the term "refugees" also excludes people who move primarily for economic reasons. Even when they are leaving conditions of extreme poverty, they fall under the rubric of "economic migrants."
One final group is "asylum seekers." These are persons who have arrived in a country seeking to be recognized as refugees. If, when adjudicated, their claim is found to be legitimate, they are granted refugee status. If the circumstances of their movement are judged not to conform to the definition of a refugee, their claim is denied and they become "rejected asylum seekers."
How Many Refugees, and Where?
Defining who is a refugee makes it possible to estimate how many such people exist, and determine where they are living. Such data are crucial to carefully planning programs of relief and protection.
There are two principle sources of statistics on refugees and related populations. The first are compiled by UNHCR, published annually in The State of the World's Refugees and periodically in special reports. The second are prepared by the U.S. Committee for Refugees, a nongovernmental organization (NGO) that advocates for refugees, and published annually in the World Refugee Survey. The major differences between the two are that UNHCR data derive largely from government sources, whereas the U.S. Committee for Refugees uses a variety of data sources and supplements these with its own first-hand investigations.
The UNHCR and the U.S. Committee also aggregate and present their data differently. For example, at the end of 2000 (the most recent date for which annual statistics are available) the U.S. Committee reported the combined total of refugees and asylum seekers worldwide to be 14.5 million; the comparable figure based on UNHCR data was slightly over 13 million, with 12.2 million of those being refugees. Both organizations reported an increase of about 400,000 refugees and asylum seekers over 1999 levels. All "persons of concern to UNHCR" (including not only refugees and asylum seekers but also returned refugees, internally displaced, returned IDPs, and others) numbered 21.1 million at the end of 2000, a two percent increase over 1999 levels that resulted largely from UNHCR's involvement with the internally displaced in Angola, Colombia, and Eritrea.
It should be noted that "persons of concern to UNHCR" and UNHCR statistics do not include an estimated four million Palestinian refugees, since — in the UN system — they are the responsibility of and counted by the United Nations Relief and Works Agency. Palestinians are, however, counted in the U.S. Committee for Refugees' statistics.
As for their geographical distribution, of the 21.1 million persons of concern to UNHCR, the agency in 2000 estimated that 40 percent were in Asia, nearly 27 percent in Europe, slightly over 25 percent in Africa, five percent in North America, just under three percent in Latin America and the Caribbean, and less than one percent in Oceania. The five principal source countries in 2000 were Afghanistan, Burundi, Iraq, Sudan, and Bosnia & Herzegovina. The five major destination countries were Pakistan, Iran, Germany, Tanzania, and the United States, that is, countries in close proximity to current refugee situations or (in the case of the U.S.) willing to accept refugees for resettlement.
"Arguably, the principal and most enduring international policy issue is protection..."
Given the dimensions of the problem described above, it is no surprise that national governments and global bodies are engaged in an ongoing discussion of international policy issues having to do with refugees and related populations. These discussions include:
Legal protections: Arguably, the principal and most enduring international policy issue is protection, a matter of concern for refugees, asylum seekers, and IDPs alike. The "responsibility to protect" is grounded in the principle that sovereign states have the primary obligation to protect their citizens against harm, but when states are unable or unwilling to do so, that responsibility falls to the international community. Legally, the responsibility to protect is upheld by obligations inherent in the concept of sovereignty, by the UN Security Council's responsibility for maintenance of international peace and security under Article 24 of the UN Charter, and by legal obligations embodied in specific declarations, covenants, treaties, international humanitarian law, and national law. Protection is also the core mandate of UNHCR and the fundamental principle by which other policy issues and options are guided. It has also been reaffirmed by the findings of the United Nation's Commission on Sovereignty and Intervention.
The issues raised by the responsibility to protect are numerous. At what point does the international community determine that a given state has failed to exercise its obligation to protect, and that international intervention is warranted? What threshold — in terms of loss of life, ethnic cleansing, or others harm demanding protection — must be reached before international military intervention is justified? These have been dilemmas in cases where military intervention ultimately did occur (with varying degrees of success), as in northern Iraq in the Gulf War of 1991-1992, Somalia in 1992-1993, Bosnia in 1995, or Kosovo in 1999, and where it did not, as in Rwanda in 1994.
Providing humanitarian aid: For humanitarian assistance agencies, a dilemma that has become particularly salient in recent years is how best to provide protection and assistance under conditions of conflict. The challenge arises especially when humanitarian assistance is diverted to fuel conflict, when UNHCR and NGO staff are themselves targeted by warring parties, or both.
