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Sat. May 25, 2024
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IA Forum Interview: Prof. James B. Hathaway discusses migration and international law
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International Affairs Forum: Even readers who are familiar with the ongoing migration crisis and have some notion of the kinds of issues that refugees face probably do not know that much about the ins and outs of refugee law. In November 2015, the European Commission estimated that three million migrants are expected to reach the EU by 2017, and the Office of the United Nations High Commissioner for Refugees (UNHCR) has released figures stating that there are nearly 60 million displaced persons and refugees. As a leading expert on international refugee law, could you better define the terms involved in this crisis – who is a refugee, and what is the difference between a refugee and a migrant?

Prof. James B. Hathaway: This is a good starting point, as a lot of important issues are obscured by the way that these numbers are presented. The most obvious point of confusion is between a refugee and a migrant. Simply put, a migrant is someone who is pulled to move.  He or she wants better economic opportunities, wants more freedom, wants to be united with family, et cetera. A refugee is someone who is pushed to leave because the place where she or he calls home is no longer safe. It has to be abandoned. [Refugees] do not typically wish to leave [their homes], but have no choice but to leave. But the reality is not quite so neat, of course. For many people there is a bit of each: For example, you have to leave because people of your religion are being brutalized in the streets, but when you need to flee you think about where life would be safest for you and your family, which sounds like a migration rather than a refugee question.

Leaving the migration/refugee question aside for just a second, we can touch on an even more complex issue [related to these terms], which is that frankly the UNHCR numbers are quite unhelpful. They speak about 60 million displaced people. But that reflects the agency’s own institutional mandate which goes way beyond refugees. [UNHCR] tends today, unlike 30 or 40 years ago, to talk about numbers of displaced people because the agency has responsibility not just for refugees, but also for stateless people and for what are called internally displaced people (IDPs). [The agency] adds up all three of those bundles and says that that’s 60 million. Now the truth is, the number of refugees is probably closer to about 15 million of that [total number], and certainly by far composes the minority share.

I actually worry that UNHCR does a disservice to the reality of people’s lives when it bundles refugees, stateless persons and IDPs all up into one, big omnibus number of 60 million. Internally displaced people are those who have had to move inside their own country; because there is a problem in Region A, they have moved to Region B where they think they might be relatively safe. I actually do not like and never use the term internally displaced people. It is a very politically-fraught concept that counts the people who have moved within their own country because they faced harm, but leaves out the majority of internal human rights victims who are brutalized where they are and perhaps cannot move because they are too poor, or they are parents with child-giving or elder care responsibilities, or are disabled, or otherwise not mobile. The IDP label is based on a privileging of human rights victims who can move internally [within their country] versus those who cannot or do not. I would personally subtract the IDP number from the UNHCR total, and I would instead recognize that there are lots of human rights victims [who remain] inside their own country, but that it does not make sense to talk about them in one and the same breath as refugees – people who are outside their country and who are now the presumptive responsibility of the international community and not of their own country.

The other group that gets lumped [into the 60 million figure] is stateless people. These are people who may or may not be abroad. Many are still in a place where they habitually reside but have no country to call their own. Stateless people are not citizens of any country. Palestinians, for example, comprise one of the largest groups of stateless people in the world, but there are many others who, by virtue of the breakup of states or being born to parents outside the territory of their country, or similar reasons, are not a citizen of any country. Now, these are people who in my view have a clear entitlement to international rights, but they are not all refugees. They have not necessarily moved, and they are not necessarily at risk of being persecuted; most of them aren’t. They are simply people who do not have a [permanent, defined] home. That is a critical imperative to respond to, but it is not the same as a refugee classification.

This brings us at last to the core, third group. A refugee is a person who has left her own country because who she is or what she believes puts her at risk of being persecuted there. And so, unlike an IDP, she is outside the country and for that reason is thought to have particular vulnerabilities that come with being an alien and that the refugee law system tries to respond to. Unlike stateless people, [the issue] is not just that she lacks a formal entitlement (since she may well have a formal entitlement to citizenship). Most refugees remain citizens of their country of origin. The problem for them, however, is that the country that has a legal obligation to look after them, their own country of citizenship, either cannot or will not do that. 

