The continued influx of Central-Americans at the U.S.-Mexico border poses the most recent challenge to international refugee law. The common meaning of the word “refugee” has allowed many to dub the children and families mostly fleeing violence and poverty in Honduras, Guatemala, and El Salvador, refugees, despite the fact that they do not fit the term’s legal definition. As defined in Article 1 of the 1951 United Nations High Commission for Refugees (UNHCR) “Convention Relating to the Status of Refugees,” nearly identically to the U.S definition under the Immigration and Nationality Act (IMA), a refugee is someone who is displaced from the country of his nationality or former habitation, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”
It is a stretch to view the violence to which a Central American child might be subjected as persecution, rather than as part of the larger narratives of gang violence, drug trafficking, and poverty. It is certainly not a political persecution, as non-state actors, gangs, are the instigators. As President Obama remarked in response to repeated urges to give recent arrivals asylum, “refugee status is not granted just based on economic need or because a family lives in a bad neighborhood or poverty.” The vast majority of those who trekked across Mexico will continue to endure lengthy detention until they are required to return home.
As the law goes, this is justified. Still, when such quibbling impacts the lives of thousands, it prompts a reevaluation of the law itself.
The UNHCR definition of a refugee hinges on the basis of its conception of persecution. The word is not simply taken to imply hostility, but an intentional, targeted hostility based on a person’s identity. In practice, however, the UN definition is interpreted more loosely. While the infringement of political freedoms remains a significant and legitimate reason to claim asylum, today, people displaced by war make up the majority of the world’s refugee population. Afghanistan and Syria are the top two countries of origin for refugees. But persecution is not always synonymous with war. Civilians caught in the crossfire of conflicts, despite being in urgent need of escape, are not necessarily targets of outright persecution.
Thus, the practical designation of a refugee appears to be closer to “those in imminent danger without local recourse.” In a 2004 BBC piece, the then UN High Commissioner of Refugees, Rudd Luubers, drew a broader distinction between migrants and refugees: As opposed to migrants, who move to improve their “future prospects… refugees have to move if they are to save their lives or preserve their freedom.” Were Lubber’s definition the official one, those crossing the U.S. border would certainly qualify: the Central Americans are returning home to per capita homicide rates even higher than in war zones like Afghanistan. Many are truly moving to save their lives.
It appears that the dissonance between the popular usage of the word refugee and its legal meaningis then less the fault of ignorance than that of unclear policy. The idea contained in the word persecution is too limited to describe a large part of today’s refugees, and it excludes groups that deserve similar assistance. One can be in a desperate situation without being the specific target of a person, group, or government.
Unclear and outdated law only makes it harder to identify the legitimate claims. This slows the legal process, which encourages false claims that increase demand for smuggling. A clear beneficiary of a decline in smuggling would be Australia, which receives asylum-seekers on a much smaller scale than the U.S., but maintains them in detention for up to years, in flagrant disregard of the UNHCR Convention. It is time to reevaluate the legal distinction, and bring it closer to that of actual practice.
At the U.N., High Level Dialogues have discussed improving protections for “irregular migrants” and enhancing legal challenges for protection. Recently, the UNHCR itself has urged the U.S. to classify the Central-Americans as refugees, and suggested reviewing the UNHCR definition.
Redefining the refugee will not solve every challenge to asylum law. The treatment of refugees once they have been granted asylum remains unsatisfactory. That the disproportionate burden of receiving refugees falls to developing countries in close proximity to war zones like Pakistan rather than wealthy ones is another crucial issue. A wider reform effort could take the opportunity to deal with such concerns also. For instance, a meeting to redefine the refugee could also take the time to better establish the rights of economic migrants, who, ineligible for the privileges of refugees, are often treated like criminals.
Any attempts at reform will, of course, be difficult. The concept of national sovereignty, which implies the right to control borders, has been recognized since the 1648 Treaty of Westphalia; reconciling it with newer ideas of universal human rights is a balancing act. Now that the U.S. experiences its own asylum-seeker crisis, hopefully it will throw its weight behind reform.
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration, Congressional Research Service http://fas.org/sgp/crs/homesec/R43628.pdf
Convention and Protocol Relating to the Status of Refugees, UNHCR, http://www.unhcr.org/3b66c2aa10.html
IMMIGRATION AND NATIONALITY ACT (INA), Section 101(a)(42), available at U.S. Citizenship and Immigration Services, Department of Homeland Security, http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/act.html
Remarks by President Obama After Meeting with Central American Presidents, The White House Office of the Press Secretary, http://www.whitehouse.gov/the-press-office/2014/07/25/remarks-president-obama-after-meeting-central-american-presidents
Ruud Lubbers, Refugees and migrants: Defining the difference, BBC In Depth, http://bigstory.ap.org/article/un-pushes-migrants-be-called-refugees Homicide counts and rates, time series 2000-2012,
Global Study on Homicide,United Nations Office on Drugs and Crime, http://www.unodc.org/gsh/en/data.html
Katy Long, When refugees stopped being migrants: Movement, labour and humanitarian protection,http://migration.oxfordjournals.org/content/1/1/4.full.pdf+html