We finally bring you the second installment of ‘Who Is A Refugee?’, our two-part review of a recent UCL debate, featuring esteemed refugee academics Professor Elsbeth Guild, Ahmad Al Rashid and Dr Phillip Cole.
In Part 1 the talk centered around defining refugeehood under the current UN convention, establishing its parameters, and discussing whether these parameters remain compatible with our contemporary geopolitical and environmental landscape. All speakers recognised the fact that the current EU migrant system is severely dysfunctional, and in its current form, is letting down thousands of people who have fled their native countries for legitimate reasons.
In the next phase the speakers consider solutions to protracted refugee situations, and balance the advantages and disadvantages of changing the basic UN Refugee Convention, or keeping it the same and creating adjacent conventions. The ethical problem of distinguishing different groups by their level of ‘need’ as defined by the outdated conditions of non-refoulement, and on that basis, awarding certain groups more rights and privileges than others, is also discussed, as well as the theoretical justifications for why all states have a shared interest in protecting refugees.
Cartagena Refugee Declaration
Convention against Torture
Convention Against Enforced Disappearances
Joseph Carens’ Theory of Responsibility
Andrew Shacknove’s Refugee Definition
African Union (AU) Refugee Definition
PHASE 4: THE NON-REFOULEMENT LOOPHOLE.
Speakers discuss significant flaws in the UN Refugee Convention, and share suggestions for strategies and policies which would provide more security for refugees, including making countries such as Turkey officially ratify the convention, rather than rely on ad-hoc ‘soft-law’ solutions, which are not internationally recognised.
“How do you see the move of more conventions as improving the prospects for protection, over the option of trying to expand the definition of the refugee itself? Why should that be the better move in your view?”
Professor Guilds reiterates her earlier assertion that the Refugee Convention is sufficient, and that there are supplementary conventions being added to cater for more people at risk, citing the Convention against Torture and the Convention Against Enforced Disappearances. She adds that more countries need to ratify the convention, such as Turkey, which has not yet done so.
Al Rashid returns to the immediate concerns of Syrian refugees, and other groups such as Palestinian and Kurdish people, who are all living in host territories. He explains that granting them citizenship to their new homes is problematic, particularly in dense refugee zones such as Lebanon, where the entire population is now 25% Syrian refugees. This of course is causing tensions with the native population, and a lot of political and religious unrest. Similarly in Turkey, where there is a current backlash by Turkish Nationalists, who are concerned that their ‘Turkish-ness’ is being compromised.
Dr Cole echoes Prof Guild by stating the need for further conventions to cover the internally and environmentally displaced. In relation to Al Rashid’s previous point about the ‘guest’ process in Turkey and other states, Dr Cole emphasises the need for these soft law systems to be made legally binding and internationally recognised. This would give these groups proper protection.
Dr Cole also highlights a fundamental flaw with the current persecution-based refugee definition: Non-refoulement protects a refugee from being returned to his or her country of origin where he or she could face persecution, BUT non-refoulement does not give them the right to escape that danger in the first place. In other words, refugees have the right to remain in a place of safety, but they have no right to freely access this place of safety. This results in individual states employing tactics which prevent refugees from crossing their borders and claiming non-refoulement. These tactics include, establishing physical barriers (such as border fences), human barriers (such as armed police along the Hungarian border, or coastal authorities patrolling the Mediterranean), and legislative barriers (such as European visa policies.)
“We know the global north is trying to stop people getting to safety because one of the problems with the convention is that you have the non-refoulement right not to be sent back to danger, but you don’t have the right to escape danger. The question of safe passage becomes absolutely crucial.”
Prof Guild agrees that there is a huge injustice with the current non-entry policies promoted by North America and Europe.
“If we want to think about responsible border controls in the international community then we have to think very carefully about what border controls should be. Responsible border controls are not those which create death at the border, or on the way to the border.”
PHASE 5: THE CAUSES OF THE REFUGEE MOVEMENT: WHO IS RESPONSIBLE? AND TO WHAT EXTENT?
It is self-evident that some countries, for example, the U.S, have had more involvement in the destabilization of states than others; however, does this translate into more responsibility to the refugees they helped create? Whilst on face-value this is an attractive conversion method (more involvement=more responsibility), speakers explore why every state has an equal responsibility to help refugees.
Professor Guild asserts that one of the key components of being considered a sovereign state in the eyes of the international community, is to be able and willing to uphold refugee rights:
“Yes, we need strong states, but we also need states which are strong enough to stand up and to comply with the international obligations which they have undertaken. That must be seen as part of the responsibility of being a sovereign state in an international community. One of those obligations is to behave in a manner of solidarity towards refugees.“
Despite Guild’s encouraging words about international solidarity and shared responsibility, Al Rashid returns to the sobering facts; he speaks about the deep feelings of personal abandonment experienced by refugees all over the world, and the fact that none of them feel supported, or even know who is in charge, or how to communicate with them:
“If you go today and ask any Syrian person what the international community is doing, the first thing they would ask is, “Who is the international community? Who are they? Where are they? Where can I meet them!?””
Al-Rashid goes on to mention the unsettling, yet brutal truth, that dictators such as Assad in Syria, or Saddam Hussein in Iraq provided leadership and stability for their countries. Now that they are gone the whole country has been destabilized, and owing to lack of infrastructure and established institutions, and inadequate support from the international community, a vacuum has been created.
“When it comes to the international community, dealing with dictators, dealing with criminals, there are no alternatives. If the dictator goes it means that the whole structure will fall.. I believe the international community did not do enough to build institutions to ensure that when these dictators, these butchers leave, these countries could stand up.”
