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The definition of a refugee was first advanced about fifty years ago. At the international law level, it has remained (effectively)[1] unchanged during this period. The same applies at the domestic law level, although there have been some recent minor statutory changes.
In this paper we argue that the definition is flawed — fundamentally so in at least one very important respect: the Convention grounds (race, religion, nationality, membership of a particular social group or political opinion) are unduly narrow and ultimately arbitrary. The only manner in which refugee law can be made non-arbitrary is to remove the Convention grounds as the cornerstone of the definition and instead base the definition on the concept of deprivation and need, not the reason for the need. As has been previously noted, 'the great issues of our day transcend party, region, religion and sex'. [2] The tenor of this paper is that a person who will die from starvation due to a drought deserves refugee status more than one who risks being imprisoned for venting his or her political opinion. To offer protection to the latter, but not the former, represents an uncritical blinkered acceptance of existing international refugee law. This paper is about removing the blinkers.
Before turning to substantive matters, it is useful to discuss why the proposed changes are better placed in the context of refugee law rather than broader notions of humanitarian international law. There are two central reasons for this. First, the Convention has gained widespread acceptance. According to Hathaway, the Convention definition of refugee is of singular importance because it has been subscribed to by more than one hundred nations and is the only refugee accord of global scope. Many nations have also chosen to import this standard into their domestic legislation as the basis upon which asylum and other protection decisions are made.[3]
Secondly, while refugee law is (almost) mandatory, international humanitarian principles are largely discretionary (at the time of writing this paper there were 3.2 million people on the verge of starvation in Malawi and virtually no international assistance was provided to ameliorate the situation).[4] Refugee law is the only area of international law where the needs of the individual trump the needs of sovereign States. It is essentially based upon what a country can do for an individual, unlike migration law which is based on the opposite — what the individual can do for the country. Thus, recognition that a person falls within a class of people called a 'refugee' allows the rights of that person to override the capacity of a nation to exclude people from its borders. This is no minor victory. Nations zealously guard their borders. Perhaps the key manifestation of national sovereignty is the capacity to control entry of people who cross national borders. All sovereign nations steadfastly believe that they have an inherent right to determine who can enter their borders. This is an unquestioned aspect of sovereignty — both at the international and domestic law level. The refugee exception to this aspect of national sovereignty is not absolute. Countries, of course, voluntarily assume protection obligations towards refugees. Further, refugees are not guaranteed rights of full asylum. The obligation assumed by parties to the Convention and Protocol is one of non-refoulement: not to return the person to the place where persecution is feared.[5] However, pragmatically, once countries do ratify the Convention they do not repudiate it and most nations do in fact provide long term asylum to refugees.[6]
Thus, the Convention is important because it is the one universal, humanitarian international treaty that offers some guarantee that the fundamental rights of desperate people will be safeguarded. Generally, most nations observe their obligations pursuant to the Convention.
The Refugee Convention stands out as a measure that offers substance and "teeth" to the concept of internationally recognised human rights.[7]
As is noted by James Hathaway, the fact that a State party which has jurisdiction over a refugee automatically owes that person core rights (especially protection against non-refoulement) is the strength of refugee law: 'it ensures that few refugees fall through the cracks of the protection regime'.[8]
However, there is no room for complacency in this regard. As has been noted recently by the United Nations, the costs associated with hosting large numbers of asylum seekers in addition to security concerns have resulted in 'the Convention's provisions [being] more respected in their breach than their adherence'.[9]
A significant expansion of the Convention grounds would greatly liberalise the international people movement, thereby eroding an important aspect of the concept of sovereignty. This would ultimately diminish the relevance of the concept of a nation State. If, for example, a refugee was defined as a 'person who believed that he or she was not permitted full opportunity to flourish in their country of birth' this would be likely to result in a massive transference of the world's population. The concept of breaking down national borders is not a new one. There are certainly many appealing aspects to it. It would enhance the liberty of all people and lead to a more just distribution of resources — not only food, medicine and clothing but also education and employment. However, it is not something that is likely to occur in the near future, if at all. Given that nations will continue to place strict controls on who enters their borders and only grant asylum to a finite number of people, it is important that that they do so on a rational and coherent basis. Thus, there are two important threshold assumptions made in this paper.
The first is that nations will continue to exist and tightly control people movement across their borders. The history of human civilisation shows that this assumption has a solid platform. The second is that nations have limited sympathy for those in need — were it otherwise, a strong case could be mounted for an expansive refugee definition. As is noted by Sarah Collinson
two linked assumptions appear to underlie almost all current debates on the issue of migration and refugee flows in Western Europe. First, there is the assumption that immigration poses a threat... Second, it is assumed that Western Europe lacks the capacity to cope with any further immigration, whether it be in demographic, economic, social or political terms.[10]
She further adds
the international community ... is not infinitely generous. An obligation .... to protect refugees, and the needs of refugees themselves, will in practice always be balanced against the political and economic interests and concerns of potential asylum States'.[11]
Amnesty International has recently described refugee protection as the 'black spot' in the European Union's rights ambitions,[12] and is deeply concerned that the focus of the EU's asylum policy is overwhelmingly on how to keep [refugees] out, rather than how to protect effectively people fleeing from war, civil upheaval and grave human rights abuses.[13] In a similar vein, Niraj Nathwani states
refugee law is in crisis precisely because altruism has reached its limits.... We need to face the fact of donor fatigue.[14]
The international community's finite level of preparedness to absorb refugees is supported by refugee numbers, which show a remarkable level of consistency over the past decade or so. Figures from the United States Committee for Refugees show that the number of refugees and asylum seekers from 1992 to 2001 is as follows:
Given that the world's collective sympathy gland is unlikely to grow in the years to come, the decision of who qualifies for asylum is critical — in effect each person who is accorded refugee status potentially deprives another more needy person of asylum. Any proposed change to the definition of a refugee should be approached in a manner that is consistent not only with the Convention's original goal to safeguard important human rights, but also its concern to respect State sovereignty.[16]
The key proposition in this paper is that the five Convention grounds should be removed. They are arbitrary and hence discriminatory: there is no relevant basis for giving preferential treatment to a person who is persecuted because of his or her political or religious beliefs as opposed to, perhaps, one's economic, social or sporting convictions. Also, why should a person's eligibility for asylum be contingent upon whether there are sufficient others who also engage in like conduct? That is, what is so special about belonging to a group that ought to more readily stimulate the international community's sympathy gland? The only way to treat people equally in this respect is not to focus on the reason for the persecution, but the extent of the need for asylum. The only universal criteria for sympathy and compassion is need and pain. Thus, it follows that State assistance and protection should be accorded to those most bereft of the resources and opportunities that are a pre-condition to human survival and growth. This raises difficult questions about the hierarchy of human needs and wants. It is suggested that the most important needs are food, shelter, security of person and liberty. People who are denied these should be refugees — irrespective of the reason for the deprivation. This issue is discussed in Section IV. In Section V, to avoid the charge that it is easy to criticise, but harder to offer constructive reform suggestions, anew definition of'refugee' is proposed. The implications that this has for other aspects of the current definition are identified. For example, the definition makes redundant the notion that a causal nexus must exist between the grounds and the reason for the persecution. In Section II, the history of the Convention is considered briefly. In Section III an overview of the Convention grounds is given in order to highlight the deficiencies with this aspect of the definition. In Section IV, it is argued that pain and need should be the only relevant criteria for according refugee status.
