The United Nations’ 1951 Convention Relating to the Status of Refugees attempted to define and, ultimately, protect refugees after World War II. However, government efforts to regulate the entry and reception of refugees and asylum seekers have throughout history been challenged by a variety of political, religious, and cultural pressures. The essays in this chapter reveal, through sometimes personal accounts of individual experiences, the plight of refugees in a number of countries around the globe in obtaining human rights protection and social justice

Handmaker, J.D. (Jeff)

Handmaker, Jeff

EUR Research Repository

Final	Author	Version:	J.	Handmaker	(2017)	‘Refugees:	Overview	(pp.	197-199)	in	O.	de	Schutter	(ed.)	Legal	Issues	Across	the	Globe	Detroit:	Cengage.		 1	Introduction	Refugee	Law		The	United	Nations’	1951	Convention	Relating	to	the	Status	of	Refugees	attempted	to	define	and,	ultimately,	protect	refugees	after	World	War	II.	However,	government	efforts	to	regulate	the	entry	and	reception	of	refugees	and	asylum	seekers	have	throughout	history	been	challenged	by	a	variety	of	political,	religious,	and	cultural	pressures.	The	essays	in	this	chapter	reveal,	through	sometimes	personal	accounts	of	individual	experiences,	the	plight	of	refugees	in	a	number	of	countries	around	the	globe	in	obtaining	human	rights	protection	and	social	justice.			Some	nations	have	historically	been	generous	to	refugees.	For	example,	during	the	early	1970s,	Kenya	readily	hosted	tens	of	thousands	of	Ugandans	who	had	fled	individual	persecution	and	armed	conflict	during	the	rule	of	Idi	Amin.	Australia	also	has	had	a	long-standing	tradition	of	taking	in	refugees,	which	at	times	has	conflicted	with	its	fixation	on	border	control.	Korea,	too,	generously	opened	its	doors	to	refugees	from	Vietnam	and	North	Korea,	as	well	as	to	others	fleeing	persecution.	The	United	States	admitted	hundreds	of	thousands	of	refugees	in	the	late	twentieth	and	early	twenty-first	centuries,	reflecting	its	history	as	a	place	of	safe	haven	and	opportunity.	In	2017	there	were	concerns	that	this	would	change	with	the	administration	of	U.S.	President	Donald	Trump,	although	increasing	restrictions	on	immigration	had	already	been	introduced	by	previous	administrations.		However,	alongside	this	tradition	of	providing	refuge,	countries’	admissions	policies	for	immigrants	of	all	categories,	including	refugees,	have	tended	to	be	based	on	ethnic	and	religious	exclusions	(particularly	of	Catholics,	Jews,	and	Muslims).	A	number	of	these	exclusions	have	prevailed	and	been	reinforced.	In	2016	in	the	United	Kingdom,	for	example,	some	political	parties,	including	the	Independence	Party,	urged	severe	restrictions	on	the	admission	of	all	immigrants,	alleging	that	many	were	faking	their	refugee	status.		Earlier,	in	2013	Nigel	Farage,	head	of	the	Independence	Party,	said	it	was	time	for	“a	proper	debate”	on	“the	difference	between	a	refugee—who	fears	for	his	or	her	life—or	somebody	moving	simply	for	economic	benefit.”		In	the	United	States,	President	Trump	issued	an	executive	order	in	early	2017	imposing	a	90-day	ban	on	travelers	who	were	citizens	of	six	Muslim-majority	countries--Iran,	Somalia,	Sudan,	Yemen,	Syria	and	Libya--from	entering	the	United	States.	This	measure,	which	affected	persons	irrespective	of	their	legal	status,	resulted	in	numerous	refugees	being	stranded	in	their	own	countries	or	in	airports	across	the	world.	A	federal	judge	blocked	the	order,	but	the	administration	appealed	and	introduced	a	revised	order.			The	legalization	of	refugee	protection	occurred	at	the	end	of	World	War	II	with	the	1951	Convention	Relating	to	the	Status	of	Refugees.	The	Convention	was	one	of	the	first	projects	of	the	then	nascent	United	Nations	(UN).	