This piece was published in the Winter Issue Online Edition (Volume 11)
Abstract:
In the aftermath of World War II, a new world order was created with the goal of fostering international cooperation and protecting the human rights that had been violated during the war. The formal institutionalization of human rights that occurred during the development of the United Nations, Universal Declaration of Human Rights, and 1951 Refugee Convention was far less self-evident than is commonly remembered. In reality, the states involved in deliberations prioritized national interests and the avoidance of potentially cumbersome international legal obligations ahead of the comprehensive protection of human rights. This phenomenon can be identified in the deliberations behind the 1951 Refugee Convention, during which national interests and power imbalances contributed to the formation of a legal definition of “refugee” that was inherently exclusionary in nature. This paper explores these deliberations through archival research and analyzes how the determination of global powers to preserve their national interests during negotiations contributed to a restrictive refugee definition that is unfit to adequately protect the rights of the modern refugee. Through a case study of the exclusion of “climate refugees” from the refugee definition and its ensuing protections, the paper highlights significant modern implications for contemporary refugees in need of protection that are a direct result of global powers opting to prioritize national interests and adopting a restrictive, exclusionary refugee definition rather than an inclusive and flexible definition.
Introduction
In the wake of the incomprehensible atrocities of World War II, it was exceedingly clear that the creation of a new international order, through which peace would be maintained and human rights would be promoted, was unequivocally necessary. The horrors of the World Wars demonstrated the danger of a world order in which peace between nations was tenuous, prompting the nations fighting the Axis Powers to unite in 1942, and to sign the Declaration of the United Nations. [1] Furthermore, the inhumanities of the war motivated this new body of global cooperation to institutionalize human rights on an unprecedented scale in order to prevent future violations. The United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) in December of 1948 with the goal of enshrining the “basic rights and fundamental freedoms” of all human beings and of establishing the universal nature of these rights.[2] While the scope of the UDHR encompassed a wide range of universal rights, one of its most important functions was establishing the right of individuals to seek asylum and enjoy freedom from persecution in Article 14.[3] An estimated sixty million people were displaced by World War II alone; consequently, this refugee crisis that exploded as a result of the World Wars was an important factor in the conception and formulation of the United Nations.[4] Due to the lack of a global system for refugee management during and after World War II, staggering numbers of refugees who lacked any means of protection were failed by existing mechanisms in a time of great need. By incorporating the right to seek asylum into the UDHR, the United Nations took the first step in developing an international system for managing refugees that could protect those seeking help in the aftermath of the war.[5]Utilizing Article 14 of the UDHR as a starting point, the formation and passage of the 1951 Convention Relating to the Status of Refugees marked the first multilateral treaty designed specifically to define and protect the fundamental rights of refugees.[6] By setting international standards for the rights of refugees and for resettlement work, the United Nations intended to adequately manage the surge of refugees following World War II and to acknowledge and protect those who would be designated refugees under international law.[7]
Regarding both the institutionalization of refugee rights and of human rights as a whole in the aftermath of World War II, a common historical narrative has emerged in which the member states of the United Nations are said to have come together wholeheartedly in the wake of the war to combine forces for peace and to work to comprehensively protect human rights for all people. However, the situation was far more complex. While United Nations member states did come together to deliberate which rights were to be protected and how to go about doing so, many of the global powers involved in these deliberations were extremely hesitant to institutionalize human rights, and by extension refugee rights, due to fear that doing so would create unwanted international obligations by which they would need to abide in order to maintain their status as moral leaders.[8] A clear example of this resistance came about in the deliberations regarding the construction of the legal definition of a refugee, which was eventually incorporated into Article 1 of the 1951 Refugee Convention. The complexities surrounding the way in which the drafters of the 1951 Refugee Convention chose to define “refugee” under international law had gargantuan ramifications regarding who would be allotted refugee status, and by extension the protections offered by that status. Global powers involved in the deliberations, such as the United States and France, advocated for the definition of “refugee” to be limited in scope in terms of geographic and temporal constraints, and for the definition to focus solely on the issue of persecution as a driver of migration.[9] These restrictions were inherently exclusionary, and the initial refugee definition served to limit who could claim refugee status and to exclude those who could not from protection. By examining the initial deliberations between United Nations member states that occurred while shaping the definition of “refugee” under the 1951 Refugee Convention, it is possible to analyze the complexities of global powers and their leading interests in terms of outwardly supporting the institutionalization of human rights, while inwardly prioritizing national interests and power at the possible expense of providing comprehensive human rights that could be realized in practice. As the 1951 Refugee Convention and its corresponding refugee definition has served as the cornerstone for international refugee law since its conception, the intricacies and competing interests involved in these initial deliberations have deeply impacted the refugee regime from its advent to present day and play a direct role in the plight of the excluded modern refugee.
This paper strives to explore the ways in which the initial deliberations over the 1951 Refugee Convention gave rise to an exclusionary definition of “refugee” under international law, and the modern implications of this exclusion. It begins with a literature review that serves to analyze scholarship regarding the power imbalances in the United Nations during the post-war period, how the impact of global power interests shaped the United Nations system, the 1951 Refugee Convention, and the ensuing definition of a refugee included in Article 1 of the Convention. This review additionally analyzes the exclusions that were institutionalized in refugee law as a consequence of power imbalances and competing interests, placing these exclusions in the context of modern limitations of the refugee definition. The paper then delves into a deeper exploration of the definition of a refugee under the 1951 Refugee Convention, examining the United Nations deliberations over the 1951 definition and their implications. By analyzing the refugee definition in modern practice, the paper highlights the shortcomings of this initial definition from a modern lens and connects these contemporary limitations to the initial deliberations and their restrictive outcomes. Finally, the paper examines the modern deficiencies of the refugee definition by utilizing the case study of the exclusion of and lack of protection for “climate refugees” under international law. This paper serves to establish that the initial United Nations deliberations over the 1951 Refugee Convention gave rise to a restrictive and exclusionary legal definition of “refugee” due to the intent of powerful states involved in its construction to protect their power and national interests that could potentially conflict with human rights obligations rather than to ensure that refugee rights were being comprehensively addressed. Setting this restrictive precedent at the start of the refugee rights regime directly produced modern circumstances in which contemporary categories of refugees are excluded from legal protections, necessitating the expansion of the refugee definition to provide adequate protections.
