CHALLENGES TO THE INTERNATIONAL REFUGEE REGIME AND THE REFUGEE DEFINITION

Part I

‘The most important problems of refugees arise from
the question whether they can be differentiated
from other migrant groups.¹Menekültek. Az üldözés különböző formái. Jelentés a Nemzetközi Humanitárius Kérdések Független
Bizottsága részére (Refugees. Different Forms of Persecution. Report to the Independent Committee
of International Humanitarian Issues) (Budapest: Gondolat, 1991), 38.

’

Although the concept of escape is as old as human history, the international refugee regime looks back on a relatively short history: it was launched under the auspices of the High Commissioner for Refugees on Behalf of the League of Nations (HCR) in 1921 to deal with the massive refugee flows in Europe generated by the 1917 Bolshevik Revolution. ²See the Introduction in Michael R. Marrus, The Unwanted: European Refugees from the First World
War through the Cold War (Temple University Press, 2001); Rosemarie Rogers and Emily Copeland,
Forced Migration. Policy Issues in the Post-Cold War World (The Fletcher School of Law and Diplomacy,
Tufts University, 1993), 25. Although this particular form of migration has most probably played a role in the history of all ethnic groups and nations, refugee issues and refugee policy—both nationally and internationally—came to constitute consciously identified forces shaping history and international relations only in the increasingly globalized world of the late twentieth century. However, the sudden, disproportionate growth of refugee issues, including the range of problems it encompassed, was so significant that it immediately emerged as an eloquent marker of the twentieth century, which came to be identified worldwide as the ‘century of refugees’. ³Barbara Crosette, ‘The Century of Refugees Ends. And Continues’, The New York Times (31
December 2000), section 4, page 4. The examination of the refugee regime and the refugee definition from a historical perspective at the turn of the twentieth and twenty-first centuries may draw attention to universal features that go beyond the narrow scope of current political, economic, and labour interests, and support the need for reforming the principles of the 1951 UN Convention Relating to the Status of Refugees not by promoting global governance but by the increasing regionalization of the international refugee regime.

FORCED MIGRATION

In general, migration can be divided into two large groups, albeit the difference between the two is sometimes vague: voluntary migration and forced migration, which can include the mass migration of individuals, small groups (families), and large groups of people (ethnic groups). ⁴Etienne Piguet, ‘Theories of Voluntary and Forced Migration’, in Robert McLeman and François Gemenne, eds, Routledge Handbook of Environmental Displacement and Migration (Routledge, 2018), 17–28; Judit Tóth, Menedékjog—kérdőjelekkel (Asylum Law—With Question Marks) (Budapest: Közgazdasági és Jogi Könyvkiadó, 1994), 11–12, 16–17 The reasons behind migration are very complex. Experts tend to mention mainly economic and labour market factors as the most significant driving forces behind population movements. However, they similarly point out the importance of migration generated by political, social, and environmental factors. ⁵Maldwyn A. Jones, American Immigration (University of Chicago Press, 1992), 94–98; Menekültek, 33–37. The field of migration research is so poignant precisely because its diversity and multifaceted approach encompass the totality of human existence taking both objective facts and the human factor into account.

Forced migration—that is, fleeing from persecution or natural disasters—is a basic instinct in the face of a real or perceived threat; as such, it has accompanied the history of humankind and has shaped the world we live in. At the same time, the granting of asylum and the humanitarian duty to help those in need can look back on a similar history, from private charitable organizations to the United Nations High Commissioner for Refugees (UNHCR). ⁶Rogers and Copeland, Forced Migration, 25; Tóth, Menedékjog, 24–26 There have always been refugees and hosts. However, the watershed between the turn of the twentieth and twenty-first centuries and the preceding centuries is the unprecedented increase in the volume of refugee waves.

