The question of who is a refugee and who is entitled to the international protection the status accompanies has been discussed in scholarly and political literature since the Refugee Convention in 1951. The definition has significant impacts on the obligations of host and origin states, politicizing the issue that affects individuals lives on a daily basis.
The 1951 Refugee Convention and its 1967 Protocol define the refugee in Article 1 as anyone who “owing to 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 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.” (United Nations 1951). This definition was formed in different times within a different international order that has shifted to such an extent that the definition needs to be revised. As globalization, transnationalism and the changing nature of warfare increase trends of forced migration, the refugee regime must adapt. Two recent examples explicitly deal with the narrowness of the refugee definition and the changing nature of the international system: environmental refugees and possible migration flows as a result of the pandemic. At least 79.5 million people around the world have been forced to flee their homes for these reasons, among them nearly 26 million refugees.
The focus of this article is the particular part of the definition which states that the refugee is “unwilling to avail himself of the protection of (his) country.” Tying the status of a refugee to the willing protection of his state has severe implications for the appropriate treatment of refugees; it assumes “a breakdown in the state-citizen relationships within a sustaining political community” is needed for refugee status. (Haddad 2008). The bond between the state and the citizen is also captured in Jean-Jacques Rousseau’s Social Contract Theory, stating that individuals surrender some of their freedoms in exchange for protection of their remaining rights or maintenance of the social order. (Rousseau 1762). Taking these assumptions posits that once the bond between state and citizen is broken due to the lack of protection, citizens have the right to the refugee status.
The first challenge to the original definition of refugees are “environmental refugees”, forced migrants, including Internally Displaced Persons or refugees, who are fleeing environmental disasters partially caused through climate change. Climate change ‘hotspots’ can create unbearable living conditions, limiting natural resources (such as drinking water) and increasing extreme weather conditions to threaten livelihoods and exacerbate food insecurity. (UNHCR 2021) The term ‘environmental refugee’ or ‘climate change refugee’ is not recognized in international law and is not one of the specific reasons of refugee status proclaimed in the 1951 Convention. However, because the state protection has failed the citizens, environmental refugees might gain some legitimacy. Vernant argues that “in a great many states any measure, whatever its nature, is a political event”. (Vernant 1953).
It could be argued that natural disasters can be mitigated by state action. For example in a Brookings Institute workshop in Chennai India after the 2004 Tsunami, one observer noted that it was not the earthquake that produce the tidal surges of displacement, but the poorly executed humanitarian response. (Ferris and Paul 2009) If the state cannot protect the citizens by using disaster prevention mechanisms or providing adequate aid, subsidies and a safety net for low-income households, can individuals claim refugee status? Responsibility of the state becomes even more complicated when specifically discussing climate change refugees: who bears the responsibility? Do developing states have the responsibility despite contributing less to climate change? Which social contract has been broken?
The second potential challenge is the response to the COVID-19 pandemic. Although it is too early into the pandemic to clearly tell its long-term impacts on migration flows, one could expect forced migration to increase due to the lack of government protection from COVID-19. States have a wide range of different tactics and approaches in dealing with the pandemic, dependent on the domestic government, wealth and resources. Hypothetically, if a state is failing to provide adequate health care and mitigation measure to step the COVID-19 pandemic, do citizens of that state have a right to refugee status? Access to health care is a basic human right claimed in the United Nations: “Right to social Services.” (United Nations 1948). If the state fails to provide this, the state-citizen bond is broken. One example is the vaccination policy in the West Bank and the Gaza strip, as the occupying state Israel is discriminating the vaccine roll out against Palestinians. Whereas initial jabs have been given to more than a tenth of the population of Israel, this excludes nearly 5 million Palestinians who live in the West Bank and Gaza Strip under Israeli military occupation. (Amnesty International 2021 )
To conclude, it is fascinating and vital to discuss the basis of the refugee status and the responsibility of the state. In a changing world there are numerous challenges that struggle with the international law. The two most important ones, climate change and the recent pandemic, question the inequality of states, and its impact on individuals. If the state fails to provide protection against pandemics and environmental disasters, through lack of incentive, lack of political capacity or lack of resources, do citizens have the right to seek refugee status?
The views expressed in this article are the author’s own and may not reflect the values of The Liberty Club
Amnesty International, 2021. Denying COVID-19 vaccines to Palestinians exposes Israel’s institutionalized discrimination. [Accessed 8 February 2021].
Ferris, E. and Paul, D., 2009. Protection in Natural Disasters. Oxford: Harris Manchester College & Queen Elizabeth House.
Haddad, Emma. 2008. “Who Is (Not) a Refugee?” Chapter. In The Refugee in International Society: Between Sovereigns, 23–46. Cambridge Studies in International Relations. Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351.003.
Jacques Vernant, The Refugee in the Post-War World (London: Allen & Unwin, 1953), p. 5
Rousseau, Jean-Jacques. 1762. The Social Contract Theory.
UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137.
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).
UNHCR. 2021. Climate change and disaster displacement.