Although	initially	confined	to	refugees	from	Europe	(particularly	from	Hungary),	the	Convention	was	complemented	by	the	1967	Protocol	Relating	to	the	Status	of	Refugees	that	extended	the	reach	of	the	Convention	to	countries	outside	of	Europe.	Apart	from	a	few	nations,	including	Turkey,	states	that	were	already	part	of	the	1951	Convention	acceded	to	the	Protocol.		Final	Author	Version:	J.	Handmaker	(2017)	‘Refugees:	Overview	(pp.	197-199)	in	O.	de	Schutter	(ed.)	Legal	Issues	Across	the	Globe	Detroit:	Cengage.		 2	The	outcome	of	the	UN-led	process	of	legalization	resulted	in	a	commonly	shared	definition	of	a	refugee	that	most	countries	have	incorporated	into	their	national	legal	systems,	contained	in	Article	1	of	the	1951	Convention	(as	extended	by	the	1967	Protocol):			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.		In	addition	to	complementary	national	legislation,	these	UN	instruments	were	supported	by	region-specific	conventions.	For	example,	one	year	prior	to	the	UN	Convention,	the	1950	European	Convention	on	Human	Rights	and	Fundamental	Freedoms	was	passed.	Article	3	of	the	Convention	included	a	prohibition	on	torture.	This	was	later	interpreted	as	also	prohibiting	states	from	sending	people	back	to	a	country	where	they	would	likely	be	tortured	(complemented	in	1984	by	the	United	Nations	Convention	against	Torture	and	Other	Cruel,	Inhuman	or	Degrading	Treatment	or	Punishment).	In	1969	the	then	Organization	of	African	Unity	created	the	Convention	Governing	the	Specific	Aspects	of	Refugee	Problems	in	Africa.	It	extended	the	UN	refugee	definition	to	include	“any	person	compelled	to	leave	his/her	country	owing	to	external	aggression,	occupation,	foreign	domination	or	events	seriously	disturbing	public	order	in	either	part	or	the	whole	of	his	country	of	origin	or	nationality.”	In	addition,	the	Cartagena	Declaration,	passed	in	Colombia	in	1984,	broadened	the	UN	Convention	definition	in	Latin	American	countries	to	include	“persons	who	have	fled	their	country	because	their	lives,	safety	or	freedom	have	been	threatened	by	generalized	violence,	foreign	aggression,	internal	conflicts,	massive	violation	of	human	rights	or	other	circumstances	which	have	seriously	disturbed	public	order.”		While	state	definitions	and	practices	often	deviated	from	these	international	definitions	of	a	refugee,	the	consensus	of	scholarly	and	judicial	opinion	recognizes	them	as	highly	persuasive,	if	not	legally	binding.	Most	crucially	the	definition	of	a	refugee	rests	on	the	(binding)	principle	of	non-refoulement,	the	concept	that	states	should	not	return	a	person	to	a	country	where	they	would	face	a	well-founded	fear	of	persecution,	including	torture	or,	in	relation	to	the	African	refugee	convention,	a	situation	seriously	disrupting	public	order.		Apart	from	determining	what	a	refugee	is,	both	national	and	international	legal	regimes	have	recognized	what	one	is	entitled	to	as	a	refugee	or	an	asylum	seeker.	Many	of	these	legal	rights	are	explained	in	the	essays	in	this	chapter,	including	the	right	to	welfare	benefits	(particularly	in	wealthier	countries),	the	right	to	work	(including	asylum	seekers,	particularly	in	less	wealthy	countries),	and	the	right	to	education,	healthcare,	and	other	social	benefits	(which	varies	from	country	to	country).	Furthermore,	refugees	are	generally	entitled	to	the	same,	or	similar,	treatment	as	a	country’s	citizens,	particularly	after	their	refugee	status	has	been	determined	and	they	begin	the	process	of	assimilation.	These	rights	to	equal	treatment	include	the	right	not	to	be	discriminated	against,	to	be	treated	with	dignity	and	respect,	to	be	free	from	arbitrary	arrest,	and	to	be	provided	with	identity	documents.	Some	countries,	notably	Ecuador,	have	even	gone	so	far	as	to	explicitly	recognize	refugees	in	their	national	constitutions.	Final	Author	Version:	J.	Handmaker	(2017)	‘Refugees:	Overview	(pp.	197-199)	in	O.	de	Schutter	(ed.)	