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Abstract

The number of people displaced due to war and persecution is currently at its highest recorded levels.  Despite this, wealthy states in the global North continue to pass policies restricting access to asylum, while  at the same time claim to open their doors to refugees through resettlement schemes. This article  addresses a common question held by the public, advocates, academics and policy-makers regarding the  distinction between who is a refugee and who is an asylum-seeker, and what policies protect or exclude these populations. Drawing from historical and contemporary definitions in international law, national  policies and political discourse, this article will argue these terms have been obscured by states to legitimize  exclusionary policies to benefit ideology and sovereignty over the protection of human rights. This article  will hopefully lend a new perspective towards the urgency to reframe refugee narratives.



Introduction

Last year marked the 70th anniversary of the 1951 Convention relating to the Status of Refugees. With it  came questions regarding its continued relevance in the refugee regime. How well does the treaty address  the needs of the populations currently displaced? Why do refugees and asylum-seekers continue to be  excluded by signatory nations to the Refugee Convention, and why haven't new nations signed onto the  treaty? These questions have deep historical roots which impact their contemporary applications. The  common link between them, however, is the question of who exactly is a refugee? How do refugees and  asylum-seekers differ from one another, in international law, discourse and in national policies? How do  these definitions change outside the scope of the Convention's definitions?

This article will analyze these definitions and frames within contemporary and historical norms in the global  North and South, and consider how they have evolved in both signatory and non-signatory states to the  Refugee Convention. It will examine the role political discourse and policy frames play in justifying restrictive  policies, and contextualize which definitions are considered 'deserving' or 'favorable' of admission into a  country, and which are considered 'undeserving,' a 'threat' and 'illegal.' Finally, this article will identify where  further research and policy innovations are needed beyond the constraints of the Convention. 



Before the Convention: Defining Asylum and Refuge

The concept of asylum stems from an ancient tradition associated with the institution of protection. The  word asylum comes from the Greek word 'asylon,' containing the root word 'sylon' meaning 'right of seizure',  and the 'a' which negates that right.1 The word and concept can be traced back thousands of years, and is  found in nearly all leading religious texts; synonymous with how morality was defined and related to the role  of churches and other sanctuary spaces.2 Historian Elena Isayev noted, "Seminal to the narratives of the  most well-known surviving works of ancient literature, are the encounters between the guest and the host;  between those who seek asylum and those who are asked to provide it."3 As nation-states developed and  borders were drawn, asylum evolved into a legal institution, giving rights to those seeking safety from  primarily political persecution in their home country. States maintained the sovereign right to choose which  asylum seekers they would accept, which was often dependent upon religious structures. But many looked  at the duty to protect others as a foundational part of their normative legal structures, adding it into their  constitutions.4 This duty to protect included the duty to not forcibly return an asylum-seeker to the country  they were fleeing from, or 'non-refoulement,' now one of the cornerstones of international human rights  laws.5

The word 'refugee' originates from the word 'res' in England, used to describe the millions of French  Huguenots who fled Protestant pogroms and sought refuge in England in the 1680s.6 The terms asylum seekers and refugees were interchangeably used over centuries to describe similar concepts; for large  numbers of people fleeing for safety, for those targeted due to ethnicity or religion, and for individuals fleeing  political persecution. 



Who has the Right to Have Rights? The Need for Legal Protection

During and after World War II, millions of Jews and other minorities were stripped of their nationality and  became stateless, or 'rightless' according to Hannah Arendt, prompting urgent discussions around legality.  Her question around who has the right to have rights challenged the notion of an abstract reality of  'inalienable' human rights which can subsist outside the bounds of a nation-state. These rights, Arendt
countered, "were supposed to be independent of all governments; but as it turned out that the moment  human beings lacked their own government and had to fall back upon their minimum rights, no authority  was left to protect them and no institution was willing to guarantee them."7 The need to ensure legal rights  for those displaced within a polity prompted the 1948 United Nations Declaration for Human Rights  (UNDHR), which called on nations to commit to ensuring the rights of humans are protected, even if those  people are not their "own." Article 13, for example, allows people the "right to leave one's own country,"  Article 14 grants the "right to seek and enjoy asylum from persecution," and Article 15, states people have  a "right to nationality."8 Holding nations accountable to ensure those rights were given to the displaced was  one of the key motivations behind the 1951 Refugee Convention. However, the question of defining who qualified for refugee status again became contentious.



