Continental drift: realigning the humanitarian purpose and practical reality of international refugee law in western states

Photograph by Ben Mills. Rural Ethiopia.

Photograph by Ben Mills. Rural Ethiopia.

BEN MILLS is a human rights advocate and educator. He completed his Masters’ degree at Birkbeck, University of London and has published a number of articles in both academic journals and popular media. His research interests include human rights education, group rights, and refugee protection. He currently works in international development and is based in Wellington, New Zealand.

 

Abstract

The humanitarian principle underpinning international refugee law is that those fleeing harm in their own state are entitled to protection elsewhere. However, the 1951 Convention Relating to the Status of Refugees restricted the legal scope of this principle, and while the 1967 Protocol Relating to the Status of Refugees attempted to bypass some of those restrictions, a chasm between this underlying principle and the scope of international law remains. Furthermore, the practical applications of both instruments in Western states serve to further distance state policy and action from the principle of providing asylum for those desperately seeking it. This article argues that this ever-widening void between the protection of vulnerable people on humanitarian grounds and the reality of refugee law and practice has become unsustainably and harmfully wide in Western states. It will argue that this rift must be corrected, and that the only feasible method to do so is to realign law to reflect current practice. While this approach is certainly morally contentious, it may be the only viable way to preserve the few remaining protections, whilst at the same time making Western states and their populations starkly aware of the unforgiving political lottery which characterizes international refugee protection and which they implicitly endorse.                                          .

Introduction

“The law on free movement rights is a classic illustration of the gulf between the ‘is’ and the ‘ought’. What ‘ought’ to be is very different from what ‘is’ the case.”[1]

In 1950 twenty-six states recognized the need to protect those who were displaced at the end of WWII by ratifying the United Nations Convention Relating to the Status of Refugees (“the Convention”) in 1951. Today, there are 45.2 million forcibly displaced people worldwide[2] and 148 out of a total of 192 United Nations member states have ratified either the Convention or the 1967 Protocol Relating to the Status of Refugees (“the Protocol”).[3] Yet, four in five of those who are forcibly displaced are not protected by either instrument;[4] eleven in twelve of those who are covered do not apply for protection;[5] two in three of those who do apply are rejected;[6] and many of those who are approved are not afforded full protection in Western states. As a result, less than half of one percent of all forcibly displaced people—half of which are under the age of eighteen[7]—receive the protection they need.

A query addressed by a number of scholars, but which remains the political elephant in the room for a number of governments, the UN, and international organizations is the question of the continuing value of the Convention and Protocol. This article adds to those voices, specifically in relation to the application of the Convention and Protocol in Western states. It argues that the evolution of both the legal provisions and the current practical reality of these instruments has rendered the international refugee protection system absurd and detrimental for those fleeing harm, for Western and non-Western states, and for global society alike.

The only feasible way to restore meaning and to preserve the limited protection which currently exists is to realign the legal provisions of international refugee law to existing practice in Western states. This would involve explicitly recognizing the absence of a right to asylum, introducing a structured lottery for those seeking asylum, and establishing quotas for the number of refugees accepted by Western states. This approach will reduce overall harm by improving certainty in refugee determinations, increasing the transparency and sustainability of the international refugee protection system, and acting as a wake-up call to Western states and their populations which increasingly exhibit more restrictive and xenophobic attitudes to the granting of refugee status.

This article will first examine the extent to which the outcome of the Convention negotiations in 1951 matched their underlying humanitarian impetus. It will then discuss the reasoning behind the 1967 Protocol, and the extent to which its provisions narrowed the gap between the humanitarian notion of protecting those fleeing harm and the provisions of international refugee law. This article will then discuss how both the Convention and the Protocol are applied by Western states, both in terms of policy and practice. Finally, it will explain why an approach of realigning legal provision to existing practice in Western states is the only viable solution.

The continuing plight of millions of people who seek protection from harm in Western states which have the capacity but which lack the will to provide it constitutes a reprehensible stain on Western claims of supporting human rights protection and democratic principles. If the yawning abyss between the humanitarian purpose and the existing law and practice of international refugee protection is to somehow be narrowed, or even safely traversed, the first objective must surely be to limit any further divergence.

Convention limitations on refugee protection

At the conclusion of World War II the plight of significant numbers of both refugees and stateless persons scattered across Europe led to sustained calls for an international agreement to protect these groups. The 1951 Convention was explicitly and exclusively concerned with protecting those fleeing persecution in Europe, and only then in respect of events occurring before 1 January 1951. These temporal and geographical limitations on the definition of a refugee were sought by a number of states which did not wish to commit themselves to an ongoing refugee “burden.”[8]

Refugees fleeing persecution in Korea, China, and India were therefore excluded. Palestinians displaced during the creation of the Israeli state were also explicitly excluded, supposedly because they already received protection from a UN agency, and those European refugees who were deemed to have committed serious crimes or to be security threats were also outside the scope of the Convention’s application. Those who were unable to cross an international boundary were also excluded. This last exclusion was profound, and is reflected at least in part in the contemporary landscape: in 2012 the UNHCR cared for 15.5 million internally displaced persons, more than the total number of refugees worldwide.[9]

Indeed, the drafters ignored the fundamental question of access altogether: it was incumbent on those fleeing harm to somehow reach the border of a state potentially willing to provide protection or otherwise be already outside their country of origin. These exclusions were codified in the Convention less than three years after the Universal Declaration of Human Rights (“UDHR”) boldly asserted that human rights were for “all human beings”, “everyone”, and “all”, and proclaimed that “no one” shall be subjected to actions contrary to human rights.[10]These limitations were lamented by some states. France in particular, supported by Mexico, sought the inclusion of a right to asylum, an explicit reference to the UDHR, and agreement from the contracting parties that the Convention should eventually apply to all refugees everywhere.[11] These proposals were eventually rejected on the grounds that those who would be excluded were not in need of protection, as the United States in particular articulated:

“The US delegation had said before, and must say again, that in its opinion all persons in need of protection at the present time were fully covered by the definition provided in Article 1 of the draft Convention.”[12]

The limitations on the scope of the Convention were therefore deliberate and considered: although there was debate and disagreement, the contracting parties eventually agreed to exclude reference to the Convention’s underlying humanitarian purpose.