Literature Review
A. Power Imbalances in the United Nations: The Impact of Great Power Interests in the Shaping of the United Nations System and the 1951 Refugee Convention
The dichotomy in which global powers outwardly supported the institutionalization of human rights while inwardly exhibiting great hesitation due to the potential jeopardization of their national interests, which would come with comprehensive human rights, played a massive role in the shaping of the United Nations and the 1951 Refugee Convention.[10] Mark Mazower explores the shaping of the United Nations Organization in his book “No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations.” He highlights that many commentators were disillusioned with the concept of the United Nations from its conception, viewing the world body as a hypocritical attempt to universalize human rights rhetoric in an extremely partial manner, while masking the consolidation of world powers.[11] As he describes, international legal norms did not inspire widespread confidence during the World Wars, as they completely failed to both prevent the wars from starting and to regulate the manner in which the wars were waged. However, the dangers of failing to “check the Hobbesian excesses of sovereign power” that were exhibited in World War II prompted nations to become more receptive to the concept of strengthening international law and legally safeguarding individual human rights.[12] Though this vision of the institutionalization of human rights on a global scale was able to gain support, the creation of the United Nations was a “product of evolution, not revolution, and grew out of existing ideas and institutions” that were products of empire and favored consolidated power rather than egalitarianism.[13] Furthermore, as described by Seth Mohney, the concept of human rights during and after World War II was far from self-evident. In his view, the period of the institutionalization of human rights has become deeply romanticized in history, as the deep power struggles and issues of realpolitik involved in the formation of the United Nations and the UDHR demonstrate a narrative of realism in which the development of human rights in this period is best described as a product of powerful forces constraining the scope of human rights content and the United Nation’s ability to enforce the institutionalized rights.[14] Mazower highlighted these powerful forces through an analysis of the United Nations’ structural formation, namely that the Big Three powers (the United States, United Kingdom, and Soviet Union) were unprecedentedly receptive to the idea of the United Nations due to the fact that their permanent seats on the Security Council would grant them veto power, ensuring that the organization could not realistically work against them.[15] For the United Kingdom in particular, these circumstances were especially attractive in terms of colonial interests. Colonizing states regarded the United Nations as an adequate mechanism to protect the colonial system, and the non-binding nature of the UDHR ensured that violations of these mechanisms could be easily ignored.[16] Though the United Nations moved away from its colonialist acceptance as more and more colonies gained independence and diluted the colonizer stronghold in the General Assembly, the organization’s formation was pervaded with powerful colonial interests.[17] Lucy Mayblin highlights how these colonial interests caused the British government to be highly hesitant in regards to the institutionalization of human rights, and caused their reluctance to sign any conventions that would apply to colonial subjects.[18] Thus, as Mayblin, Mohney, and Mazower describe, the beginnings of the United Nations and the UDHR can be characterized by an attempt for great powers to deliberately exert their influence rather than promote comparative egalitarianism. While mechanisms such as the UDHR did attempt to institutionalize the individual human rights that proved more palatable to states that were wary of collective rights, the unenforceability of these instruments allowed powers to virtually behave as they pleased without legitimate fear of consequences.[19]
The power imbalances at the root of the United Nations and formation of the UDHR were just as paramount in the creation of the 1951 Refugee Convention. Irial Glynn describes how the United Nations Economic and Social Council (ECOSOC) requested that the organization study the situation of refugees and the stateless, with the goal of providing recommendations on how the United Nations could best offer protection.[20] Representatives of the International Refugee Organization (IRO), an organization created during World War II to confront the refugee crisis created by the war, were primarily responsible for drafting what came to be the 1951 Refugee Convention.[21] The Ad Hoc Committee on Statelessness and Related Problems working on the Convention ended up dominantly opposed to a generalized refugee definition without strict parameters, fearing that a general definition would be a “blank cheque” that would “undertake obligations towards future refugees, the origin and number of which would be unknown.”[22]Glynn also analyzes the rift between “Europeanists” and “universalists” during the Convention revision process, establishing that those in the Europeanist camp believed the scope of refugee protection should be limited to Europeans displaced by the World Wars, while universalists disagreed with this geographic and temporal restriction.[23] Though these restrictions were incorporated into the 1951 definition, authors such as Kazimierz Bem have examined the period between 1951 and 1967 in which new events made it more difficult to link refugee problems to the 1951 definition and thus necessitated the removal of these constraints in the 1967 Protocol Relating to the Status of Refugees.[24] Lucy Mayblin highlights the British perspective regarding these constraints in particular, illustrating that while United Kingdom representatives were outwardly in favor of a broad definition, inwardly, the government was against signing conventions that applied to people in the colonies, due to awareness that the country’s treatment of colonized subjects would not meet human rights standards.[25] Thus, their representatives advocated for a colonial application clause to be included under the guise that doing so would somehow promote self-determination in the colonies, while privately hoping such a clause would mean that their empire would not be obligated to apply the principles of human rights conventions in their colonies. A territorial application clause was included in the final product of the Convention, which allowed states to decide whether to extend the Convention to their territories. Thus, colonial interests were able to exert their power in negotiations in order to safeguard their questionable national practices through the shaping of the United Nations itself and the 1951 Refugee Convention.[26
