EVALUATING THE CURRENT INTERNATIONAL LEGAL FRAMEWORK GOVERNING THE STATUS OF REFUGEES IN LIGHT OF CONTEMPORARY REFUGEE CRISES

Citation(2018) 30 SAcLJ 28
Published date01 December 2018
Date01 December 2018

Making the Case for Granting Refugee Status to Persons Fleeing Generalised Violence

Drafted 66 years ago, the Convention Relating to the Status of Refugees (“Convention”) has been and remains the cornerstone of the international refugee law framework as it determines which individuals deserve refugee protection. Yet, in the past two decades, millions of asylum-seekers fleeing violence in various civil wars have arrived at the borders of states, seeking refugee protection, only to be turned away because they do not qualify as refugees. The fate of asylum-seekers fleeing from the conflicts in Afghanistan, Somalia, and Syria are salient instances of this unfortunate reality. Hence, it is pertinent to evaluate the relevance of the international refugee framework in light of modern-day refugee crises. Through examining the context in which the Convention was drafted, this article argues that the Convention continues to be hamstrung by obsolete considerations surrounding refugee crises, which in turn limit its present-day ability to cater to refugee outflows. It seeks to contribute to existing discourse on international refugee law by proposing an expanded definition of “refugees” to include those fleeing generalised violence as a remedy to the weaknesses of the Convention.

We are facing the biggest refugee and displacement crisis of our time. Above all, this is not just a crisis of numbers; it is also a crisis of solidarity.[1]

1 The number of asylum-seekers in the world today, a number that has increased through the years, is 24 million.2 Half of these asylum-seekers originate from Syria, Afghanistan and Somalia,3 countries widely known to be plagued by civil strife or what is more commonly termed “generalised violence”.4 More worryingly, these asylum-seekers are often rejected by receiving states as refugees on the basis that they do not qualify as refugees under the Convention Relating to the Status of Refugees5 (“Convention”). However, as will be seen throughout the course of this article, the Convention is ill-equipped to deal with the types of refugee crises that occur today given its outdated conception of a refugee, which was formulated in the context of the Second World War (“WWII”) and the Cold War. In other words, there is a protection gap for those seeking asylum from generalised violence.

2 This article explores why such a gap exists, why it should be addressed, and how best to address it. Part I of this article analyses the background to the Convention and its subsequent Protocol Relating to the Status of Refugees (“Protocol”),6 which expanded the Convention's scope whilst retaining its definition of a refugee. It also explores the factors moulding the definition of a refugee in the Convention and the reasons for the definition remaining unchanged despite a widening of the Convention's scope. Part II examines how the definition fails to account for the changing nature of international refugee crises, resulting in the lack of protection for those fleeing generalised violence since the 1990s. Part III considers three possible solutions that would extend refugee protection to those fleeing generalised violence, before concluding that an expansion of the Convention's definition is perhaps the most desirable way to achieve protection for these individuals.

Part IV applies the proposed expanded definition to the ongoing Syrian and Boko Haram conflict and evaluates the practical considerations associated with such an expansion, and is also where the concluding remarks reside.

I. Background to the Convention
A. Eurocentricity of the Convention

3 To begin understanding why there are protection gaps in the Convention, one must first turn, briefly, to consider the historical origins of and motivations behind the treaty. After WWII, an estimated 30 million Europeans were forcibly displaced from their home countries.7 Although some managed to return safely to their home countries, there were around 11 million Europeans who were still displaced.8 Moreover, there was a continuous stream of asylum-seekers fleeing the communist regimes in Eastern Europe during that period as a result of the Cold War.9 This was the context in which the Convention was developed – it was conceived as a response to the growing problem of displaced persons within Europe in the aftermath of earth-shaking global events.10

4 Accordingly, the definition of a refugee in the Convention, being one who has a “well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion”,11 was particularly appropriate for the aforementioned

context. The displacement generated by WWII was primarily caused by the Holocaust, where Jews fled en masse because the Nazi government actively sought to exterminate them on the basis of their Jewish race and religion.12 As for the Cold War, political dissidents were brutally repressed by communist regimes such as those in Russia, Poland and Yugoslavia. 13 The underlying similarity between the Jews and political dissidents was that their governments targeted them for characteristics fundamental to their identities, be it their race or political opinions.

