We must redefine the norms and understandings of all refugees in the 21st century. The definition a refugee needs to be broadened and non-refoulment needs to be strengthened. Under the current refugee regime definitions, there are numerous groups that can be excluded from asylum. Regarding non-refoulment, nations have turned to containment, often external to national borders, to confine refugees versus resettlement to new homes. Refugees who are denied refugee status under the current criteria, and therefore are barred from help, will still seek refuge away from their home. Containment facilities act as a gravity pit of exclusion that possibly strips refugees of many basic human rights. These problems are manifested in refugee containment, illegal smuggling, and a rise in fear-based border control rhetoric. Increased refugee numbers can come about progressively and humanely, or it can come about with increased divisiveness. Either way, displaced migration will continue to be pervasive with events both natural and man-made.
This essay is an attempt to add an additional voice to the meager dialogue in favor of changing the current refugee regime. The recent geopolitical blunders in the Arab nations have brought to the forefront a dire need to address the failings of our current regime. The internet, news organizations, nonprofits, and activists alike have been sounding the sirens of an ever increasing amount of people violently displaced from their home and country. Most of the global population does not want to continue to see drowned children washing up on sea shores or mothers dying of thirst in the Sahara desert as they trek north well before reaching the Mediterranean Sea.
Clearly, a strengthened dialogue aimed to create possibilities for corrective measures or ideas for outright revolution of the system is acutely needed. Unfortunately, the paramount obstacle facing any change in refugee regime is the hemorrhaging of political will to address the problems of our current refugee regime (Ferracioli, 2014, p. 134). The chief argument posited in this essay is a modern definition of what constitutes being a refugee and a shift away from containment towards resettlement by strengthening non-refoulment. Using the writings of Luara Ferracioli, Alison Mountz and Nancy Hiemstra will give further theoretical background and insight into refugee regime change.
Before moving forward, the use of the term refugee regime should be understood. The term refugee is used as a general term to describe our classic idea of a displaced person, as well as the new ideas posited moving forward. The word regime is often misunderstood and sounds quite pointed. However, a regime in our context is an idea or norm along with a set of processes used to administer that idea in a normal and consistent fashion. The term displaced refugee will be used to describe a refugee who is more or less forced to seek international assistance, versus migrants willingly trying to expatriate or relocate. As of now, this is a loose definition that will be further defined and nuanced towards the latter part of this essay.
Current Refugee Regime
Understanding the current refugee regime is an important part of defining a future regime. Our current regime has its birth in the post-war development of the United Nations (UN), which occurred during and after the Second World War. However, the League of Nations (LN) sowed the initial seeds of development after the First World War.
Defining History. It is of no wonder that such a devastating war like the Second World War would bring about systemic changes in how we mitigate and alleviate those displaced by war. It is true that not only did the Second World War bring about our current refugee regime, it also brought about the very body that administers its norms. The ideas for the UN were hatched before both German and Japanese forces fell to Allied Powers. Those ideas and processes also have a strong correlation to the failed LN that stemmed from the First World War. However, specifics regarding displaced refugees did not come about until 1948, with the subsequent adoption of the Convention relating to the Status of Refugees in 1951, commonly referred to as the 1951 Refugee Convention (UN Refugee Convention, 1951, p. 3). This convention is administered by the HCR, with the UN acting as an umbrella organization.
After the war we saw a very acute need to address the millions of people displaced, to such a degree that the world had never seen before, without refuge or rights. Every continent in the Eastern Hemisphere saw great numbers of people who were in dire need of international assistance. Countries were already so smothered in dysfunction and debt after such intense fighting that they would have been hard pressed for any of them to pull off self-management of displaced refugees. Many nations couldn’t even feed their own citizens, let alone refugees. Never before, aside from the First World War, has an idealist perspective of community seemed so closely tenable. It is within this era that a definition, creation of the organizing bodies, as well as the norms relating to displaced refugees found a bearing and focus. The rules and obligations of how a sovereign nation takes on or assists displaced refugees were also defined and created post-war (Hartle, 2011, pp. 1-3). Since that time very little has changed in our wording or understandings of displaced refugees.