Understanding of the history of the Convention is important because it provides insight into how the legal definition of 'refugee' developed and the reasons why this definition is ultimately flawed. The Convention definition was formed in an ad hoc manner by various United Nations groups, initially to help only refugees fleeing from Europe as a result of the devastation caused by World War II. It was thus based on expedience rather than principle, and reflects the economic and political interests of the powerful Western States that drafted it rather than the needs of refugees. Not only is the definition unsatisfactory today; it was equally so at the time of drafting.
The protection of refugees under international law commenced in the early twentieth century when treaties were formulated to address refugee problems. Prior to this time, customary international law imposed an obligation on States to protect only their own nationals. This obligation did not extend to individuals from other nations who found themselves within the borders of a State. States had the discretion to accept immigrants whom they perceived would contribute to the economy or society in a positive way, and to expel refugees under the assumption that the right to do so was inherent in a State's sovereign powers.[17]
Between 1919-1939, numerous violent conflicts and political problems in Europe and the Middle East led to the displacement of large numbers of people.[18] This enormous exodus clashed with the desire of States to control the immigrants entering their borders and led the international community to respond to refugee issue. The League of Nations did so[19] by formulating agreements to provide for refugee protection. These instruments were ad hoc in nature, in that they related to specific refugee situations. They adopted a group or category approach, where the sufficient and necessary conditions to achieve refugee status were that someone was (a) outside their country of origin and (b) without the protection of the government of that State.[20] There was neither a general definition of refugee status, nor any standardised measure of international protection for refugees during this period.[21] When masses of people were uprooted after WWII, it was perceived that the refugee problem was not a temporary one, and that an instrument with a broader approach would more effectively address emerging refugee crises. Thus, the Convention relating to the Status of Refugees was adopted by a special United Nation Conference[22] on 28 July 1951, and came into force on 21 April 1954. It was drafted between 1948 and 1951 by a combination of United Nations organs, ad hoc committees and a conference of plenipotentiaries.[23] The fact that so many different parties and interest groups contributed to the drafting necessarily reduced the prospect that the definition would be based on a coherent overarching theory — this is certainly the way matters ultimately transpired.
Unlike earlier ad hoc instruments, the Convention purported to provide a general definition of who was to be considered a refugee, stating that a refugee was a person who, as a result of events occurring before 1 January 1951, and who,
owing 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 his or her nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.[24]
The definition set out the criteria necessary to qualify for refugee status, and in addition provided a guarantee of non-refoulement, whereby refugees could not be returned to their country of origin if doing so would subject them to persecution.
Despite its universal overtones, the 1951 Convention was limited by the fact that it protected mainly Europeans fleeing after the War,[25] and by the dateline contained within the definition. These restrictions were removed and the definition was expanded (formally, though not substantively), by the 1967 Protocol relating to the Status of Refugees.[26] Accession to the Protocol enabled States to apply the substantive provisions of the Convention to refugees as defined by the Convention, but without the dateline and geographic limitations. Hence, the Convention now applies to all persons who are refugees because of events occurring at any time, not merely pre-1951 events in Europe. The Protocol is an independent instrument from the Convention, and accession to it is not limited to States parties to the Convention. Denmark was the first State to ratify the Convention (in 1952) and since then, 140 States have acceded to the Convention.[27] It is clear that the Convention was entered into mainly to assist European refugees, and to serve Western political and economic needs.[28] This is a point emphasised by Hathaway:
The two main characteristics of the Convention refugee definition are its strategic conceptualisation and its Eurocentric focus. The strategic dimension of the definition comes from successful efforts of Western States to give priority in protection matters to persons whose flight was motivated by pro-Western political values. As anxious as the Soviets had been to exclude political emigres from the scope of the Convention for fear of exposing their weak flank, so the more numerous and more powerful Western states were preoccupied to maximise the international visibility of that migration. In the result, it was agreed to restrict the scope of protection in much the same way as had been done in the post- World War II refugee instruments: only persons who feared "persecution" because of their civil or political status (me) would fall within the international protection mandate. This apparently neutral formulation facilitated the condemnation of Soviet bloc politics through international law in two ways. First, the persecution standard was a known quantity, having already been employed to embrace Soviet bloc dissidents in the immediate post-war years. Second, the precise formulation of the persecution standard of the persecution meant that refugee law could not readily be turned to the political advantage of the Soviet bloc. The refugee definition was carefully phrased to include only persons who have been disenfranchised by their state on the basis of race, religion, nationality, membership of a particular social group, or political opinion, matters in regard to which eastern bloc practice has historically been problematic. Western vulnerability in the area of respect for human rights, in contrast, centers more on the guarantee of socio-economic human rights, than on respect for civil and political rights. Unlike the victims of civil and political oppression, however, persons denied even such basic rights as food health care or deduction are excluded from the international refugee regime (unless that deprivation stems from civil or political status). By mandating protection for those whose (Western inspired) socio-economic rights are at risk, the Convention adopted an incomplete and politically partisan human rights rationale... In addition to their desire for the refugee Convention to serve strategic political objectives, the majority of the States that drafted the Convention sought to create a rights-regime conducive to the redistribution of he postwar refugee burden from European shoulders.[29]
Thus the history of the Convention is that the plight of refugees came a distant second to the needs and wants of State parties drafting the Convention. The definition was created by self-interested nation States pre-occupied with Cold War politics.[30] It has been noted by Hathaway that
it remains tragically true that international human rights law — the intended means of permitting the world community to respond to wrongs committed by a country within its own territory — has not been permitted to evolve to a state of genuine efficacy.[31]
Further, as has been noted 'the Convention definition of refugee has made less sense as the nature of refugee flows has changed and as numbers have risen. Since 1980, refugee movements have been more likely to be the result of civil wars, ethnic and communal conflicts and generalised violence, or natural disasters or famine-usually in combinations-than individually targeted persecution by an oppressive regime'.[32] By retaining the current definition of refugee in the Convention, this situation will not, and indeed, cannot change.
In this section the scope of the Convention grounds is discussed briefly. A comprehensive analysis of the existing law in this area is found elsewhere.[33] The grounds are set out in sufficient detail to provide an overview of the scope of the current grounds in order that an informed comparison can be made with the definition discussed in Section IV and stated in Section V. A number of documents provide general guidance on the scope of the grounds. Under the Convention, a person is granted refugee status only if the persecution they are suffering is based on one or a combination of five specified grounds. None of the grounds is defined in the Convention, and grounds may overlap, with the result that a well-founded fear of persecution may arise from a combination of specified grounds.[34] There has been considerable case analysis of the grounds, in particular the meaning of membership of a social group.