In addition to category-based exclusions and access difficulties, those fleeing persecution were not to be considered refugees unless their persecution was in some way discriminatory. Thus general persecution suffered as a result of environmental disasters, state disintegration, or even war itself was not sufficient to justify Convention protection.[13] Similarly, the Convention was not intended to protect those who were fleeing poor living conditions including a lack of food, water, shelter, or even violence. As Goodwin-Gill succinctly summarizes:

“The Convention does not deal with the question of admission, and neither does it oblige a State of refuge to accord asylum… The Convention also does not address the question of “causes” of flight, or make provision for prevention; its scope does not include internally displaced persons, and it is not concerned with the better management of international migration.”[14]

What the Convention did establish, albeit in extraordinarily narrow terms, was international recognition that some of those forced to flee from certain harms within their own state are sometimes entitled to apply for protection in other states. This legacy constitutes the premise of the international protection system today.

Initial state policy and practice

Despite the substantive caveats limiting Convention application, the Convention’s refugee criteria were still too wide-ranging for many Western states. Prior to the 1967 Protocol, the Convention had only 50 States Parties, or 41% of UN membership at the time.[15] It took highly industrialised Japan thirty years and South Korea over forty years to accede to the Convention while South Africa only acceded in 1996. Despite its considerable involvement in the drafting stages, the United States has never acceded to the Convention. Of the 148 current States Parties, 53 have made either declarations or reservations upon accession, some of which are considerable. The United Kingdom, for instance, lodged a declaration of almost 800 words which excused the UK from giving full effect to Article 17 paragraph 2(c) (any restrictions on the right to work of refugees shall not apply to those refugees who have one or more children possessing the nationality of the country of residence); Article 24 paragraphs 1(b) and 2 (refugees to receive the same treatment as nationals in respect of social security and compensation for death); and Article 25 (administrative assistance for refugees). Scholars have noted the objections of many states party to the economic and social provisions of the Convention, specifically the provision of social assistance, housing benefits, and the right to work to refugees.[16] The majority of UN member states were not party to the Convention prior to the 1967 Protocol, and of those who were, most delimited the legal application of the Convention.

For those Western states who did sign, the Convention was almost immediately used to justify the defection of those with no greater claim to persecution other than living in a communist state. Hundreds of thousands of people fleeing communist regimes in Hungary, Czechoslovakia, Cuba, and elsewhere were admitted to European and North American states on the spurious grounds that the chain of events causing their flight originated prior to 1 January 1951. Fitzpatrick notes that this included “many ballet dancers and athletes” who, had the Convention terms been applied more robustly, “would not have been able to transfer their loyalties through the device of political asylum.”[17]

While Western Europe was happy to embarrass ideologically polar regimes in the East by adopting extremely liberal interpretations of the Convention and accepting and resettling European ‘refugees,’[18] their policy conveniently changed when faced with the Indochina refugee crisis in the 1970s. The response of the same states that had set up the global refugee protection regime some thirty years earlier was to pressure other Southeast Asian states to accept these asylum seekers first.[19] While the United States, for instance, did eventually accept a number of the Indochina refugees, it did so not out of humanitarian concern for those fleeing discriminatory persecution but because of an “element of revenge and loyalty to comrades in arms, as well as a hope of weakening a new government, as part of a policy of isolating the Vietnamese government.”[20] Even in Uganda, where Amin’s brutal and dictatorial regime was far from concerned about Cold War ideology, fleeing and expelled Ugandan Asians in 1972 sought and were granted asylum primarily in Commonwealth states. Hathaway argues that this was as a result of a post-colonial allegiance to the UK rather than any explicit protection function, and references others who claim that the Asian Ugandans provided asylum by Canada could have been admitted under existing immigration provisions.[21]

Hypocrisy characterised initial policy as much as ideology. In lieu of Western states’ willingness to extend Convention protections to those fleeing oppression in China, Algeria, or Angola, the UN General Assembly almost immediately authorised the United Nations High Commissioner for Refugees “in respect of refugees who do not come within the competence of the United Nations, to use his good offices in the transmission of contributions designed to provide assistance to these refugees.”[22] Western states were content to effectively contract out the protection of less politically attractive refugees to the UNHCR, without significantly increasing its funding, while at the same time invoking the provisions of the Convention for ideological purposes when it was politically convenient to do so.[23] This General Assembly resolution and others which reaffirmed the UNHCR’s expanded remit thereby paradoxically demonstrated both the West’s acknowledgement of the need for an increasingly broader scope of protection, and its reluctance to formally codify that recognition in the Convention. From the outset of the Convention’s development, Western states used it as a political and ideological tool while shunning its humanitarian rationale.

