... of international legal instruments dealing with refugees a necessity, and thus it was ... International Refugee Organization (IRO)2 was plagued by this conflict, and at the ...... GOODWIN-GILL, G.S., 1989: Who is a refugee? Notes for remarks ... 256-266. PLENDER, R., 1988: International migration law (revised 2nd edition).
Faculteit der Economische Wetenschappen en Econometrie
SERIE RESEARCH MEMORANDA TOWARDS A DEFINITION OF REFUGEES
Tom Kuhlman Researchmemorandum 1990-36 augustus 1990
vrije Universiteit
amsterdam
TOWARDS A DEFINITION OF REFUGEES
Tom Kuhlman
Tom Kuhlman Faculteit der Economische schappen en Econometrie Vakgroep Ontwikkeüngs- en Agrarische Economie Vrije Universiteit Amsterdam
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opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality or being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it (United Nations, 1951). x The purpose of the Convention was to provide a legal framework for dealing with the refugee problem in Europe which had existed since World War 1 but had become particularly acute after 1945. Refugees are of all times and places, of course. Throughout history people have driven their fellow human beings into flight: invaders displacing the native population in order to occupy its land, civilians fleeing a combat zone (usually temporarily), or a defeated pretender for the throne going into exile with his closest followers. However, mass flight of citizens from their own state for a prolonged period has been a comparatively rare phenomenon, and subject to two conditions: wholesale persecution of particular groups, and a road of escape. The former condition was rare in ancient states, which were seldom racially exclusive or religiously intolerant; the latter condition - which is emphasized by Zolberg c.s. (1989: 6-7) - existed generally only for those who were near a border or who had the means to travel long distances. Both conditions are coramon exist in the modern nation-state: the exclusivity of belonging to a nation leads easily to the persecution of groups that do not fit into the national identity; and the improvement of transport has made it easier to travel longer distances. Hence the rise of the nation-state (since the late Middle Ages in Europe) has contributed significantly to the phenomenon of refugees. Whereas escaping from one's country might be difficult, finding another country to live in was not. Refugees were freely admitted to other countries, and in the case of a country hostile to the government from which they fled (which with the perennial conflicts between states was not hard to find) they would often be welcomed. While there were occasional rumblings about too many foreigners coming in, border controls on movements of persons were not usual. Nor were such controls deemed to be lawful: the consensus among jurists was that while a government could exclude specific persons from its territory, it had no right to stop people entering a country on lawful business. In other words, anyone could enter undisturbed unless he was expressly banned - the reverse of today's practice where a border can be crossed only with the express permission of the authorities. In the nineteenth century, this doctrine was further strengthened by liberalism, which favoured the uninhibited movement of goods, capital and persons - with a consistency that has become less common among present-day liberals (cf. Plender, 1988: 62-70). However, towards the end of the century opinion and practice were changing: international differences in wealth were sharpening and at the same time becoming more visible - leading to emigration from poor to rich areas and to jealousies against immigrants among the indigenous population who did not want to see its newly-acquired prosperity jeopardized; improved transport made it ever easier for people to migrate over long distances; and the increased control of states over their citizens raised questions relating to the need for controlling immigration and to the legal position of non-citizens.
2
The tendency to restrict the entry of foreigners reached its zenith during World War I, when the warring states imposed wholesale controls on persons crossing borders. After the war, these controls were not relaxed but maintained and taken over also by other states. They have remained with us to the present day. This brought refugees into an awkward position: often unable to obtain a passport, they had to cross the border illegally; in the country of asylum they had no legal status, nor could they get one since they were unable to obtain the assistance of their home country's diplomatic representatives. But the host country had a problem too: without papers proving their nationality they could not be sent back to their country of origin, nor to any other country. It was this predicament that made the creation of international legal instruments dealing with refugees a necessity, and thus it was that the first High Commissioner for Refugees was appointed under the umbrella of the League of Nations in 1921. During the interwar years he and other League officials dealt with refugees from communism in Russia; with the 'population exchanges' in the Balkans in order to bring the ethnic map there more in accordance with the political map; and with the refugees from fascist Germany, Italy and Spain. However, these waves sank into insignificance compared to the mass dislocations during and after the Second World War: prisoners of war, survivors of concentration camps, population groups deported by the Germans and the Soviets, the slave labourers in Germany, and the 14 million Germans who were driven out of their homelands in Eastern Europe. The search for solutions soon came to be entangled in the web of the Cold War: the Soviet Union wanted all refugees (with the exception of the displaced Germans) to be returned to their homes, whereas the Western countries insisted that those who did not want to return should have the right to remain in exile. This was, of course, because many were refugees from the Soviet Union and the other Communist-ruled countries in Europe. The agency that had been set up to solve the post-war refugee problem, the International Refugee Organization (IRO)2 was plagued by this conflict, and at the instigation of the Western powers a new organization was set up which was to be based on a recognition of the right to asylum for those who fled from intolerable oppression; the thought behind it was, of course, that such oppression was to be found in the East and that refugees were people who fled from Communism. Those who did so were to be welcomed and could be used as a propaganda weapon. Thus was the United Nations High Commissioner for Refugees founded and the Convention signed in 1951. Understandably, the Soviet Union and its allies refused to participate.3 The Convention was clearly designed to deal with European refugees in the wake of the war. A clause even stated that it applied only to those uprooted as a result of events in Europe prior to the date of the Convention (Gordenker, 1987: 38). Even before the Convention, mass flows of refugees had occurred in what would soon be called the Third World - Hindus and Moslems fleeing Pakistan and India, respectively, and Arabs fleeing from Israël - but these were cons.idered as outside the scope of the Convention. Soon, however, the High Commissioner became involved in assisting refugees outside Europe: Mainland Chinese in Hong Kong and Algerians fleeing their country during its war of independence were the first cases (Coles, 1989: 376), and more foliowed in the 1960s. The restrictions in the
