Back to Square One or a New Blueprint has been Found for the ‘Refugee’ Definition?

Editor’s note: This post is part of the ESIL Interest Group on Migration and Refugee Law symposium on The UN Global Compacts on Migration and Refugees: The Twin Peaks?

Our search for a new blueprint (or searching for a way to find a new blueprint) for the ‘refugee’ definition started already in 2016, at “The Migration Conference” in Vienna, through a comparison regarding the definition of refugee and more importantly its implementation in Brazil, Italy and Turkey. Afterwards, “The Movement of People Conference” in Hamburg in September 2016 opened the floor (at least) in academia to compare the definitions of refugee and its implementation in different parts of the world, which was not a new problem, but still had no solution at the time. Representatives from both sides of the Atlantic, i.e. the European Union (EU), USA, Latin America, United Kingdom, Germany, and Turkey came together to understand why all the implementations differ from each other, despite the fact that they are all States parties to the 1951 Geneva Convention and have derived their domestic definitions of refugee from it.

The results showed that this was due to the fact that there are different rationales behind the forced human mobility to various destination countries. For instance, while Latin America has dealt with hundreds of thousands of displaced people coming from Colombia and Northern Triangle of Central America among many other reasons also as climate refugees, EU Member States and Turkey still deal mostly with mass human mobility from Syria and the Middle East in general, because of the armed conflicts happening there.

My focus here, however, will not be to explore any comparisons, but to address a fundamental problem in international migration law, which is the definition of the concept of ‘refugee’ and its reflection on the two new UN instruments, the Global Compact on Safe, Orderly and Regular Migration and the Global Compact on Refugees. Due to the fact that the root causes of human mobility have changed, the difference between the concepts got blurred. Hence, the failure lies not in managing or reacting to the movement of people, but in solving the root causes.

Intentions and Implementation

Intention is one thing; implementation is another. The Geneva Convention should be seen as a consequence of the crimes committed by Nazi Germany and in the context of the fallout of the Second World War in general. Therefore, the intention behind the Geneva Convention was to provide international protection to people who fled from their countries, which during that period were mostly from East and Central Europe, and giving them the opportunity to be integrated in the economic and social life of the country of destination. At the time, the countries of destination were predominantly in Western Europe where there was a high demand for “guest workers”. In other words, the intention was that migrants would contribute to the well-being of their host states by successfully integrating in their economic and social systems and be able to stand on their own feet rather than being a burden for the host states. Ironically, the current politics and the implementation of the Geneva Convention turned out to be the opposite since the routes of the human mobility has changed.

As Assistant UN High Commissioner for Refugees Türk pointed out, it is also indeed ironic to hear negative rhetoric especially from the countries whose own nationals, at various times in their history, were also refugees. Today’s destination countries all over the world at some point in their history produced refugees themselves. That is why their current narratives around asylum and migration politics do not comply with the ones almost 70 years ago, as they came together to draw a blueprint for the refugee definition at that stage of time.

Main Drawbacks of the Definition of a Refugee

For any further evaluation, it is necessary to have a look at the foundational definition of ‘refugee’ provided by Article 1A of the Geneva Convention: any person who “owing to 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.”

Now, let us try to fit the people on the move, fleeing from the country of their habitual residence owing to climate change; or stateless persons; internally displaced people and forced migrants in need of international protection into this definition, in order to provide international protection. Even if there are some countries providing such protection for those that are not within the remit of the definition but covered by regional or local definitions, such as under the 1984 Cartagena Declaration, the 1969 OAU Convention, the UNHCR’s temporary protection or the EU’s subsidiary protection scheme, it is not always possible.

As Prof. Goodwin-Gill rightly pointed out, the scope of the definition of refugee is very crucial in the interests of effective management and humane solutions. It is not just to erase ‘bureaucratic and semantic distinctions’ between those who do and those who do not cross borders, or between those who qualify as refugees in the sense of the Geneva Convention, and those who do not.

As long as the scope of the definition of refugee stays as it is, there will always be people who are excluded from this definition, but still in need of international protection. As the above-mentioned examples of some regional and local definitions also show that the definition of refugee has become broader than the one in the Geneva Convention. The roots and causes of forced migration have already changed. That is why the definition is insufficient, outdated and problematic for the contemporary human mobility. Hence as long as the international migration law and policy focus on reacting and managing the human mobility, the roots and causes of human mobility cannot be controlled or hindered. The challenge is to find a new blueprint for the ‘refugee’ definition.

Go Back to Square One

After ignoring the failure of the implementation of the ‘refugee’ definition, which was not the one-size-fits-all answer, and its effects on the life of individuals as well as on states in its almost 70-years’ history and facing a mass movement of people in the last decade, the UN has realized that achieving solutions as outlined in the Convention is not static, but instead paves the way for new challenges. As a response, the New York Declaration for Refugees and Migrants was finally adopted in 2016. This gave some hope within academia that this time, the focus of the renewed international regime would be on planning the movement of people, rather than reacting to it and protecting from it.

Our hopes transpired as non-legally binding instruments, namely the Global Compact on Safe, Orderly and Regular Migration and the Global Compact on Refugees. Both instruments have already been criticized by scholars among many others, who have raised concerns, from a legal as well as human rights perspective; especially the lack of wrapping up international refugee and migration law.

How to Find a New Blueprint for the ‘Refugee’ Definition?

It is time to be brave enough to accept that the fundamental separation between refugees and migrants is not crystal clear anymore like it was after the Second World War, even if the UN still holds on to this line. As mentioned above, the definition and the narrative, which are used today, are insufficient. The needs and motivations of people have changed especially since the 21st century. If the international migration law will not be modified and formally revised according to the contemporary state, the movement of people will continue. Besides, States, which protect their Westphalian sovereignty and focus on protecting their borders by placing responsibility on the transit or origin counties, will only face the drawbacks of the human mobility, instead of profiting from it. The repeated practice of protecting borders and trying to manage the movement of people will not result in success until the root causes will be solved. In other words, the states will keep failing if they continue to focus on “managing” the movement of people, rather than “solving” it and addressing the factors that drive people to move. In this regard, both Global Compacts focus also on the managing and reacting, rather than solving it, since they are already politically polluted.

However, both Global Compacts measured the pulse of the State parties at the international level for a renewed global regime regarding the movement of people for a new beginning of the migration era. In this regard, former Director General of the UN migration agency, William Lacy Swing correctly emphasized, “(t)his is not the end of the undertaking but the beginning of a new historic effort to shape the global agenda on migration for decades to come.”

Despite the fact that some points of these international instruments have been criticized in this blog symposium, both Global Compacts should be seen from a positive perspective as a starting point of rethinking and understanding the movement of people in a positive context. Since the two Compacts are neither legally binding nor create any new international obligations in the form of customary rules, for now they probably will not have major impacts with regard to global governance of movement of people. Therefore, it is not a new blueprint we are looking for, but more a need to go back to the drawing board.