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Appendix 10 — Limitations on International Obligations to Refugees
Monday, January 01, 1900

by Mitzi Schroeder, Director of Policy for Jesuit Refugee Service/USA

The obligations of states toward refugees are generally set out in the 1951 Convention and Protocol. Other forms of "complementary protection" are provided by other sources of international law, such as the human rights treaty and the more recent treaty protecting torture victims. Most of this treaty law is binding only on those nations who have acceded to the various instruments. However, it is argued that certain provisions, such as the obligation of "non-refoulement" have gained such wide acceptance as to have become customary international law, applying to all nations.

  1. Refugee law limits the obligations of states by making the refugee definition so narrow that it applies only to people who are victims of persecution or who have a "well founded fear" of persecution. This means that people who are simply displaced by situations, even life threatening ones that cause them to flee involuntarily are not refugees and states have no obligation under refugee law to protect them. It furthermore was long held that in order to be considered persecution, the harm suffered or feared must have been inflicted by the state, rather than by other forces.
  2. The grounds for the persecution suffered must be one or more of the five named in the refugee definition: race, nationality, membership in a social group, political opinion or religion. This "nexus" between persecution and the reason behind it is an important limiting factor.
  3.  The person must be outside his/her country of origin and be unable or unwilling to return.

In all of these ways, the refugee definition, as has been noted by legal scholars, serves not only to protect a narrow class of individuals but to limit the liabilities of states. The underlying assumption is that an individual's  state of nationality or habitual residence bears the primary obligation to protect him; only when the individual can demonstrate that the state has failed in this responsibility do other states assume a limited obligation.

Limitations on Valid Claims

While nations may be obligated not to expel a refugee:

  1. They are not obligated to give the refugee permanent residence, or a path to citizenship.
  2. They are not obligated to give the children of refugees born on their soil nationality. They can under some circumstances argue that the conditions that caused a person to become a refugee no longer exist, justifying the withdrawal of refuge. 
  3. They may arbitrarily interpret the refugee definition in a narrow way, justifying the denial of asylum to those who would be protected under a more generous interpretation.
  4. They may ignore many "rights" that are granted to refugees under the refugee convention, such as the right to work and practice professions. Refugees are therefore relegated to a lower rung of society as tolerated rather than welcomed guests. 

Trends Affecting Persecuted People

  1. Persecution by non-state actors: In the past decade or so the international community has become more aware of and willing to recognize persecution by entities other than the state as grounds for refugee status, in situations where the state itself s unwilling or unable to provide protection. For example, people who have suffered persecution by terrorist groups, by warlords or clan groups in failed states, and who have suffered serous harm from groups participating in ethnic cleansing can be considered refugees if the state did not or could not come to their aid. Many Bosnian, Iraqi Colombian and Somali refugees would fall in this category.
  2. Membership in a social group: is being defined more broadly. For example, it has been argued that women in traditional societies who are subject to abuse because they are women constitute a "social group" meeting the refugee definition, if they cannot successfully appeal to their government for protection. Likewise, homosexuals have been recognized as a persecuted social group.
  3. Internally Displaced Persons are increasingly becoming the subject of refugee-like rights based interventions. The responsibility of UNHCR and other UN bodies to seek to assist IDPs has been recognized. New inter–agency efforts to protect IDPs, such as the "Cluster Approach" have been put in place. European governments speak increasingly of the "duty to protect" in arguing for international intervention on behalf of IDPs. This is partially legitimate humanitarian concern, and partially motivated by the desire to prevent IDPs from becoming refugees and seeking asylum in the developed world.
  4. Mixed Migrant Flows:  It is increasingly recognized that irregular migrant flows contain people who are both convention refugees as well as economic migrants, and indeed, people who are both at the same time. On the one hand, this has led to efforts to identify and offer asylum to convention refugees within these flows, and on the other to meet the human needs of what the UN High Commissioner has called "Externally Displaced Persons" who, while not entitled to the rights of refugees nonetheless require humanitarian assistance.