Excerpt (pages 1-6 of 16): Redefining the Legal Framework for Forcibly Displaced

Populations
Government 446: International Law Term Paper
May 6, 2014
Legally redefining displacement
Due to political oppression, civil war, the increased mobility of people due to
globalization and other push factors, immigration and refugee laws within a nation and
internationally have been contested by the actions of some states. In many of these situations,
refugee status is refused on the basis of the current laws that define who is considered a refugee.
This notion is contrary to the increasing changing nature of the world and of the type of forced
movement of peoples. It is important to examine how such situations are handled both in the
current applications using cases from the past and apply them to assess the impact of current
refugee policies and whether or not the current policies are sufficient to adjust to a modernized
world. Most refugee and immigration policies are dictated by national or regional policies,
making the universal application inconsistent with the 1951 Refugee Convention. Additionally,
these policies are outdated (the last major change to multilateral treaties on refugees was the
1951 Convention) especially in light of the 45.2 million refugees in the world. This paper will
examine to what capacity the current international law on forcibly displaced populations (FDP),
and the subsequent regional and national policies, have been effective through analyzing case
studies of how states have handled the most pressing FDP situations; and assessing areas of
weakness that require international, regional and national modification of legislation.
There are various reasons why redefining what the term refugee implies in an updated
legal framework is important and necessary. Most notably, and the areas that this paper will
analyze, are the groups of displaced people not included in most interpretation of what it means

to be a refugee and the inconsistency of national policies for determining refugee status. Since
the language describing the situations of displaced people is contested and varied, the
terminology used in this paper is defined as follows: a refugee is an individual whom has
received official refugee status by a governmental entity; a forcibly displaced person or
population (FDP) is one that has been removed from the location of habitual residence by fault of
external situations but may or may not have official refugee status.
Current status of and international law framework for forcibly displaced populations
The United Nations currently reports that 45.2 million people are forcibly displaced in the
world.1 This number is inconsistent with the more than 27 million people who are displaced
within their country of origin.2 The United Nations has identified these people, as well as
internally displaced persons and asylum-seekers, as areas of immediate challenge for the
international community.3 These issues, however, are not just a matter of international relations,
but primarily of international law.
The 1951 Geneva Convention of the Status of Refugees serves as a way to provide protection to
refugees that do not have a state to protect them. The Convention and the 1951 and 1967
Protocols are the only legally binding multilateral treaty on the treatment of refugees. They
define a refugee as a person who "owing to [a] 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 this nationality and is unable , or, owing to such fear, is unwilling to avail
1UNHCR:Facts and Figures on Refugees. Accessed May 6, 2014.
http://www.unhcr.org.uk/about-us/key-facts-and-figures.html.
2 See note 1 above.
3Global Issues at the United Nations. Accessed May 6, 2014.

http://www.un.org/en/globalissues/briefingpapers/refugees/overviewofforceddisplacement.html.

himself of the protection of that country; or who, not having a nationality and being outside the
country of former habitual residence as a result of such events, is unable, or ... unwilling to return
to it."4

The Convention also enumerates several safeguards and protections: Article 33.1

specifies the most important principle of the Convention, the non-refouler provision which states
that a refugee cannot be turned back to the country where they were leaving from. Additionally, a
refugee cannot be penalized on account of their manner of entry and have rights including
religious freedoms, elementary education, justice through courts, intellectual property,
employment without discrimination and freedom of movement. Some of these provisions,
however, have been challenged. In 1993, the United State Supreme Court heard the case of Sale
v. Haitian Centers Council where the interpretation of the Refugee Convention by the United
States was questioned. A boat filled with Haitians whom the court acknowledged as refugees was
told to turn back by the United States Military Coast Guard. The legal question was whether or
not the action by the United States violated the A.33.1 non-refouler clause. A first analysis of this
case would show a clear violation of the Article 33.1 non-refouler clause of the Refugee
Convention. The Supreme Court, however, ruled that since the Haitians were told to turn back by
the Coast Guard before they got to the political sea waters of the United States, then there was no
violation of the non-refouler clause. The court's opinion cites the Conventions language in
Article 55.1, noting that it does not specify extraterritorial obligations. 5 This interpretation of the
Refugee Convention is often criticized that it violates the overall concepts of the non-refouler
provision. Article 33.1 was not intended to have such an extraterritorial effect. However, it is
true that the treaty could not apply to a return (refouler) occurring outside of US territorial
4 William R. Slomanson. "Individuals and Corporations." In Fundamental Perspectives on

International Law. 6th ed. Minneapolis, St. Paul: West Pub. Co., 215.
5 William R. Slomanson. "Individuals and Corporations." In Fundamental Perspectives on
International Law. 6th ed. Minneapolis, St. Paul: West Pub. Co., 217

waters, on the high seas between Haiti and the US. This case exemplifies the vague language of
the Refugee Convention and how states can take advantage of it to escape responsibility. Such
criticism for contemporary application of the Refugee Convention has even come from former
members of the United Nations. One stated that if each state has the individual authority to
determine asylum, refugee status and non-refoulement applications, the entire purpose of having
refugee status and provisions under international law is eliminated. The United Nations has
attempted to mitigate the vague language by releasing "Handbook on Procedures and Criteria for
Determining Refugee Status and the 1967 Protocol relating to the Status of Refugees" as
guidelines for how states should handle refugee status However, these are merely guidelines that
states have not agreed to and are therefore not legally binding.6
Major Issues for International Law and FDP
International law professor and editor of the International Journal of Refugee Law,
Subrata Roy Chowdhury examines the ineffective nature of the Refugee Convention through his
analysis of the post-Cold War refugee situation. Chowdhury tackles the issue by addressing the
aspects of the international sphere that hinder effective action to protect refugees. Chowdhury
describes four safeguards to protecting the legitimacy of the international law on refugees. These
include, humanizing the institution by creating minimum standards of protection, which he notes
should be non-refoulement and non-discrimination; the removal of politics from the assessment
of safe states; greater focus on preventing refugee-creating conflict; a timely and precise
interpretation and execution of refugee status claims. 7 Chowdhury argues that the refugee
6Refworld | Handbook on Procedures and Criteria for Determining Refugee Status under the

1951 Convention and the 1967 Protocol Relating to the Status of Refugees. Refworld. Accessed
May 6, 2014. http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=3ae6b3314
7 Subrata Roy Chowdhury. A Response to the Refugee Problems of the Post Cold War Era:
Some Existing and Emerging Norms of International Law. International Journal of Refugee

situation will only be helped if three legal regimes that speak to how to handle refugees are
altered; humanitarian law and human rights law, preceded by refugee law. The right to receive
asylum in another state, he argues, is a major factor in creating a more accepting international
environment for refugees. Chowdhury references the Sale v. Haitian Centers Council case as an
example of the functions of the state being abusive to refugees by creating more strict and
confined methods of being granted asylum. Chowdhury's assessment of states' behavior, though
dated 19 years, is still applicable to contemporary problems of displaced populations.
The multiple interpretations of the vague language of the international law on refugees
creates holes in the legal framework. These holes creates a legal environment that allows for
displaced groups such as internally displaced populations and stateless people to be excluded
from protections. Additionally, since international law is a slave to state sovereignty, each state's
interpretation of the Refugee Convention can be very different, and can create an unwelcome
environment for asylum seekers.

Law, January 1, 1995, 100.