3
Convention had become an anomaly, and in 1967 they were removed by a Protocol which was signed by most of the 1951 signatories (United Nations, 1967). Even so, the scope of both the Convention and the Protocol remains restricted to those subject to persecution as individuals. People fleeing from a war zone to escape the general violence but not themselves singled out for persecution by their government are not recognized as refugees. Nor are those in distress because natural or man-made disasters have destroyed their livelihood - the so-called economie refugees. The above formula supposedly decides who is a refugee, not only for the purpose of assistance by the United Nations High Commissioner for Refugees but for all countries that are party to the Convention. However, its application presents some difficulties and ambivalences which has led Western countries to distinguish between 'asylum-seekers' (i.e., those who claim that the above definition applies to them) and 'refugees' (those of whom the government of the host country has decided that they satisfy the criteria). These difficulties revolve around the meaning of the term persecution. The 1951 Convention was intended to provide a guarantee to refugees; but as has been the fate of other international treaties, its provisions have been interpreted by the signatories in most diverse ways - today a person may be considered a refugee in one country and not in another. Moreover, these interpretations change over time: current practices in Western countries are designed to keep out refugees from the Third World as much as possible and are therefore much more restrictive than they were two decades ago. With today's interpretations of the term 'persecution', the majority of refugees from Eastern Europe in the 1950s and 1960s would not have been accepted as such. Although the 1951 definition could well be interpreted as meaning that wherever human rights are grossly violated the individual's fear of persecution should be regarded as well-founded, this interpretation is not accepted in any Western country today.*
Third-World
refugees
These legal definitions are obviously of great political importance, especially as applied in the rich countries who try to recognize as few people as possible as refugees. There, manageable numbers of refugees cross well-guarded borders into an ordered society where official registration is kept for all people. A person desirous of asylum will have to be screened in order to see whether he qualifies for it according to pre-established criteria. In developing countries, notably in Africa, the situation is quite different. Borders are long and loosely guarded. Many people travel across them on foot, evading the benefit of immigration and customs formalities. In most cases, political boundaries are a comparatively recent phenomenon to them, not rooted in history as in Europe but introduced by alien powers. More often than not, people on either side belong to the same ethnic group. Civil registration covers only part of the population, and it is difficult to say who is a national and who is an alien. Sometimes even the people concerned cannot say: they may follow a nomadic way of life which takes them now on one side of the border, now on the other side. Under such conditions, any policy on the admission of refugees is likely to have little practical significance.
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called displacement (e.g., forced deportation of ethnic minorities). The coolie trade of the 19th century is impelled innovating migration, while flight is impelled conservative migration.
Figure 3.1. Petersen's typology of migration Migratory force
Relation
Ecological push
Nature and man
Class of migration
Primitive
Type of migration Conservative
Innovating
Wandering
Flight from land
Ranging State (or equiv.) and man
Migration policy
Man and norms Collective behaviour
Source:
Forced
Displacement
SIave trade
Impelled
Flight
Coolie trade
Higher aspirations
F ree
Group
Pioneer
Social momentum
Mass
Settlement
Urbanization
Petersen, 1958: 266.
A somewhat different conceptualization is that of Eichenbaum (1975). He says there are two types of decisions to be made in migration: the decision to leave the place of origin, and the choice of where to go. Furthermore, there are also two categories of decision-makers: individuals and social colleetivities such as the state. On the basis of these two criteria Eichenbaum proposes a fourfold typology of migration: (1) individuals who make both types of decisions themselves are labelled migrants; (2) those who are forced on both sides are slaves; (3) those who move voluntarily but do not choose their new residence are termed allocatees; whereas (4) those who leave under force but choose their destination are refugees.8
Involuntary
migration
Standing (op. cit.: 44) also regards refugees as a subtype of involuntary migrants. But what exactly is involuntary? Standing addresses this problem, saying that the boundary line between voluntary and involuntary is blurred. He suggests that one can use an 'inclusion approach': voluntary means that the individual makes the decision to move; or an 'exclusion approach': identifying several types of involuntary moves - slaves, allocatees (indentured or debt-bonded labour), and refugees (Ibid.). However, this does not really address the problem of free will in migration decisions. As Petersen recognizes by his use of the term 'impelled', it is usually not sheer compulsion that pushes people into flight; except in cases of deportation, there is still some choice as to whether to flee or to stay put. Indeed, while 'involuntary' migration usually contains an element of volition, 'voluntary' migration is sometimes so strongly influenced by forces external to the individual that one may wonder how voluntary it really is. This has led some Marxist theorists to hold that the distinction is artificial. For instance,
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