The impact of the Protocol and subsequent legal provisions on international refugee protection

It is an irony that the same ideological circumstances that resulted in the almost immediate divergence of Western states’ policies and practice from the Convention’s provisions may have been a catalyst for change. Increasing numbers of refugees fleeing proxy wars in Latin America, Africa, and Asia could no longer be ignored in favour of Eastern bloc deserters. The 1967 Protocol acknowledged the temporal and geographic limitations of the Convention and provided states with an opportunity to disavow themselves of those restrictions. This went some way towards encouraging Western states to realign their policies and practice to the UNHCR’s newly widened mandate. Universality was also addressed: the Protocol was an “independent instrument” to which states could accede without needing to first accede to the Convention.[24]

The slight narrowing of the gap between legal provision and protection for all those fleeing harm is also evidenced by the development of additional international and regional instruments. The 1984 Convention Against Torture, building on the Convention’s key principle of non-refoulement,[25] prohibits the return of anyone to a state where they would be at risk of torture.[26] Thus some of those excluded by the Convention are entitled to protection. The 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa broadened the definition of refugee to include those fleeing for reasons of “external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality.”[27] Discriminatory persecution was thus no longer required and displaced Palestinians would also qualify. Fifteen years later the Cartagena Declaration on Refugees recognised the need to “consider enlarging the concept of a refugee” and recommended a definition which included “persons who have fled their country because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.”[28] Indiscriminate torture or rape, for example, would now entitle a refugee to protection. Somewhat later—fifty-three years after the 1951 Convention—the European Council agreed to a Directive obligating member states to “grant subsidiary protection status” to those who “if returned to his or her country of origin…would face a real risk of suffering serious harm.”[29] Despite its tardiness, its comparative definitional timidity, and the fact that subsidiary protection was often temporary and did not constitute refugee status, the EU Directive nonetheless expanded international protection among EU states. Broadly comparable subsidiary protection regimes have since been established in Australia,[30] Canada[31] and New Zealand.[32]

In addition to international law, key domestic cases have contributed to the gradual expansion of protection by establishing increasingly inclusive precedents. In the UK, Islam and Shah held that generally persecuted women constituted a “particular social group” for the purposes of the Convention and Protocol.[33] In Australia, Chan established that those claiming protection under the “particular social group” provision only have to show how they are perceived as a member of that group, rather than necessarily being an actual member of that group.[34] Juss notes how Western courts in general have applied the refugee definition to homosexuals, students, and victims of child abuse, trafficking, and forced marriage,[35]and Hathaway further notes how the refugee concept has been enlarged by Western courts to protect trade union members, those convicted of crimes, and those refusing to perform military service.[36] Good refers to Dr. Hugo Storey in particular, a Senior Judge of the UK Upper Tribunal Immigration and Asylum Chamber who removed the particular social group requirements of “cohesiveness, interdependence, organisation or homogeneity” and asserted that a member of a particular social group could be conceived simply by reference to the persecution to which they were subjected.[37] Finally, HT (Iran) and HJ (Cameroon) demolished a further bureaucratic barrier by establishing that asylum seekers cannot lawfully be expected to take reasonable steps to avoid persecutory harm or to live “discreetly” so as to avoid it.[38]

Taken together with the Protocol, regional and international instruments and case law illustrate how protection has become more inclusive since the original post-war focus. However, significant barriers to protection linger. The Protocol did not revoke the Convention’s discriminatory persecution criterion or its category exclusions; neither the Protocol nor any other international, regional or domestic law has enshrined a right to asylum and global efforts aimed at addressing the underlying causes of refugeedom remain highly limited. These persistent and significant barriers are augmented by contemporary problems—environmental refugees,[39] quasi-refugees,[40] those living in refugee camps,[41] internally displaced persons,[42] and women[43] are among those who continue to struggle for adequate protection while the artificial distinction between political persecution and economic migration continues to be reinforced.[44] Although a few states have programmes for those who require emergency protection and have been unable to leave their country of origin,[45] embassy applications for asylum are not usually accepted,[46] and those being persecuted must still cross a border. Refugees are expected to avoid internal security forces, border guards, and criminal trafficking networks; obtain travel documentation,[47] economic means and opportunity; and endure corruption, emotional pain from leaving loved ones behind, sea unworthiness, and the risk of further discriminatory persecution.

The reality that the vast majority of those in need of protection do not have the means or opportunity for escape and are therefore invisible to the Convention, the Protocol, or any other international, regional or domestic law is yet to be adequately addressed. Nonetheless, an incrementally expanded UNHCR mandate; removal of the Convention’s temporal and geographic limitations; and occasional acknowledgement of these outstanding problems by the legal apparatuses of Western states all represent a conceptual inching back towards the Convention’s humanitarian origins and increased protection for more people.

Contemporary state policy and practice

Gaining international acceptance for a realignment of legal provision to the protection of all those fleeing harm still proves politically challenging: today only 148 states are States Parties to the Convention.[48] This compares to 154 States Parties to the Convention Against Torture; 176 to the International Convention on the Elimination of All Forms of Racial Discrimination; 187 to the Convention on the Elimination of All Forms of Discrimination Against Women; and 193 to the Convention on the Rights of the Child. Even treaties for the protection of animals have more international support than the Convention.[49]                 .

