By Alison Kesby
You may be aware that today, 20 June 2012, is World Refugee Day. At one level, World Refugee Day is a time to pause and take stock of the state of international protection, to examine anew the myriad causes of refugee flows and the strengths and weaknesses of the international protection system. It is a time to reaffirm the importance of the 1951 Refugee Convention but also to ask afresh important questions: who today is in need of protection, and why?
Traditionally, the concept of “persecution” has underpinned the international protection system. A refugee is 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…”. While these grounds of persecution have been progressively developed to meet new protection needs, we need to ask how adequate the Refugee Convention is to meet the challenges of the contemporary context. According to UNHCR, “climate change-related movements are predicted to be one of the biggest drivers of displacement and migration over the next century.” However, climate-related displacement alone has been said to expose the inadequacy of the current protection framework to meet contemporary challenges and to point to the need for new international frameworks or instruments. (On the issue of climate change and international law, see further Jane McAdam, Climate Change, Forced Migration, and International Law). Then again, how might the current, legitimate focus on climate-related displacement blind us to other protection needs? Who is falling between the cracks of the international system? Who is left out in the cold by today’s hot topics?
Even where a person may fall within recognized refugee definitions, they may still face insurmountable hurdles in gaining admission to a state where they can claim refugee status. Though fleeing persecution, a refugee remains a non-national of any state but their own, a fact of enduring importance in a world where, international human rights law notwithstanding, states retain significant discretion in the admission of non-nationals. Access to protection remains elusive when confronted with interception policies preventing “unauthorised arrivals” by boat or other means, and “pushbacks” are unaccompanied by procedures to determine the protection needs of those on board. (Alongside these more blatant non-admission practices are those more invisible admission barriers such as strict visa regimes for nationals of “refugee producing” states and pre-embarkation checks). While non-admission policies may at times be framed as a response to people smuggling, populist politics and exploitation of security fears may also be at play. At the same time, the challenges confronting states are not to be underestimated. Consider Greece which for all its current troubles is still on one estimate the entry point for “more than 80% of all irregular entries into the EU”.
In the midst of economic crises, rising unemployment in many parts of the world, and political and social instability, one of the greatest challenges facing the international protection system – perhaps history will show it to have been the greatest of all – is the age-old recipe of human fear and insecurity mixed, more often than not, with rejection of the “other” and neglect of the weakest. If World Refugee Day prompts us to pause and examine the strengths and weaknesses of the current protection system, we are under no less of an imperative to ask of ourselves and the governments we live under those timeless and ever-timely questions of the meaning of “democracy” and “justice”, and of whether everyone has the “right to have rights”, those very questions which may recede from view in the face of the seemingly more urgent “imperatives” of “austerity” or “balanced budgets”.
Are questions like these hopelessly naïve – a luxury in such times as ours? To answer that question is to hold up a mirror to one’s own society. In the words of UNHCR’s Director of International Protection, “attitudes toward international refugee protection serve as a kind of litmus test of the health of our democratic societies. The institution of asylum is itself a reflection of values such as justice, fairness and equality – its existence an indicator of the importance of these values in society as a whole.” Our attitude towards the most vulnerable in our midst and at our door may reveal more of the true values and concerns of our societies and our own lives than we care to admit. On World Refugee Day, will we hold up that mirror?
Alison Kesby researches in the area of public international law and international human rights law. Her book The Right to have Rights: Citizenship, Humanity, and International Law was published by Oxford University Press in January 2012. It examines the significance and limits of nationality, citizenship, humanity, and politics for right bearing, and argues that their complex interrelation points to how the intriguing and powerful concept of the “right to have rights” might be rearticulated for the purposes of international legal thought and practice.