she’s leaving home…

FEATURE

she’s leaving home…

The stories of Nataliia and Iiulia, women fleeing with children, is heartfelt; the role of the men remaining behind to fight sounds so commonplace, it jolts.

Such representations of the refugee in flight are deeply ingrained in our imagination, not least as this representation is firmly inscribed by Article 1 of the 1951 Refugee Convention, where a refugee is defined as having “a well founded fear of being persecuted,” and is construed in terms of a victim of circumstance passively fleeing. Such a connotation, though, precludes political and economic reasons for leaving a country, reasons that might be understood as a wilful rejection of a set of (adverse) conditions in the home country; where the leaving is more active than passive, ‘rejecting rather than fleeing’1. Suffice to say, that the representations we think we know are not value free, and the world has turned since 1951.

The 1951 Refugee Convention is a United Nations multilateral treaty which defines the terms by which someone can be considered a refugee, the rights of the asylum seeker and the responsibilities of nations towards asylum seekers within their jurisdiction. Its article of non-refoulement, enshrined in International Law, purposely delegates responsibility for refugee protection to state jurisdiction.

The inadequate definitions and lack of provision on responsibility-sharing of states has led to significant criticism of the Convention over the years. Contours have changed in relation to the ‘balance between security and liberty’2, and consistency in the way refugee status and legal allowances for refugees is determined across different States.

Today, of the 27 or so million refugees in the world, most are being hosted in neighbouring countries to their country of origin, countries which tend to be low to middle income countries, experiencing their own developmental challenges.

A second framework has been produced in the form of the Global Compass as a response to these changing contours. It is a mutual agreement adopted by the UN General Assembly and signed by 181 Member States, that came into force on 20th July 2018, with the aim of easing the burden placed on host countries, so as to ensure a fairer system of responsibility-sharing.

Scholarly engagement amongst academics, professionals in the field, activists and legal professionals, ensures a struggle over the terms of reference used to reconfigure the notion of refugee in ways that reflect reality today. As one academic argues, “categorizations create consequences…they entitle some to protection, rights and resources whilst simultaneously disentitling others.”3

A new progressive lens has emerged, however, in relation to this complexity, which understands asylum seeking and forced migration more in terms of something that emerges from a geopolitical and historical context, where wars don’t start and finish neatly, but where a continuum of conflict exists within states or countries and across our interconnected world.

From a legal perspective, the gaps that exist in the two key Refugee frameworks can be supplemented to some degree by Human Rights frameworks, whose “starting point is the fact of being human”4 not least in cases where refugee status is refused domestically. ■

Image credit: Abdul Saboor