Legal	Issues	Across	the	Globe	Detroit:	Cengage.		 3		Several	other	legal	and	policy	developments	are	identified	in	this	chapter.	For	example,	immigration	authorities	in	South	Africa,	the	United	Kingdom,	and	the	Netherlands	have	compiled	so-called	“white	lists”	of	countries	presumed	to	be	“safe.”	This	legal	presumption	that	people	from	those	countries	do	not	qualify	for	protection	has	led	to	a	correspondingly	massive	decrease	in	the	numbers	of	recognized	refugees.			A	number	of	influences	have	made	it	challenging	for	government	regulators	to	maintain	the	standards	of	protection	envisaged	by	the	1951	Convention.	For	instance,	in	refugee-receiving	countries	like	France,	the	United	Kingdom,	and	the	United	States,	it	has	become	increasingly	acceptable	for	conservative	leaders	to	refer	to	refugees	as	a	threat	to	national	security.	This	has	led	to	increasingly	severe	restrictions	on	entry	and	containment	of	refugees	in	refugee	camps	and	prisons—both	measures	that	undermine	the	notion	of	safe	haven.	Some	of	these	nationalist	tendencies	and	societal	fears	(e.g.,	of	disease,	terrorism,	and	job	loss)	have	translated	into	xenophobic	violence,	as	described	in	the	essays	on	Germany,	Greece,	Australia,	Lebanon,	and	South	Africa.	Citizens	in	refugee-receiving	countries	worry	that	refugees	are	actually	economic	migrants	in	disguise,	migrating	to	developed	nations	not	because	they	are	fleeing	persecution	or	violence	at	home	but	because	they	want	better	employment	opportunities.	Fear	and	distrust	of	refugees	have	been	fomented	by	right-wing	political	movements	and	sections	of	the	popular	media	that	have	played	on	these	fears,	especially	during	national	elections	and	referenda,	including	the	United	Kingdom’s	decision	to	exit	the	European	Union	(EU).	Meanwhile,	some	have	argued	that	left-wing	political	movements	have	ignored	the	limited	capacity	of	countries	to	absorb	refugees	and	migrants,	despite	vocal	opposition	by	the	electorate.		Policies	in	many	refugee-receiving	countries	have	reflected	the	subtle	mantra	of	irregular	migration,	which	is	a	policy	presumption	designed	to	discourage	spontaneous	arrivals	of	people	at	the	border,	and	upon	which	most	countries	have	oriented	their	admissions	policies	for	all	migrants,	including	refugees.	According	to	Jeff	Handmaker	and	Claudia	Mora	in	our	essay	in	The	Role	of	“Experts”	in	International	and	European	Decision-Making	Processes	(2014),	the	orienting	of	policies	around	the	notion	of	irregular	migration	has	led	to	a	situation	in	which	refugees	and	so-called	“knowledge	migrants”	have	received	structural	preference	over	the	vast	number	of	other,	mostly	labor	migrants.	In	other	words,	rather	than	deal	with	the	broader	complexities	of	arriving	migrants,	many	of	whom	leave	their	countries	for	mixed	reasons,	wealthier	countries	in	particular	have	chosen	to	retreat	to	an	expensive,	highly	regulated,	and	selective	policy	of	containment	and	arbitrary	admissions	based	on	the	perceived	value	of	individuals	to	the	“host”	society.		Where	states	have	proven	to	be	reluctant	to	process	refugee	status,	as	explained	in	the	essay	on	Kenya,	the	UN	High	Commissioner	for	Refugees	(UNHCR)	has	stepped	in	to	provide	refugee	status	determination	procedures.	Barbara	Harrell-Bond	and	Guglielmo	Verdirame,	in	Rights	in	Exile:	Janus-Faced	Humanitarianism	(2005),	describe	this	as	a	situation	of	reduced	legal	accountability	and	arbitrariness,	where	the	role	of	the	state	as	primarily	responsible	for	refugee	protection	has	been	replaced	by	the	UNHCR.	For	example,	the	decision	by	the	UNHCR	to	contain	refugees	to	large	camps	in	Kenya	for	indefinite	periods	has	led	to	what	the	authors	describe	as	a	“custodial	regime	for	innocent	people.”			Final	Author	Version:	J.	Handmaker	(2017)	‘Refugees:	Overview	(pp.	197-199)	in	O.	de	Schutter	(ed.)	