A refugee is a person who has fled their country of origin in order to escape persecution, other violations of human rights, or the effects of conflict. In international law, the fact of having crossed or not crossed an international frontier is critical, and treaties such as the 1951 Convention and 1967 Protocol relating to the Status of Refugees define a refugee as a person who not only has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, but is also outside their country of nationality (or former habitual residence if stateless), and without the protection of any other State. By contrast, an internally displaced person is someone who has moved within the bounds of his or her own country, either for the same sorts of ‘refugee-type’ reasons, or because of natural or ‘man-made’ events, for example, earthquake, famine, drought, conflicts, disorder, or development projects, such as high-dam building. Increasingly also, displacement resulting from climate-change, remote as it may be, is attracting attention in all its dimensions, including that of international law.
Historically, the word ‘refugee’ came into English usage following the flight of protestant Hugenots from persecution in France after the revocation of the Edict of Nantes in 1685; over time it came to describe someone who had good reason to flee their country, and who was worthy of refuge or protection. During the political turmoils of the 19th Century in Europe and Latin America, the idea of asylum for the political refugee also began to take root. An exception was made for the ‘political offender’ in the emerging practice of inter-State extradition, and the practices of diplomatic and territorial asylum were first regulated by regional agreement in the 1889 Montevideo Convention (later followed by numerous treaties recognizing the special status in Latin America of the ‘asilado’). The end of the First World War left significant numbers of refugees in Europe, including former prisoners of war and many who had fled the Russian revolution in 1917 and subsequently had their citizenship ‘cancelled’ by the Soviet Authorities. The League of Nations, put on notice by the President of the International Committee of the Red Cross, appointed the Norwegian explorer and humanitarian, Dr Fridtjof Nansen to the post of first High Commissioner for Refugees in 1921. During the inter-war period, the responsibilities of Dr Nansen and his successors were expanded to new groups of the externally displaced, including Armenians, Assyrians, Assyro-Chaldeans, refugees from Spain, and refugees from the fascist regimes in Italy and Germany. In each case, the League of Nations used one basic criterion to identify those who should benefit from international assistance, namely, the fact that the person in question no longer enjoyed the protection of their country of nationality or former nationality and had not acquired any other nationality; that such a refugee was outside their own country was implicit in the various arrangements made on their behalf. The Second World War and subsequent political developments led to massive new displacements of people fleeing persecution, conflict, the re-drawing of boundaries and the social engineering efforts of the Communist regimes in the East. The United Nations concentrated first on finding solutions for the post-war refugees, but also recognized the right of the individual to seek asylum in the 1948 Universal Declaration of Human Rights. The following year, the General Assembly established the United Nations Relief and Works Agency for Palestine Refugees in the Middle East which continues to this day; it is responsible for Palestinians in the Middle East, who were forced to flee as a result of partition in 1948 and later, following the 1967 War. The general definition of a refugee accepted by States in the 1951 Convention relating to the Status of Refugees was framed very much with the individual in mind, now seen as someone who was not simply without protection, but fleeing persecution for particular reasons. The struggle against colonialism and the wars of liberation, especially in Africa, exposed the limitations of this approach, and in 1969 the Organization of African Unity adopted an additional, broader definition more consistent with social and political reality on the continent. This stepped beyond the individual’s well-founded fear of persecution to encompass refuge from external aggression, occupation, foreign domination, or events seriously disturbing public order. A similar approach, again reflecting regional circumstances, was adopted for Central America in the 1984 Cartagena Declaration, notably taking account also of ‘generalized violence’ and ‘massive violation of human rights’. These specific regional approaches helped to keep the principles and practice of refugee protection more or less in touch with the actual dimensions of population displacements during the 1970s and 1980s, even if States remained reluctant to recognize an individual right to be granted asylum. However, international