In Western states which have become signatories, hostile public opinion has been a significant influence on contemporary policy and practice in relation to the protection of those fleeing harm. Sensationalist and populist rhetoric which borders on the xenophobic and is promulgated by political figures from many parties,[50] governments,[51] and popular media[52] fuels a perception that immigration is “out of control”; that national interest requires a decrease in immigration; and most dangerously, that ‘asylum seeker’ is analogous to ‘illegal immigrant.’[53] This criminalisation of immigrants has been eloquently lamented by former UN Secretary General Kofi Annan: “Let us remember that a bogus asylum-seeker is not equivalent to a criminal; and that an unsuccessful asylum application is not equivalent to a bogus one.”[54]

Rather than attempting to remove the considerable existing barriers to access, states have responded to prevailing public opinion by determinedly erecting even more sophisticated obstacles to protection.[55] Advance visas and carrier penalties immediately inhibit the escape of the vast majority of asylum seekers.[56] Several authors note how the UK introduced entry visas for nationals of Bosnia, Sri Lanka and Zimbabwe at the very time when conflict, and therefore the exodus of refugees, was most extreme.[57] Even if documentation is obtainable, most Western states will refuse asylum seekers if their country is not the first safe country in which the asylum seeker had the opportunity to make a claim.[58] Given the lack of direct flights from many asylum seeker countries of origin, and political geography in general, this policy effectively prevents many asylum seekers from ever reaching Canada, Australia, New Zealand, or many smaller European states. Access problems are further compounded by politically-motivated policy initiatives including the tightening of immigration laws; the removal of appeal processes and the introduction of accelerated processing;[59] and the newly proposed policy of deport first, appeal later.[60] These initiatives mean that the normal appeals system, judicial review proceedings, or even existing standards of natural justice and due process are not always available for those who are turned away.

After arrival in a Western state those seeking asylum encounter yet more barriers to refugee status. In the UK, for instance, asylum seekers are subject to onerous administrative requirements[61] and can wait years for a determination to be made.[62] Determination guidance issued by the UNHCR is spurned or ignored in favour of more restrictive national guidance, and many asylum seeker claims are simply disbelieved.[63] Contradictory requirements make gaining credibility nearly impossible[64] while cultural differences, such as the hesitance of many Muslim women to describe details of sexual abuse, prevent many immigration officers from understanding asylum applicants’ entire story.[65] Regrettably, prejudice and racism still influence many decisions.[66] Meanwhile, asylum applicants can be indefinitely detained[67] or denied access to social services and benefits.[68] In addition to all of this, immigration agencies are notoriously opaque in terms of their bureaucratic processes and publishing of information and statistics, even in the face of clear statutory requirements, making holding agencies democratically accountable for their actions problematic at best.[69]

In addition, legal recourse may offer little remedy as judicial decision-making has been slow to recognise the graveness of the harm from which many asylum seekers have fled. In the UK, judges and tribunal members have held that at times even rape[70] and torture[71] by state actors do not necessarily constitute persecution, and that homosexuals should be expected to “reasonably tolerate” a certain element of “discretion” in order to avoid punitive measures.[72] Conversely, on those occasions when the judiciary has ruled that the scope of the ‘particular social group’ defined within the Convention should be extended, the executive has demonstrated its resistance by pursuing appeals.[73] Webber also notes how the systematic increase in asylum case appeals by the UK Crown is a relatively recent development.[74]

Indeed, despite the slow and gradual narrowing of the rift between existing legal provision and the protection of all those fleeing harm, these legal provisions have ultimately had a highly limited impact on the number of refugees accepted into Western states. While per capita refugees in Canada, Australia and New Zealand initially spiked immediately after accession to the Protocol in 1969, 1973 and 1973, respectively, a sharp decline followed soon after. The current per capita refugee population in both the UK and New Zealand is almost back to pre-Protocol levels, while Australia’s current per capita refugee population is almost half that of the 1960s.[75] Furthermore, while Western states have accepted other individuals under various forms of subsidiary protection, this protection significantly differs from refugee status due to its inherently temporary nature—individuals can be returned to their country of origin when the conditions giving rise to the subsidiary protection are perceived to have subsided.[76] Grants of subsidiary protection are just as politically susceptible to hemorrhaging public support as grants of refugee status under the Convention or Protocol. Subsidiary protection may in fact be enabling Western states to further obfuscate their moral obligation to afford protection to those in need of it, rather than to achieve it. While legal advances have been made in contemporary times, the practical reality of these advances has failed to improve protection for those fleeing harm.

Realigning legal provisions to current practice

In summary, the provisions of the Convention have never wholly nor explicitly reflected its broad humanitarian purpose. Western states used the Convention for their own politically selective and ideological purposes. The Protocol did, in part, attempt to address these problems, but both Convention and Protocol continue to be inhibited by problems of access, implementation, and a lack of focus on preventing the causes of refugees in the first place. Furthermore, international refugee protection law has been routinely sidestepped, disingenuously invoked, and railroaded by increasingly contorted state policies and practice. Fitzpatrick argues that “a crisis exists not because the Convention fails to meet the needs of asylum-seekers, but because it meets them so well as to impose burdens that are no longer politically tolerable to the States parties involved.”[77]

One may question the value of an international protection system which is so easily subordinated to contemporary political palatability. Protection obligations which can be easily sidestepped surely cannot be said to be obligations at all. As a consequence, any perceived moral abyss associated with the abandonment of the current system of protection arguably already exists. Since providing protection to everyone who requires it is politically intolerable to Western states, the underlying premise of realignment is the acceptance that some refugees will not receive protection. As a result, an equitable system is needed to decide which asylum seekers are to receive protection and which are not.

Realigning legal provisions to current practice in Western states involves replacing the Convention and the Protocol with a new, declarative legal document. That declaration would reflect the current reality of refugee practice in Western states by redefining a refugee as anyone who, in the opinion of the host state, merited the title; formally declaring that no other state is obliged to protect anyone fleeing harm from their own state; asserting that a host state is under no obligation to provide any form of assistance accorded to its own nationals to refugees residing in its territory; implementing an international lottery system for those seeking asylum; and establishing quotas for the number of refugees accepted by Western states. In addition, states would be encouraged to give priority to women, children, the elderly, those with critical health problems, those fleeing imminent danger, and those with relatively close family already residing in that state, although these suggested priorities would not be mandatory. None of these proposals accord refugees with protection which is substantively less than that which they are currently accorded in Western states.