Under such circumstances, international agencies face tough decisions: Do they call for international military involvement to provide security for protection and assistance operations, and thereby risk violating the principles of neutrality and impartiality under which they seek to function? What if the only way to protect people is to move them away from areas of conflict? Are agencies then complicit in "ethnic cleansing"? Humanitarian agencies struggled with these issues in Bosnia. When do international agencies choose to pull out of a conflict situation (as some did from Liberia), and how do they balance their responsibilities to protect and assist refugees and displaced populations against concerns that their presence may prolong a conflict, let alone jeopardize the safety of their own staff?
Handling combatants: Another debate on the world stage is the proper response by aid agencies when the populations they seek to protect in refugee camps include combatants or war criminals. People in refugee camps or self-settled refugee communities are often thought of as being exclusively vulnerable civilians — and, under various international legal instruments, those who engage in armed activities are not to be accorded refugee status. However, in some cases camps do contain armed combatants (so-called "refugee warriors") who may seek to continue fighting opposition forces in their home or host countries (as in the case of Rwandans in the Democratic Republic of the Congo) or who are encouraged by other states to be reservoirs of conflict (as in the case of Afghan mujahedeen in Pakistan, who were armed by Pakistan, Saudi Arabia, China, and the U.S. to fight the Soviet occupation of Afghanistan).
Mass flight: Another international policy issue becomes especially prominent when developed countries are faced with prospects of mass exodus from conflicts in nearby countries. Most Western countries do not subscribe to the expanded "refugee" definition of the OAU Convention or Cartagena Declaration, and are reluctant to recognize as refugees those in mass flight from generalized conflict. However, humanitarian considerations, along with factors such as domestic political pressures to respond, a sense of shared responsibility for the conflicts in question, the desire for orderly population movements, or the reluctance of neighboring countries to receive mass influxes, can lead to the establishment of one of several forms of temporary protection schemes.
These can include the granting of "temporary protected status" in host countries (also known in Europe as "B-status"), or provisions for "extended leave to remain." Under such arrangements, temporary residence permits are issued to those in flight, without the accordance of full Convention standards or refugee status. Bosnians and Kosovars in Western Europe and Salvadorans in the U.S. are among those who have received some form of temporary protected status.
A number of international policy issues surround temporary protection: First, in the view of some observers, the use of temporary protection has been adopted by some states as a way to avoid granting more permanent asylum and refugee status. Second, the decision to grant such status is on a situation-by-situation basis and may be accompanied by extended and heated negotiations over "burden sharing" — that is, the equitable distribution of those in flight among prospective host countries. Burden sharing has been a special concern of Germany, which had 320,000 to 350,000 (or approximately half) of the Bosnians who sought protection in Western Europe during the 1992-1996 war.
Non-refoulement: In order for states to be willing to grant temporary protection, there needs to be some reasonable expectation that temporary protection is indeed temporary. But debate is underway about when, and under what conditions, it is acceptable and morally principled for host states to return those to whom they have granted temporary protection. In the case of Bosnians in Germany, for example, the original deal struck with UNHCR stipulated that, in exchange for being granted temporary protection in Germany, Bosnians would be returned "in dignity and safety."
However, then the questions arise: What constitutes "in dignity and safety"? What circumstances have to exist in the country or origin? Can people be returned to any safe place, or must they be able to return to the homes or at least the communities in which they lived prior to flight? Is the decision to return the sole prerogative of the host state? Or is the individual's voluntary willingness to return the deciding factor? Under German law, people who remain in the country for five years are eligible for permanent residence, so Germany has exerted great pressure on Bosnians to return "voluntarily;" about 225,000 have done so and another 7,000 have been resettled in third countries. But Germany has also forcibly repatriated over 8,000 Bosnians, thereby bringing upon itself protests and condemnation by UNHCR and other refugee advocacy groups.
These protests are rooted in the principle of "non-refoulement," which is spelled out in the 1951 Refugee Convention, which states that "No Contracting State shall expel or return ("refouler") 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." Sometimes "refoulement" becomes an international policy issue when host governments want to close camps on their territories and return refugees to countries the host governments deem safe — Vietnamese in Hong Kong and Rwandans in Tanzania are among the refugee populations to have faced this situation. In other cases, a de facto host country may refuse to recognize those fleeing to its territory as refugees. This is China's current stance viz á viz North Koreans, who China argues are economic migrants. The round-up and forcible return of North Koreans is characterized by refugee advocates as a violation of the principle of non-refoulement.
Understanding efforts to protect refugees around the world depends on grasping many issues, from the meaning of "protection," to the complexities of aid distribution. This understanding requires thinking through the actions (and motivations) of governments, aid workers, academics, and the media. Complicated as they are, attempts to shed light on all of these topics are vital — to the hands-on work ahead, to achieving public understanding of these problems, and to formulating better policies.