According to the 2020 figures of the UNHCR, the number of refugees exceeded 20.7 million, which is nearly the double of the 2010 figure of 10.5 million, and a more than eightfold growth from the 2.4 million refugees in 1974. It should be emphasized, however, that this figure applies only to persons in the refugee category in its strict sense (recognized or political refugees). In total, the number of forcibly displaced people (population of concern) receiving some form of attention and care from the UNHCR jumped from 27 million in 1996 to a staggering 91.9 million in 2020. In fact, the largest group within the population of concern category does not even cross international boundaries. The direct consequence of natural calamities or civil strife in a state can result in the phenomenon of internal refugees. By the end of the 1990s, the number of the so-called internally displaced persons (IDPs) started to increase rapidly. As of 2005, there were 25 million IDPs globally, of which 6.6 million were of concern to the UNHCR. This latter figure soared to 48.6 million by 2020 within a global IDP population of 55 million. The inherent problem with assessing the IDP population, however, is that the availability of data on them is limited, since their case predominantly belongs under the purview of a given state’s government, and the UNHCR can only be partially involved in finding solutions to particular IDPs’ problems, upon the request of the government in question. ⁷Data compiled by the author on the basis of the following sources: UNHCR, Global Trends. Forced Displacement in 2020, (UNHCR, 2021) UNHCR Global Trends – Forced displacement in 2020 UNHCR, Global Report 2020, (UNHCR, 2021),https://reporting.unhcr.org/sites/default/files/gr2020/pdf/GR2020_English_Full_lowres.pdf#_ga=2.49485350.1839982896.1636914614-43878343.1634042481; IDMC, Global Report on Internal Displacement 2021 (Geneva, May 2021), in: UN Office for the Coordination of Humanitarian Affairs (OCHA Services, 2021) Global Report on Internal Displacement 2021 (GRID 2021) – World | ReliefWeb UNHCR, The State of the World’s Refugees 1997: A Humanitarian Agenda (Oxford University Press, 1997), 54–55; UNHCR, Statistical Yearbook 2005. Trends in Displacement, Protection and Solution (UNHCR, April 2007), 9, 24 n1, 31–32; Note that the mandate of the UNHCR does not refer to the 5.7 million Palestine refugees who are taken care of by a separate UN agency, the United Nations Relief and Works Agency for Palestine Refugees in the Near East, UNRWA. Consequently, the number of Palestine refugees does not form part of UNHCR statistics. See: UNWRA, ‘Who We Are’, (UNWRA, 2021), www.unrwa.org/who-we-are?tid=85.

In addition, the second half of the twentieth century brought about fundamental changes not only in the volume of refugees, but also in their composition. While prior to the 1950s most refugees came from war-torn Europe, in the ensuing decades, especially from the 1970s on, the masses of refugees set off primarily from the developing countries of Africa, Asia, and Latin America. ⁸Barnett, Global Governance and the Evolution of the International Refugee Regime (UNHCR Working Paper 54, February 2002), 10–11. The early twenty-first century reflects the continuation of this trend. The explanation for this large increase and the fundamental change in composition can be found in two main groups of reasons.

The first group consists of the social and political factors triggering persecution and escape. Thus, this group is made up of post-Second World War armed conflicts, regional, so-called ‘proxy wars’, civil wars, religious and race riots, dictatorships, xenophobia, generalized violence, and discrimination. These phenomena affected mainly developing countries, and here they resulted in a huge exodus of refugees, partly due to the expansion of communist power and partly due to the disintegration of the colonial empires. In addition, the post-Cold War world order, the combined effects of the trends of integration and nationalist fragmentation, and the consequences of the fight against terrorism have continued to generate massive waves of refugees from the beginning of the twenty-first century to this day. ⁹Barnett, Global Governance, 17–21; Menekültek, 35–36.

The second group of reasons consists of the demographic, technical, and ecological factors that generate displacement. Thus, this group is made up of population explosion, the rapid development of transportation and communication, the impact of climate change and the frequency of natural/environmental disasters, and the globalization of all these elements. The importance of these factors needs to be emphasized, in particular because their impact and consequences have not only been decisive forces in the recent past and the present, they will also be particularly decisive in the future of the world. Moreover, it is again developing countries that will be most affected, leading to increasing waves of migration. Consider the problems of overpopulation, unemployment, famine, desertification, or sea-level rise. ¹⁰Alex de Sherbinin, ‘Climate Impacts as Drivers of Migration’, Migration Policy Institute (23 October 2020), www.migrationpolicy.org/article/climate-impacts-drivers-migration; UNHCR, ‘Climate Change and Disaster Displacement’, n.d, [2021], www.unhcr.org/climate-change-and-disasters. htm, accessed 11 November 2021. These serious issues will affect the poorest areas of the globe most.

