In 1951, still reeling from World War II and consumed with guilt for the Holocaust atrocities that had happened on their watch, world leaders gathered to draft the Refugee Convention, to safeguard the rights of people like the ones they had previously turned away.
Under the Convention, a “refugee” is anyone who:
“(o)wing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of (their) nationality and is unable, or owing to such fear, is unwilling to avail (themselves) of the protection of that country."
This remains the definition the UNHCR (United Nations High Commissioner for Refugees) uses to assist the 21 million displaced people that rely on it today. However, recent years has seen gathering momentum behind calls to either update the Convention or scrap it altogether to better reflect our times.
One person who thinks it is time for a revamp is Tongan politician and barrister Lord Fusitu'a, who believes that international migration law must be updated to include those displaced by a changing climate.
Interviewing Fusitu’a prior to last week’s IQ2 debate hosted by The Ethics Centre in Sydney, the Refugee Convention Is Out Of Date, he told SBS a new definition of “refugee” was “desperately needed” so that those displaced by climate change are able to experience “migration with dignity.”
He says any definition of what constitutes a refugee must include, “a very specific reference to climate refugees and from very specific geographical areas – namely the Pacific and the Caribbean”.
Tonga has already been hit hard by climate change. In the Pacific and Tonga - "climate change is not an intellectual debate,” he tells SBS. “It is people waking to find the ocean tides seeping into their living room.
“We have had coastal erosion that has caused the need for large scale migration inland,” he tells me. “We have had much more frequent and intense natural disasters (including cyclones) causing the loss of hundreds of homes and resettlement.”
"...climate change is not an intellectual debate," he tells SBS. "It is people waking to find the ocean tides seeping into their living room."
Climate change is not the only cause of displacement propelling critics to argue for a new definition of “refugee.” I myself have previously, if naively, argued in favour of changes that specifically include women as a category of persecuted group.
I say “naively” because, as it turns out, renegotiating the parameters of the Refugee Convention could have unintended but disastrous consequences.
Erika Feller, currently Vice Chancellor’s Fellow at the University of Melbourne, is a former Assistant High Commissioner for Protection at the UNHCR, and has been working with the UN for more than 26 years. She says that, despite all the criticism as to its relevance, the Refugee Convention still to “applies to millions and millions of people,” for whom it remains a “fundamental support”.
“To try and change that Convention today will lead to its demise,” she warns. Because international conventions are negotiated by states, not NGOs or civil society representatives, Feller says that those who will do the negotiating will not be those who seek to widen its definition to bring more people under its protection, but, “governments who are essentially concerned about restricting the scope of their responsibilities”.
Rather than tamper with it, Feller argues for leaving the Convention’s basic protections in place, while building upon it.
“To try and change that Convention today will lead to its demise."
Canadian political science professor and advocate of open borders, Joseph Carens agrees that any attempt to reform the Convention will likely result in a narrowing, rather than widening of its protections. Furthermore, he suggests that even if the unlikely happens and the Convention is somehow broadened, reluctant governments will likely respond by change their immigration laws to make it impossible to fulfil the new requirements.
This has precedent. As more and more people began claiming refugee status after the collapse of Communist states, for instance, governments responded by introducing new visa requirements and threatening transport companies carrying undocumented passengers with carrier sanctions. Since refugees are usually unable to provide documentation, such sanctions curbed the number of refugee arrivals. Carens’ own country of Canada imposed visa restrictions on Hungary in order to stem the influx of Roma refugees.
Nonetheless, Fusitua’s arguments are compelling. While there are other protections in place for those fleeing climate change, they are difficult to enforce, and things are only going to get worse. However, including them in the Convention would dilute the essential feature of a refugee: that they are fleeing imminent danger as a result of persecution.
Fusitu’a is confident any negative consequences of renegotiating the Convention could be avoided by excluding any new factors besides climate change as a prerequisite to opening negotiations. However, that there are prominent voices who do seek to narrow the definition of a “refugee,” or eliminate it altogether, indicates that such limits on negotiation may not be possible.
The Institute of Public Affairs’ Chris Berg, for one, writes that, no matter their circumstances, refugees should be regarded, as just another “subset of general global migration,” something which would immediately strip protection for millions of people worldwide.
Like so many things in our imperfect world, the Refugee Convention only reflects the goodwill and generosity of those who interpret it. It is not a blueprint but a guideline. While women, for example, are not specifically included as their own class of persecuted group, both Feller and Carens say that some have previously been granted refugee status in the UK and the US under the Convention.
Although it may seem prudent to rewrite the Convention to include vulnerable people not currently under its scope, doing so could potentially make an already extreme vetting process even more prohibitive, and wind up shutting out more people than it lets in.
If the response of Australia’s own government to the increasing numbers of asylum seekers and refugees who try to reach safer shores is anything to go by, those who fear the latter have very good reason for doing so.
Discover what it's like to live in a refugee camp. Watch the gripping and heartwarming documentary, 'Inside the Desert City', set in Jordan's Zaatari refugee camp on SBS on Sunday 11 June at 9.30pm or on SBS On Demand after broadcast.