Discrimination on the basis of race has found world-wide condemnation as one of the most striking violations of human rights.[35] It is generally considered to be a very broad concept and not particularly contentious.[36] The drafters of the Convention did not specifically define this term. However the historical context indicates that the drafters' intent was to include those Jewish victims of Nazism who had been persecuted because of their ethnicity, whether or not they practised their religion. According to Hathaway, this historical rationale is important because it legitimises the attribution of a broad social meaning to the term 'race' which includes all persons of identifiable ethnicity.[37] Grahl-Madsen has observed that the term 'race' within the Convention includes not only persons at risk by reason of their membership in a particular scientific category, but also other groups such as gypsies whose physical or cultural distinctiveness has caused them to suffer social prejudice.[38]
The UNHCR Handbook on the Procedures and Criteria for Determining Refugee Status suggests that the term should be interpreted broadly:
Race, in the present connection, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as "races" in common usage. Frequently it will also entail membership of a specific group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.... The mere fact of belonging to a certain racial groups will not normally be enough to substantiate a claim for refugee status. There may, however, be situations where, due to particular circumstances affecting the group, such membership will be a sufficient ground to fear persecution.[39]
The term 'nationality' was first introduced as a ground for persecution in the Constitution of the International Refugee Organisation in 1946, and was thereafter carried into the Convention definition as one of the grounds for persecution.[40] It is generally interpreted broadly and includes origins and the membership of particular ethnic, religious, cultural and linguistic communities.[41] 'Nationality' often overlaps with 'race'.[42] More generally it has been suggested that
The term 'nationality' in this context is not to be understood only as citizenship. It refers also to membership of an ethnic or linguistic group and may occasionally overlap with the term "race". Persecution for reasons of nationality may consist of adverse attitudes an measures directed against a national (ethnic, linguistic) minority and in certain circumstances the fact of belonging to such a minority may in itself give rise to a well-founded fear of persecution.... The co-existence within the boundaries of a State of two or more (ethnic, linguistic) groups may create situations of conflict and also situations of persecution or danger of persecution. It may not always be easy to distinguish between persecution for reasons of nationality and persecution for reason of political opinion when a conflict between national groups is combined with political movements, particularly where a political movement is identified with a specific "nationality".. .Whereas in most cases persecution for reason of nationality is feared by persons belonging to a national minority, there have been many cases where a person belonging to a majority group may fear persecution by a dominant minority.[43]
Religion has long been a major reason for persecution[44] with the content of the right to freedom of thought, conscience and religion, continuing to be a subject in many human rights inquiries.[45] Despite the fact that the meaning of 'religion' has been explored, the term has not been precisely defined. However, it is clear that a religion is defined by its form — not substance.[46] Thus, whether or not an ideology or movement refers to itself as a religion is not the critical issue. Rather the nature of the beliefs held by its adherents is the main focus of the inquiry. Because religion encompasses both beliefs that one may choose to hold and behaviour that stems from those beliefs, religion as a Convention ground similarly includes two dimensions:[47] first, the protection of persons who are in serious danger because they are identified as adherents of a particular religion, and secondly, the protection of persons at risk for living out their convictions.[48] According to Australian courts, persecution based on religion usually involves prohibition against, restrictions on, or punishment for, a particular religious practice. [49] There is some authority for the proposition that persecution 'for reasons of religion' can include persecution because the applicant does not have a particular religion.[50]
Dissenting political opinion is the most documented form of persecution.[51] The Convention's drafters noted that in addition to 'diplomats thrown out of office' and persons 'whose political party had been outlawed', even 'individuals who fled from revolutions' ought to be encompassed by this ground.[52] That is, protection on the basis of political opinion was to be extended not only to those with identifiable political affiliations or roles, but also to other persons at risk from political forces within their home community.[53]
The wide manner in which this ground has generally been interpreted is reflected in the Canadian case of Ward, which stated that:
Political opinion in the Convention should be understood in broad terms to incorporate, within substantive limitations now developing generally in the field of human rights, any opinion on any matter in which the machinery of State, government and policy may be engaged.[54]
Political opinions may or may not be expressed. If they have been expressed, and if the applicant or others similarly placed have suffered or have been threatened with repressive measures, then a well-founded fear may be established.[55] A political opinion need not be an opinion that is actually held by the refugee. It is enough that such an opinion is imputed to him or her by the persecutor.[56]
This is probably the most difficult and controversial ground in the Convention. Musgrave refers to it as a 'somewhat amorphous category' .[57] This ground was introduced into the Convention with little explanation by the Swedish delegate as a last minute amendment:
Experience has shown that certain refugees had been persecuted because they belonged to particular social groups... Such cases existed, and it would be as well to mention them explicitly.[58]
Effectively, it was a throw away line. It is not clear who the intended beneficiaries of this provision were.[59] Some argue that this ground should be seen as 'clarifying certain elements in the more traditional grounds for persecution' (ie. race, religion, nationality and political opinion).[60] This was the Canadian approach for some years and under it, the notion of membership of a particular social group became largely superfluous.[61]
The alternative view is that 'particular social group' is an essentially all-embracing 'safety net'.[62] Arthur Helton argues that
the intent of the Refugee Convention was not to address prior persecution of social groups, but rather to save individuals from further injustice. The "social groups" category was meant to be a catch-all which could include all the bases for and types of persecution which an imaginative despot might conjure up.[63]
Helton's view is rejected by Hathaway who argues that the aim of the drafters was to 'establish a demarcation between those whose fear was attributable to civil or political status (refugees) and those whose concern to flee was prompted by other concerns (not refugees)'. Moreover, their purpose was anything but the creation of a regime to address new future injustices, as Helton suggests.
Helton's 'catch -all' view has been applied in some Canadian case law. However, it has not been accepted in Australia.[64] In the United States, a middle position was adopted in Acosta,[65] which neither interprets membership of a particular social group as redundant, or all-inclusive.[66] In Acosta, the court interpreted membership of a particular social group to mean
• groups defined by an innate, unalterable characteristic;
• groups defined by their past temporary or voluntary status, since their history or experience is not within their current power to change; and
• existing groups defined by volition, so long as the purpose of the association is so fundamental to their human dignity that they ought not to be required to abandon it.
Excluded, therefore, are groups defined by a characteristic which is changeable or from which dissociation is possible, so long as neither option requires renunciation of basic human rights.[67]
In contrast to this approach, which emphasises the need for a group to exhibit some innate or immutable characteristic, the courts in Australia have taken a more open-ended approach, stating that what distinguishes a particular social group from other individuals and groups is a 'common binding attribute other than persecution, and a societal perception that the particular social group is a group that stands apart from broader society' .[68] Depending on the facts of the case and the country in question Australian courts have stated that women,[69] a family,[70] occupational groups,[71] conscientious objectors,[72] people suffering illness,[73] homosexuals[74] and people possessing or lacking wealth[75] constitute a particular social group.
It follows that the grounds have been interpreted broadly.[76] However, despite this, it is submitted that the Convention still falls breathtakingly short of being able to achieve the ultimate objective of refugee law and policy. As noted earlier, refugee law is the one area of international law where ratifying parties accept that the needs of the individual trump those of the State. Given this, it is appropriate that human need should form the lynchpin of refugee law.
