International Law is Limited on the Rights and Treatment of Refugees and Displaced People

Sandra F. Joireman

Up until the turn of this century, the 1951 Convention on Refugees has provided a flexible approach to dealing with individuals and groups of refugees. The Refugee Convention gives authority to the 146 signatory states and to the United Nations Refugee Agency (UNHCR) to assess and protect refugees. However, times have changed in terms of both conflict and climate change, and this framework is less useful than it has been in the past. Indeed, we are in need of more and better international agreements that can address the challenges of forced migration in the 21st century.

There are two key documents on refugees, the 1951 Refugee Convention and its implementing legislation, the 1967 protocol, both of which define a refugee as “A person who owing to a 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Individuals who want refugee status need to prove they are threatened with harm in order to receive asylum in another country. However, since the 1960s, UNHCR and states have also recognized groups of people fleeing risk of harm (prima facie refugees) who “on the basis of readily apparent, objective circumstances in the country of origin” qualify for refugee status. This is typically determined by states or the UNHCR in situations of armed conflict. For example, Syrians are right now considered to be prima facie refugees, so the possession of a Syrian passport is enough to qualify as a refugee, without any need for an individual to prove a threat of harm.

One of the most significant problems with the Refugee Convention is that it only applies to those who have crossed an international border. Many people are displaced within their countries of origin and remain without international protection and sometimes without any assistance. This is a particular problem when the state is a party to the conflict that is causing forced migration. There are twice as many internally displaced people as there are refugees worldwide. In 2015, there were 27.8 million new displacements due to conflict, violence and disasters, bringing the overall total to 40.8 million internally displaced people worldwide. The African Union has developed the Convention for the Protection and Assistance of Internally Displaced Persons (IDPs), or the Kampala Convention, which applies international humanitarian law to internally displaced people and compels states to both monitor internal displacement as well as to protect and assist the internally displaced. The Kampala Convention stands alone; other regions of the world have not developed similar instruments for the protection of IDPs, nor has there been any additional international law. Without an international convention that applies to displaced people, there is no obligation on states to count, monitor, or provide for the displaced.

A second problem with the Refugee Convention is that it cannot address the increasing numbers of people forced to migrate as a result of climate change. While many climate migrants move within their own countries, for example farmers who change residence from rural to urban areas due to drought, some also cross borders. In the case of sudden-onset disaster situations, the closest place of safety may be across an international border. For example, when the Haiti Earthquake occurred in 2010, many Haitians fled to the neighboring Dominican Republic, but they are not refugees nor could they be considered such under international law. This has been an issue of concern for some time. Indeed, the Nansen Initiative, launched in 2012, was a state-led consultative process designed to address the issue of protection for those forced to cross borders by natural disasters and climate change. The Nansen Initiative resulted in agreement on a protection agenda in 2015, but the agreement, which only garnered the acceptance of 109 state delegations, is non-binding and does not hold the weight of an international convention. Thus, the problem of protecting climate change migrants, both the internally displaced and those crossing state boundaries, remains.

The third problem with the international law regarding refugees is that it does not address the concerns of migrants displaced by violence that is not the result of civil or international war. In 2014, the number of unaccompanied child migrants from Central America trying to cross the border into the United States surged to levels never seen before. They were fleeing the threat of harm from gangs in El Salvador, Guatemala, and Honduras, some of the most violent countries in the world. According to U.S. law, each of these children must individually be assessed for their asylum claims. U.S. law, based on the Refugee Convention, allows individuals to apply for asylum in the United States if they can show past persecution or prove, as an individual, a well-founded fear of future persecution based on race, religion, nationality, membership of a particular social group or political opinion. This is obviously extraordinarily difficult for children to do, particularly if they do not have legal representation. These children, though fleeing violence, would not qualify as prima facie refugees, as there was no war and the United States did not choose to recognize the children as a protected class.

There is every reason to expect that with a rising global population, more climate change-related weather events, and poor civilian protection within some states, these sources of forced migration will continue. The 1951 Refugee Convention was agreed upon in the era immediately following World War II in response to the massive population displacement that was seen at that time. While states remain strong supporters of the Refugee Convention, they may be reluctant to adopt any new international legal instruments that would require them to take on the responsibility for additional groups of displaced people, however great the needs of those groups may be.

Photo credit: UNICEF

Sandra F. Joireman is chair of the board of directors for Bread for the World and Bread for the World Institute and the Weinstein Chair of International Studies and Professor of Political Science at the University of Richmond.