Magazine article Forced Migration Review

State Fragility, Refugee Status and 'Survival Migration'

Magazine article Forced Migration Review

State Fragility, Refugee Status and 'Survival Migration'

Article excerpt

State fragility poses a challenge to the refugee regime. Rather than just placing the emphasis on the need to protect people fleeing the acts of states against their own populations, it also demands the protection of people fleeing the omissions of states, whether due to states' unwillingness or to their inability to provide for their citizens' fundamental rights.

The designation of states as 'fragile' or 'failed' is frequently criticised for lacking clarity, encompassing a disparate variety of situations and being an over-used political label that measures states against a range of idealised Western standards of governance.1 Nevertheless, we can use the concept of state fragility to understand some important things about the changing nature of displacement and the adequacy or inadequacy of existing international protection responses when the assumed relationship between state and citizen breaks down and states are unable or unwilling to provide for the rights of their citizens.

The international society of states drew up the Refugee Convention in 1951 in the aftermath of the Second World War to address the reality that some states fail to provide for the fundamental human rights of their citizens. Yet, since the creation of the refugee regime in the 1950s, the circumstances that shape flight have changed. Although many of the current academic and policy debates focus on 'new drivers of displacement' (such as generalised violence, environmental change and food insecurity), what ultimately determines whether international protection is needed is the quality of governance in the country of origin. In states with weak governance, the only available means to acquire protection may be to leave the country.

From persecution to deprivation

While there are now fewer repressive or authoritarian states than in the Cold War era, there has been an increase in the number of fragile states since the end of the Cold War. This trend means fewer people are fleeing persecution resulting from the acts of states, while more are fleeing human rights deprivations resulting from the omissions of weak states that are unable or unwilling to ensure fundamental rights.

Although the creators of the refugee regime foresaw that the definition of a refugee would evolve over time - either through the jurisprudence of particular states or supplementary agreements - there is still little legal precision over states' obligations to people fleeing deprivations that fall outside the conventional understanding of persecution. The 1969 OAU Refugee Convention may be argued to cover aspects of state fragility as a cause of cross-border displacement (under the heading of 'events seriously disturbing public order'2); its patchy use and weak jurisprudence, however, continue to make its application to fragile states unreliable. Furthermore, although complementary protection standards have been developed through the application of international human rights law to extend international protection, jurisprudence is developing slowly and in a geographically uneven way. The result is that the protection of people fleeing deprivations that fall outside the conventional understanding of persecution is inconsistent and conditioned by politics rather than law.

The consequence is that, today, many people who are forced or who feel forced to cross international borders do not fit the categories laid out in 1951. Many people fleeing human rights deprivations in fragile or failed states such as Zimbabwe, Somalia, the Democratic Republic of Congo, Haiti, Afghanistan or Libya look very much like refugees and yet most fall outside the definition of a refugee, often being denied protection. They are not fleeing state persecution, though many are fleeing state incompetence. They are not migrating for economic betterment, unless you call finding enough to eat an economic motive. Yet the protection they occasionally receive is patchy and inconsistent and unpredictable and at best terribly inadequate. …

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