No matter how broadly the grounds are interpreted the Convention would still not act as a vehicle to assist those experiencing the greatest degree of deprivation. The main defect with the Convention is that the grounds do not come close to identifying the minimum conditions necessary for human subsistence. The right to express which political party or political ideology one prefers, for example, is of little use unless one has food and shelter. Further, it is regrettable (if not offensive) that all that is important in a person's life can turn on the interpretation of a throw away line, such as 'particular social group'. To this end, it is also noted that it is most curious that an individual's eligibility for refugee status should be contingent upon such a fickle and irrelevant consideration as to whether there are a sufficient number of other similarly placed people being mistreated. When it comes to being eligible for compassion, there is nothing special about belonging to a group. If anything, the converse is true — (social) isolation can of itself be a cause of distress.
This leads to a more pervasive and fundamental problem with the Convention. Not only is it not based on a needs criterion - it is not based on any overarching principle. There is no underlying rationale which unifies the grounds and which elevates them to greater importance than other human concerns. As a result — blind allegiance to the Convention aside — a causal connection between persecution and a convention ground does not provide a normative reason for compliance with the Convention. Absent an explanation for why the convention grounds are more important than other human interests, the Convention definition of 'refugee' is arbitrary and ultimately discriminatory — it gives a preference to those falling within the grounds on the basis of an irrelevant difference.[77] In light of universal principles governing the commitment to all humankind why should any State be concerned about complying with the Convention? The answer is that from the normative perspective (that is, international law obligations aside), relatively speaking it should care very little — sending money to the starving in Africa would be a far better use of resources. It is not surprising then, that Goodwin-Gill has noted that given the narrow framework of the Convention, which was not intended to provide for universal refugee solutions, it 'is remarkable ... that the 1951 Convention still attracts both ratifications and support among States from all regions'.[78]
The only way the Convention can be reformed to circumvent such criticisms is to select universal features of humankind as the cornerstone for refugee status. It is accepted that there is a large grey area concerning the hierarchy of interests and resources that are necessary for human subsistence. As discussed below, in the grey area are factors such as the right to a certain level of education and health care, but this should not prevent the making of definite judgments in the black and white areas. The new definition should reflect universal sociological and normative considerations in orderto be persuasive at the level of international discourse. Fortunately, these inquiries are linked. Morality, by definition, is the ultimate set of principles by which we should live and, more particularly, consists of the principles which dictate how serious conflict should be resolved. Given that morality is the ultimate principle that governs our conduct, in order for it to be relevant, it must promote the ultimate human aim. This follows from the constraints of psychological reality. If the ultimate principle guiding our conduct fails in at least some manner to reflect our ultimate desire, it would become redundant very quickly. Given that as a sociological fact moral theory must be tailored to accord with basic human needs and interests, moral theory sets the ultimate standard by which human need should be evaluated and defined.
Broadly, there are two types of normative moral theories. Consequential moral theories claim that an act is right or wrong depending on its capacity to maximise a particular virtue, such as happiness. Non-consequential (or deontological) theories claim that the appropriateness of an action is not contingent upon its instrumental ability to produce particular ends, but follows from the intrinsic features of the act. Thus, the notion of absolute (or near absolute) rights, which now dominates moral discourse, is generally thought to sit most comfortably in a non-consequentialist ethic. The ramifications that these theories have for defining the interests that are relevant to refugee status are now discussed.
The foregoing analysis suggests that the avoidance of pain and suffering should be the touchstone for refugee status. It is further suggested that this follows from adopting the most persuasive normative ethic. For those who refuse to accept that there is such a concept as universal objective morality,[79] it is important to emphasise that a case for the proposed refugee definition can still be mounted as long as one is willing to accept either of the following premises: (i) as a sociological imperative, the minimisation of pain and suffering ought to be the first priority of a civilised society; or (ii) refugee law should eradicate arbitrary choices and adhere to the principle of equality (or non-discrimination). Adopting the alleviation of pain and suffering achieves this because avoidance of pain and suffering is most intensely and widely held human sentiment.
If one adopts a non-consequentialist rights based moral theory as the starting point, the process for refugee reform would involve three broad steps: selecting the rights the people have, identifying those that are the most important and then linking these into the definition of refugee. Unfortunately, this process breaks down at the first two steps.
A rights orientated methodology to refugee law would be in keeping with international moral discourse over the past half century or so. Following the Second World War, there has been an immense increase in rights talk,[80] both in sheer volume and the number of supposed rights. The rights doctrine has progressed a long way since its original modest aim of providing 'a legitimization of... claims against tyrannical or exploiting regimes'.[81] As Tom Campbell points out:
The human rights movement is based on the need for a counter-ideology to combat the abuses and misuses of political authority by those who invoke, as a justification for their activities, the need to subordinate the particular interests of individuals to the general good.[82]
There is now, more than ever a strong tendency to advance moral claims and arguments in terms of rights.[83] Assertion of rights has become the customary means to express our moral sentiments: 'there is virtually no area of public controversy in which rights are not to be found on at least one side of the question — and generally on both' .[84] There is no question that 'the doctrine of human rights has at least temporarily replaced the doctrine of maximising utilitarianism as the prime philosophical inspiration of political and social reform';[85] and, as has been previously noted, 'refugee protection is no exception to [the] deployment of the language of rights'.[86]
The influence of rights based theories is demonstrated by the sheer number of existing international human rights. The main three are the Universal Declaration of Human Rights (the UDHR);[87] the International Covenant on Economic, Social and Cultural Rights (the ICESCR);[88] and the International Covenant on Civil and Political Rights (the ICCPR).[89] There are dozens of rights which are prescribed in one form or another by at least one of these documents. These include what can be described as basic protections, such as the right to life,[90] liberty and security of person,[91] and to be free from torture or cruel, inhuman or degrading treatment or punishment.[92] Then there are more vague rights, such as the right to the economic social and cultural rights indispensable for one's dignity and the free development of one's personality,[93] and the right to be free from the arbitrary interference with one's privacy, family, home or correspondence and attacks upon one's honour and reputation.[94] There are also some so-called rights which are probably best placed in a wish list, such as the right to rest and leisure,[95] and the right to a standard of living adequate for the health and well being of oneself and one's family, including food, clothing, housing and medical care and necessary social services.[96]
Despite the dazzling veneer of deontological rights based theories, and their influence on present day moral and legal discourse, it has been argued that, on close examination, such theories are unable to provide persuasive answers to central issues such as: What is the justification for rights? How can we distinguish real from fanciful rights? Which right takes priority in the event of conflicting rights?[97]
Such intractable difficulties stem from the fact that contemporary rights theories lack a coherent foundation for rights. Tom Campbell has argued against certain rights based theories on the basis that they are unable to provide a satisfactory account of the relationship between concrete rights (rights that provide a justification for political decisions by society in general) and more fundamental rights ('background rights') from which concrete rights are supposedly derived.[98] However, it is submitted that an even more fundamental flaw with rights theories is that there is no defensible virtue which underpins the background interests from which narrower rights claims can be derived. When examined closely, it emerges that the concept of non-consequentialist rights is vacuous at the epistemological level. It has been argued that attempts to ground concrete rights in virtues such as dignity, integrity or concern and respect are unsound because resort to such ideals is arbitrary and leads to discrimination against certain members of the community (for example, those with severely limited cognitive functioning) or speciesism (the systematic discrimination against non-humans).[99] Ultimately, a non-consequentialist ethic provides no method for distinguishing between genuine and fanciful rights claims and is incapable of providing guidance regarding the ranking of rights in the event of a clash. Not surprisingly then, that nowadays all sorts of dubious rights claims have been advanced. Thus, agents are able to hold a straight face and urge interests such as 'the right to a tobacco-free job', the ' right to sunshine', the ' right of a father to be present in the delivery room', the 'rightto a sex break',[100] and even 'the right to drink myself to death without interference'.[101] Novel rights continue to be asserted. A good example is the recent claim by the Australian Prime Minister (in the context of the debate concerning the availability of IVF treatment to same sex couples or individuals) that 'each child has the right to a mother and father'. In a similar vein, in light of the increasing world oil prices, it has been declared that this violates the 'right of Americans to cheap gasoline'. In England, the Premier League has been accused of violating the right of football club supporters to an F.A. Cup ticket. Nearly twenty years ago, Hart said of rights theories that
It cannot be said that we have had ... a sufficiently detailed or adequately articulated theory showing the foundation for such rights and how they are related to other values. Indeed the revived doctrines of basic rights are ... in spite of much brilliance still unconvincing.[102]
Nothing has changed to diminish the force of this objection.