Despite the positive effects of integration and globalization, the international refugee regime in the post-Cold War era produced neither a less politicized treatment of refugee issues nor a spectacular reduction in the massive flow of refugees. Following the tragedy of 9/11 in the United States in 2001, the ensuing emergence of the national security state led to further efforts in the fight against terrorism, which in turn triggered the increased displacement of peoples in some of the most populated countries of the world, particularly in the Middle East and Africa. In addition, the displacing effects of climate change have become increasingly apparent, and may entail complex, comprehensive, and drastic impacts that are currently impossible to ascertain. In short, the rationale of refugee policy and the need for its development is more justified than ever, as it is not a passing issue of a temporary nature. Surprisingly, however, the mandates of specialized international organizations dealing with refugee issues have been typically intended as temporary, and the history of these organizations has, in fact, been about the expansion and extension of temporary mandates. For instance, it was not until 2003 that the UN National Assembly gave the UNHCR a permanent mandate.

A UNIVERSAL REFUGEE DEFINITION

Historically, the issue of refugees belonged under the discretion of the host state, and based on the principle of humanitarianism, the plight of refugees was addressed by charitable, private, i.e. independent national and international organizations, such as the Red Cross. However, with the First World War, it became clear that the task faced by independent organizations had outgrown their capacity. The issue of refugees became the responsibility of the international community in 1921 as a result of the refugee crisis created by the 1917 Russian Revolution and Civil War. The League of Nations then introduced the temporary position and mandate of the High Commissioner for Refugees, which, needed to be repeatedly prolonged and extended to more and more groups of refugees in the coming decades. The Second World War left some 30 million displaced people to be taken care of. The task was charged to the United Nations Relief and Reconstruction Agency (UNRRA) established by the Allies in 1944, and when its mandate expired in 1947, the International Refugee Organization (IRO) took up the role of dealing with the masses of refugees in 1948. The UNHCR, established in 1950, continues to this day as the primary agency providing for refugees, and has been carrying out refugee-related tasks for over seventy years now, although its mandate was initially limited to three years only. ¹¹Barnett, Global Governance, 5–6; UNHCR, ‘History of UNHCR’, n.d. [2020], www.unhcr.org/history-of-unhcr.html, accessed 11 November 2021; Rogers and Copeland, Forced Migration, 25–40 Thanks to the work of the League of Nations and then the United Nations, international conventions and agreements were established to tackle and resolve the situation of refugees. A fundamental difference, however, is that while conventions and refugee definitions under the auspices of the League of Nations were linked to a particular wave of refugees, i.e. ethnic groups, the United Nations adopted a universal refugee definition based on individual persecution.

The refugee definition is closely linked to the right to asylum, since the questions of who need to be protected and what kind of protection needs to be provided for them are inseparable issues. But whether a state chooses to apply expulsion, extradition, asylum, diplomatic asylum, territorial asylum, or temporary protection is no longer the sovereign decision of the signatories of the UN Convention. According to its definition, the right to asylum falls within the competence of the national authorities of a given state and at the same time within the authority of the international community. Thus, international conventions concluded with the purpose of a uniform codification must meet a dual set of requirements: the international interests for the protection of refugees must be served without any restriction upon the national interests of the host state. The issue of refugees is therefore clearly, beyond its humanitarian aspects, also a political and diplomatic problem, which makes refugee policy an area where national and international interests are constantly in conflict. As early as the Middle Ages, asylum based on state sovereignty was granted to political and religious refugees, and this practice was supplemented in the twentieth century with the protection of racial, national, and ideological refugees based on international cooperation. However, the right of the individual to seek asylum and to enjoy the right to asylum granted to them was first expressed in 1948, in the Universal Declaration of Human Rights. ¹²Convention and Protocol Relating to the Status of Refugees (Geneva: UNHCR, 2010), 2, www.unhcr.org/3b66c2aa10; Tóth, Menedékjog, 23–41. Articles 13 and 14 of the Declaration drew attention to the fundamental right to freedom of movement and asylum:

Article 13

1. Everyone has the right to freedom of movement and residence within the borders of each state.
2. Everyone has the right to leave any country, including his own, and to return to his country.
   

