I’m currently writing a short paper on the basic principles of refugee law. Here’s the provisional chapter on its history and a few words on the refugee definition.

Ancient Greece

The roots of international refugee law can be traced back to ancient Greece and the possibility to seek protection in certain temples belonging to communities tied together by a holy (somewhat contractual) bond to protect a common sanctuary – the amphictyony.[1]

The Huguenots

The origins of the modern concept of asylum are rooted in the reaction of some European states and rulers to the 17^th century French persecutions of the Huguenots (the pre-revolutionary protestants): Friedrich Wilhelm I and his 1685 Edict of Potsdam granted them the right to reside in his territories. Similar permissions were also granted in Denmark, the Netherlands, England, Russia, Sweden, Switzerland, and North America.[2]

World War I

The most significant developments in refugee law, however, are closely tied to the two World Wars. After World War I the League of Nations commissioned the Norwegian explorer and humanitarian Fridtjof Nansen to assist in the repatriation of Russian and other prisoners of war as well as Russian refugees after the October Revolution. He was appointed as the League’s High Commissioner for Russian Refugees in 1921 (he was subsequently put in charge of the Balkans and near East), earning him the Nobel Peace Prize in 1922; the League established the Nansen International Office for Refugees soon after his death in 1930.[3] These steps were accompanied by numerous inter-governmental arrangements concluded in the 1920s which subsequently led to the 1933 Convention relating to the International Status of Refugees.[4]

World War II

The mass expulsions and persecutions before, during and after the Second World War, then, have shaped the contours of international refugee law until this very day. In 1938, a number of states (Belgium, Great Britain and Ireland, India, Denmark and Iceland, Spain, France, Norway, and the Netherlands) agreed on the Convention concerning the Status of Refugees coming from Germany.[5]

During the Second World War, the emerging United Nations founded two agencies tasked with the relief of the European refugees – the United Nations Relief and Rehabilitation Administration (in 1943) and the International Refugee Organization (in 1947) – that preceded the Office of the United Nations High Commissioner for Refugees (established in 1950).[6] Originally elected for a team of only three years it was tasked with the protection of refugees, the facilitation of their voluntary repatriation, ‘or their assimilation within new national communities.’[7]

The plight of refugees during and in the aftermath of the Second World War was addressed in Article 14 of the 1948 Universal Declaration of Human Rights[8] which includes a right to asylum (this was, however, not meant to be an individual right of a state. Rather, it confirmed the right of a state to grant asylum).

The most decisive development was the adoption of the United Nations Convention relating to the Status of Refugees (commonly known as the Refugee Convention or the Geneva Convention on Refugees) on 28 July 1951. It has generally been described as ‘the most comprehensive legally binding international instrument’ in universal refugee law[9] and its key provisions remain applicable until this very day.

Its temporal scope, however, was explicitly restricted to World War II and the subsequent persecutions (the definition of a refugee refers to ‘events occurring before 1 January 1951’). In addition, states could opt to consider only Europeans as refugees in the sense of the Refugee Convention.[10]

However, already at the time of the conclusion of the 1951 Refugee Convention the drafters acknowledged the need for a universal standard.[11] This goal was achieved through the 1967 protocol to the Refugee Convention which eliminated the temporal and geographical limitations.[12]

In recent decades, refugee law has also been heavily influenced by the evolvement of human rights law which started immediately after the Second World War and gained increasing importance during the 1970s.[13] Even although human rights treaties such as the Covenant on Civil and Political Rights (hereinafter CCPR) or the European Convention on Human Rights (hereinafter ECHR) and its protocols do not include provisions on asylum as such, many of their key provisions such as the prohibition of torture and other forms of ill-treatment are also highly relevant for asylum seekers.

International Law Today: The Definition of a Refugee in International Law

The universally accepted definition of a refugee is enshrined in Article 1 of the 1951 Refugee Convention which needs to bread in conjunction with its 1967 protocol (which, as stated above, lifted the temporal and geographic limitations):

[A]ny 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.