Defining the Refugee Convention. Now we will address the verbiage that supports and grants authority and organization to the 1951 Refugee Convention. Are only those displaced by war considered refugees? What are the responsibilities of UN member nations? Is there a universal responsibility regardless of any national ratification? If it is universal, why do so many nations seem to act differently than others in the treatment and handling of displaced refugees? As with so many things based on social interaction, the devil lies in the details.
Ferracioli (2014) summarizes Article 1 of the 1951 Refugee Convention in saying, “refugees are persons who are living outside their country of citizenship or residence who have a well-founded fear of suffering persecution at the hands of their government (or groups supported by their governments) because of their race, religion, nationality, membership in a particular social group, or political opinion.” (p. 123)
As you might see immediately, there is a lot of room for interpretation in the above definition. True to form, that will be a basis of argument moving forward. For now the definition stands so that we can understand the current regime. A person suffering from persecution in their home state is the simplest base definition of what constitutes a refugee.
Ferracioli also gives a good summary of the responsibilities of a nation when presented with a displaced refugee. She states in summary of Article 33 of the 1951 Refugee Convention that “when a refugee makes her way to another country, that country is under obligation not to return her to a country in which she is in danger of suffering persecution (Ferracioli, 2014, p. 123). No single nation is actually responsible for taking on refugees. Instead, they are responsible for not causing refoulment. In fact, Article 33 is often referred as a non-refoulment clause or verbiage. Again, this is terribly vague. I argue that vagueness was needed post-war considering the magnitude and specific type of displacement. I do not see enough merit to warrant keeping the definitions as-is in our modern condition.
Current Refugee Limitations
Let us now start to draw out and break apart the apparent vagueness we saw earlier when defining the who, what, where and why of our current refugee regime. A simple argument in favor of a vague term is that it at face value would seem to be inclusive. That is not the case and actually the current norms allow for a pernicious amount of exclusion. This section will highlight a few groups who can easily be excluded but might represent a more exact look at what a displaced refugee will look like in the coming future. The use of the word persecution within the 1951 Refugee Convention is of highest debate in this argument.
Defining a Starving Refuge. Ferracioli highlights three groups of people she feels fall between the cracks of assistance but should nonetheless have great assistance: A starving refugee, a climate refugee and a homosexual refugee (Ferracioli, 2014, pp. 124-125). For the sake of space, this essay will combine both climate and starvation. While climate change does not directly cause starvation, it might very well lead to increased areas of drought and soil infertility (Zhang et al., 2011). A person who leaves her home because she or her family is starving does not actually fall under the definition of what constitutes a displaced migrant under current norms.
In summarizing Ferracioli, the starving refugee does not suffer from persecution at home because they are not discriminated against, they are not making religious claims nor expunging political ideologies, and are also not a part of a marginalized people (Ferracioli, 2014, p. 124). The starving refugee merely lives in a state that cannot provide food or the ability to grow food. If her state is not supplementing food rations, what alternative does she have but to leave?
Defining a Climate Refugee. To take climate change and how it might create more of these undefined refugees, we’ll look at rising sea levels and a set of questions that might arise in dealing with future displacement. Our coastal providences are keenly at risk of destruction because of rising seas. Already in Florida salt water penetration into groundwater sources is wreaking havoc miles inland due to rising sea levels (Guvanasen et. al., 2000). To add insult to injury, the majority of the world’s population lives within a very close distance to coastal areas (Zhang et al., 2011).
If an entire coastal nation sinks or is rendered unusable but climate refugees are not permitted asylum, where are they to go? They will not have any land to provide or build any type of preventative measures. Is the country even a nation any longer without a single bit of land amidst its territory? This is an absurd notion used to draw out the limits of our current displaced migrant regime. Absurd, yes, however, data shows this is something to consider in the very near future, so maybe it is not really all that absurd of a question (Zhang et al., 2011).
Defining a Homosexual Refugee. A homosexual person creates a very nuanced and complicated scenario for defining a displaced migrant. On one hand, she does face persecution in and out of her home nation. On the other hand, does she constitute a persecuted social group if she lives clandestinely? Is it more proper to classify her as suffering from political persecution? If she does not ‘act’ as a homosexual would she not be safe from suffering persecution of any kind? While these arguments are highly subjective they do create the space for an agent of exclusion when interpreting if a homosexual should be granted asylum.