Article 14

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. ¹³UN, ‘Universal Declaration of Human Rights’, 1948, www.un.org/en/universal-declaration-human-rights/.

Seeking asylum was thus established as a fundamental human right. However, the determination of whether or not an asylum seeker was granted refugee status continued to depend on the interpretation of the refugee definition and on the foreign and domestic policy interests of the given state. Within international law, a combination of complementary bodies of law applied to refugees, namely, international humanitarian law (1949), international refugee law (1951) and, to a lesser extent, human rights law (1966). ¹⁴Rogers and Copeland, Forced Migration, 26–27. The protection of refugees according to these laws was based on the principle of non-refoulement, which was described in the 1951 UN Convention forming the basis of international refugee law as follows:

Article 33—Prohibition of Expulsion or Return (‘Refoulement’)

1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. ¹⁵UN, ‘Convention and Protocol Relating to the Status of Refugees’, 1951, www.unhcr.org/3b66c2aa10.

Compliance with the principle of non-refoulement applied to both formally recognized and unrecognized refugees arriving individually or en masse, based on Conclusion No. 6 accepted at the 28th Session of the UNHCR Executive Committee in 1977. ¹⁶No. 6 (XXVIII) Non-refoulement (1977)’, in: UNHCR, Conclusions Adopted by the Executive Committee on the International Protection of Refugees, 1975–2009 (December 2009), https://www.unhcr.org/en-my/578371524.pdf. A formally recognized refugee was one who met the current refugee definition.

The universal refugee definition in the 1951 UN Convention relating to the Status of Refugees originally covered only those persons who had become refugees as a result of events occurring before 1 January 1951. In addition, the participating countries could even hold geographical reservations: they could choose to recognize refugees either only from Europe or from all over the world. However, as the problem of refugees and displaced persons after the Second World War proved to be non-temporary and became more and more widespread, the UN saw the need to respond to the challenges. The 1967 Protocol Relating to the Status of Refugees removed the time limit and the geographical restriction from the refugee definition, thereby making it truly universal, and at the same time, the Protocol moved closer to acknowledging the historical permanence of the issue. The Convention, amended by the Protocol, is the most comprehensive instrument on refugees in terms of definitions, rights, and obligations. This is also reflected in the fact that, compared to other international documents, it is the most widely accepted one. In 1951, 26 countries signed the Convention. By 1997, 134 countries had become parties to the Convention and/or the Protocol, and by 2005, this number had reached 148. ¹⁷UNHCR, The State of the World’s Refugees 1997, 53; UHCR, Statistical Yearbook 2005, 60; ‘The Refugee Convention’, Kaldor Centre for International Refugee Law (31 March 2020), www.kaldorcentre.unsw.edu.au/publication/refugee-convention According to the Convention amended by the Protocol, the refugee definition reads as follows:

1. Article 1. Definition of the term ‘Refugee’
   A. For the purposes of the present Convention [amended by the Protocol], the term ‘refugee’ shall apply to any person who:
2. […] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence […], is unable or, owing to such fear, is unwilling to return to it. ¹⁸Convention and Protocol Relating to the Status of Refugees, www.unhcr.org/3b66c2aa10.

Consequently, the formal recognition of a refugee as a political refugee (i.e. a so-called Convention refugee) is based on individual persecution, and applicants for refugee status must prove that their fear of persecution is justified; that is, for one of the above five reasons, the authorities of their country persecute them, or tolerate their persecution by certain groups in society for the reasons listed. The massive flow of refugees due to a common cause, such as civil wars or natural disasters, is not covered by the definition, since in these cases people do not leave their country due to direct persecution. Thus, as Judit Tóth points out, the creation of the universal refugee definition ushered in a new era, which not only went beyond the previous, specific refugee crisis-based definitions, but with time would also imply the questioning of the universal concept of the definition due to the gradual accumulation of cases not covered by the Convention. ¹⁹Tóth, Menedékjog, 134 The question then arises as to what should happen to those who do not prove to be Convention refugees (political refugees) or to those who flee en masse.