This may seem to be unduly dismissive of rights based theories and pay inadequate regard to the considerable moral reforms that have occurred against the backdrop of rights talk over the past half-century. It cannot be denied that rights claims have been an effective lever for social change. As Campbell correctly notes, rights have provided 'a constant source of inspiration for the protection of individual liberty rights'.[103] For example, recognition of the right to liberty resulted in the abolition of slavery and more recently the right of equality has been used as an effective weapon by women and other disempowered groups seeking greater employment and civil rights (such as the right to vote).
It is not sought to question that there is an ongoing need for moral discourse in the form of rights: 'whether or not... rights are intellectually defensible or culturally tolerant, we do have a need for them, at least at the edges of civilisation and in the tangle of international politics'.[104] However, it is submitted that deontological rights based moral theories (with their absolutist overtones) are not capable of providing answers to questions such as the existence and content of proposed rights. This view could obviously be criticised on the basis that if non-consequentialist rights are fanciful, then how does one account for the significant changes to the moral landscape for which they have provided the catalyst. There are several responses to this. First, the fact that a belief or judgment is capable of moving and guiding human conduct says little about its truth — the widespread practice of burning 'witches' being a case in point. Secondly, at the descriptive level, it is probably the case that the intuitive appeal of rights claims (and the absolutist and forceful manner in which they are expressed) has been normally sufficient to mask fundamental logical deficiencies associated with the concept of rights. Claims couched in the language of rights seem to carry more emotive punch than equivalent claims grounded in the language of duties. For whatever reason (perhaps due to the egocentric nature of rights discourse) the claim that 'I have a right to life', appears to resonate more powerfully than the assertion that 'you have a duty not to kill me'. In effect, the much criticised[105] meta-ethical theory of emotivism, which provides that morality is a set of utterances which express one's attitude with the aim of influencing the behaviour of others, seems to provide at least a partial explanation for the influence of rights based discourse.
Finally, and perhaps most importantly, it is submitted that there is a role in moral discourse for rights claims. Simply, as is discussed below, the only manner in which rights can be substantiated is in the context of a consequentialist ethic.
In any event, given the emptiness of non-consequentialist rights based moral theories at the epistimological level, it would not be instructive to attempt to formulate a hierarchy of human interests of the basis of such theories. Given that such rights are not ultimately founded on broader indeterminate notions it is simply not tenable to ascertain whether for example, the rights to liberty and property are more or less important than, say, the rights to health care and welfare, or even the right to privacy.[106]
A more promising tack for constructing and justifying a ladder of human needs is to ground the analysis in a consequentialist ethic. The most popular consequentialist moral theory is utilitarianism. Several different forms of utilitarianism have been advanced. It is submitted that the most cogent (and certainly the most influential in moral and political discourse) is hedonistic act utilitarianism, which provides that the morally right action is that which produces the greatest amount of happiness or pleasure and the least amount of pain or unhappiness. This theory selects the avoidance of pain, and the corollary, the attainment of happiness, as the ultimate goals of moral principle.
Unlike the convention grounds, pain and happiness are not arbitrary. In the context of identifying non-arbitrary criteria for moral concern (in this case the argument was directly addressed to the moral status of animals) Jeremy Bentham noted that:
The day may come when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may one day come to be recognized the number of legs, the villosity of the skin, or the termination of the os sacrum are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that that should trace the insuperable line? Is it the faculty of reason, or perhaps the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as more conversable animal, than an infant of a day or a week or even a month, old. But suppose they were otherwise, what would it avail? The question is not, Can they reason? nor Can they talk? but Can they suffer? (emphasis added).[107]
Suffering, unlike political opinion or the belonging to a group, is not arbitrary. It is the converse — it is universal: capable of being felt by all, and desired to be avoided most by all. Quite simply, the desire to avoid suffering[108] is the sentiment felt most strongly by all people at all points in history and across all cultures. Why should this then not form the criteria for international compassion? No logical reason is apparent.[109] In view of this, the international community, is logically dragged (albeit in some cases, kicking and screaming) to fundamentally changing the focus of the Convention to reflect this.
Linking the proposed change to an overarching moral theory provides it with the soundest possible justification. To this end, utilitarianism has received a lot of bad press over the past few decades, resulting in its demise as the leading normative theory. Considerations of space and focus do not permit a full discussion of these matters. However, there is sufficient space to summarise some important responses to the main criticisms against utilitarianism
The main general argument against utilitarianism is that because it prioritises net happiness over individual pursuits, it fails to safeguard fundamental individual interests. As a result, it has been argued that in some circumstances utilitarianism leads to horrendous outcomes, such as punishing the innocent[110] or forcing organ donations where the donations would maximise happiness by saving the lives of many or assisting those most in need.[111] Further it has been argued that there is no place for individual rights or interests in a utilitarian ethic.
On closer reflection, however, many of the appalling conclusions utilitarianism supposedly commits us to, do not particularly trouble us on a post-philosophical level; one is justified in arguing that any theory which approves of such outcomes must necessarily be flawed.[112] The horror scenarios which it is claimed utilitarians are committed to are, in fact, consistent with the decisions we as individuals and societies as a whole have readily made and continue to make when faced with extreme and desperate circumstances. Once it is accepted that decisions in extreme situations will be compartmentalized to desperate predicaments and will not have a snowball effect, and thus diminish the high regard held for important individual concerns and interests, it is likely that when placed 'between a rock and a hard place' people do and should, though perhaps somewhat begrudgingly, take the utilitarian option. In the face of extreme situations people are quite ready to accept that one should, or even must, sacrifice oneself or others for the good of the whole.[113] Now, what one actually does, does not justify what ought to be done. Morality is normative, not descriptive in nature: an 'ought' cannot be derived from an 'is' .[114] Still, the above line of reasoning is telling because the force of the horrendous consequences criticism lies in the fact that it supposedly so troubles our moral consciousness that utilitarianism can thereby be dismissed on the basis that the outcome is so horrible that 'there must be a mistake somewhere'. But this loses its force when it is shown that punishing the innocent is in fact is no worse than other activities people condone.