The 1951 Refugee Convention: Defining a Refugee

While the concepts of refuge and asylum were used somewhat analogously throughout history, the Refugee  Convention codified them into legal terms. It distinguished between asylum and refugee status; "asylum" became the institution for protection, while "refugee" became the category of individuals who benefit from  that protection.9 The Refugee Convention required states to provide rights to non-citizens who qualified  under the statutory definition, specifically someone who is outside their country of origin who could prove  they were "unable or unwilling to return" due of a "well- founded fear of persecution due to race, religion,  nationality, membership of a particular social group or political opinion."10 It was the first and arguably still  the most important cross-border treaty to the present day, requiring states to make exceptions to their national sovereignty, and allow people to work, go to school, find housing without discrimination, if they qualified under the definition. When it came time to sign onto the treaty, however, delegates expressed reluctance to sign onto a "blank cheque" for the "unknown numbers of refugees" who might seek asylum  in their territories in the future. Thus, geographic and temporal restrictions were added to the Convention,  defining a refugee as someone from Europe, who experienced events prior to 1951.11 While the geographic  and temporal restrictions were lifted in the Protocol to the treaty in 1967, the remainder of the language of  the Convention remains the same to the present day.



The Myth of Difference, the Non-Entrée Regime

Forty-four nations refused to accede to the Convention or its Protocol, including India, Bangladesh, Jordan, Lebanon, Eritrea and Pakistan; currently some of the world's largest refugee-hosting nations. Most of those nations were not independent countries at the time of the signing, however, and as the Convention was  designed in respond to the crises in Europe, the Eurocentric intentions were clear. Populations from the  global South were not even considered in the definition of a "refugee," including and most specifically states  who had recently been decolonized.12 Populations in these nations were seen as distinctly "different" than  the more traditional "white, male and Communist" political asylum seekers in Europe at the early stages of  the Cold War.13 Chimni labeled this bias the "myth of difference," and stated the distinction was used to  justify exclusionary policies against these populations. Western nations would not recognize postcolonial societies as having been persecuted, and instead turned to the presupposed "internalized" root causes for  displacement; stating they were displaced due to "ethnic" conflicts, such in India during partition; or loss of  home, such as the Palestinians. Chimni and other legal scholars argued the myth of difference created a  normative definition of an asylum-seeker for refugee law over the next several decades; used to legitimize  exclusionary policies, detentions and forced repatriations of asylum-seekers from the global South from  Western signatory nations.14 Dubbed the "non-entrée regime," these wealthy nations in the global North leaned on racial and xenophobic ideologies despite encountering only a small fraction of the world's asylum  seekers compared with developing nations in the global South.15



The Duty to Welcome, the Reality of Containment

After the temporal and geographic restrictions were lifted from the Refugee Convention in 1967, the UNHCR  began to respond to displacements in the global South, with the first major coordinated response effort in  India in 1974.16 An estimated 10 million people fled targeted violence during the Bangladesh  independence.17 Despite India not acceding to the Refugee Convention, they, like many non-signatory  countries in South Asia and the Middle East, have hosted significant influxes of displaced people entering  their territories for safety from neighboring states. Scholars have attributed this to the culture of hospitality,  kinship, or in the case of Middle Eastern nations such as Jordan and Lebanon, as karam, or the duty to be  generous.18 These are concepts more closely related to the historical definitions of asylum. In addition, the  significance of non-refoulement as a central aspect of international law cannot be understated, as it is  written into multiple transnational charters and treaties outside of the refugee convention.19 Most nations  globally comply with the non-refoulement principal, despite the fact many of the world's largest refugee hosting nations are not signatories of the 1951 Refugee Convention or Protocol, they do provide a relative  amount of protection and have less militarized borders than states in the global North.20

The UNHCR has two primary roles: 1) protection; and 2) finding long-term or "durable" solutions,  categorically ordered as voluntary repatriation, local integration and resettlement into a third country.21 Protection includes providing safety and rights in the form of shelter, aid, food, medical support, but the  Convention specifies that these rights pertain to individuals who obtain the status of a refugee, signaling that people should not be considered refugees permanently, but rather temporarily until a durable solution  is found.

Unfortunately, finding durable solutions has become the UNHCR's biggest challenge. By 2008, the vast  majority— in fact 75% of the world's refugees—lived in not just temporary emergency situations, but in  "protracted refugee situations," defined as living for 5 or more years after displacement without a durable  solution.22 Similarly to Arendt's quandary on the rightless, refugees who remain in encampments are caught  in a legal limbo, often without any rights to live or work outside the camp, no safe way to repatriate, and no  hope for resettlement. The average stay in a protracted situation is estimated to be 17-20 years, with less  than 1% being accepted into a third country for resettlement.23

With the growth of the encampments, UNHCR began acting as a "surrogate state," conducting refugee  status determinations on those seeking asylum in lieu of a national legal system.24 Encampment or  "containment" has become the norm, and for signatory nations in the global North, resettlement has become  the preferred choice over "spontaneous arrivals" seeking asylum at the borders. The state can maintain  some sovereign control over the selection process of resettlement, and choose how many arrivals are  desired each year, from where, and profiles of specific refugees.25



Contemporary Definitions

The definition of who qualifies as a refugee might indeed be written into international law vis-à-vis the  Refugee Convention, but if someone enters a signatory requesting asylum outside of the UNHCR's  jurisdiction, the determination decision is left to the discretion of each individual signatory state's judicial  system. This is largely the same process, in fact, for many states who have not acceded to the Convention  but who have asylum as part of their Constitutional right or cultural tradition. The difference lies in the Convention's definition of "persecution", a decision both political and ambiguous, because the burden of  proof isn't about determining whether a person has already been persecuted, but rather whether they would be persecuted if returned to their home country. This remains, as Betts and Collier describe, "eccentric".