B. Institutionalized Exclusions as a Consequence of Power Imbalances and Great Power Interests
The power imbalances inherent to the structure of the United Nations and the interests of global powers gave rise to an exclusionary definition of “refugee” under the 1951 Refugee Convention. In addition to the exclusion of non-Europeans examined in the previous subsection, the definition was also inherently restrictive due to its sole focus on persecution as a driver of migration. As Article 1 of the Convention states, the term “refugee” shall apply to any person who:
- As a result of events occurring before 1 January 1951 and owing to well-founded fear of persecution 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. [27]
The phrasing of “well-founded fear of persecution” in this definition is the basis of many contemporary critiques of the refugee definition, as it excludes those in need of refuge that do not fit into this mold from refugee classification and its ensuing protections. Jane McAdam highlights the implications of this exclusion, noting that the Convention’s denial of refugee status to those who do not fit the definition leaves those outside of it to the mercy of international human rights law, which is “strong on principle but weak on delivery.”[28] She notes that due to the gap between the theory of universal human rights and the realistic ability to exercise these rights, being able to claim refugee status is deeply important to those seeking protection.[29] As Glynn describes, this persecution-specific definition stems directly from the circumstances that predominantly created refugees in the period of the World Wars, yet became acutely limited as global circumstances shifted and complicated both the designation of refugee status and asylum procedures.[30] The same phenomenon applies to the inclusion of the “events occurring before 1 January 1951” classification, which was included by governments with the goal of limiting international obligations to those specific to the refugee crisis at hand, yet quickly became outdated as global circumstances evolved over time.[31]
The specificity of “reasons of race, religion, nationality, membership of a particular social group or political opinion” proved to be exclusionary in nature as well. By limiting the reasons through which those seeking refugee status could claim a “well-founded fear of persecution,” the definition limits the scope of who is eligible for inclusion. L.W. Marshall writes about these limited grounds for inclusion, noting that many modern circumstances, especially displacement due to environmental causes such as climate change, do not conform to the categories established in the definition.[32] As a result of these restrictions ingrained in the 1951 definition of a refugee, the scope of who is considered a refugee under international law and offered the ensuing protections that come with that status is extremely limited. This limitation, as Marshall notes, has dangerous implications for modern refugees whose contemporary circumstances do not fit within the scope of the post-World War II definition.[33
C. Modern Implications of Initial Exclusions
There is a significant amount of existing scholarship exploring the ways in which the exclusivity of the original refugee definition restricts categories of contemporary refugees from the ability to claim refugee status and its ensuing protections. As previously discussed, L.W. Marshall argues that contemporary circumstances that create refugees are not included within the scope of the persecution-focused legal definition, and thus the definition of “refugee” must be expanded in order to ensure that the global community will adequately respond when modern refugees are in need of aid.[34] Joan Fitzpatrick concurs, arguing that contemporary circumstances necessitate a broader and more inclusive definition, as the 1951 definition’s focus on persecution fails to consider modern drivers of refugee movement. She argues that while the concept of persecution has evolved alongside changing global circumstances since the conception of the original definition, basing status on persecution is too subjective and dependent on the interpretations of individual decision-makers to offer adequate legal protection to those seeking it.[35] Through the example of the “climate refugee,” authors such as Marshall and Joanna Apap highlight the modern inadequacies of the refugee definition by demonstrating how it fails to define and protect contemporary categories of refugees, thus necessitating the expansion of the definition.[36] Finally, Mayblin adds an important lens to the linkage between restriction in the initial formation of human rights mechanisms after World War II and the modern restrictive refugee regime in Britain by demonstrating that contrary to common belief, contemporary exclusion does not represent a deviation from “earlier moral standards”; instead, it represents a continuation of international standards that have been deeply rooted in exclusivity since their initial institutionalization.[37]
This paper concurs with the authors mentioned thus far who believe that the exclusionary refugee definition should be expanded in order to comprehensively protect modern refugees. Through the analysis of initial deliberations behind the 1951 Refugee Convention and its resulting definition, it is clear that the prioritization of national interests over comprehensive international refugee protection contributed to the creation of an exclusionary, European-biased definition. The plight of the modern refugee, excluded from refugee status and its protections, is a product of this deliberate decision to restrict that can be traced clearly back to these initial negotiations.
The 1951 Refugee Definition: Forming A Legal Foundation for the International Refugee Regime Under the Influence of State Power Imbalance
A. United Nations Deliberations Over the 1951 Refugee Definition
Through a careful examination of archival records regarding the deliberations behind the 1951 Refugee Convention, specifically the refugee definition established in Article 1, it is clear that the state actors involved in the Convention’s formation navigated the deliberations with motivations that prioritized preserving national interests and avoiding unwanted legal obligations ahead of the comprehensive institutionalization of inclusive refugee rights, resulting in a restrictive definition. Bearing in mind modern criticisms of the original refugee definition that argue it is too narrow to offer adequate protections to contemporary refugees, analyzing these initial deliberations and the national interests at play in their outcomes highlight that the eventual decision to adopt a restrictive definition rather than a more expansive one directly led to the modern situation in which contemporary refugees are excluded from refugee status and its ensuing protections.