This definition can be divided into four key characteristics:

1. A refugee is outside of his or her home country,
2. because of a “well-founded fear” of persecution
3. on the basis of his or her race/ethnicity, religion, nationality, membership in a social group or political opinion and he or she can thus
4. not be reasonably expected to return to this country.

A few remarks on common misunderstandings are due at this point.

First, this list of reasons for fleeing is exhaustive. Poverty, climatic conditions, a country’s security situation or even armed conflicts are thus (by themselves) not a ground for asylum. International law does not know the concept of a “war refugee”. The legal definition focuses more on the individual asylum seeker than on the general preconditions in the respective home country. At the same time, however, armed conflicts may obviously increase the risk and likelihood of persecution due to one of the reasons contained in the definition of a refugee.

Second, the definition shows that a refugee may cross through or even live in one or several safe countries without losing this status. What matters is the situation in the country of origin. He would only lose his status upon acquiring the nationality of the (safe) country of residence.

Third, the individual asylum procedure in the country where protection is sought has a declaratory, not a constitutive character.[14] In other words, judicial or administrative proceedings only confirm whether someone is or is not a refugee. From the perspective of international law, one becomes a refugee as soon and as long as the factual preconditions of the refugee definition are fulfilled – even if states decline to grant this status.

Fourth, states and their courts enjoy a wide discretion in asylum proceedings. While some thus interpret the terms of the 1951 Refugee Convention in a broad sense, eg so as to include persons persecuted because of their sexual orientations under the notion of a ‘social group’,[15] others are highly restrictive – one only needs to consider the different acceptance rates within the European Union (see here).

 

Sources

[1] A Nussbaum, Geschichte des Völkerrechts (C.H. Beck’sche Verlagsbuchhandlung 1960), 7f.

[2] K Hailbronner, J Gogolin, ‘Asylum, Territorial’ (Max Planck Encyclopaedia of International Law, 2013), paras 7f.

[3] J Crisp, ‘Humanitarian Action and Coordination’ in T G Weiss and S Daws (eds), The Oxford Handbook on the United Nations (Oxford University Press 2007) 479, 481; K-H Ziegler, Völkerrechtsgeschichte (2^nd ed, Verlag C.H. Beck 2007), 206.

[4] See http://www.refwo. Itld.org/docid/3dd8cf374.html.

[5] See http://www.refworld.org/docid/3dd8d12a4.html.

[6] Crisp (n 3), 481.

[7] See Articles 1 (on the functions of the High Commissioner for Refugees) and 13 (on the length of his term) of the Statute of the Office of the United Nations High Commissioner for Refugees, available at http://www.unhcr.org/3b66c39e1.pdf.

[8] Available at http://www.un.org/en/universal-declaration-human-rights/.

[9] S Ogata, Foreword to the 1951 Geneva Convention’s travaux preparatoires analysed with a commentary by P Weis, available at http://www.unhcr.org/protection/travaux/4ca34be29/refugee-convention-1951-travaux-preparatoires-analysed-commentary-dr-paul.html.

[10] Article 1B(1)(a).

[11] Ogata (n 8).

[12] One must bear in mind, however, that it allowed states to retain their pre-existing declarations on the geographic limitation to Europe. This was done, for example, by Turkey which thus – from the perspective of international law – only recognizes people fleeing from Europe as refugees.

[13] Cf S Moyn, The Last Utopia. Human Rights in History (Belknap Press 2012).

[14] See the Preamble to the EU’s Qualification Directive, para 21: ‘The recognition of refugee status is a declaratory act.’

[15] United States Court of Appeals for the Ninth Circuit, Nasser Mustapha Karouni v Alberto Gonzales, Attorney General, No. 02-72651, 7 March 2005, para. 2854; on the contentious issue of homosexuality as a ground for persecution see J Weßels, ‘Sexual Orientation in Refugee Status Determination’ Refugees Studies Centre Working Paper Series No. 73 (April 2011), available at http://www.refworld.org/pdfid/4ebb93182.pdf.