Revising the definition of a refugee would end the automatic exclusion of millions of internally displaced persons and others from the international refugee protection framework. A declaration that host states are not obliged to either grant asylum or provide any form of assistance to resident refugees would clarify and expose the socioeconomic situation of many refugees for public scrutiny, and therefore increase political accountability in those states. An international lottery system would not be wholly dissimilar to the current practical reality of asylum-granting in Western states and would ensure equal opportunity for all. A lottery system would also allow for the dismantling of barriers such as accelerated processing and limited appeals, and could overcome access problems by being available to those still residing in their country of origin or those who had yet to reach the border of a Western state. A quota would be based on a formula connected to those criteria identified by the UNHCR as “indicators of host country capacity and contributions”, namely the number of refugees to each Gross Domestic Product dollar (by Purchasing Power Parity), the refugee population per 1,000 in habitants, and refugee density per 1,000 square kilometres.[78] Precedent for an internationally recognised arbitrary target exists in the form of the spending commitment of 0.7% of Gross National Income on Overseas Development Assistance (ODA).

This approach will achieve greater long term protection for those fleeing harm: First, an international declaration codifying existing practice would provide much-needed transparency to the international refugee protection system. The provisions of the Convention and Protocol currently offer little, if any, insight into practical reality for many refugees and displaced persons. While this cannot be said to be the purpose of international treaties, and while there will always be some discrepancy between legal provisions and practical realities, there is too much distance between the current provisions and the current reality.

Second, a lottery system would relieve the political pressure on Western states and their bureaucracies to refuse asylum seekers at the point of entry since states would be able to exercise control over how many asylum seekers would be accepted in advance. Formal refugee determinations in their current form would therefore be redundant.

Third, a quota would preserve, and potentially increase, the current number of asylum seekers being accepted by Western states. Although the majority of Western states do not meet the 0.7% ODA target, the trend among Western states has been to increase rather than decrease their spending on ODA.[79]

Finally, realigning legal provision to existing practice will serve as a much-needed wake-up call to Western states and their populations. Negative public perception of immigrants generally, and misconceptions of refugees and asylum seekers in particular, greatly influences the political palatability of granting asylum to those seeking it.[80] Although Western states argue that their current policies and practices are legitimate interpretations of their international and domestic legal obligations, and that “genuine” claimants are not turned away, a number of observers note that this is not the case.[81] A stark declaration of the protection, or lack thereof, accorded by Western states to the millions of people seeking it will force Western populations to reconsider their views.

If Western states maintain their collective political and moral apathy, or if they collectively harden their attitudes towards those fleeing harm, then at least Western states’ policies and practices will be much more indicative of their populations’ ill-informed views on the subject of immigration. If, on the other hand, Western states and their populations stir from their moral hibernation, then there is a glimmer of possibility that Western states’ policies and practices in offering protection to those who need it might extend beyond lotteries, quotas, electric fences, and criminalisation. Fixing the currently disastrous international protection system calls for radical solutions. Before they can be found, a basic awareness of the problem among Western populations is a good place to start.

Conclusion

The Convention and the Protocol have been used as political elastic; their provisions have been expanded and contracted when politically convenient. An international treaty system which is underpinned by a need to protect those fleeing the most extreme harm globally but which is so easily and broadly subject to politically manipulation is not morally meaningful. This article has highlighted the separation between the humanitarian purpose of the Convention and Protocol and their legal provisions and practical reality, both historically and contemporarily. It has argued that realignment of the legal provisions to existing practice in Western states is the only feasible way to begin reducing the considerable harm caused by the status quo. This approach will improve certainty in refugee determinations, increase the transparency of the international refugee protection system, and highlight the true plight of those displaced to Western states.

Western states first drafted a Convention to protect refugees after WWII, but today it is Southern states that shoulder the vast proportion of that responsibility. If Western states were as accommodating as Malawi, for instance, the EU alone could accommodate the total number of forcibly displaced people worldwide with some five million people to spare.[82] Such generosity is not even required, however; if Western states admitted the number of refugees equivalent to just one percent of their population they could easily accommodate the current worldwide refugee population.[83] Yet increasing global inequality matches increasing Western hostility to immigrants; as the continents drift further apart, more fences are erected.

This cold reality suggests that it is no more likely that a realignment of international law to practical reality can fix a broken international protection system than two tethered posts can counteract continental drift. Only a fundamental and critical shift in global tectonics can reverse such a process, just as only a shift of similar magnitude in Western public opinion can start to address global humanitarianism and its connected issues of global inequality and injustice. Western states’ collective acceptance of the moral illegitimacy of the current system of international protection may be the gravitational trigger that is so desperately required.

[1] Juss, S.S. International Migration and Global Justice. (Aldershot, United Kingdom: Ashgate, Juss, S.S. 2006) at 5.

[2] UNHCR. “Facts and Figures about Refugees”. 27 November 2013.