Ferracioli describes a rather heartbreaking story of a gay Iranian man fleeing potential persecution after sexual activity with another gay man who turned him in. He was denied asylum in the United States of America simply because he was not perceived as a ‘feminine’ homosexual male and could therefore avoid persecution in Iran as a homosexual if he merely acted as a heterosexual. This is in blatant disregard to the facts the homosexual stigma and actual homosexual activity carry penalties up to and including death in Iran (Ferracioli, 2014, p. 124). I would posit very venomously that seeking asylum and being denied asylum from Iran to the United States would most likely not go unnoticed by the authorities in Iran effectively disallowing any ‘straight’ acting to occur.
Defining a Globalization Refugee. The case for a globalization refugee might be the hardest argument to make. If every system produces waste, globalization as a system will also have wasteful aspects. The displaced refugee is our context, however, it is not wasteful to be a displaced migrant but rather it is surely the opposite of willingly migrating.
This essay argues a division of labor greatly reduces the economic dynamics of a nation. By breaking up and globalizing a value-added chain, a division of labor is able to also break apart the production of products in-line with that product’s value-added chain. Less developed nations are almost contractually bound to reduce wages, labor and business regulation, as well as upgrades in technology relative to their position or link in the chain in order to maintain the attraction of foreign investment by extracting resources or producing low quality products (Sheppard, 2012, p. 51). Geographically this plays out by low value extraction of resource in the periphery nation. Those resources are then molded into a product along each node or higher valued production point until it finally reaches the core where the rights, development and research are held (Gorin, 1980, p. 250). Intellectual property rights, high level development and research are considered to be the highest valued addition to a value-added chain. Once the product is complete it is then sold at a much higher price to both core and periphery nations (Sheppard, 2012, p. 55).
In order to build prosperity you must be able to increase your quality of life. However, under capitalism that is precisely done with money. If governments are interested in reducing wages to keep foreign investment around, there is no increase in wages vis-à-vis money to create a higher quality of life. The less developed nation cannot just use methods that protect national production or labor as an answer for fear of heavy pressure by core nations to liberalize their economies. Often times the very foreign investment a less developed nations depends on is held back until such liberalization occurs. If a state is successful at keeping conditions favorable to foreign investment they will eventually specialize in specific types of production (Sheppard, 2012, p. 49).
The question of what happens to the worker who does not have any skills in the types of production her state specializes in and has no access to education is of high concern with globalization. Under our current norms this type of scenario fails to meet the requirements of persecution. As before with the starving migrant, this ‘globalization’ migrant is not a part of a harmful group, she is not purposely marginalized, and she is not fleeing war. She does lack a basic right to a minimal quality of life if her state does not provide support or education. In effect, she would also be like the marauding nation talked about earlier without any land and a population standing in a few feet of water with nowhere to go. Should she not have access to the means to change her scenario? Would not redefining her as a displaced refugee allow her greater access to education? Education being the single thing she lacks in order to get a job, but also the catalyst that causes her to stay unemployed in her home nation. Those are ratios I do not believe most people would consider to be favorable.
Defining a Result. If being a climate refugee, starving refugee, an LGBTQ refugee, or a globalization refugee does not grant you asylum when faced with conditions below that of what is minimally needed for life and the home state is not providing support, is it any wonder why illegal smuggling has become so expansive. Rick Lyman and Alison Smale (2016) state with confidence, “with thousands of migrants pouring out of Afghanistan and the Middle East, the business of smuggling them across the Balkans into the EU has grown even larger than the illicit trade in drugs and weapons” (Lyman & Smale, 2016, p. 382).
Admittedly, there are numerous factors that drive illegal smuggling. The point is, however, that an exclusive regime will cause people to seek a group that will be inclusive of them. The definitions of what a displaced refugee is adds people into those figures Lyman and Smale were referencing above. The overall vagueness of Article 1 of the 1951 Refugee Convention is overly antiquated and does not apply to displaced refugees as we see them today. Different uses of verbiage and theories of how we can better provide inclusion, but not overinclusion of refugees must be addressed and converted into norms and understanding.