support for refugees, mainly channelled through the United Nations High Commissioner for Refugees, was also buttressed by the ideological divisions between East and West. These were frequently played out through proxy conflicts around the world, where their increasingly devastating impact on civilian populations fuelled massive refugee movements. With the end of the Cold War, refugees may have lost much of their political significance for the major players, but ethnic and nationalist conflicts, armed struggles for secession or autonomy, and interventions for humanitarian and/or political purposes, have continued to give cause for flight. Notwithstanding efforts to ensure their humanitarian and civilian character, refugee camps and settlements have often been seen as recruitment opportunities by rebel and insurgent forces, and therefore also as open to armed attack by the forces opposing them. Such attacks occurred with some frequency, for example, in Southern Africa in the 1970s and 1980s, in the Eastern Congo in the 1990s, and in Chad during the 2000 decade. In some instances, the failure of the international community and its agencies to take any effective action to disarm the displaced has been a contributing factor. A further consequence of the sometimes fragmented follow-up to refugee movements – refuge, protection and material assistance increasingly distanced from durable solutions – is the phenomenon sometimes referred to as ‘refugee warehousing’; that is, the long-term consignment of displaced populations to a life of dependency on diminishing international charity and waning interest. Refugees, in turn, may feel themselves driven to find their own solutions in countries, often but not always, in the developed world. Although the overall numbers of asylum seekers in the West are minuscule by comparison with those sheltered elsewhere, many States have long complained about the costs incurred in determining individual applications for asylum, the difficulty of separating refugees from economic migrants in mixed flow situations, and the supposed threats to social stability, national security, and economic management.
In the contemporary world, the idea and ideal of asylum for the persecuted have become muted in a multi-stranded debate linking and questioning, among others, not only the ethical basis for asylum policies, but also issues of sovereignty, border control, security, migration, irregular migration, the internally displaced, globalization, intervention, and the ‘responsibility to protect’. In all this, international human rights law plays a significant role, even if the ‘right’ to asylum remains contested. The prohibition of torture, inhuman and degrading treatment and of return to the risk of such treatment has contributed to a broadening of the concept of the refugee; he or she today is seen as a person at risk of serious human rights violations in their own country, rather than of persecution for a limited range of reasons. Equally, and notwithstanding the principle of sovereignty and non-intervention, human rights law has enabled a focus on the situation of those displaced within their own country, allowing pertinent questions to be asked about protecting IDPs, when their own State is either unable or unwilling to do so. States generally, out of self-interest if nothing else, have begun to appreciate the advantages of dealing with forced displacement issues ‘at source’, and of avoiding or preventing the necessity for external flight. At the same time, contradictions inherent in an increasingly globalized economy remain unresolved, for example, the fact that the cheap labour necessary to give a State the competitive edge often has to be supplied by irregular migration. Many governments, especially in the developed world, are actively looking for more effective ways to ‘manage’ the flows of people, often thereby also placing obstacles in the way of the refugee in search of protection and asylum. It is a moot point, therefore, to what extent refugees and asylum will retain a secure place in international law and the future practice of States.
Erika Feller, Volker Türk, & Frances Nicholson, eds., Refugee Protection in International Law, Cambridge: Cambridge University Press, 2003 Guy S. Goodwin-Gill & Jane McAdam, The Refugee in International Law, Oxford: Oxford University Press, 3rd edn., 2007 James Hathaway, The Rights of Refugees under International Law, Cambridge: Cambridge University Press, 2005 Walter Kälin, Guiding Principles on Internal Displacement – Annotations, Washington D.C.: American Society of International Law, 2008 Gil Loescher, The UNHCR and World Politics – A Perilous Path, Oxford: Oxford University Press, 2001 Jane McAdam, ed., Climate Change and Displacement: Multidisciplinary Perspectives, Oxford: Hart Publishing, 2010 Jane McAdam,Complementary Protection in International Refugee Law, Oxford: Oxford University Press, 2007 Lex Takkenberg, The Status of Palestinian Refugees in International Law, Oxford: Clarendon Press, 1998