[3] UNHCR. “States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol”. 27 November 2013. Available online: <http://www.unhcr.org/3b73b0d63.html>; UN Treaty Collection. “Chapter V: Refugees and Stateless Persons: 2. Convention relating to the Status of Refugees.” 27 November 2013. Available online: <http://treaties.un.org/Pages/ViewDetailsII.aspx?&src=TREATY&mtdsg_no=V~2&chapter=5&Temp=mtdsg2&lang=en>; UN Treaty Collection. “Chapter V: Refugees and Stateless Persons: 5. Protocol relating to the Status of Refugees”. 27 November 2013. Available online: <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-5&chapter=5&lang=en>

[4] Supra Note 2.

[5] Ibid.

[6] UNHCR. “Displacement: The New 21st Century Challenge”. UNHCR Global Trends 2012. 27 November 2013, at 28. Available online: <http://www.unhcr.org.uk/fileadmin/user_upload/pdf/UNHCR_Global_Trends_2012.pdf>

[7] Supra Note 2.

[8] See Weis, P. (ed.). The Refugee Convention, 1951: The Travaux Preparatoires Analysed with a Commentary by Dr. Paul Weis. (Cambridge, United Kingdom: Cambridge University Press, 1995) and the Preamble of the Convention paragraph 5.

[9] UNHCR. “Internally Displaced People Figures”. 28 November 2013.

[10] UN General Assembly Resolution 217 A(III). 10 December 1948. “Universal Declaration of Human Rights”. A/RES/217(III) A, 3rd session, item 58, at Articles 1-15 and 17-29.

[11] Supra Note 8, at 13-15.

[12] Ibid, at 16 paragraph 5.

[13] Hailbronner, K. “Non-Refoulement and “Humanitarian” Refugees: Customary International Law or Wishful Legal Thinking?” Virginia Journal of International Law. 26(4) (1986), 857-896.

[14] Goodwin-Gill, G.S. “Convention Relating to the Status of Refugees; Protocol Relating to the Status of Refugees: Introductory Note”. Audiovisual Library of International Law, UN Office of Legal Affairs (2008), page 8. Available online: http://legal.un.org/avl/ha/prsr/prsr.html.

[15] United Nations. “Growth in United Nations Membership, 1945-Present”. 28 November 2013. Available online: http://www.un.org/en/members/growth.shtml.

[16] Hathaway, J.C. and Neve, R.A. “Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection”. Harvard Human Rights Journal. 10, pp. 115-212 (1997) at 129; Supra Note 13, at 5.

[17] Fitzpatrick, J. “Revitalizing the 1951 Refugee Convention”. Harvard Human Rights Journal. 9, pp. 229-254 (1996), at 238.

[18] Loescher, G. Beyond Charity: International Cooperation and the Global Refugee Crisis. (New York, United States: Oxford University Press, 1993), at 21 and 59.

[19] Keely, C.B. “The International Refugee Regime(s): The End of the Cold War Matters”. International Migration Review. 35(1), pp. 303-314 (2001) at 304-305.

[20] Ibid, at 309.

[21] Hathaway, J.C. “Selective Concern: An Overview of Refugee Law in Canada”. McGill Law Journal 33, pp. 676-715 (1988), at 682.

[22] UN General Assembly Resolution 1388. “Report of the United Nations High Commissioner for Refugees”. A/RES/1388(XIV), 14th session, item 38 (1959), at paragraph 2. Available online: http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/1388(XIV)&Lang=E&Area=RESOLUTION>; UN General Assembly Resolution 1673. “Report of the United Nations High Commissioner for Refugees”. A/RES/1673/(XVI), 16th session, item 34 (1961), at paragraph 1. Available online: <http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/1673(XVI)&Lang=E&Area=RESOLUTION>; Supra Note 1, at 241.

[23] Supra Note 17, at 5 and 131-133.

[24] Supra Note 13, at 7.

[25] Supra Note 16, at 236.

[26] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 10 December 1984. Entry into force 26 June 1987. United Nations. UNTS 1465, p. 85, at Article 3.

[27] Convention Governing the Specific Aspects of Refugee Problems in Africa. 10 September 1969. Entry into force 20 June 1974. Organisation of African Unity. UNTS 1001, p. 45, at Article 2. It is notable that the Preamble to the OAU Convention subtly but systematically makes a number of criticisms of the Geneva Convention including a perceived lack of applicability to African refugees.

[28] Cartagena Declaration on Refugees. 22 November 1984. Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama. Cartagena, Colombia. Available online: <http://www.oas.org/dil/1984_Cartagena_Declaration_on_Refugees.pdf>.

[29] EU Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. OJ L304/12 (2004), at Chapter VI Article 18. Available online: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0083:en:HTML>

[30] Supra Note 32.

[31] Citizenship and Immigration Canada. “Resettlement from Outside Canada”. 28 November 2013.

[32] New Zealand assumes subsidiary obligations from both the Convention Against Torture and the International Covenant on Civil and Political Rights. See Immigration New Zealand. “The Refugee and Protection Unit”. 28 November 2013.

[33] Islam (A.P.) v. Secretary of State for the Home Department, R v. Immigration Appeal Tribunal and Another, Ex Parte Shah (A.P.) [1999] United Kingdom House of Lords 20; Supra Note 17, at 239.

[34] Chan v. Minister for Immigration and Ethnic Affairs [1989] High Court of Australia 62; (1989) 169 CLR 379 F.C. 89/034.

[35] Supra Note 1, at 190.

[36] Hathaway, J.C. The Law of Refugee Status. (Toronto, Canada: Butterworths, 1996), at 169-185.

[37] Dr. Hugo Storey quoted in Good, A. Anthropology and Expertise in the Asylum Courts. (Abingdon, United Kingdom: Routledge-Cavendish, 2007), at 82-83.

[38] HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department [2010] United Kingdom Supreme Court 31.

[39] Supra Note 1, at 168-178.