Current Non-refoulment Regime
Today, non-refoulment and the lack of actual moral obligation towards refugees has led to conditions more akin to prison and confinement than care and compassion. We have constructed a system by where processing a refugee for placement in a state where there is no fear of refoulment is the end result, not actual placement. Tackling the issues of non-refoulment is more like looking at the geography of refugee management.
Defining Calculus. Ferracioli (2014) describes with precision the calculus behind the geography of non-refoulment in stating, “this means that states are under a negative obligation not to contribute to harm, but not, strictly speaking, under a stringent positive obligation to assist (p. 129). Because non-refoulment does not obligate a state to actually resettle a refugee in their territory or other nations, a system of island containment facilities have materialized the flaws of non-refoulment. Mountz and Heimstra speak of actual island containment facilities like those on Christmas Island used by Australia (Mountz & Heimstra, 2014, p. 387). For the sake of this essay, any refugee camp could be taken as a metaphorical island from the perspective of the refugee. Mountz and Heimstra describes what containment actually looks like by describing the use of not only island containment camps, but closed borders and confining restrictions disallowing life outside of a refugee camp (Mountz & Heimstra, 2015, pp. 385-388). While these methods do meet the definition of non-refoulment as it was written in the 1951 Refugee Convention, it is no longer 1951 and the conditions of life have drastically changed.
Defining Flaw. Containment might breed fear for both those inside and outside of a migrant camp. If a refugee camp looks, smells, and feels like a prison everyone is going to perceive it as a prison. Those on the outside will look at those on the inside as criminals. Those inside will also feel like criminals because they are essentially kept in prison and treated as such by those on the outside. Discursive dialogue based on fear will drop into the zeitgeist of society and manifest in divisive rhetoric aimed at dividing a people through boarder issues (Ferracioli, 2014, p. 135).
This fear of what is outside has already led to nations increasing their power or sovereignty through the control of migrants, including refugees. The US carrying on a prolonged and vicious debate regarding illegal immigration raises many examples of what could easily be considered fearmongering. This control is disastrous to the refugee due to the loss of basic human needs and rights that come from being severely cut from a community and state. It severely cuts their access to resources that could greatly help their situation. Not to mention that prolonged containment that breeds further fear and potential violence seems to work against any possible resettlement. Redefining non-refoulment and the blunting of discursive public opinion towards refugee resettlement will shift the norms and understandings of a refugee regime.
Future Refugee Regime
Where does the future of refugee regime go if the current regime has created so many places of opaqueness that have visceral effects on people? Do we scrap the regime and create a new system or do we edit and fine-tune what is existing? The simplest answer is to try and redefine the definitions of a refugee and non-refoulment. The aim of redefining the term refugee is to create a broader more inclusive type of refugee that will reflect our coming future. The aim of redefining non-refoulment is to further define the obligation to resettle and not confine a refugee. Specifically with non-refoulment, the aim of redefining the term is to work in a process of equality in resettlement relative to a nation’s abilities.
Defining a Future Refugee. To create a broader definition of a refugee we must dispel with the phrasing relating to persecution. The word persecution is too specific and as shown does not reflect the various scenarios that might create a refugee. In summarizing Andrew Shacknove, (1985) argues there are numerous ways other than persecution that can severe the bond between a citizen and her state (p. 276). He specifically defines a refugee as, “persons whose basic needs are unprotected by their country of origin, who have no remaining recourse other than to seek international restitution of their needs, and who are so situated that international assistance is possible” (Shacknove, 1985, p. 276).
As we can see, there is a much broader scope to what defines a refugee that is not bound to matters of geopolitical conflict or civil unrest. Redefining a refugee into two sections of focus works much more efficiently. Essentially one focal point is the use of the term ‘basic needs’, which would theoretical encompass many of the undefined refugees highlighted previously in this essay. The second focus would be on the phrase “no remaining recourse”, as this would imply a measure of last resort. This could shore up the valid need to ensure there is not an over inclusive understanding of what is a refugee. To a lesser degree the phrase ‘who are so situated to do so’ can carry certain weight. This implies the refugee has to seize on the opportunity to use her last resort. This is important because it is highly unlikely sovereign nations will oblige themselves to preemptively mitigate refugee crises.