Analyzing the initial deliberations regarding the 1951 Refugee Convention and its definition of “refugee” contained in Article 1 is primarily undertaken through the examination of summary records of meetings of the Ad Hoc Committee on Statelessness and Related Problems. This committee, adopted through a resolution from ECOSOC in 1949, was composed of representatives from Canada, Belgium, Brazil, China, Denmark, France, Israel, Turkey, Venezuela, the United Kingdom, the United States, the International Refugee Organization, and the United Nations Secretary General.[38] It is important to note the Western dominance of this committee makeup, as this configuration had a significant role in shaping the stances of states on the refugee topics at hand and thus in guiding the decisions of the committee.
From the beginning of committee deliberations in January of 1950, the primary issue at hand was how broad or narrow the scope of the definition should ideally be, which encompassed the question of how a refugee should be defined under international law. Before the committee could delve into the specifics of the refugee definition, discourse regarding the scope had to be navigated. At the onset of the process, the United States representation was the primary advocate for a narrow definition, while the representatives from France and the United Kingdom were in favor of a definition that was more generalized. The French committee representative argued the following in favor of a broad scope at the committee’s second official meeting:
France, true to its tradition, would like the definition of the term “refugees” to be as generous as possible; since, before the proposed convention entered into force, new and undreamed-of categories of refugees might be created, the definition should be couched in general terms, if necessary with specific exceptions, but should not enumerate the categories to be protected. In view of the turbulent states of the world, no such list could ever be complete.[39]
This perspective is immensely meaningful from a modern lens. First, it is interesting and suggests external factors at play that France advocated so strongly for an inclusive definition at the onset of negotiations but altered the state’s stance and joined the United States in favor of a restrictive definition mere months later. Secondly, analyzing this perspective within a contemporary context in which its argument proved correct demonstrates the massive, lasting implications of the eventual adoption of a narrow definition: in the seventy years since the definition was solidified, “new and undreamed of categories of refugees” were in fact created as a result of “turbulent states of the world.”[40]These records unequivocally highlight that the powerful states involved in the formation of the refugee definition were well aware that creating a restrictive definition specific to the current global circumstances could very easily become unfit to adequately protect future categories of refugees that they could not fully anticipate, yet they chose to proceed restrictively despite this knowledge. This decision clearly establishes that national interests and the desire to avoid international legal obligations were prioritized before the desire to create a truly inclusive definition.
Returning to the technicalities of committee deliberations, the United Kingdom’s draft proposal for Article 1 of the Convention submitted the following definition for consideration:
(1) The provisions of this Convention shall, except where otherwise provided, apply to unprotected persons.
(2) In this Convention, the expression “unprotected persons” means:
(a) persons who are not nationals of any State; and
(b) persons who, being outside the territory of the State of which they are nationals, do not enjoy the protection of the State either because that State refuses them protection or because for good reasons (such as, for example, serious apprehension based on reasonable grounds, of political, racial or religious persecution in the event of their going to that State) they do not desire the protection of that State.[41]
This proposed definition was far more inclusive in nature than the final product. The United States government, represented by committee member Mr. Henkin, vehemently opposed the concept of such a broad refugee definition, instead advocating for a clearly defined definition that prevented the possibility that the United Nations would have to “undertake responsibility in advance for all possible refugees who might become such as a result of unforeseeable happenings in the future.”[42] As Henkin argued at the third meeting of the committee:
The United States Government considered that the categories of refugees to which the draft convention under discussion should apply should be clearly enumerated. Since the responsibility of the United Nations would be committed with regard to refugees placed under its protection under that convention, the extent of that responsibility must be known in advance, and to that end, it must be known what categories of refugees would be admitted to that protection. Too vague a definition, which would amount, so to speak, to a blank check, would not be sufficient.[43]
Within the United States’ ideal definition, four specific groups of refugees were to be covered: refugees of World War I; refugees from the inter-war period and World War II; neo-refugees, which included those who had left their homes since the start of World War II as a result of “political, racial, or religious persecution,” but explicitly did not include any future refugee groups; and displaced persons and unaccompanied children.[44] The United States representation clearly wanted to avoid the international legal obligations that would arise with a more general, inclusive definition, and thus advocated for the stricter approach, stating that the concept of imposing obligations on signatory states for “refugee groups the nature and number of which were unknown” was undesirable.[45] This argument proved effective; additional global power representatives such as China and eventually France supported the adoption of a stricter definition.[46] Thus, as of the sixth meeting of the Ad Hoc Committee on Statelessness and Related Problems, the Committee Chairman announced that the definition was to be more strictly defined in line with the United States’ proposal.[47]
The reversal of France’s position on the broad versus restrictive scope continuum was an extremely significant turning point in the deliberation process. As discussed previously, French representation entered negotiations with a powerful argument for an inclusive definition, making the critical point that constantly shifting global circumstances necessitated a dynamic, broad definition that would protect categories of future refugees of which were not conceivable at that time.[48] By drastically altering their position in favor of the United States’ restrictive proposition, the French representation voiced their support for an overall exclusive definition, for the time clause that only accepted refugees that became so prior to January 1, 1951 and for a European-specific scope.[49] In justifying this sharp change, the French representative explained the undesirability of an expansive definition for signatory states in terms of the obligations it would bring.[50]
It would be remiss to examine the competing interests of great powers within the Convention deliberations without additionally examining the ways in which less powerful states were dismissed or unable to exert influence during negotiations. The majority of states involved in deliberations supported the adoption of a broad, inclusive definition, including Belgium, Canada, Sweden, and Switzerland.[51] The competing perspectives regarding the scope of the definition spurred intense contention, especially regarding the French representation’s reversal of perspective. Most notably, the representatives from France and Belgium entered such an aggressive debate regarding the situation that the records of this conversation were removed from the Travaux Preparatoires. A note from John Humphrey, the first director of the Human Rights Division of the UN Secretariat, reveals that the French representative “accused the Belgians of smuggling refugees over the border on moonless nights.”[52] The degree of controversy exhibited throughout negotiations further suggests that the concept of a broad, inclusive definition was favored by many states with relatively less power, yet the preferences of the majority of global powers won out in the end and resulted in a narrow definition.