[40] Ibid, at 224.

[41] Mtango, E. “Military and Armed Attacks on Refugee Camps” in Loescher, G., and Monahan, L. (eds.). Refugees and International Relations (Oxford, United Kingdom: Oxford University Press, 1989).

[42] Supra Note 1, at 152-160.

[43] Freedman, J. “Women’s Right to Asylum: Protecting the Rights of Female Asylum Seekers in Europe?”. Human Rights Review. 9(4), pp. 413-433 (2008); Camus-Jaques, G. “Refugee Women: The Forgotten Majority” in Loescher, G., and Monahan, L. (eds.). Refugees and International Relations. (Oxford, United Kingdom: Oxford University Press, 1989).

[44] Supra Note 17, at 6 and 17; Supra Note 1, at 191.

[45] Australia for instance has protection programmes for those subject to persecution and who have been unable to leave their home country, as well as those who are not refugees but who are “subject to substantial discrimination and human rights abuses in their home country”. See Australian Government Department of Immigration and Border Protection. “In-Country Special Humanitarian Visa (Subclass 201)”. 28 November 2013.

[46] See Noll, G. “Seeking Asylum at Embassies: A Right to Entry under International Law?”International Journal of Refugee Law. 17, pp. 542-573 (2005).

[47] See Supra Note 17, at 58, which details the steps taken in former communist states to prevent unauthorized emigration.

[48] See all in Supra Note 3.

[49] The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) has 178 states party (see CITES Secretariat. “Member Countries”. 28 November 2013. Available online: <http://www.cites.org/eng/disc/parties/index.php>) while the Convention on Biological Diversity has 193 states party (see Secretariat of the Convention on Biological Diversity. “List of Parties”. 28 November 2013. Available online: <http://www.cbd.int/convention/parties/list/>).

[50] See, for example, language used by the Liberal Democrats to describe their immigration policy: “Cracking down on abuse” and “We have cracked down on bogus students from abroad abusing the immigration system” (Liberal Democrats. “Immigration”. 29 November 2013); language used by Ed Miliband MP: “Britain must always control its borders. It is clearly in the national interest that we do so” (Labour. “Building a Britain that Works Together”. 29 November 2013); and language used by Theresa May MP: “…bringing [immigration] under control,” “Uncontrolled, mass immigration…”, and “we’re doing everything we can to stop human rights laws getting in the way of immigration controls” (Conservatives. “Speech: Conference 2012: Theresa May”. 29 November 2013).

[51] See, for example, the language used in Home Office. “Immigration Bill: Factsheet: Overview of the Bill”. 29 November 2013. Available online: <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/249251/Overview_Immigration_Bill_Factsheet.pdf>: “…cut out abuse where it was rife…”; “As things stand, it is too easy for people to live and work in the UK illegally and take advantage of our public services”; and “The appeals system is like a never-ending game of snakes and ladders, with almost 70,000 appeals heard every year”. See also the terminology and language used by the Home Office in referring to “case owners” for asylum applications and “…we are determined to refuse protection to those who do not need it” (Home Office UK Border Agency. “Asylum”. 29 November 2013).

[52] See, for example, “flood of migrants” (Telegraph View. “Open Country”. The Telegraph, 21 November 2013); “bogus claims”, “he [a failed asylum seeker] retained a lawyer from a firm that makes millions out of legal aid cases”, “troublingly superficial analysis”, “legal ruse”, “Clearly, the system is overloaded”, and “an open goal for those seeking to extract money from the taxpayer” (Telegraph View. “Britain’s decency is being cynically exploited by asylum seekers”. The Telegraph, 16 November 2013); and “massive influx”; “chaos”, “shambolic”, “out of control”, “catastrophic failure”, “illegal immigrants and foreign criminals”, “no-nonsense moves”, and “tens of thousands of illegal immigrants and failed asylum seekers” in Arkell, H. “‘We don’t know who’s here and who’s not’: Former UK Border Agency chief admits immigration to Britain was ‘out of control.’” Mail Online, 8 April 2013.

[53] Supra Note 46, at 6; Supra Note 18, at 199-200; Webber, F. Borderline Justice: The Fight for Refugee and Migrant Rights. (London, United Kingdom: Pluto Press, 2012), at 3-4 and 12-13.

[54] United Nations Information Service. “Press Releases: Secretary-General Calls for Commitment to Tolerance and Empathy in Stockholm Address”. 30 January 2001, UNIS/SG/2773. Available online: <http://www.unis.unvienna.org/unis/pressrels/2001/sg2773.html>.

[55] Macklin, A. “Who is the Citizen’s Other? Considering the Heft of Citizenship”. Theoretical Inquiries in Law. 8, pp. 475-508 (2007), at 357; Supra Note 16, at 120.

[56] Zolberg, A.R., Suhrke, A., and Aguayo, S (eds.). Escape from Violence: Conflict and the Refugee Crisis in the Developing World. (New York, United States: Oxford University Press, 1989), at 280; Casey, T. “Europe 1992: Closing the Doors”. Studies: An Irish Quarterly Review, 80(317), pp. 48-55 (1991), at 50; Feller, E. “Carrier Sanctions and International Law”. International Journal of Refugee Law. 1(1), pp. 48-66 (1989); Hathaway and Neve in Supra Note 16, at 120.

[57] Zolberg, Suhrke and Agusyo in Supra Note 56, at 280; Casey in Supra Note 56, at 49-50; Supra Note 16, at 120 and 135.