The signatories to the Convention accepted the prohibition of return, i.e. the refoulement of refugees. However, compliance with the principle of ‘non-refoulement’ did not mean an automatic obligation of admission for the states, only the provision of protection from further persecution. Thus, a situation arose in which the prohibition of non-admission and refoulement led to the tolerance of unrecognized refugees, or in other words the recognition of their right to remain. The introduction of the definitions of ‘territorial asylum’ and ‘temporary protection/asylum’ created a legal status weaker than that of refugee, but which nevertheless provided protection for non-Convention refugees against refoulement. For the distinction from a political/Convention refugee (who files for refugees status before entering a given county), a person enjoying temporary protection is referred to as an ‘asylum-seeker’ or ‘asylee’ (who requests asylum after entering a given country). An asylum-seeker’s stay is granted on a temporary basis by a national authority, following a constitutional provision or executive action, and/or customary international law (territorial asylum), along with the provision of certain protection and rights. ²⁰Tóth, Menedékjog, 18, 39–41

The UN General Assembly has been dealing with the issue of the right to asylum since the early 1960s because of the problem of refugees outside the scope of the 1951 refugee definition, which, as we have seen, apart from the removal of the time limit and the geographical restriction, was not substantially changed by the Protocol entering into force on 4 October 1967. Consequently, there was a need for the legal elaboration of procedures aimed at addressing the constantly growing refugee problem. This meant rethinking the institution of asylum, in line with the challenges of the times. It was in this spirit that the United Nations Declaration on Territorial Asylum was conceived on 14 December 1967. The Declaration set out the principles to be followed by the states in their practices related to territorial asylum. Accordingly, it reaffirmed the principle of non-refoulement through the provision of territorial asylum or temporary asylum, and although it referred to the sovereign rights of the states concerning who could be granted asylum and for what reason, it identified burden-sharing based on international solidarity as one of the key points of the Declaration. However, the biggest shortcoming of the document was that its point of departure continued to be constituted by individualized procedures. It still did not address the issue of mass influx; in fact, it only indicated that refoulement could not be applied automatically in that case either, since the state had to consider providing an opportunity for the person concerned to leave for another state under conditions deemed appropriate, even by the provision of temporary asylum. ²¹UN General Assembly, ‘Declaration on Territorial Asylum’, 14 December 1967, A/RES/2312(XXII),www.refworld.org/docid/3b00f05a2c.html, accessed 12 November 2021; Tóth, Menedékjog, 134–135, 236–237

In this way, protecting refugees from further persecution was an international interest and responsibility, but in the case of unrecognized refugees and mass influx, this protection was only temporary and a matter for the particular state to decide on. The issue of mass influx of refugees thus remained open.

