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The refugee regime has encountered areas of considerable challenge in the modern sphere. The most striking of these challenges is the terminology used to specify what constitutes a refugee in the 1951 Convention of Status of Refugees; ‘a well-founded fear of persecution’ was undoubtedly fitting following World War II when the convention was drafted, when ‘indeed, refugees were primarily the persecuted victims of highly organized predatory states’ (Shacknove, 1985: p.276). However, the current period has expanded the boundaries of what constitutes a refugee as we are faced with increasingly different causes of displacement i.e. climate refugees, famine, economic hardships.
People who find themselves in the absence of state protection because of reasons other than persecution, experience impediments to migrate or seek refuge because they fall outside the category of what depicts a refugee. A second key challenge of refugee protection is the lack of international cooperation in sharing the burden and duty to offer assistance. A third of the world’s refugees are hosted by the world’s poorest countries, highlighting the lack of resettlement programmes initiated by wealthier nations (Turk, 2017). For these reasons, the lack of humanitarian funding of refugee protection plans has caused millions of refugees facing persecution to remain helpless in accessing protection because countries with potentially the most resources and the most able to assist, are refusing to accept the burden. A third issue surrounding refugee protection is the challenge to human rights norms; state sovereignty allows for nations to reject refugees by controlling who they open their borders to. Not only is there a complicated relationship between national sovereignty and human rights when considering a refugee’s right to indefinite residency, but there also arises the question about the universality of our rights to seek refuge from persecution (Universal Declaration of Human Rights, Article 14.1) if states have the option of closing their borders to some people and not others.
Perhaps the most crucial contemporary challenge of refugee protection derives from the definitional framework of the word ‘refugee’. The United Nations 1951 Convention Relating to the Status of Refugees defines a refugee as a person who: ‘owing to a well- founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such a fear, is unwilling to avail himself of the protection of that country.’ (Article 1, UNHCR Convention 1951)
The problematic element of this definition is the use of persecution as the only measure for refugee status, overlooking other ways in which citizens may be in the absence of state protection. Causes of displacement may not necessarily be due to mistreatment; ‘societies can disintegrate because of their frailty and not always their ferocity’ (Shacknove, 1985: p.276). Threats to security can lack persecution and can be as a result of weak and fragile states’ incapacitation rather than the brutality of regimes. Therefore, the Convention ‘simply ignores many of the drivers of cross-border displacement in most of the developing world’ (Betts, 2013: p.15) and so can restrict displaced persons from receiving refugee protection simply because they do not fit the narrow criteria of having a ‘well-founded fear of persecution’. States may, for example, be vulnerable to natural disasters such as floods and droughts; in this case, the government may be incapable of providing physical security which would establish a valid claim to refugee status despite not being persecuted. The state’s basic duty to protect its citizens can be neglected, for example, the Great Bengal Famine occurred because of corruption in distributing materials. In this sense, it is clear that this overly narrow conception of a refugee only includes one who has suffered a tyrannical government but disregards the citizen who has suffered from a completely absent or deficient government; there are numerous ways in which the social contract can be severed. Displaced individuals may find themselves in situations that are not specified in the refugee definition of the UNHCR Convention; in these cases, it can be challenging to access refugee protection for those who have not been oppressed by a government and they can often be denied safeguarding.
Not only this, but there is controversy regarding the test of a ‘well-founded fear of persecution’ being an ‘examination of the emotional state of mind of the claimant’ (Adjin-Tettey, 1997: p.130) rather than an assessment of risk. The problem with using ‘fear’ as a criterion, is that this is an emotional response that would vary amongst individuals. Hathaway (1991: p.66) suggests that to use such a subjective and personal term produces inconsistent results seeing as individuals suffering identical severities of persecution may cope differently and express differing levels of fear due to natural attitude and temperamental diversity. This has potentially detrimental consequences for children and mentally disabled individuals who essentially ‘cannot have a well-founded fear of persecution because they cannot internalise the harm feared even though there is a strong objective basis for fear of persecution’ (Adjin-Tettey, 1997: p.131), therefore excluding them from international protection because they do not meet the accepted criteria of a refugee. Ultimately the criticism of the test for a well-founded fear excludes those who may genuinely be at risk but do not exhibit fears associated with this risk; in doing so, denying refugee protection to those who do not qualify yet need it.
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