As a whole, the inclusion of temporal and geographic limitations in the 1951 refugee definition was a direct product of the United States-led effort to warn against the unwanted international obligations that a “blank cheque” would bring. It is extremely noteworthy that the United States never became a signatory to the 1951 Refugee Convention, as President Harry Truman was too wary of the obligations that would be brought about by their participation.[53] Though deliberations began with numerous states arguing on behalf of a generalized definition, fear of the international obligations that would accompany an expansive definition spurred a change in stance on the part of the majority of committee representatives. This situation demonstrates the national interests at play in the construction of the refugee definition; though it was clear that a narrow definition would not encompass or protect future categories of refugees or refugees outside the scope of the World War-specific included distinctions, the committee still opted to enact a restrictive definition. Adopted by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons in Geneva in July of 1951, the finalized definition left obvious protection gaps that instituted exclusionary international refugee law from the start of the new, post-World War II global order.[54]
The role of the United Kingdom in the deliberations of the refugee definition is also interesting to consider. The United Kingdom committee representation was the strongest advocate for an expansive refugee definition and for the omission of time and territorial clauses, yet other significant factors were at play in terms of prioritizing national interests, especially regarding colonization. Records of internal discussions in Britain concerning the issue of colonization in the new human rights era indicate that the government was well aware that adopting a refugee convention that included colonized subjects would impose international obligations on the empire that would force their hand into changing standards of treatment.[55] The United Kingdom representation on the Ad Hoc Committee advocated strongly for the inclusion of a colonial application clause in the 1951 Refugee Convention, arguing that opting against such a clause would take away the autonomy of colonies to decide for themselves whether or not to participate in the Convention.[56] As the General Assembly Memorandum regarding this argument states:
The Delegate of the United Kingdom emphasized that the question before the Committee was not whether it was right or wrong that a colonial system should still exist in the 20th Century but merely whether, with such a system in existence a colonial clause should be incorporated in the Covenant. The U.K. had never claimed that the peoples of the territories under its administration were sovereign and independent. No one could deny however that those peoples were constantly progressing along the road to self-government and independence, and it was precisely in order to take such progress into account that a colonial clause should be inserted in the Covenant. As a rule, the U.K. Government undertook no obligations on behalf of the colonies under any convention or treaty without consulting the local Governments. If the colonial clause were omitted, the participation of colonies in an international convention would become automatic and those territories would thus find themselves deprived of the right to decide for themselves. The opponents of the colonial clause would therefore seem to be illogical since they demanded autonomy for the peoples of the non-self-governing territories while at the same time denying them the right to decide for themselves.[57]
Bearing in mind that the British government was extremely unwilling to enter any international agreement that would mandate human rights protections for colonized subjects, the argument for allowing colonizing states to make the decision on whether to extend or not extend human rights to their subjects was somehow supposed to grant colonies autonomy, is questionable at best.[58] It is noteworthy that the states in support of the colonial application clause were colonial powers such as France and Australia, while those against it were the “colonized and formerly colonized peoples of the world” such as India, Pakistan, and Chile.[59] The fact that colonized/formerly colonized peoples were not in support of the colonial application clause demonstrates that while the United Kingdom attempted to pass the clause’s inclusion off as beneficial to colonies and appeared to promote autonomy for colonized peoples, those who would actually be affected by its admittance vehemently disagreed with the United Kingdom’s portrayal of the situation.[60] This case highlights that though global powers such as the United Kingdom were talented at maneuvering situations in order to advocate for national interests while maintaining an outward appearance of commitment to universal human rights, these efforts were often relatively transparent in execution. Though the colonial application clause did not end up in the Convention, the territorial application clause included in Article 40 of the Convention had virtually the same effect, in that it allowed signatory states the right to extend the Convention to “all or any of the territories for the international relations of which it is responsible.”[61]
The United Kingdom representation subtly exerted national interest within the deliberations in other areas as well. For example, Sir Leslie Brass, the United Kingdom committee representative, advocated for reservations to be permitted in almost every article of the convention, as the United Kingdom wanted to ensure that they would be able to opt out of any part of the final product that did not coincide with their national interests.[62] In addition, the Travaux Preparatoires for the 1951 Refugee Convention show that the United Kingdom representation advocated for the alteration of the phrasing of the originally proposed Preamble to the Convention, suggesting that: “Considering that the United Nations has, on various occasions… manifested its profound concern for refugees and endeavored to assure refugees the widest possible exercise of these fundamental rights and freedoms” be changed to “Considering that the United Nations has, on various occasions… manifested its profound concern for refugees and the need for their international protection.”[63] This minor but significant change served to remove the statement that refugees would be assured the “widest possible exercise of these fundamental rights,” as the United Kingdom representation did not want to make that broad assertion and subsequently have to deal with its ramifications.[64]
Examining these understated exertions of national interest within the convention deliberations clearly highlights that while global powers were outwardly committed to the comprehensive institutionalization of human rights and refugee rights, inwardly the protection of national interests took priority. It is especially fascinating to view this phenomenon through the lens of the United Kingdom, as it is a prime example of a state that despite outwardly advocating for an expansive and inclusive refugee definition, held complex ulterior motives during the negotiations. The position of committee members on this scale of national versus international interests was very interesting, as they situationally possessed conflicting loyalties. A comment by the Danish representative during deliberations encapsulated this struggle well: “It was true that the representatives in the Committee were speaking as representatives of their respective Governments and, as such, should not propose anything which they knew to be unacceptable to their own Governments. On the other hand, the task of the Committee members was not limited to the presentation of what their own Governments would approve, for they also represented the entire membership of the United Nations and it was their task to prepare an instrument acceptable to all or most of the Members.”[65] While it was understandable that state representatives on the committee should strive to build a document that is favorable to as many members of the United Nations as possible, these representatives were realistically allegiant to the governments of their respective states and thus primarily advocated for national interests.