Further, it is important to note that it has been argued that rights do in fact have a place in a utilitarian ethic, and moreover it is only against this background that rights can be explained and their source justified. Utilitarianism provides a sounder foundation for rights than any other competing theory. For the utilitarian, the answer to why rights exist is simple: recognition of them best promotes general utility.[115] Their origin accordingly lies in the pursuit of happiness. Their content is discovered through empirical observations regarding the patterns of behaviour which best advance the utilitarian cause. The long association of utilitarianism and rights appears to have been forgotten by most. However, over a century ago it was Mill who proclaimed the right of free speech, on the basis that truth is important to the attainment of general happiness and this is best discovered by its competition with falsehood.[116]
Difficulties in performing the utilitarian calculus regarding each decision, make it desirable that certain rights and interests are ascribed to people; rights and interests which evidence shows tend to maximise happiness[117] — even more happiness than if all decisions were made without such guidelines. Rights save time and energy by serving as shortcuts to assist in attaining desirable consequences. By labelling certain interests as rights, one is spared the tedious task of establishing the importance of a particular interest as a first premise in practical arguments.[118] There are also other reasons why performing the utilitarian calculus on each occasion may be counter productive to the ultimate aim. Our capacity to gather and process information and our foresight are restricted by a large number of factors, including lack of time, indifference to the matter at hand, defects in reasoning, and so on. We are quite often not in a good position to assess all the possible alternatives and to determine the likely impact upon general happiness stemming from each alternative. Our ability to make the correct decision will be greatly assisted if the range of relevant factors is narrowed, in the light of pre-determined guidelines. History has shown that certain patterns of conduct and norms of behaviour if observed are most conducive to promoting happiness. These observations are given expression in the form of rights which can be asserted in the absence of evidence as to why adherence to them in the particular case would not maximise net happiness. Thus utilitarianism explains the existence and importance of rights. It is just that rights do not have a life of their own (they are derivative not foundational), as is the case with deontological theories. Due to the derivative character of utilitarian rights, they do not carry the same degree of absolutism or 'must be doneness' as those based on deontological theories. However, this is not a criticism of utilitarianism; rather it is a strength, as it is farcical to claim that any right is absolute. Another advantage of utilitarianism is that only it provides a mechanism for ranking rights and other interests. In event of clash, the victor is the right which will generate the most happiness.
The logical result of the above discussion is that the notion of Convention grounds becomes redundant. This will cause many refugee lawyers and human rights proponents to recoil — Convention grounds have been part of refugee law for over fifty years. However, unless proponents of the grounds can provide a justification for continued adherence to them (tradition does not suffice) they are logically committed to overhauling them, or risk facing being accused of Convention worship. In this regard, it is noted that fifty years is a very short period in the context of human history and even though the proposed changes are quite radical, they are less ambitious than the Convention was at the outset. Further, although human rights proponents have not previously been bold enough to recommend the changes advocated here, indirectly it seems that there is some movement towards the views expressed here. One of the fashionable reform proposals in refugee literature at present is that women should be recognised as a particular social group.[119]
It is submitted that this is cirrect; moreover, men should be too. The effect of this is that being a member of the human species is the sole criterion that marks one out as being worthy of compassion. The reason for one's pain and destitution is not cardinal — pain and destitution suffice. The focus then turns on the notion of persecution: in particular, what sort of deprivation is significant enough to warrant international assistance?
In terms of the exact changes that are appropriate, a Convention based on the concept of need would focus on the conditions that are necessary for human subsistence. At the core there is little scope for debate here — it is a matter of science, not sociology. Humans need food, water and shelter and clothing to survive. All other interests are contingent on the availability of these basic goods. Displaced persons who lack any of these goods to a point where it threatens their survival should be accorded refugee status. These interests aside, there are also other interests which seem to be a pre-condition for human existence. They consist of security of person (in the context of physical autonomy) and freedom from arbitrary deprivations of liberty. Access to education, minimum standards of health care and property rights would seem to be on the next level. Other rights then follow, such as the right to one's political opinion, or privacy.
At what point the refugee line should be drawn is unclear. The principle determinant in this regard is the willingness of the international community to absorb needy foreigners. The greater the preparedness, the higher point at which the line should be drawn. However, as was discussed earlier, the desire to help comes in finite doses. It is important to properly target those who are assisted — every spot taken by a refugee is one less that is available. While an expansive definition of refugee law may seem to be the most humanitarian solution, ultimately it may be the least desirable. Such a definition could lead to a situation of people dying of starvation, so that others can enjoy a university education or express their political views. Given that a choice must be made, it is submitted that the preference should be to feed the hungry.
Thus, it is argued that assistance be limited to people whose lives are in peril as a result of lack of food, water or shelter or who have a real fear of having their physical integrity or liberty violated. This, effectively, means that the principal right recognised in the proposed definition is the right to life. It is not controversial that the right to life is the most important of all rights; logically, it is the most basic and fundamental of all human rights. Non-observance of it would render all other human rights devoid of meaning.[120] Every society has some prohibition against taking life,[121] and 'the intentional taking of human life is ... the offence which society condemns most strongly'.[122] The only concession to confining assistance to threats to life is to recognise the importance of personal liberty which, while not as fundamental to the right to life, is essential for human beings to attain any semblance of fulfillment. The importance of liberty to the human species is reflected by the fact that deprivation of it constitutes the gravest form of punishment that is inflicted by Western Cultures against wrongdoers (apart from many parts of the United States where capital punishment is still sanctioned).
