Friday, March 21, 2008

The Limits of Refugee Law

In my Refugee Law and Policy class this week, we discussed the plight of those who are forcibly displaced from their homes but do not meet the 1951 UN Refugee Convention's definition of a refugee. These include people fleeing generalized violence and civil strife who cannot show that they have been individually targeted for persecution, as well as people who do not have the resources or ability to cross an international border. The former may receive some type of temporary protection while their home country remains dangerous, and the latter, known as internally displaced persons, are protected by vague provisions of international human rights law and the non-binding Guiding Principles on Internal Displacement. While the Guiding Principles have gained some traction in national laws and policies, in both circumstances, the fate of these individuals is left in the hands of sovereigns with little recourse to enforceable international legal standards or protection.
In a generous mood, a developed country might offer temporary protection to say, Zimbabweans fleeing the widespread human rights abuses committed under Robert Mugabe's regime (posted on here) or to Iraqis fleeing the well-documented dangers of their home country. Despite little improvement in either situation, two developed countries have change their mind about protecting individuals fleeing Iraq and Zimbabwe who do not fall squarely within the UN Refugee Convention definition. In the UK this week, some 500 Zimbabweans whose asylum applications were denied were told to pack their bags or face expulsion. This follows last year's overturning of an earlier ban on deportation of Zimbabweans, with a judge finding that only those linked to opposition political parties were likely to face persecution. And it turns out that Sweden has been deporting Iraqis from the southern and central regions of that country who cannot prove that they will be individually persecuted, based on an immigration court's ruling that there "is no armed conflict in Iraq, according to the definition from Swedish legislation." The United Nations High Commissioner for Refugees this week criticized Sweden's return policy, noting that "[t]he level of human rights violations and violence along sectarian and intra-sectarian lines remain high in both central and southern Iraq", so individuals from those areas should be considered refugees.
Once returned, these individuals are likely to join the already overwhelming number of internally displaced in their home country -- at last count, 2.25 million in Iraq and 570,000 in Zimbabwe. They face the sword of sovereignty at every turn -- the sovereign authority of nations over both entry across their borders and the people and resources within their territory -- but little in the way of protection from international law or the international community. While the movement towards viewing sovereignty as responsibility may address some concerns about the treatment of the internally displaced, the notion of humanitarian intervention implicates real concerns about the power of weak states to defend their territorial integrity and political independence. And stronger states will not easily relinquish the power to control their borders. So how can we forge a solution for these individuals whose lives are at risk? A true dilemma for the humanitarians among us, and one that displays the limits of refugee law and international human rights law more generally.

1 comment:

Marjorie Florestal said...

Jaya,

I came across this article (link below) just after reading your post, and the irony made me smile. It talked about a "revolving door" of migration that sends Haitians over the border to the Dominican Republic, while Domincans flee to the United States in search of a better life. Both groups--Dominicans and Haitians--face discrimination and deportation in their new homes. When I consider the problem of migration and whether international refugee law can help us, I'm reminded that before we change law we need to change human nature. Why is it that we rarely seem capable of extending the same compassion to others that we seek for ourselves?
http://www.goerie.com/apps/pbcs.dll/article?AID=/20080317/OPINION09/803170302/-1/RSS