The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees form the basic framework of international refugee law today, setting out who qualifies for refugee protection and who does not. But where does this framework for protection come from?
In its most basic form, the regime that deals with refugees and forced migration regulates the treatment of individuals within different state territories and jurisdictions. In the old world, the rights and obligations of individuals towards the state were tied to territoriality and divinity. With the development of the modern nation-state, this evolved and became a question of nationality: the state as an independent political apparatus became dedicated to advancing the general good of its own population. Nationality thus offered entitlement to a form of protection as part of the social contract between citizens and the state. In exchange for this protection, the citizens or nationals have obligations towards the state they must fulfil, such as paying taxes. Contrastingly, the rights of non-nationals are at the state’s complete discretion, since non-nationals are not indebted to the foreign state, only to their own. But what happens when the state of nationality no longer provides the necessary protection for its nationals? That is the lacuna wherein refugee law developed.
World War I created a massive movement of people within Europe. When the League of Nations was established to maintain peace and security, they grappled with this new influx of migrants on an interstate level. Thus, refugee law developed within the League framework as a primarily humanitarian exception to a generally protectionist norm.
The League employed a group or category-based approach. When a particular crisis created a migratory flow or movement of people, the League of Nations would react and intervene to protect those specific minorities at risk. In this context, “refugees” emerged in the 1920s, first after the Bolshevik revolution and later following their expulsion and persecution in the Soviet Union. In 1921, the League of Nations thus accorded a status to those denationalized by the Soviets who became stateless as a result of that denationalisation, guaranteeing some form of protection for them.
At the essence of this project lies the idea that when one loses the protection of their home state, another state can and should assume responsibility. In 1922, the Armenians in Turkey fell victim to massacres in Turkey and started fleeing en masse. The principle created for Soviet refugees was extended to Armenians as a response to that migratory flow. These two refugee groups formed the basis for modern refugee law. Both refugees were victims of mostly mass expulsion, and the international arrangements made in response were based on the idea of expulsion.
During the 1930s, as Hitler rose to power in Germany, the old model of refugee law was challenged, as Jews were not merely expulsed from Germany but exterminated. Germany had left the League of Nations and resigned from the Peace Treaties they signed after the First World War, weakening the League and the existing refugee law model. The League needed to change its approach. It was then decided that persons with German nationality who for some reason were no longer protected by Germany also qualified as refugees. They were considered “stateless” – this was the first explicit mention of statelessness as a migratory issue.
A new definition of refugee emerged, one that only applied to individuals forced to emigrate “on account of their political opinions, religious beliefs or racial origin.” This laid the basis of our approach to refugees and asylum seekers today.
After World War II, human rights gained importance. When the Universal Declaration of Human Rights (UNHDR) was proclaimed in 1948, it laid the basis for an international standard of applications for human rights protection, including the right to ask for asylum under Art.14 of the Declaration. Paired with the 1948 Convention on the prevention of Genocide, which indicates that potential victims of genocide can flee and be protected by other states and the Geneva Conventions, which regulated the means of war, refugees emerged as internationally protected persons. These developments exhibit the close relationship between international refugee law and human rights law, a relationship that has evolved over the years.
Under Art.1(a)(2) of the 1951 Refugee Convention, the definition of a refugee is “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”
This definition is limited in its scope. First and foremost, it is based on social and political rights only. Those fleeing other types of hardship, such as economic crises or natural disasters, fall outside of the scope of protection. This is still the case today, although new categories of protection have been added through interpretation, most notably for those fleeing gender-based persecution. Secondly, at the time of implementation, the Convention was limited both temporally and geographically: to those having fled their home country before 1951 and only those fleeing within Europe. This changed in 1967, when the Protocol relating to the status of refugees universalised the refugee definition to remove the time constraints as well as include refugees from other parts of the world.
The 1951 Convention has changed and evolved, and human rights have expanded its interpretation, but it remains limited. For example, international refugee law protects only those who are successful at leaving their country; internally displaced people are subject to other rules, no matter how egregious a situation may be within a country’s own borders. These and other failures originate in the inherent tension between state sovereignty and the need for protection. The role of state sovereignty in international refugee law is often minimised or overlooked. Traditional accounts of refugee law logic emphasise the need for humanitarian protection as a key imperative for the development of the refugee framework. Whilst need for humanitarian assistance is certainly an important factor in the development of international law and human rights, it is not the only noble motivation that shaped the system of international protection. If it was, the framework would look very different than it does today. We should aim to read the Convention from a different point of view, one that does not consider migratory flows a problem to be managed but rather centres the human dignity and rights of those forced to flee.