In terms of narrowing the types of interests that are relevant for refugee status, it is worth noting recent statutory changes made by the Australian legislature which define the notion of persecution. Historically, the notion of persecution has not been defined with any level of exactness.[123] As is noted by UNHCR 'there is no universally accepted definition of "persecution", and various attempts to formulate such a definition have met with little success' .[124] Hathaway states that 'persecution may be defined as the sustained or systematic violation of basic human rights demonstrative of a failure of state protection'.[125] In Australia, persecution means serious harm. Pursuant to the recently introduced s91R(2) of the Migration Act 1958 (Cth) the expression 'serious harm' is defined (in a non-exhaustive manner) to mean a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant's capacity to subsist. It is evident from this list that the types of harms being referred to are those which affect the most fundamental of human interests that are a precondition to any degree of flourishing. The rights to life, liberty, property and the protection of one's physical integrity are the most basic rights. Other interests (such as economic hardship) are also recognised but only to the extent that they threaten the subsistence of the person. Accordingly, the other nominated harms are derivative from the right to life. This definition was in response to court judgments which significantly lowered the threshold concerning the types of harm that would qualify for refugee status.[126] For example, it was held that discrimination in the form of restrictions to employment and educational opportunities can constitute serious harm.[127] In order to constitute serious harm it was not necessary for the applicant to be denied the opportunity of any employment; merely being denied the opportunity to work in his or her chosen field was sufficient.[128] Given the preparedness of the courts to expand the notion of serious harm, it is not surprising that refugees and economic migrants are often confused in the eyes of the community. This can lead to unfortunate results. As High Commissioner Ruud Lubbers stated to the UN Commission on Human Rights in March 2001:
Today, refugees and economic migrants — along with the criminal element — have become seriously confused — even assimilated — in the public mind. Extremist politicians have been quick to exploit public fears — stereotyping refugees as economically motivated, a burden to public health and a social threat.[129]
The paradox that emerges as a result of judicial expansion of the concept of serious harm needs to be spelt out. Ostensibly, courts and other legal bodies (no doubt well-intentioned) may appear to be assisting the refugee cause by expanding the type of harm that qualifies for assistance. Viewed narrowly this is no doubt the case — the people or persons who come within the expanded definition are granted access to the relevant nation State. However, at this point, good intention and good consequences part company as a result of a failure to acknowledge the fact that nations have a very limited appetite for desperate foreigners. This only seems to be getting worse:
the international refugee regime still saves lives, of course. But given the world's increasingly tight fisted treatment of uprooted people, this is an anniversary fit for sober reflection not celebration.[130]
It follows that, given the scarcity value and preciousness of refugee places, the kind thing to do is not to expand the range of human interests that are recognised under refugee law, in fact the opposite. The interests should be narrowed to ensure, as far as possible, that the refugee places are occupied by those in greatest need. A related point is that while an expansive definition of serious harm appears to be consistent with the humanitarian underpinnings of the Convention, it is ultimately misguided because it verges on merging refugee law and immigration law. As noted, refugee law is not about equalising the international playing field as far as the capacity for people to flourish is concerned; it is about assisting those most in need. The definition advanced in the following section seeks to avoid such confusion.
In light of the above discussion it is submitted that the definition of refugee in the Convention should be amended as follows:
A refugee is a person who owing to:
(i) the fact that his or her life is in peril as a result of lack of food, water or shelter; or
(ii) a well-founded fear of having his or her physical integrity or liberty violated;
is outside the country of his or her nationality and is unable to avail himself or herself of the relevant resources or protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or unwilling to return to it.[131]
Critics may take issue with the wording or exact drafting of the definition. However, it is important that future debate on the matter maintains a level of perspective. Discussion should focus on the substance of the definition and not grey issues which will invariably occur in the case of all legal definitions. No doubt, it will be difficult to determine with exactness what level of food shortage is adequate to come within the scope of the definition. However, such teething problems are not insurmountable.
It is important to note that the proposed definition not only removes the grounds, but as a necessary corollary impacts on other important aspects of the definition; most notably, it makes the amorphous concept of persecution almost redundant. As the definition currently stands there are several requirements that stem from the notion of persecution. First, the persecution must involve harm beyond a certain threshold. This requirement has been (effectively) retained but the notion of harm has been significantly tightened — confined to threats to life and liberty.
The second aspect of persecution is that it must be in the form of systematic and discriminatory conduct. This is no longer relevant. Once hunger to the point of starvation is recognised as grounding a basis for refugee intervention and it is accepted that potentially a whole nation may be moved to cross a border in search of food, these elements clearly become otiose. Thirdly, the persecution must have an official quality, in the sense that it is caused by government authorities or officially tolerated or uncontrollable by the authorities of the country of nationality. This requirement remains relevant only in relation to limb (b) of the proposed definition. Fourthly, as the law currently stands, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. This is now obviously redundant, as is the final requirement — the existence of a formal nexus between the grounds of harm. Pursuant to this model, it not necessary that the persecution feared must be attributable to a Convention ground.[132]
The Refugee Convection is a poorly drafted document. It has a humanitarian overtone, but is devoid of an overarching justification. Its greatest failing is that it prioritises 'sexy' interests such as the right to project one's political opinion over basic human needs. The fact that an applicant's cause of distress must be linked to the specific causes in the definition (that is, persecution due to race, religion, nationality, membership of a particular social group or political opinion) renders the Convention unnecessarily and unjustly restrictive. It bars applicants whose lives are unbearable because of war, famines, drought, and earthquakes from receiving protection under the Convention. The current definition ignores the human interests that are most essential for survival. In light of this, it is time to reform the definition of a refugee so that the world's collective compassion is targeted more directly at those who are suffering the greatest degree of deprivation.
It is accepted that practical restraints of changing the Convention definition are considerable, not least the 'technical' difficulty of possibly reconvening an international refugee convention for the purpose of adopting the proposed amendments.[133] However, these difficulties should not prevent the necessary amendments from occurring. The area is too important to ignore and the definition must be changed in order to provide the most just outcome to the neediest people. Further the problems with amending the definition are not as significant as those involved in its initial drafting and its gaining acceptance in the international community. It has been suggested that
because refugee law is, after all, the creation of largely self-interested nation States, it may ultimately prove impossible to define access to asylum more generously than as we know it today.[134]
The authors do not disagree with this. This paper, however, is not about generosity. It is about perspective, about raising international awareness about the things that are central to people's lives and about re-defining the term refugee; not to increase the pool of candidates who fit within the criteria but to target those most in need.
In order for the Convention to retain the high level of acceptance that it has in the international community it is important that it not be regarded as arbitrarily selecting certain human needs as worthy of State protection, while ignoring even more important needs. Without a wholesale definitional change along the lines proposed in this paper, the Convention will ultimately be regarded as a discriminatory document, unless a justification can be given for preferring the interests protected in the Convention to other interests (in particular the ones discussed in this paper). It is submitted that this is not feasible. To this end, it is noted that the risk that the status of the Convention (in its current form) may diminish in importance has not been lost on others:
as contemporary protection concerns become increasingly distinct from those of post-war Europe, the risk of Convention definition becoming a mere legal anachronism is real.[135]
It is acknowledged that from a humanitarian perspective the proposed definition is still somewhat deficient. To qualify for State assistance a needy person must still be outside his or her country of nationality. In terms of qualifying for State assistance, why should it matter, it can be fairly asked, whether a starving person happens to hobble over a border or not? Either way, that person's life is in peril. Further, international borders are simply arbitrary invisible lines in terrain. In terms of being entitled to assistance it is agreed that the hungry should obtain assistance irrespective of which side of aborderthey are on.[136]
However, an immutable aspect of the term 'refugee' (that is, one of the denotations of the word) is that the person is displaced from his or her abode. While from the humanitarian perspective this has no relevance, it is a defining aspect of refugee law. 'Alienage is inherent in the concept of refugee'.[137] The same cannot be said in relation the grounds — they are simply the reason for the alienage. As is noted by Hathaway:
We commonly refer persons who have been forced to flee to another region of their country as refugees. We normally assume that a person who is prepared to abandon her home, her family, her security is a refugee... We recognize the logic of escape from natural disasters, or from generally oppressive political regimes as much as from the possibility of persecution.[138]
Similarly, Collinson states that
in popular usage, the term 'refugee' has a broad meaning, signifying a person fleeing any one of a wide range of life-threatening conditions, including war, famine, natural disaster, oppression, persecution or massive human rights abuses.[139]
Thus, the suggested reform proposals do not purport to be a final solution to the international humanitarian problems. If adopted, they will make the most widely accepted international humanitarian law Convention fairer and thereby offer protection to those in the greatest peril. Even if these changes are adopted, there will remain a pressing need to increase the level of obligitariness that States have towards providing assistance to States whose citizens are denied the basic needs for life: this needs to change from an aspiration to an obligation. A needs based underpinning to the Refugees Convention may provide momentum towards such an end.