5 In response, the office of the UN High Commissioner for Refugees (“UNHCR”) was established and the Convention was adopted to aid the repatriation and resettlement of displaced persons due to the aforementioned circumstances.14 The Eurocentric considerations and experiences that formed the impetus of the Convention are reflected in the Convention's original scope, which specifically mentioned its coverage over Europe and events occurring before 1951.15 Notably, during the drafting of the Convention, states such as India, Mexico and Pakistan expressed concerns that the proposed definition did not adequately recognise displaced persons emerging from other situations, especially those common to their countries.16 However, these concerns

were dismissed and overruled by European states.17 As a result, many states, especially those in Asia, boycotted the Convention.18
B. Factors that influenced the Convention to become an international instrument

6 The situation improved through the adoption of the Protocol, which supplemented the Convention. By removing the temporal and geographical limitations of the Convention, the Protocol enabled the Convention to address refugee situations occurring beyond Europe. Precipitating this shift was the formation of newly independent African states in the 1950s–1960s.19 Colonial empires were pulling out of Africa, leading to power struggles in the region as various factions fought for power and authority. This instability generated conflicts and violence, resulting in people fleeing their home countries and seeking refuge in other states.20 However, UNHCR's mandate could not extend beyond Europe to these African states. Many of these African states were not party to the Convention in large part because of its exclusive focus on Europe,21 and UNHCR's mandate was supported only by the Convention which obligated states parties to co-operate with UNHCR.22 Further, the African states were in the process of formulating a regional framework to deal with the issue of asylum-seekers.23 This new framework had the

potential to render both the Convention and UNHCR ineffective and irrelevant, since it might adopt a different definition of refugees.24

7 Hence, UNHCR recommended the adoption of the Protocol25 to incentivise newly independent African states to become parties to the international refugee framework.26 Although mostly catalysed by the events in Africa, this move was also motivated by UNHCR's recognition of the need to engage with other continents, such as Asia, for which it was anticipated could experience refugee outflows in the future.27 Adopting the Protocol would expand the scope of the Convention and reinforce its role as the cornerstone of the international refugee framework. However, the Protocol did not amend the definition of a refugee in any way, and the definition remains the same even today.

II. Failure of the Convention and its Protocol to cater to evolving international refugee crises
A. Changing nature of international refugee crises

8 The decision to broaden the refugee framework to address international outflows of asylum-seekers coincided with the growing recognition of universal human rights – each person is entitled to rights regardless of where they are from – and concomitant doubts about the limits of state sovereignty, which were often invoked as a shield against the expansion of human rights.28 Extending the scope of refugee

protection was consistent with the growing legitimacy of human rights as international refugee law is essentially about safeguarding vulnerable persons who do not have a state they can reside in safely. Despite these good intentions, the mistake was in expanding the Convention's scope without contemplating the types of crises which were likely to arise given the varying socio-political contexts of other regions.29 In effect, the Protocol applied a Eurocentric approach to a Eurocentric problem to the world and continued to ignore what could have been appreciated as early as when the Convention was first drafted.30

9 Specifically, the focus on persecution based on the five Convention grounds, though eminently sensible within the European context in the 1950s, was and continues to be inadequate in dealing with the geopolitical situations of other regions and with contemporary refugee crises given the changing nature of conflicts. Such a focus was initially effective in dealing with refugee crises arising from WWII and the Cold War in Europe. For example, Czech refugees who fled Soviet repression of the nationalist uprising in 196831 received refugee protection since the Convention was envisioned to encompass those fleeing from the Soviet Union due to political persecution. However, in other regions...

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