Analyzing the minute details of the deliberations regarding the refugee definition under the 1951 Refugee Convention highlights the harsh realities of the situation: while state representatives worked to build the definition of a refugee under international law, state interests and desire to avoid unwanted international obligations had a deep impact on deliberations that resulted in a narrow and exclusive refugee definition. Records of these deliberations unequivocally establish that the committee members were well aware that a restrictive definition would fail to comprehensively protect future refugee categories that did not fit the mold of the current global circumstances, yet the potential of creating a definition that could offer dynamic, comprehensive protections was purposefully rejected. This intentional decision to exclude directly produced the modern situation in which contemporary refugees are denied access to the restrictive status of refugee, a situation that could have been prevented if an expansive understanding of “refugee” had been originally adopted.
B. The 1967 Protocol Relating to the Status of Refugees: A Partial Solution
The passage of the 1967 Protocol relating to the Status of Refugees marked a partial solution to the limitations of the 1951 Refugee Convention. Changing global circumstances following the passage of the 1951 Convention caused new refugee situations to be created, and the geographic and temporal restrictions included in the original refugee definition thus needed to be updated. To that end, the Protocol states that “Considering that new refugee situations have arisen since the Convention was adopted and that the refugees concerned may therefore not fall within the scope of the Convention,” state parties to the Protocol have agreed under Article 1 that:
For the purpose of the present Protocol, the term “refugee” shall, except as regards the application of paragraph 3 of this article, mean any person within the definition of article I of the Convention as if the words “As a result of events occurring before 1 January 1951 and…” and the words “…as a result of such events”, in article 1 A (2) were omitted.
The present Protocol shall be applied by the States Parties hereto without any geographic limitation, save those existing declarations made by States already Parties to the Convention in accordance with article I B (I) (a) of the Convention, shall, unless extended under article I B (2) thereof, apply also under the present Protocol.[66]
By removing the temporal and geographic limitations from the refugee definition, the Protocol expanded the qualifications for refugee status to include refugees that emerged from circumstances unrelated to the World Wars. This was extremely beneficial from a lens of removing European bias, as the process of decolonization allowed more state actors to enter the international stage and caused significant numbers of refugees to move towards locations outside of Europe.[67]
However, the removal of the temporal and geographic limitations of the 1951 definition did not represent a complete solution to the issue of exclusivity in the refugee definition. As briefly discussed in the literature review, the preservation of the phrase “owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion” throughout the 1967 modification maintained the narrow scope and exclusionary quality of the definition.[68] Though precise examinations of the deliberations regarding the 1967 Protocol fall outside the scope of this paper, the decision to maintain the persecution-focused definition had the consequence of the continued exclusion from refugee status of those seeking refuge that do not fit into the persecutory mold. This phenomenon has prompted the majority of modern criticism regarding the failure of the modified refugee definition to adequately offer comprehensive protection to contemporary refugees, an example of which will be explored in the following section of this paper.
Case Study: The Lack of Protection for “Climate Refugees” Under International Law
A. Implications of Modern Exclusion from Refugee Status
As the state representatives who constructed the original refugee definition anticipated, modern circumstances have shown that “new and undreamed-of categories of refugees” have indeed been created as a result of “turbulent states of the world,” and thus the narrowness of the definition has created a situation where contemporary refugees exist in a legal gap in which much-needed protection is often denied.[69] Many different opinions regarding how to rectify this legal gap exist among experts, but there is a general consensus that the refugee definition should be reevaluated and potentially expanded to better reflect modern circumstances. While the foundational instruments of international refugee law that have been discussed throughout this paper succeeded in establishing unprecedented protections for refugees, their lack of consideration towards potential sources of refugee influx that were unrelated to subject of persecution arguably necessitates expanding the definition of refugee under international law a second time in order to encompass categories of refugees that are unique to the twenty-first century.
B. The Case for “Climate Refugees”
A prime example regarding the necessity of expanding the refugee definition in order to provide adequate protection to modern categories of refugees is the case of “climate refugees.” The term “climate refugee” has not been formally recognized or defined under international law, but is commonly used in reference to the category of people who are driven to migrate by environmental factors, especially climate change.[70] The case of climate refugees is a robust example of the modern shortcomings of the restrictive refugee definition, as the representatives who constructed the original definition in 1951 could not have anticipated that the climate crisis would escalate to the point where it would create such a staggering number of refugees. However, this does not excuse the choice to initially adopt an exclusionary definition; though the state representatives could not have anticipated the specific category of climate refugees during the 1951 Refugee Convention deliberations, they did generally anticipate modern categories would come into existence even if they could not predict exactly what these categories would be.
