Why the Resistance to Refugee Law?

Written by May 23, 2014 0 Comments

Why do so many states resist compliance with the Refugee Convention?  Indeed, why is it that some NGOs working with refugees in the field — and yes, even the UNHCR itself — often act in ways that are out of sync with the requirements of international refugee law?

One view is that refugee law is anachronistic—that the Refugee Convention no longer effects a sensible compromise between the needs of involuntary expatriates and those of the asylum states to which they flee.  Critics of the Refugee Convention argue for a shift to a regime that limits relief to those genuinely in need of protection; that ensures that the legitimate safety and security needs of host communities are front and center; that balances entitlements with responsibilities; and perhaps most importantly, that does not amount to a blank check, potentially impoverishing normally already struggling host countries (more than 80% of the world’s refugees are in the global South).

The irony is that such concerns are at the core of the Refugee Convention itself.  The definition of a refugee is flexible, but appropriately demanding:  the Convention’s definition enfranchises only those whose home country has failed to ensure their most basic interests and who are now within the protective competence of the international community.  It requires all states to deny refugee status to even at-risk persons who are fugitives from justice, who have committed serious international crimes, or who have committed acts contrary to the principles and purposes of the UN.  Indeed, it goes further, authorizing the removal of even genuine refugees shown to pose a serious threat to safety or security.  Refugees do receive rights, but only incrementally:  no more than truly basic rights – such as protection against refoulement, and access to the courts accrue immediately, with more sophisticated rights withheld until greater attachment to the host state occurs (and even then, normally only to the extent that the host country can provide comparable entitlements to its own people).  Refugees are also subject to the usual laws of the receiving state, and can be prosecuted and punished when they breach them.  As the Supreme Court of the United Kingdom recently affirmed,

[T]he Refugee Convention . . . represented a compromise between competing interests.  On the one hand there was the need to ensure humane treatment of the victims of oppression.  On the other there was the wish of sovereign states to maintain control over those seeking entry to their territory . . . .[1]

Most importantly, the premise of the Refugee Convention is not charity, much less a blank check that leads to dependency.  Contrary to the present dominance of mandatory encampment and handouts, the Refugee Convention is firmly committed to promoting refugee self-reliance, as is clear from not only from its internal structure,[2] but from the record of its drafting:

This phase . . . will be characterized by the fact that the refugees will lead an independent life in the countries which have given them shelter.  With the exception of the ‘hard core’ cases, the refugees will no longer be maintained by an international organization as they are at present.  They will be integrated in the economic system of the countries of asylum and will themselves provide for their own needs and for those of their families.[3]

Nor is there any impediment whatever to grafting a meaningful system of international burden and responsibility sharing onto the present Convention.  To the contrary, the treaty’s Preamble calls for just such a mechanism.[4]

Why, then, the resistance to honoring, and building on, refugee law commitments?  Why in particular is it that refugees are so often seen as threats, or at least as drains on resources?  Why is it that the agencies charged with protecting refugees so frequently act in ways that sap them of the ability to meet their own needs, and to be contributors to the states that host them?

To explore these questions, Stanford University’s Freeman Spogli Institute for International Studies convened a group of academics and doctoral students from across the University—including, for example, medicine, economics, architecture, law, and the social sciences, as well as the senior leadership of the non-governmental group, Asylum Access—to meet and engage with leading interlocutors from the world of refugee protection.  The Observations of the Stanford Working Group on Responding to Refugees, which I co-chaired with Dr. Roland Hsu and which are reproduced below, suggest that it may indeed be time to reorient our approach to protecting refugees—in no small measure by rediscovering the Refugee Convention’s commitments to refugee empowerment and self-reliance. (more…)