Displacement and Human Rights: Current Dilemmas in Refugee Protection

The phenomenon is one of the most tangible manifestations of the aftermath of the Cold War. In the context of increased international migration and new political relationships, asylum-seekers present unique challenges to states. Human rights and national interests are juxtaposed in the debate over new policy responses. An unprecedented number of refugees are fleeing persecution -- approximately 19 million, according to the United Nations High Commissioner for Refugees (UNHCR).(2) An additional 24 million people are displaced within their home countries, due to armed conflict or forced relocation.(3) These are only part of the estimated 100 million migrants worldwide who move for a variety of reasons, ranging from poverty and economic insecurity to population growth and environmental degradation.(4) Yet increasing numbers of commentators and advocates view the international treaty regime that protects refugees -- of which 123 states are now members(5) -- as inadequate to ensure respect for the basic human nights of those forced to migrate. A more comprehensive and effective international regime is needed to address such disparate elements of the present dilemma as guaranteeing initial asylum to those in flight from persecution and violence, respecting the human rights of asylum-seekers (including the right to be free from arbitrary detention), determining equitably who is entitled to protection and resettling refugees in need of new permanent homes (including repatriation and/or resettlement in another country). Many countries, however, far from wanting to develop a new regime, do not even adhere to the existing standards. THE REFUGEE CONCEPT UNDER INTERNATIONAL LAW The Convention Definition, Asylum and Non-Refoulement The term refugee has a specific legal connotation. The 1951 United Nations Convention(6) and its 1967 Protocol,(7) which expanded the temporal and geographic coverage of the Convention, together define refugee as a person who is outside his or her country of nationality and who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.(8) If an individual does not fit this definition, then he or she is not entitled to protection under the Convention or Protocol; such protection includes the right not to be returned to a place of persecution9 and various civil, economic and social rights.(10) Traditionally and by definition, therefore, protection is reserved for those who have left their countries of origin. The decision to leave and cross a national border transforms an individual into an object of international concern under law when he or she has lost, or been deprived of, protection under law in the country of origin, and is in need of another source of protection from persecution. Individuals who are driven from their places of origin, but do not cross a national boundary -- internally displaced persons -- cannot appeal to international legal standards governing refugees, even if they fear persecution or other serious harm. Thus, while often outnumbering and having similar protection needs as refugees, internally displaced persons have no guarantee of freedom from forced return nor any of the civil, social and economic entitlements set forth in the treaties.(11) Occasionally, however, at the request of the Secretary-General and/or the General Assembly of the United Nations, the Office of the United Nations High Commissioner for Refugees extends its mandate to such displaced persons under a good offices jurisdiction, which is based on the UNHCR statute.(12) The statute provides UNHCR with a mandate for assistance and protection outside the framework of international treaties. Acting through the United Nations, governments have also established special authorities to assist displaced persons, such as the United Nations Border Relief Operation (UNBRO). …