Melding these three quite different groups together distracts us from what we need to know in order to design an appropriate response. The responses to each of these three groups -- internally displaced, stateless and refugees -- are quite different. The only thing they have in common is that one UN agency has been asked to look after them. And that is not a particularly good reason to lump them into an omnibus category in my view.

IA Forum: Taking that notion into consideration – namely, that there is possibly a political take to lumping these terms together and coming up with a much larger number than what necessarily reflects the reality of the ongoing situation – the accuracy of the term “refugee crisis” can itself be considered debatable. Is it fair to call the current situation a mass migration crisis? Or should it be labeled a mass refugee crisis given that an overwhelming number of those who are traveling by migration routes into the EU are refugees rather than simply, for example, economically motivated migrants?

Prof. James B. Hathaway: I think there are two points there, and I am going to first of all contest the use of the word “crisis.” I do not think there is a crisis at all, not at least in any objective sense. Perhaps in the sense of a crisis of expectations or a crisis of political will, but there is no true crisis. In September 2015, the President of the European Commission made very clear that at that point the total number of people arriving in Europe seeking protection amounts to one-tenth of one percent (0.001%) of the population of the European Union.  I want you to contrast that, for example, with a country like Lebanon where refugees are 25 percent (25%) of the population.

Lebanon might be able to argue that it faces a crisis given the extent to which its political community has been truly overwhelmed by people seeking protection. But [in regards to Europe], not only are the numbers completely manageable as both the President of the European Commission and Chancellor Merkel made clear, but Europe furthermore has the administrative capacity to deal with these numbers. The numbers are completely within the realm of what is manageable by sophisticated states with well-developed administrative infrastructures. Even if the numbers were to double, triple or quadruple, we are still looking at less than one half of one percent of the wealthy EU population that can easily manage this. The problem currently facing Europe is that it did not prepare adequately, in my view, to implement its refugee protection responsibilities. [Europe] basically had its head in the sand for a long time, assuming that it could largely buy-out states on the East and in Northern Africa who would do the protection job for it, and thus [Europe] would never actually face these people itself. So, if there is a crisis, it is one they have manufactured themselves. 

Now, to the question of whether it should be labeled a migrant or refugee crisis, here I think you are correct [in emphasizing the number of refugees involved]. But, there is definitely a mixed flow. There will always be some people in any refugee movement who are not truly seeking protection, [but] who are rather seeking opportunity. However, as courts around the world have insisted, it is perfectly fine for a person who needs to flee persecution to make a sensible choice based on economics or language or family connections about where she wishes to seek protection, and international law allows her to do that. She is not required to accept life in a horrible camp across the border if she has the means and the ability and determination to reach North America or Europe; she is absolutely, legally entitled to leave her region of origin. But let’s be clear: most people fleeing Syria obviously have been protected in the region of origin. More than 90 percent (90%) of them have been protected in just three countries: Lebanon, Jordan and Turkey. Only about 10 percent (10%) of the Syrians who are fleeing their country are migrating to Europe, and those are predominately people who not only faced a risk of serious harm because of who they were in Syria and hence were refugees, but many, if not all of them, were people who could see that the regional capacity to protect them in places like Turkey and Lebanon and Jordan was eroding. The numbers [of refugees] were so massive in those places [that] to say there is no more room at the inn is to put it mildly.

Additionally, I think the Syrian refugee flow is slightly different in an important way: This is largely a group of middle class people. There are a lot of shopkeepers and professionals and others in this group. For them, the logic of seeking protection in a country where they could remake their lives in the image of their talents and ambitions is perfectly sensible; again, all of the courts in the developed world that have addressed the question have said there is absolutely no shame in that. People get to decide for themselves where to seek protection, though not necessarily where to get it. [Refugees] have the right to knock on the door of any country that has signed the [1951 Convention relating to the Status of Refugees], and they have a right not to be sent away by that country until their claim has been fairly assessed.

Read the rest, along with other interviews and essays from other world experts, in the new issue of International Affairs Forum.


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