The international protection of refugees started after World War I with the appointment of the High Commissioner for Refugees by the League of Nations, but the tradition of protecting the stranger in need is found far earlier in most world cultures. During the inter-war period, the High Commissioner focused on protecting groups at risk, such as White Russians, Armenians, and Jews in Eastern Europe. However, after the end of World War II, the international community focused on the protection of the individual rather than the group, most notably through the adoption of the 1948 Universal Declaration of Human Rights by the United Nations General Assembly. This shift from the group to the individual has been applied to the protection of refugees, too, although I argue that there is nothing in the 1951 Convention Relating to the Status of Refugees requiring an individualistic approach. Rather, the group element is still predominant in the test for refugee status.
Definition of the Refugee
Under Article 1A.2 of the 1951 Convention, as up-dated by the 1967 Protocol to the Convention, a refugee is one who is outside her or his country of nationality and who, owing to a well-founded fear of persecution on account of her or his race, religion, nationality, membership of a particular social group or political opinion, is unable or unwilling" to avail her or himself of the protection of the country of nationality. This is the Convention test applied by states in determining whether an individual qualifies as a refugee. If one treats refugee protection as something-carried out in courts and administrative tribunals in the global North, then this is very much the starting point and bedrock of the process. However, while it is fundamental to refugee protection and should not be undervalued, it has become part of a much wider system of protecting displaced persons. Some elements of this wider regime are part of international refugee law, other parts flow from international human rights law, while still others depend on broader concepts from humanitarian protection. This article will focus on explaining the international law relating to the protection of refugees and other displaced persons as the end of the first decade of the new millennium fast approaches.
The Individual vs. the Group
The 1951 Convention was drafted with the effects of World War II in Europe and the subsequent expansion of the Soviet system in the eastern part of that continent firmly in mind. Indeed, the original version of the definition based refugee status on events occurring before January 1, 1951 and allowed states under Article IB to limit that status to those fleeing persecution in Europe. As such, the individual was to the fore. However, it was the decolonization of much of Africa and Southeast Asia in the following years that gave rise to the largest outflows of populations from their countries of nationality. Within international refugee law, there have been several developments. In 1969, the then Organization of African Unity (now, African Union) promulgated the Convention Governing the Specific Aspects of Refugee Problems in Africa that provided a supplementary and much broader route for refugee status within that continent: "Article 1.2: The term 'refugee' shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality." This much more generous approach to refugee status is extremely pertinent to situations of mass influx since it focuses on the group.
Likewise, the 1951 Convention should also be used to protect groups, given that persecution has to be based on group characteristics, such as race, religion, and, explicitly, membership of a particular social group. …