Al-Rashid also highlights the hypocrisy of Western States which condemn the violence and barbarism of conflict, but refuse to take in more refugees- particularly America and its recent ban on Muslims.
“When a province was attacked by a chemical weapons, we’ve seen Donald Trump talk about the “horrible deaths of little baby children in Syria, killed by criminals”. Two hour later, “We will not take in syrian refugees, not any refugees from seven muslim countries.” This contradiction is beyond imagination. It’s … its crazy. These are very scary times to be a refugee.”
Al-Rashid finishes by acknowledging the part Syrians themselves played in causing the conflict, and also condemns media giants and weapons companies for their cynical and money-motivated involvement in the crisis.
“Who to blame? First of all, I would blame ourselves, Syrians. We started it. But today we cannot stop it because it is not about us anymore. I do blame the media; I blame the conscious world that let this happen. I blame the weapon companies, the media giants who deceived us and stole our dream of just living as a human being. We’ve learnt but it was too late for us.”
Dr. Cole takes a more abstract approach to the question, citing Joseph Carens’ three-dimensional theory of responsibility, which provides three rationales for why independent states all have a responsibility to take in refugees: One is purely humanitarian, one is cause and responsibility, and the third, which Carens favours, is based upon a mutually beneficial interest in maintaining the international social contract. The latter, Dr Cole argues, is a much better framework for justifying responsibility as it shares the responsibility equally amongst all states. Of course, some would argue that this isn’t fair as certain states have been more instrumental in causing humanitarian crises than others, however, if we choose the ‘cause and effect’ model of responsibility, this would legitimize the non-involvement of many states (e.g Australia’s Operation Sovereign Borders policy).
“Refugees are created by the failure of the state system. If the states have an interest in that system working then all states have an equal responsibility to take refugees. So it’s an international responsibility to take them, wherever they come from.”
“The problem with the cause and responsibility argument, is that it’s tempting to aim it at a certain state. But then another state can say, “they’re not our problem, we did nothing, it’s their problem over there, we are not going to take them in”. So this is why people are cautious about that, although it has an attraction.”
Dr Cole goes on to explain that simply ‘taking in’ refugees is not sufficient; he outlines the UNHCR’s three main strategies for dealing with the current refugee camp gridlock (repatriation, integration, or resettlement), and mentions the staggering statistic that the average stay time for a protracted refugee case is 26 years.
“The UNHCR has three durable solutions to the refugee situation: One is repatriation, where refugees go home. The other is local integration, giving citizenship. The other is resettlement. If you look at the numbers in all of those, if you combine them all, probably less than 10% of refugees are moving through any of those systems.”
PHASE 6: DIVISIONS.
The categorization of human beings into groups which ‘deserve’ the help of the international community, and groups which do not, is ethically dubious to say the least. The differing treatment received by refugees and non-refugees, and even refugee groups themselves, serves to highlight the seemingly arbitrary and severely limited nature of the current Refugee Definition. But should it ultimately be changed?
A quotation by Andrew E.Shacknove (provide link) (1985) introduces the relatively unexplored topic of refugee hierarchies within migrant camps.
“In a sense, being a refugee is a kind of privileged status when compared to lots of people who are on the move, or indeed not on the move, because they are stuck where they are. Many people would like to have the rights attached to the status of a refugee.”
Dr Cole discusses the binary opposition between refugee and non-refugee peoples, and the often unfair demonisation of economic migrants and other migratory groups, who have legitimate claims for fleeing their country of origin, but who are not classed as refugees under current UN law.
“The economic migrant is often the villain of this piece. It’s the economic migrant who gets the finger pointed at them... If you look at the people who fall under this category, who are fleeing extreme poverty and deprivation, to say that they are not forced to move does not stand up for more than a split second- it just depends on a very tendentious definition of what counts as being forced to move.”
By attaching certain rights and privileges to refugees, the international community is implicitly with-holding these rights from other groups of people- this is problematic because all migrant groups are vulnerable to certain degrees, and most notably, they all have the same set of fundamental human rights, many of which, are not being upheld within the current migrant system.
“In asking the question, “who is a refugee?”, we are also at the same time asking ourselves who is NOT a refugee? … If we are going to have a definition, we are saying the refugee has a set of international protections. People who fall outside this definition will not have these. What do we do about these people? What responsibilities do we have to them?”
“...there is still a lot of work to do on the refugee definition. It is target based, it is persecution based, and we know that the vast majority of people fleeing military violence are not specific targets of that violence- they are just in the way, they’re not being persecuted directly as such.”
Despite his criticism of the restrictive nature of the current definition, Dr Cole suggests that supplementary conventions and agreements could be added, as opposed to a fundamental expansion of the definition. Dr.Cole also references the Cartegena Refugee Declaration for Latin America and the African Union definition, both of which, are much less stringent. He adds, that the definition developed by the global north was written during the cold war, to address a cold war issue- this of course begs the question of whether this Eurocentric 20th-century definition of a refugee can be considered globally relevant or applicable in 2018.
However, Al Rashid makes the important point that if the definition is tinkered with too much, this could harm its legitimacy as a foundational and aspirational system of human protection. Too much modification could lead to lack of consensus, and a splintering off by individual states who reject the revamped version.
“Given the current political situation the least we could do today is stick to the current refugee convention. If we lose it, globally there is no consensus….I would say, losing the current refugee convention with all its imperfection would be a disaster. At least maintaining it would still be a plus for many many people. It would save millions of lives.”
Turning back to the topic of needs-based hierarchies within the refugee system, Al Rashid explains that at the mo