In the US, the arbitrariness of asylum determination has been termed "refugee roulette." Researchers found  asylum outcomes were significantly related to the profiles of the immigration judges deciding the cases,  leading them to claim, "In many cases, the most important moment in an asylum case is the instant in which  a clerk randomly assigns an application to a particular asylum officer or immigration judge."27 Notably, until  2017, the US accepted the highest number resettled refugees through a third country resettlement scheme.  The 1980 Refugee Act mirrors many aspects of the Refugee Convention, with one clear caveat: a refugee  is defined as someone who has been given this status "overseas." In other words, one cannot be a "refugee"  if they approach the US border or apply for asylum within the interior of the country. One must already have  refugee status, as determined by another nation or by the UNHCR. Asylum-seekers are a distinct category  in the US Refugee Act and are provided no support unless adjudicated and determined to meet the statutory requirements, a process that can take years. The Trump Administration implemented the Migration Policy  Protocols (or "Remain in Mexico") which turned away all those seeking asylum to stay in Mexico, without  support and for an indefinite period of time.

Other nations including Australia and the UK follow similar procedures, with Australia being a notable  example as they indefinitely detain all asylum-seekers who arrive to their border by boat. These nations distanced themselves from the Refugee Convention's definition and distinguish in national policies between someone who is a "refugee" (someone provided refugee status in another country they first sought asylum),  and who is an "asylum-seeker" (an "alien" without documents—who seeks refuge at the borders). The  former are people they feel a duty to welcome, the latter people to question, detain and be suspicious of. 



Discourse and Policy Frames

Most of the world's 80 million displaced people do not seek asylum in countries like the US, UK or Europe,  yet the policies and populist discourse would lead most to think otherwise. Studying discourse about  refugees and asylum seekers has become an important aspect of understanding how asylum versus  refugee has become so distinct. Numerous studies in the past few years have been conducted on media  and political frames since the peak of 2015 migration "crises," the Brexit vote and the election of Donald  Trump, the latter two which largely ran on an anti-immigration platforms.28 

Frames are underlying structures of belief or perception.29 During the policy process, frames can be created based on the "policy stories that actors tell about what they see as a problem, why, who is involved, and  what could and should be done about it."30 How an issue is framed during the policy process can be more  critical than presenting facts alone.31 This is situated in a core concept of political science in that ideology  has power over cognition.32 Referring consistently to the "migration crises" or the "refugee crises," for  instance, immediately generates a set of preconceived beliefs, images and words, similarly to how  constantly using the terms "illegal," "irregular" and "alien" to describe immigrant groups creates an  association with all migrant groups. Even the use of the word "crises" itself has been found to be intentional,  as it indicates an "emergency" which has been strategically employed by governments to permit and justify  the naturalization of more securitized policies.33 "By drawing irresponsible comparisons between refugees  and terrorists, pundits and politicians commit one of the worst possible sins: presenting the perpetrator and  the victim as one and the same."34



Conclusion

After 70 years, the continued relevance of the Refugee Convention to the current needs of the globally  displaced remains highly questionable.35 Nations have categorically muddled the concepts of refugee and  asylum-seeker in the interests of sovereignty, forgoing their commitment to human rights. Many of these  nations show deference to resettlement programs over "spontaneous" asylum-seekers who arrive at their  borders. All refugees have sought asylum somewhere first, and the dependency this preference places on  UNHCR to conduct refugee status determinations as a "surrogate state" for wealthy nations in the global  North places the burden on both the nations who are hosting the majority of the global refugee population  and on the UNHCR. Resettlement can certainly be a favorable option for many refugees, yet the question  remains of whether a normative part of international refugee law includes the allowance of powerful  signatory nations to "cherry-pick" which parts of the law or global compacts they wish to comply with.36

Further research agendas should include comparison studies of outcomes in refugee status determinations  between those completed by UNHCR and signatory states. While continuing to rely on the UNHCR to  complete this task is burdensome, perhaps it is a more consistent method of monitoring bias in the process  of determining who is a refugee—a definition flawed from the onset—and ensuring asylum-seekers' cases  are heard and given due process. More importantly perhaps, is the need for research agendas to include  innovative legal and policy alternatives to refugee status as defined by the Convention on how to allow rights to the displaced. Analyzing how signatory nations steer, process and pass policies restricting and  labeling who they consider a refugee is critical towards legitimizing states' commitment to what many  consider, the world's most vulnerable people.



Footnotes

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