New Non-refoulment. Arguably there is a considerably steep hill to climb in reforming non-refoulment. Ferracioli illustrates this important hurtle in stating, “there is strong agreement among scholars and practitioners that if states attempted to negotiate a new Convention in the current political climate, they would adopt an even weaker set of legal norms” (Ferracioli, 2014, p. 126). This almost makes it too tempting of a bait to not broach the topic of reforming non-refoulment.
There does not need to be any drastic restructuring of legal norms in order to achieve better conditions that might still use the current processes. It would seem unsurmountable to deny the rights of a nation to use island containment camps or border control policy. However, stronger education and a concerted effort by agents involved in all facets of refugee studies to illicit a change in understandings would arguably have a long-term effect. Coupling the long-term effects of advocacy with the seemingly increasing amounts of crises that create refugees could potential quicken a shift in norms. This is contingent on writing about reforming non-refoulment even if it remains impossible in the current political climate. Discourse on any major topic remains highly important to our understandings.
To take this claim of reform to a stronger ground in authority, there should be greater power vested in the UN to assign a quota of refugees to each of the member nations based on their relative capabilities. As well, the UN should consider to enact verbiage that ties a portion of a member nation’s benefits in relation to their ethical treatment of refugees and adherence to assigned quotas. As with most UN Conventions, member nations often remain able to either accept or not accept the contractual terms, as well as adding concerns which do carry importance. The independence with the UN that a nation has is most illustrated in the voracious debates between political scholars over the numerous UN Conventions the US has yet to ratify or sign.
What cannot be forgotten is that when a refugee seeks asylum the issue immediately becomes international and as such there should be a strong influence from the international community. Cooperation does not entail any reduction of sovereign rights, in the same way binding a nation to international norms does not reduce independence to any great degree. Once again summarizing Ferracioli, those fears are only apparent, but remain to be factual (Ferracioli, 2014, p. 130). As argued above, if it looks like a prison it might as well be treated like a prison, even if it is a refugee camp. To overcome the lack of political will and issues of obligation regarding non-refoulment is something that will take a long time and requires a consistent momentum, albeit small in effect.
The current regime surrounding how the international community handles refugees is in dire straits. You only have to casually scroll through the news to catch a story about the chaotic situations and conditions refugees face in the world. So many people, however, do not understand the constructs that verbiage and national sovereignty can build. While the 1951 Refugee Convention sprang forth from conditions we have yet to witness again, our modern global environment is ill-suited to fit within its definition any longer. To bring the essay full circle, how many more children can we handle as a society washing up on the shores of the Mediterranean Sea dead from being drowned by a faulty smugglers boat? There must be a change in understanding or a complete change in regime.
With the expressed diligence of maintaining sovereign rights, we can reform the verbiage of the current refugee regime. A strong argument for rewording what is a refugee along with the clearly defined limits and powers was highlighted by Shacknove. Shacknove’s definition does not reduce power, but merely sets the stage to have some effectiveness in a future of uncertainty. That uncertainty was pointedly illustrated in the models of refugees that do not benefit from seeking asylum under current norms. It does seem frightful at the moment to look into the outcome of the homosexual Iranian refugee denied asylum by the US. If our understanding of what defines a modern refugee was more inclusive he would have undoubtedly been seen as genuinely needing safe-haven. Reforming non-refoulment, while arguably much more complicated, can benefit from a more subtle touch. While still maintaining sovereignty amongst all nations, more authority to mitigate and administer refugee treatment can be invested in the UN. This authority is needed to shift the tide of divisive rhetoric and ease the suffering of those imprisoned in refugee camps. We cannot keep an innocent people frozen in limbo because a state has the right to deny resettlement in their territory or in reality, any other nation’s territory as well. The agency needed to overcome the containment of refugees in favor of resettlement is great, however, the debate must continue to be made in a consistent manner. There is a possibility to negotiate better understandings of our current refugee regime and to not need complete construction of a new set of rules that would arguably have less merit.
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