Amidst growing media and public concern relating to the widespread plight of refugees, inching in media rhetoric from the tentative ‘refugee question’ to a now unavoidable political crisis for developed governments, the UN Convention and Protocol relating to the Status of Refugees, and the role of the UNHCR is rising to the forefront as a central issue of debate. Over fifty years after its inception as a response to a horrifically overlooked crisis in 1951, the convention has ceased to be a unifying instrument for policy crafting, and is instead rapidly degrading as a relic of a bygone age, unequipped and obsolete to deal with drastically different situation. As the cornerstone for advising government action on refugees, the UNHCR, like any good government, should be scrutinized and questioned for its competencies as an international regulatory authority, and from no where more than within the United Nations itself.
Following the events of the Second World War and what can only be described as a burst of collective guilt from largely Western governments for their deplorable actions considering the plight of refugees fleeing the destruction of Europe and its atrocities, the Convention and Relating to the Status of Refugees (1951) sought to find a unifying touchstone of policy decisions. Undoubtably, considering the, score of an approximate ten million refugees, largely centralized to Europe such a step was imperative. Considering however, the estimated thirteen million refugees alone (numbers as of 2014) and not even beginning to deal with the hazy numbers concerning asylum seekers, internally displaced and stateless persons, the present policy decisions are faced with a very new situation, and a perceivably insurmountable task.
The first, and most obvious problem arises with an examination of the Convention’s excusably broad definition of a refugee. Article I specifies a refugee as a 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 to.. or unwilling to return to it. “ Skimming over the obvious ambiguity of ‘well founded’ in the age of widespread multidimensional conflicts, the main issue is the definition’s conflictual nature with regard to the rest of the content of the Convention. Focusing in on the issue of nationality – “unwilling to avail himself of the protection of that country..not having nationality… outside of his former habitual residence,” – the reasoning for the definition is clearly historically contextual. As a product of experiences of direct forced migration as a result of the Second World War, and in the emerging years past strong pro nationalistic sentiments, the focus on nationality and country of origin is a direct result of witnessing the atrocities of displaced groups across Europe. In today’s climate the issue of displacement from one’s home country is among many of the issues facing refugees, including being displaced multiple times from countries that are not their own.
The burden for applying and determining the definition is placed necessarily upon the state. In light of the circumstances from which most refugees find themselves fleeing, it is obviously not logical to place them in a circumstance of ‘false until proven real.’ The burden of proof is necessarily low. The convention however fails to acknowledge a shift in paradigm pertaining to both migrational ability and classification. Its sphere of historical creation, the idea of a return was improbably at best. In the present age, where conflict boundaries are both permeable and constantly shifting, and peace is relative, the ideas of the Convention reflect an attitude tailored toward the single solution of permanent asylum, an outdated idea. This shift therefore fails to acknowledge the expense in terms of resources faced by states to facilitate action on refugees, nor provide an ability to assist or reprimand them should they fail.
The lack of substantive legal binding power of the UNHCR and UN documentation in general is a well recognized one, but becomes of particular concern given the humanitarian crisis now faced in real time.
Equally not only have transport and migrational ability increase the ease and possibility of returning to one’s home country, but the idea of determining refugee status in the age of recognized human rights under multiple international legal treaties is essentially moot. Including the European Convention on Human Rights, The Declaration itself, the Geneva Convention and the International Covenants on both Civil and Political Rights and Socio-Economic Rights, the idea that there could be a plausible reason for which to force someone return someone to their home country under fear of persecution or death is extremely limited.
Is it now necessary, considering the present global climate, to distinguish between those who displaced for economic security and those who are fleeing violence? How can we determine this, and should they be treated differently? These are questions not addressed by a refugee convention crafted in an age in which displaced persons were almost always both. The terminology and provisions provide primarily only to those who have already reached their destination, and does little to account for the mass groups of internally displaced persons our world is now faced with.
Despite the supposably unifying power of the Convention, and the Declaration itself, the idea of ‘collective responsibility,’ is little more than flippant idealism. Dealing with, in many cases, multiple fronts of conflict and refugee influxes as well as conflicting regional values, it is feasible for an outdated and ineffectually enforced document to be the singular touchstone for regional and global cooperation? The crisis of refugees is more than simply a collective moral responsibility, its a case of simple political pragmatism. An issue that is only likely to worsen, it should not be looked upon as the product of simple statistics. Often overlooked is the fact that the convention is dealing with the daily reality of real people – and change to the convention it is a political choice that needs to be made on the foundation of a unifying document that is in keeping with both the attitudes, and the issues now faced by global governance. Substantive reflects principle – the Convention and Protocol relating to the Status of Refugees is not simply the ugly stepsister to the UN Declaration on Human Rights. If the United Nations Protocol is to be a legally binding, enforceable document, it should be subject to the same scrutiny as any law, and further, if the UNHCR is going to continue to champion themselves as the overarching factor of accountability for the treatment of refugees, perhaps its time they acted it. There is principle, and there is practicality. For the 1951 Convention, the age of practicality has come and gone any new order must ensure principles for which it once stood are not lost as well. The 1951 and 1967 protocols may be the only legal instruments relating specifically to the treatment of refugees, but that doesn’t mean they should be.