[58] Byrne, R. and Shacknove, A. “The Safe Country Notion in European Asylum Law”. Harvard Human Rights Journal. 9, pp. 185-228 (1996), at 96; Casey in Supra Note 56.

[59] Supra Note 46, at 105.

[60] See Chorley, M., Slack, J. and Chapman, J. “‘Immigration system is like a never-ending game of snakes and ladders’: Theresa May vows to kick out illegal immigrants BEFORE they get chance to appeal”. Mail Online, 30 September 2013; Travis, A. “Tory illegal immigration bill to curb right of appeal against deportation”. The Guardian, 30 September 2013; and Conservatives. “Speeches: 2013: Theresa May”.

[61] For example, the UK Border Agency requires that those applying for asylum in the UK must make an application in person at an office in Croydon, regardless of their residence location. Prospective asylum seekers are duly informed that “insufficient funds or inconvenience is not an acceptable reason for a person not being able to make a claim in person”. Asylum seekers in the UK do not enjoy the right to work and are entitled to “support” of £36.62 per week plus local authority accommodation. Thus travel and accommodation costs associated with attending an appointment in Croydon could constitute as much as 370% of an asylum seeker’s total weekly income. See Home Office UK Border Agency. “How to claim asylum”. 30 November 2013. and Home Office UK Border Agency. “Current support amounts”. 30 November 2013.

[62] Supra Note 46, at 103; Webber in Supra Note 53, at 55-58.

[63] Supra Note 46; Webber in Supra Note 53; Freedman in Supra Note 29, at 422-423.

[64] Webber in Supra Note 53, at 20 and 42-43.

[65] Supra Note 46.

[66] Webber in Supra Note 53, at 38 and 50-52.

[67] Refugee Council of Australia. May 2012. “Mandatory detention”. Available online: <http://www.refugeecouncil.org.au/f/as-det.php>; Webber in Supra Note 53, at 132.

[68] Hathaway and Neve in Supra Note 16, at 129-130.

[69] Freedom of Information Act requests or their equivalents seeking basic statistics were made to immigration authorities in Australia, Canada, New Zealand, and the United Kingdom on 23 October 2013 to support this article. Authorities in Australia refused to recognise the validity of the request. An internal review was unsuccessful and an appeal to the Office of the Australian Information Commissioner, which is about to be referred to the Australian Administrative Appeals Tribunal, is pending as at February 2015. Despite repeated communications, authorities in Canada failed to respond by the time of submission, three weeks after the expiry of the relevant statutory deadline. Authorities in New Zealand and the UK responded quickly, but only provided some details relating to a limited time period and refused the remainder of the request on the grounds of substantial collation expense. No authority was able to provide all the requested information within the statutory time limit, even in relation to the last calendar or financial year.

[70] Supra Note 46, at 3-4. See also Freedman in Supra Note 29, at 417-8.

[71] Supra Note 46, at 3.

[72] J v. Secretary of State for the Home Department [2006] England and Wales Court of Appeal (EWCA) Civ 1238. See also Webber in Supra Note 53, at 82.

[73] Webber in Supra Note 53, at 83-84.

[74] Ibid, at 38.

[75] Data from UNHCR. “UNHCR Statistical Online Population Database”. Data extracted 29 November 2013. Per capita data calculated using historical population figures from Geohive. “World 1950-2050 (all countries): Historic, current and future population”. 29 November 2013. See also Supra Note 18, at 125.

[76] Supra Note 1, at 233-235.

[77] Supra Note 17, at 231.

[78] UNHCR. “Asylum trends: Latest monthly data (Excel tables, zipped format)”. 6 February 2015. UNHCR.

[79] OECD Newsroom. “Aid to developing countries rebounds in 2013 to reach an all-time high”. 8 April 2014. OECD.

[80] See Le May, R. “What does the Australian public really think about asylum seekers?” 30 July 2012. The Conversation, Australian Associated Press; Jones, J. “Immigration: Britons Want ‘Drastic Action’”. Sky News, 14 October 2013; Watt, N. “People worry about immigration if they have little contact with migrants”. The Guardian, 14 October 2013; Express. “‘Britain is overcrowded and we want Government to cut immigration,’ says public majority”. 14 October 2013; Ipsos MORI. “Attitudes towards Asylum Seekers for ‘Refugee Week’”. 17 June 2002. Fieldwork 18-22 April 2002 and 2-7 May 2002; and Gill, M. and Crawley, H. “Asylum in the UK: An IPPR Fact File”. (London, United Kingdom: Institute for Public Policy Research, 2003). For a discussion on the willingness of Western governments to establish a new international protection regime, see Coles, G. “Approaching the Refugee Problem Today” in Loescher, G., and Monahan, L. (eds.). Refugees and International Relations. (Oxford, United Kingdom: Oxford University Press, 1989), at 383.

[81] See Home Office UK Border Agency in Supra Note 51. For evidence of genuine asylum seekers are turned away, see Supra Note 46 and Webber in Supra Note 51. For a discussion of how Western state practice is interpreted as being representative of law, see El-Enany, N. “On Pragmatism and Legal Idolatry: “Fortress Europe” and the Desertion of the Refugee”. Forthcoming (2013), at 6.

[82] Loescher notes that in Malawi one in every ten persons is a refugee (Ibid, at 8). The population of the EU is 503 million (European Union. “Facts and figures: Living in the EU”. 1 December 2013) and the total number of displaced persons worldwide is just over 45 million (Supra Note 2).

[83] For populations of Australia, Canada, Japan, Russia, South Korea, Turkey, and the United States see The World Bank. “Population (Total)”. 1 December 2013. See also European Union in Supra Note 82 and Supra Note 2.

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