James5

If you're new here, you may want to subscribe to my RSS feed or to email alerts. Thanks for visiting!

This is the second post in an on-going series on Refugee Law, following what I’m learning in Refugee Law with Dr Michelle Foster. To read the full series go here.

So thanks to the Starbucks detour I haven’t been able to Law-blog for a week. Here’s what was going to go up last week. For a fantastic overview of the state of international refugee law I have to recommend James Hathaway’s recent article, Why Refugee Law Still Matters, in the Melbourne Journal of International Law. It’s easy reading and provides a good introduction to some of the issues of refugees and recommendations for both sides. It’s main strength is clearing up some the rhetoric around refugee issues, including how refugees are defined.

So, how do we know if someone is a refugee? There are a few definitions out there but the most accepted one is from the 1951 Convention relating to the Status of Refugees art 2 of which defines refugees as someone who is persecuted “for reasons of race, religion, nationality, membership of a particular social group or political opinion”, and has left their country. Originally the Convention only covered events occurring before 1951 in Europe but subsequent Protocol got rid of those limitations. The second bit of the test is important because it effectively removes the 25 million internally displaced people from the purvey of the Convention. Though the Convention is one of the most widely accepted treaties in the world, and the words appear relatively clear, obviously there has been and is a lot of debate over exactly what they mean. The Convention was formulated after World War II so there’s a lot of historical and political reasons for it’s requirements and modern interpretation has had to significantly expand the range of meaning of some of the words used to encapsulate currently recognised persecuted groups. For example, woman and children are now recognised as “social groups” by many nations for the purposes of the Convention and thus can be considered refugees.

While the general definition above is the jus cogens, or customary principle, of international law - that is it applies to basically everyone - regional agreements, such as the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa and Latin America’s Cartagena Protocol, provide expanded definitions that apply only to those countries party to the agreement. The OAU’s Convention is especially interesting, produced during a period of decolonisation (the 1960s) it provides a much broader definition of refugee including people fleeing from “external aggression, occupation [and] foreign domination“ - clear references to Africa’s colonial history. These expanded definitions have not been accepted in the wider international community, but provide interesting insight into the differing standards of nations and regions and maybe even potential future developments for international refugee law.

That said, it is highly unlikely a more liberal refugee convention could be negotiated today, which is why it is not often that refugee advocates argue for a new treaty but rather work within the existing wording of the Convention to achieve protection. Especially with the rise of international terrorism, governments have become increasingly restrictive in their interpretation and application of the Convention and more liberal in finding exceptions (to be covered in a future post) to the protection rules. Though the current governing treaty is over 50 years old this doesn’t mean it lacks relevance. Not only is the Convention definition itself open for a wide interpretation but the treaty interpretation itself allows an evolving standard of interpretation that takes account of current developments to some extent. So there certainly is potential to make things work for all those being persecuted under the current definition, if there is political will. If anything is holding back assistance to refugee’s it isn’t the written treaty definitions but rather domestic politics and state sovereignty issues, which always seem to drag down the best intentions of international law.

So that’s a very brief introduction to defining a refugee, in later weeks I’ll hopefully be posting about what duties are owed to a refugee, non-refoulement, exceptions to the Convention’s protection and maybe even more. Many thanks to Dr Michelle Foster for her excellent seminars, it is from her lectures and recommended readings that all this information is coming from.

Popularity: 5% [?]