To be continued…

• 1
  Menekültek. Az üldözés különböző formái. Jelentés a Nemzetközi Humanitárius Kérdések Független
  Bizottsága részére (Refugees. Different Forms of Persecution. Report to the Independent Committee
  of International Humanitarian Issues) (Budapest: Gondolat, 1991), 38.
• 2
  See the Introduction in Michael R. Marrus, The Unwanted: European Refugees from the First World
  War through the Cold War (Temple University Press, 2001); Rosemarie Rogers and Emily Copeland,
  Forced Migration. Policy Issues in the Post-Cold War World (The Fletcher School of Law and Diplomacy,
  Tufts University, 1993), 25.
• 3
  Barbara Crosette, ‘The Century of Refugees Ends. And Continues’, The New York Times (31
  December 2000), section 4, page 4.
• 4
  Etienne Piguet, ‘Theories of Voluntary and Forced Migration’, in Robert McLeman and François Gemenne, eds, Routledge Handbook of Environmental Displacement and Migration (Routledge, 2018), 17–28; Judit Tóth, Menedékjog—kérdőjelekkel (Asylum Law—With Question Marks) (Budapest: Közgazdasági és Jogi Könyvkiadó, 1994), 11–12, 16–17
• 5
  Maldwyn A. Jones, American Immigration (University of Chicago Press, 1992), 94–98; Menekültek, 33–37.
• 6
  Rogers and Copeland, Forced Migration, 25; Tóth, Menedékjog, 24–26
• 7
  Data compiled by the author on the basis of the following sources: UNHCR, Global Trends. Forced Displacement in 2020, (UNHCR, 2021) UNHCR Global Trends – Forced displacement in 2020 UNHCR, Global Report 2020, (UNHCR, 2021),https://reporting.unhcr.org/sites/default/files/gr2020/pdf/GR2020_English_Full_lowres.pdf#_ga=2.49485350.1839982896.1636914614-43878343.1634042481; IDMC, Global Report on Internal Displacement 2021 (Geneva, May 2021), in: UN Office for the Coordination of Humanitarian Affairs (OCHA Services, 2021) Global Report on Internal Displacement 2021 (GRID 2021) – World | ReliefWeb UNHCR, The State of the World’s Refugees 1997: A Humanitarian Agenda (Oxford University Press, 1997), 54–55; UNHCR, Statistical Yearbook 2005. Trends in Displacement, Protection and Solution (UNHCR, April 2007), 9, 24 n1, 31–32; Note that the mandate of the UNHCR does not refer to the 5.7 million Palestine refugees who are taken care of by a separate UN agency, the United Nations Relief and Works Agency for Palestine Refugees in the Near East, UNRWA. Consequently, the number of Palestine refugees does not form part of UNHCR statistics. See: UNWRA, ‘Who We Are’, (UNWRA, 2021), www.unrwa.org/who-we-are?tid=85.
• 8
  Barnett, Global Governance and the Evolution of the International Refugee Regime (UNHCR Working Paper 54, February 2002), 10–11.
• 9
  Barnett, Global Governance, 17–21; Menekültek, 35–36.
• 10
  Alex de Sherbinin, ‘Climate Impacts as Drivers of Migration’, Migration Policy Institute (23 October 2020), www.migrationpolicy.org/article/climate-impacts-drivers-migration; UNHCR, ‘Climate Change and Disaster Displacement’, n.d, [2021], www.unhcr.org/climate-change-and-disasters. htm, accessed 11 November 2021.
• 11
  Barnett, Global Governance, 5–6; UNHCR, ‘History of UNHCR’, n.d. [2020], www.unhcr.org/history-of-unhcr.html, accessed 11 November 2021; Rogers and Copeland, Forced Migration, 25–40
• 12
  Convention and Protocol Relating to the Status of Refugees (Geneva: UNHCR, 2010), 2, www.unhcr.org/3b66c2aa10; Tóth, Menedékjog, 23–41.
• 13
  UN, ‘Universal Declaration of Human Rights’, 1948, www.un.org/en/universal-declaration-human-rights/.
• 14
  Rogers and Copeland, Forced Migration, 26–27.
• 15
  UN, ‘Convention and Protocol Relating to the Status of Refugees’, 1951, www.unhcr.org/3b66c2aa10.
• 16
  No. 6 (XXVIII) Non-refoulement (1977)’, in: UNHCR, Conclusions Adopted by the Executive Committee on the International Protection of Refugees, 1975–2009 (December 2009), https://www.unhcr.org/en-my/578371524.pdf.
• 17
  UNHCR, The State of the World’s Refugees 1997, 53; UHCR, Statistical Yearbook 2005, 60; ‘The Refugee Convention’, Kaldor Centre for International Refugee Law (31 March 2020), www.kaldorcentre.unsw.edu.au/publication/refugee-convention
• 18
  Convention and Protocol Relating to the Status of Refugees, www.unhcr.org/3b66c2aa10.
• 19
  Tóth, Menedékjog, 134
• 20
  Tóth, Menedékjog, 18, 39–41
• 21
  UN General Assembly, ‘Declaration on Territorial Asylum’, 14 December 1967, A/RES/2312(XXII),www.refworld.org/docid/3b00f05a2c.html, accessed 12 November 2021; Tóth, Menedékjog, 134–135, 236–237