As the climate crisis continues to escalate and to render more and more areas of the planet unfit for human habitation, the number of people who are being displaced by its effects will increase exponentially. Statistics from the Internal Displacement Monitoring Centre highlight that over seven million people were internally displaced by disasters in 2020 alone (this figure is a “significant underestimate), and the number of people that will be displaced both internally and externally will continue to surge.[71] This data indicates that millions of people will be catastrophically impacted by the increasing severity of the climate crisis, yet climate refugees have not been defined under international law and no protective mechanisms exist. As most externally displaced climate migrants are not seeking refuge due to persecution, they generally do not fall under the definition of refugee highlighted in the 1951 and 1967 definitions. Consequently, these migrants are forced to confront the often extensive and exclusionary immigration systems of the countries into which they want to relocate. Without an international system of accommodation for the millions of people who will inevitably be displaced due to climate change as the number of climate refugees continues to swell, climate refugees are in an extraordinarily precarious position.
The connection between the decision to adopt a narrow definition of refugee during the original deliberations over the 1951 Refugee Convention and the current plight of climate refugees not only highlights the consequences of the intentional creation of an exclusionary definition, it also provides a clear example of the power imbalances and ulterior state interests that dominated the 1951 deliberations, and of the central desire of powerful states to avoid international legal obligations. As the climate crisis escalates, the states that did the least to cause it are the same states that are experiencing its consequences most severely, while the powerful states that created the climate crisis through excessive greenhouse gas emissions remain relatively unscathed.[72] Potential means of rectifying the protection gap for climate refugees would likely include compensatory justice principles that would place the burden of managing the increasing number of climate refugees on the states that caused the climate crisis through international obligations, which is a deeply unappealing possibility for powerful states.[73] By extension, the United Nations defining and offering protection to climate refugees could invoke obligations on powerful states, making it clear why a definition or mechanism for protection has not yet been reached. Thus, the case of climate refugees highlights two important realities regarding refugee definitions. Primarily, the purposeful decision at the onset of deliberations over the 1951 Refugee Convention to adopt a narrow definition of refugee created a modern situation in which contemporary categories of refugees are excluded from status and protection. Secondly, the current global circumstances under which less powerful states are being harmed by a crisis directly created by powerful states, yet powerful states are hesitant to extend status and protection due to fear of creating international legal obligations, highlights how national interests on the part of powerful states are still being prioritized over the comprehensive institutionalization of human rights in present day, just as they were in 1951.
It is important to note that while there is a consensus amongst experts that the persecution-focused refugee definition is objectively restrictive and excludes categories of individuals that are displaced by modern circumstances, the potentially negative connotations of being labelled a “refugee” and the general inadequacy of the international human rights framework regarding refugees, especially concerning enforcement, mean that the idea of expanding the definition is more nuanced than it seems at first glance. Though alternative methods to working within the current international refugee framework for protecting persons displaced by climate change is outside the scope of this paper, it remains necessary to emphasize that prioritizing the autonomy of the persons and cultures being impacted is essential in determining protection mechanisms, and that any reevaluation of the international human rights and refugee systems should be realistic about their abilities to comprehensively realize rights and protections in practice. The implications of this are that while expanding the refugee definition is an important part of protecting those displaced by causes not based in persecution, it will logically serve as one component in what will ideally be a range of innovative, inclusive approaches to the issue of climate displacement.
Conclusion
When analyzing the exclusionary, often morally bankrupt characteristics of the modern international refugee regime, it is dangerous to idealize the roots of the United Nations and the organization’s ensuing institutionalization of human rights. Recognizing the development of human rights and refugee protections in the aftermath of World War II for the complex and contentious period it was makes it far more feasible to contextualize the contemporary flaws of the refugee regime, as it is apparent that exclusion, prioritization of national interest, and power imbalances have been representative of this regime since its formal conception. The examination of the initial United Nations deliberations over the 1951 Refugee Convention conducted in this paper clearly highlights how the creation of a restrictive and exclusionary legal definition of “refugee” was the result of the intent of powerful states involved in its construction to protect their power and national interests that could potentially conflict with human rights obligations, and how setting this intentionally restrictive precedent at the advent of the refugee rights regime directly produced modern circumstances in which contemporary categories of refugees are excluded from legal protections. These realities demonstrate the necessity of expanding the refugee definition in order to provide comprehensive, inclusive protections to modern refugees. While exclusion has been shown to be a foundational characteristic of the international refugee regime, embracing inclusivity is absolutely necessary for the creation of a concept of “refugee” that genuinely reflects dedication to the respect of the inherent, fundamental human rights of all people.
References
[1]United Nations, “1942: Declaration of The United Nations,” n.d.,
[2]“Universal Declaration of Human Rights,” United Nations, n.d., https://www.un.org/en/universal-declaration-human-rights/.
[3]Ibid.
[4]Giada Zampano, Liam Moloney, and Jovi Juan, “Migrant Crisis: A History of Displacement,” The Wall Street Journal, September 22, 2015. http://graphics.wsj.com/migrant-crisis-a-history-of-displacement/.
[5] “Universal Declaration of Human Rights,” United Nations, n.d, https://www.un.org/en/universal-declaration-human-rights/.
[6] “The 1951 Refugee Convention.” United Nations High Commissioner for Refugees, n.d., https://www.unhcr.org/en-us/1951-refugee-convention.html.
[7] Ibid.
[8] Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton, NJ: Princeton University Press, 2013).
[9] Kazimierz Bem, “The Coming of a ‘Blank Cheque’ — Europe, the 1951 Convention, and
the 1967 Protocol,” International Journal of Refugee Law 16, no. 4 (2004): 609-627.
