Academic journal article Harvard International Review

Asylum for All: Refugee Protection in the 21st Century. (International Law)

Academic journal article Harvard International Review

Asylum for All: Refugee Protection in the 21st Century. (International Law)

Article excerpt

The horrific September 11 terrorist attacks on the United States have wrought serious collateral damage on an unexpected target: global attitudes towards refugees and asylum-seekers. Since the attacks, some countries have curtailed their refugee-resettlement programs, others have tightened their border controls, and many are making an unwarranted link between the words "refugee" and "terrorist." Prior to September 11, the international regime established to protect refugees and asylum-seekers was already under attack from other quarters. An increase in irregular migration, a burgeoning business in human smuggling, and mass arrivals containing a confusing mix of economic migrants and genuine refugees had prompted some states to urge a legal retrenchment. International laws established to deal with refugees, they argued, were inadequate to meet the challenges at hand and should be either scrapped or drastically amended. Domestic legislation crafted in response to those challenges invariably put states' interest s ahead of refugees' needs and upset the delicate balance that should be maintained between the two. In the wake of the terrorist attacks and the attacks on the value of the international refugee-protection regime itself, it is worth reviewing the history of that regime.

The Birth of Refugee Protection

People have fled persecution since earliest history; when they began to form communities. A tradition of offering asylum began around the same time, and when nations began to develop an international conscience in the early 20th century, efforts aimed at helping refugees went global.

After the League of Nations appointed the first high commissioner for refugees in 1921, a body of refugee law began to develop. The 1933 League of Nations' Convention relating to the International Status of Refugees and the 1938 Convention concerning the Status of Refugees coming from Germany provided limited protection for uprooted peoples. The 1933 instrument introduced the notion that signatory states were obligated not to expel authorized refugees from their territories and to avoid "non-admittance [of refugees] at the frontier." But only eight countries ratified that convention, several of them only after imposing significant limitations on their obligations. The Evian Conference of 1938, in which 32 nations gathered to discuss "the question of involuntary emigration," proved unable to address the issue of Jews compelled to flee their home countries in Europe.

The need for further, broader measures to protect refugees was clear. When the United Nations High Commissioner for Refugees (UNHCR) was established in 1950, his main task was to provide legal assistance, particularly in entry and integration into asylum countries, to some one million refugees in Europe who had fled Nazism and the rise of communism. One year later, a legal foundation for UNHCR's work was created. The 1951 Convention relating to the Status of Refugees was drafted by representatives of 26 countries, most of them Western or liberal in orientation. For the first time, the Convention codified a universal definition of a refugee--an individual who flees his or her country because of a well-founded fear of persecution on the grounds of race, religion, nationality, membership of a particular social group, or political opinion--though it imposed geographical and temporal limitations on that definition.

Regardless of those limitations, the 1951 Convention established the baseline principles on which the international system of refugee protection was to be built. Refugees should not be returned to face persecution or the threat of persecution (the principle of non-refoulement). Protection must be extended to all refugees without discrimination. The refugee problems are social and humanitarian in nature and therefore should not become a cause of tension between states. States must cooperate with the UNHCR if measures taken to address the problem of refugees are to be effective. …

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