Immigration

Caught in the in-between: Why the legal definition of “refugee” is limiting and why we may not want to change it

The legal definition of a refugee as established by the 1951 Refugee Convention (pictured above) in the aftermath of World War II determines who receives humanitarian assistance from international organizations. Although it was intended for the legal definition to expand over time, multilaterals have been operating under the same working definition for nearly 70 years. Migrants who may not be facing personal persecution from their home governments, but who may be facing other serious human rights deprivations – “survival migrants” – are not recognized under the current operating definition. This leaves them bereft of international assistance from organizations like UNHCR, the multilateral organization guarding countries’ compliance with the legal document. The following explains why expanding the legal definition may not be helpful, and presents potential alternative approaches to making aid more inclusive.

One of the key issues faced by humanitarian and development agencies in dealing with migrant populations boils down to the lack of money and resources. For instance, it may be important to note the incredible coordination, effort, and resources necessary to maintain a refugee camp, which is most explicitly expressed and understood from the documentary, After Spring. The documentary follows aid workers fighting to keep the Zaatari refugee camp, the largest refugee camp for Syrian refugees, running. There is only one social worker tending to the needs of thousands of families, and families remain on endless wait-lists for essential health-related services. Also, due to the high cost of semi-permanent shelters, many families still reside in tents (Ching and Martinez, 2016). The operational costs of maintaining camps and limited funding alone may explain why expanding the legal definition poses a practical challenge.

Changing the legal definition may also not be helpful: being considered a refugee may not always be in the best interest of some migrants, especially for those who want to maintain the right to return. This notion is clearly expressed in the article, When “Humanitarian” Becomes “Development”: The Politics of International Aid in Syria’s Palestinian Refugee Camps. A mural is painted on the side of a house in Ein el Tal, a Palestinian refugee camp in Northern Syria, depicting controversies over UNRWA’s recent attempt to emphasize “development” in Palestinian refugee camps (Gabiam, 2012, p. 96). While these displaced Palestinians should not be revoked of their “refugee” status as they remain displaced, it is important to understand the perceived permanence of that status, and how that can be conflated by “development” (i.e. more permanent structures) in humanitarian situations. While refugees may be protected by humanitarian organizations, perceptions regarding their rights and personal freedoms under this status have left them feeling as though their rights are restricted.

The problem is not the definition of a refugee, but that the legal protections migrants receive hinges on the definition of a refugee.

It is troubling that international organizations and nation states solely rely upon the operating definition of a refugee as established by the 1951 Refugee Convention when our understanding of why the rest of the world (everyone else) migrates is still so limited. And yet, when we do attempt to rationalize the motivations of migrants, our frameworks for developing such an understanding are too conflated by outdated and unrealistic neoclassical economic theories that cannot explain the intricacies and nuances behind such heavily personal decisions.

To meet the present needs of migrants, we need a framework for migration that better responds to the wide spectrum of needs and demands of displaced persons, not just a new definition and new legal parameters for refugees. Besides, there is little to no political will to create a new working definition by international agencies as evidenced by the fact that agencies have been working under the same definition for nearly 70 years.

Some countries have adopted additional national policies that expand upon the existing international definition and legal framework, but these rarely work. Such is the case of  the 1969 OAU Refugee Convention in Africa, which expanded the definition of the term “refugee” and introduced non-refoulement policies, in which refugees or asylum seekers are not forced to return to a country where they would be subjected to persecution. Although well intended, these policies are selectively enforced and rarely invoked into practice, as examined in the book, Survival Migration. The book studies applications of non-refoulement in Kenya, Tanzania, Angola, and South Africa. The most successful case of applying non-refoulement policies was in South Africa, but it had many shortcomings. In the 2000’s and 2010’s, many Zimbabweans fled existential threats from their home country and received protection as refugees in South Africa through country’s asylum legislation, which gave them asylum permits. By March 2011; however, the South Africa national government imposed stringent transit permits and restricted material support for Zimbabwean migrants, which altogether undermined their rights to asylum. So, even in a successful case, non-refoulement is short-lived (Betts, 2013).

The current framework of migration needs to be replaced with alternative frameworks of understanding that will disrupt dominant discourse. Perhaps the most expedient and effective way to care about migration now would be through energy strategies and the interrelationship between climate change and migration. Creating space for policies that are more institutionally responsive to migration and climate change issues in the common political discourse today is extremely challenging. So, instead of targeting every head of state, it may be more important and helpful to understand whether the numbers of those who can be swayed are large enough to change policy (University of Limerick, Ireland, 2016). With the insurgence of sanctuary cities and the rise of mayoral leadership on migration issues, local government is the perfect place to begin implementing alternative frameworks. Policies and practices in any given place should offer asylum for migrants, including survival migrants, who, on a wide spectrum of refugees and economic migrants, fall somewhere in between. noun_766494-1

 

References

Betts, A. (2013, July 12). Survival Migration: Failed Governance and the Crisis of Displacement. Cornell University Press.

Ching, S. (Producer and Co-Director) & Martinez, E. (Producer and Co-Director). (2016). After Spring [Documentary]. United States: After Spring LLC.

Gabiam, N. (2012). When “Humanitarian” becomes “Development”: The politics of international aid in Syria’s Palestinian Refugee Camps. American Anthropologist, 114(1), 95-107. Retrieved from Link

University of Limerick, Ireland. (2016, April 16). “Public and political discourses of migration international perspectives.” AHHS News. Retrieved on April 26, 2017, from Link

Photo Credit: UNHCR, The 1951 Refugee Convention (n.d.) (also great for further reading about the Convention)

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