[10] Mazower, No Enchanted Palace.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Seth Mohney, “The Great Power Origins of Human Rights,” Michigan Journal of
International Law 35, no. 4 (2014): 827-860.
[15] Mazower, No Enchanted Palace.
[16] Ibid.
[17] Ibid.
[18] Lucy Mayblin, “Colonialism, Decolonisation, and the Right to Be Human: Britain and the 1951 Geneva Convention on the Status of Refugees,” Journal of Historical Sociology 27, no. 3 (2014): 423–41.
[19] Ibid.
[20] Irial Glynn, “The Genesis and Development of Article 1 of the 1951 Refugee Convention,” Journal of Refugee Studies 25, no. 1 (2012): 134–148.
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Bem, “The Coming of a ‘Blank Cheque’,” 609-627.
[25] Mayblin, “Colonialism, Decolonisation, and the Right to Be Human,” 423–41.
[26] Ibid.
[27]UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137.
[28] Jane McAdam, “The Legal Status of Persons to Whom the Refugee Convention Does Not
Apply,” Complementary Protection in International Refugee Law, (2011): 197–251.
[29] Ibid.
[30] Glynn, “The Genesis and Development of Article 1 of the 1951 Refugee Convention,” 134–148.
[31] Ibid.
[32] L.W. Marshall, “Toward a New Definition of ‘Refugee’: Is the 1951 Convention Out of
Date?,” International Journal of Disaster Medicine 37 (2011): 61–66.
[33] Ibid.
[34] Ibid.
[35] Joan Fitzpatrick, “Revitalizing the 1951 Refugee Convention,” Harvard Human Rights
Journal 9 (1996): 229-254.
[36] Joanna Apap, “The Concept of ‘Climate Refugee’: Towards a Possible Definition,”
European Parliamentary Research Service. European Parliament, (2019).
[37] Mayblin, “Colonialism, Decolonisation, and the Right to Be Human,” 423–41.
[38]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, Status of Refugees and Stateless Persons – Memorandum by the Secretary-General,” UNHCR, January 3, 1950.
[39]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Second Meeting Held at Lake Success, New York, on Wednesday, 17 January 1950, at 11:00 a.m.,” United Nations High Commissioner for Refugees, January 26, 1950.
[40] ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Second Meeting Held at Lake Success, New York, on Wednesday, 17 January 1950, at 11:00 a.m.,” United Nations High Commissioner for Refugees, January 26, 1950.
[41]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, United Kingdom: Draft Proposal for Article 1,” United Nations High Commissioner for Refugees, January 17, 1950.
[42]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Third Meeting Held at Lake Success, New York, on Tuesday, 17 January 1950, at 3:00 p.m..,” United Nations High Commissioner for Refugees, January 26, 1950.
[43]Ibid.
[44]Ibid.
[45]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Sixth Meeting Held at Lake Success, New York, on Thursday, 19 January 1950, at 11:00 a.m.,” United Nations High Commissioner for Refugees, January 26, 1950.
[46]Ibid.
[47]Ibid.
[48] ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Second Meeting Held at Lake Success, New York, on Tuesday, 17 January 1950, at 11:00 a.m.,” United Nations High Commissioner for Refugees, January 26,1950.
[49]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Thirty-Third Meeting Held at the Palais des Nations, Geneva, on Monday, 14 August 1950, at 11:00 am.,” United Nations High Commissioner for Refugees, September 20,1950.
[50]Ibid.
[51] Mayblin, “Colonialism, Decolonisation, and the Right to Be Human,” 423–41.
[52] John P. Humphrey and A. J. Hobbins, On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights (Montreal: McGill University Libraries, 2000).
[53]“The 1951 Refugee Convention,” Immigration History, last modified September 3, 2019.
[54] “Convention Relating to the Status of Refugees,” United Nations, n.d.
[55] Mayblin, “Colonialism, Decolonisation, and the Right to Be Human,”
423–41.
[56]General Assembly, “Draft Convention Relating to the Status of Refugees, Memorandum Prepared by the Legal Department,” United Nations High Commissioner for Refugees, July 3, 1951.
[57]Ibid.
[58]Brook, N. Notebook: Cabinet Minutes. Cabinet Papers. CAB 195/5, The National Archives: Public Record Office. 1947.
[59] Mayblin, “Colonialism, Decolonisation, and the Right to Be Human,” 423–41.
[60] Ibid.
[61]UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137.
[62]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Forty-Third Meeting Held at the Palais des Nations, Geneva, on Friday, 25 August 1950, at 10:30 a.m.,” United Nations High Commissioner for Refugees, September 28, 1950.
[63]United Nations High Commissioner for Refugees. “The Refugee Convention, 1951: The Travaux Préparatoires
Analysed with a Commentary by Dr. Paul Weis.” UNHCR, n.d.
[64]Ibid.
[65]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Sixth Meeting Held at Lake Success, New York, on Thursday, 19 January 1950, at 11:00 a.m.,” United Nations High Commissioner for Refugees, January 28, 1950.
[66]UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267.
[67]Bem, “The Coming of a ‘Blank Cheque’,” 609-627.
[68] Marshall, “Toward a New Definition of ‘Refugee’,” 61–66.
[69]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Second Meeting Held at Lake Success, New York, on Wednesday, 17 January 1950, at 11:00 a.m.,” United Nations High Commissioner for Refugees, January 26, 1950.
[70] Apap, “The Concept of ‘Climate Refugee’: Towards a Possible Definition.”
[71] “2021 Global Report on Internal Displacement,” Internal Displacement Monitoring Centre.
[72] Apap, “The Concept of ‘Climate Refugee’: Towards a Possible Definition.”
[73] Ibid.
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