Legal	Issues	Across	the	Globe	Detroit:	Cengage.		 4	Perhaps	the	most	striking	legal	and	policy	development	of	all	that	emerges	from	this	chapter	is	the	regional	disparities	created	by	EU	regulations	that	seek	to	manage	migration	and	refugee	admissions	as	a	core	EU	policy,	or	“first	pillar”	issue.	One	particular	example	discussed	is	the	Dublin	Regulation,	which	states	that	an	individual	must	apply	for	refugee	status	in	his	or	her	first	country	of	entry	to	the	European	Union.	Effectively,	this	pushes	responsibility	for	reception	and	processing	to	Turkey,	Greece,	and	Italy.	These	countries	are	at	the	periphery	of	the	EU	yet	by	far	are	the	least	financially	equipped	to	deal	with	the	significant	flow	of	migrants	into	the	region.	According	to	Handmaker	and	Haijer	in	our	2016	blog	post	on	The	Broker,	titled	“Addressing	Root	Causes	of	Europe’s	Immigration	Crisis	through	Extra-territorial	Measures,”	the	EU	agreed	to	pay	several	billion	euros	to	Turkey	in	exchange	for	a	commitment	to	step	up	efforts	to	block	migrant	routes	to	the	EU,	extending	its	border	control	measures	extraterritorially.		This	trend	within	the	EU	is	reflected	at	a	global	level	as	well.	Of	all	the	countries	examined	in	this	chapter,	the	comparatively	poorest	(Kenya,	Turkey,	Lebanon,	Greece,	Italy,	and	Turkey)	have	shouldered	a	grossly	disproportionate	burden	of	hosting	refugees,	as	compared	with	the	wealthiest	countries	(Australia,	United	Kingdom,	United	States,	Korea,	and	Germany).	This	is	illustrated	in	the	case	of	Lebanon,	where	more	than	one-fifth	of	its	population	are	refugees,	including	500,000	Syrians.	Lebanon’s	massive	burden	can	be	compared	with	the	United	States	(population	nearly	320	million),	which	in	2016	took	in	around	39,000	Syrian	refugees	following	a	rigorous	screening	process,	a	small	fraction	of	the	global	population	of	nearly	5	million	Syrian	refugees.	The	disparity	is	also	reflected	in	terms	of	acceptance	rates.	For	example,	Korea	accepts	around	3	to	5	percent	of	those	applying	for	refugee	status	compared	with	the	global	average	of	38	percent.		Despite	these	unsettling	trends,	there	are	some	hopeful	signs,	captured	in	the	essay	on	Italy.	The	author	explains	the	experience	of	Assan,	who	fled	violence	in	Senegal’s	conflict-torn	Casamance	region.	After	a	dangerous	journey	through	various	countries,	including	Libya,	he	managed	to	reach	the	village	of	Camini	in	southern	Italy,	which	welcomed	him.	While	Assan’s	experience	is	hardly	representative	of	the	general	treatment	of	refugees,	its	message	of	humanity	is	important	to	note.	As	Behzad	Yaghmaian	writes	in	his	moving	portrait	of	refugees,	Embracing	the	Infidel:	Stories	of	Muslim	Migrants	on	the	Journey	West	(2006),	despite	the	myriad	challenges	faced	by	migrants	and	regulators	alike	and	amid	growing	fears,	nationalism,	and	xenophobic	violence,	a	human	face	managed	to	emerge,	extending	not	only	protection	but	also	kindness.			In	the	early	twenty-first	century	protracted	violence,	armed	conflict,	and	war	across	the	globe	have	created	what	some	have	described	as	the	largest	refugee	crisis	since	World	War	II.	The	arrival	of	refugees	in	need	of	safe	haven	at	national	borders	has	forced	receiving	nations	(especially	those	adjacent	to	conflict	zones)	to	be	seen	as	balancing	their	international	and	domestic	legal	obligations	to	refugees	along	with	the	concerns	of	their	citizenry.	The	essays	in	this	chapter	illustrate	each	country’s	efforts—sometimes	successful,	sometimes	not—to	achieve	this	difficult	balancing	act.	In	addition,	the	essays	in	this	chapter	demonstrate	how	a	country’s	unique	historical	and	cultural	background	influences	its	modern-day	legal	approaches	to	refugees,	as	well	as	to	immigration	more	broadly.				

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Refugees: Overview

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