Who is a refugee? This question has no easy answers. In the public imagination, refugees are people forcibly displaced by events beyond their control: war, ethnic persecution, natural disasters. Lacking the protection of their own government, refugees are entitled to its substitute by a third party.
The core international refugee instruments, the United Nations (UN) Convention on the Status of Refugees of 1951 and its 1967 Protocol, establish criteria for refugee status and set out the rights and benefits that states must accord refugees. They define “refugees” as persons who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, are outside the country of their nationality and are unable or, owing to such fear, are unwilling to avail themselves of the protection of that country. For stateless persons, the same criteria apply with regard to the country of former habitual residence. Unlike an internally displaced person, a refugee has crossed an international border to a third state.
This “global” refugee concept is both broader and narrower than is commonly assumed. On the one hand, despite its specific language, it covers most displacement that results from armed conflict and serious public disorder ( UNHCR 2016). One would be hard pressed to think of many conflicts where the violence has no relationship to ethnicity, religion, political opinion, or race. The concept of an “imputed political opinion,” for example, can apply to entire communities presumed to support a certain faction. The Convention definition also covers cases of socio-economic deprivation when the country of origin fails to ensure access to basic rights on a non-discriminatory basis (Foster 2007).
On the other hand, the 1951 Convention excludes people who face truly indiscriminate threats: shelling, food insecurity, or the collapse of basic facilities. This is where regional regimes of refugee protection come to the rescue–at least for refugees in those regions. The 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa specifically covers people fleeing from “external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of (their) country of origin or nationality” ( OAU 1969). In Latin America, the Cartagena Declaration on Refugees (1984) includes refugees fleeing from “generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order.” This “soft law” definition is the basis for refugee status in many states in the region. In Europe, the Qualification Directive of the Common European Asylum System extends protection to persons fleeing indiscriminate violence or facing torture, inhuman, or degrading treatment in a third country.
The 1951 Convention also excludes, for the most part, environmental refugees, whether the cause of displacement is a natural disaster or the effects of climate change. Nonetheless, a claim might be recognized if assistance is being withheld or obstructed in a way that marginalizes a specific group.
In an effort to refine the refugee concept, scholars have proposed alternative ways to identify those with the strongest claims to assistance. Aristide Zolberg, Astri Suhrke, and Sergio Aguayo (1989: 33) observe that refugees are persons whose “presence abroad is attributable to a well-founded fear of violence” (including structural violence) and who “can be assisted only abroad, unless conditions change in their country of origin.” The concept of “survival migration” similarly describes those who are “outside their country of origin because of an existential threat for which they have no access to a domestic remedy or resolution” (Betts 2010: 4–5). These definitions, while not legally binding, aim to promote a more effective international response to refugee flows.
The 1951 Convention and regional instruments clarify the rights and obligations that refugees have in their host countries. Most importantly, refugees may not be returned to the place where they face persecution or other similar harms (the principle of non-refoulement). Policies that outsource migration control, by paying third countries and companies to prevent onward migration or by erecting physical borders, for example, may violate this and other core principles, including the right to seek asylum (UDHR, article 14), and the right to leave any country, including one’s own (UDHR, article 13).
For logistical, political, and security reasons, humanitarian management of large refugee flows is typically organized through camps run by the host state, the UN (in particular the UN High Commissioner for Refugees and the UN Relief and Works Agency for Palestine Refugees in the Near East), other organizations, or a combination of the above. To a lesser degree, the humanitarian response has supported self-settlement of refugees, for example by channeling assistance to the local receiving community.
References
Betts, A. (2010) Survival Migration: Failed Governance and the Crisis of Displacement. Cornell University Press.
Cartagena Declaration on Refugees (1984) www.oas.org.
Foster, M. (2007) International Refugee Law and Socio-Economic Rights: Refuge from Deprivation. Cambridge University Press.
OAU (Organization of African Unity) (1969) Convention Governing the Specific Aspects of Refugee Problems in Africa. www.unhcr.org.
UDHR (Universal Declaration of Human Rights) (1948) www.un.org.
UNHCR (United Nations High Commissioner for Refugees) (2016) Guidelines on International Protection No. 12: Claims for Refugee Status related to Situations of Armed Conflict and Violence under Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees and the Regional Refugee Definitions.
Zolberg, A. , Suhrke, A. , Aguayo, S. (1989) Escape from Violence: Conflict and the Refugee Crisis in the Developing World. Oxford University Press.