[*] BA LLB (Hons) LLM PhD, Professor of Law and Head of Deakin Law School.
[**] BA LLB, PhD Applicant, Associate Lecturer, Monash University
[1] The only change is pursuant to the Protocol Relating to the Status of Refugees 1967 which made no substantive changes to the definition. It merely removed a temporal and geographic limitation - see discussion below.
[2] J Jackson, 'Measuring Human Rights and Development by one Yardstick' (1985) 15 Californian Western International Law Journal 453, 456-60.
[3] J C Hathaway, The Law of Refugee Status (1991) v.
[4] P Bone, 'Drought Lends Pang to Hunger Pains', The Age, 27 September 2002.
[5] Article 33 of the Convention Relating to the Status of Refugees.
[6] Some countries even have a right of asylum written into their constitutions, see S Collision, Beyond Borders: Western European Migration Policy Towards the 21st Century ( Royal Institute of International Affairs, London, 1993) 65.
[7] M Crock, Immigration and Refugee Law in Australia (1998) 163.
[8] J C Hathaway, 'Refugee Law is Not Immigration Law', World Refugee Survey (2002) 43.
[9] United Nations, Executive Committee of the High Commissioner's Programme, Note on International Protection (13 September 2001, 5). The breaches range from situations where individuals are refouled or where borders are closed to refugees, to violence against refugees. For comments regarding future challenges to the problem confronted by refugees, see W Maley, 'A Global Refugee Crisis?' in Refugees and the Myth of the Borderless World (Department of International Relations, Canberra, 2002) 1.
[10] S Collinson, Beyond Borders: Western European Migration Policy Towards the 21st Century (Royal Institute of International Affairs, London, 1993), p59.
[11] Ibid 60.
[12] Amnesty International EU Office, 'Asylum Seekers in Europe: The Real Story Amnesty International Launches Europe-Wide Campaign' (Press Release 25 September 2001: http://www.amnesty. org.
[13] Ibid. See also G S Goodwin-Gill, 'The International Protection of Refugees: What Future?' (2000) 12 International Journal of Refugee Law 1.
[14] N Nathwani, 'The Purpose of Asylum' (2000) 12 International Journal of Refugee Law 354, 356.
[15] US Committee for Refugees, World Refugee Survey 2002 (Immigration and Refugee Services of America, Washington, 2002) 4.
[16] See further the comments by the Australian Minister for Immigration, Philip Ruddock, in the foreword to Interpreting the Refugees Convention - an Australian Contribution (Canberra, 2002). See also this report, 80.
[17] T Musgrave, 'Refugees', in S Blay, R Piotrowicz & B M Tsamenyi (eds), Public International Law: An Australian Perspective (1997), 301.
[18] Ibid.
[19] UNHCR, The State Of The World's Refugees 2000: Fifty Years of Humanitarian Action (2000), 15.
[20] G Goodwin-Gill, The Refugee in International Law (2nd Edition, 1996), 4. 2 1 Musgrave, above n 17, 302.
[22] Goodwin-Gill, above n 20, 4.
[23] Hathaway, above n 3, 6. Note the earlier international agreements entered into on behalf of refugees are referred to in article 1A(1) of the Convention.
[24] Convention relating to the Status of Refugees 1951 art 1A as amended by the Protocol relating to the Status of Refugees 1967 art 1. In 1969 the Organisation for African Unity (OAU) adopted a Convention on Refugee Problems in Africa which adopts a slightly broader refugee defintion. The OAU defines as a refugee 'every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality'. In 1984 Latin American countries adopted the Cartagena Declaration which incorporates a similar refugee definition: http://www.unhcr.ch/refworld/refworld/legal/instrume/asylum/ref_afre.htm. Unlike the definition in the Convention, neither of these is of universal application. Hence for the purpose of this paper, the focus is on the definition in the Refugee Convention.
[25] Goodwin-Gill, above n 20, 19. Note that the definition included an optional geographical limitation that permitted States, on ratification, to limit their obligations to refugees from 'events occurring within Europe' prior to the critical date under article 1B.
[26] Hathaway, above n 3 ,10.
[27] Department of Immigration and Multicultural and Indigenous Affairs, Australia (DIMIA), above n 16, 1.
[28] Hathaway, above n 3, 6.
[29] Hathaway, above n 3, 7-8, footnotes omitted.
[30] Hathaway, above n 3, 232-3.
[31] Hathaway, above n 3, v.
[32] A Millbank, The Problem with the 1951 Refugee Convention (2000).
[33] See Hathaway, above n 3,135-89; Goodwin-Gill, above n 20, 43-66.
[34] Morato v MILGEA [1992] FCA 637; (1992) 39 FCR 401, 404.
[35] Musgrave, above n 17, 308.
[36] In Australia, this ground was considered in the case of Caiado v MIMA (1998) 81 FCR 450.
Although the Court did not set up definitive tests it held that the term 'race' within the Convention should be interpreted broadly.
[37] Hathaway, above n 3, 141.
[38] A Grahl-Madsen, The Status of Refugees in International Law (1966) 217-8.
[39] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1992) Paragraphs 68-70. This publication does not have an authoritative status at the domestic law level. However, the High Court of Australia, did indicate that it does provide some 'guidance': Chan v MIEA (1989) 169 Cr 389, 392 per Mason J.
[40] Musgrave, above n 17, 308.
[41] Goodwin-Gill, above n 20, 45.
[42] Hathaway, above n 3, 145.
[43] UNHCR, above n 39, paragraphs 74-76.
[44] Musgrave, above n 17, 8.
[45] See, for example, Implementation of the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on religion or belief. Reports of the Special Rapporteur of the Commission of Human Rights on religions and intolerance, UN Doc. E/ CN.4/1993/62 (6 Jan 1993).
[46] The definitions which have been advanced by the High Court of Australia are at best only partial and instructive as opposed to being definitive: see, for example, Church of New Faith v The Commissioner of Pay Roll Tax (Victoria) (1983) 154 120, 136, 151, 174. For Federal Court discussion, see Wang v MIMA [2000] FCA 1599; (2000) 105 FCR 548, MIMA v Darboy (1999) 52 ALD 44.
[47] Grahl-Madsen, above n 38, 218; Goodwin-Gill, above n 20, 27-8; Hathaway, above n 3, 146.
[48] Hathaway, above n 3, 147. Note that the second proposition, regarding religious behaviour, is limited by the International Covenant of Civil and Political Rights (ICCPR) which states that religious freedom is 'subject only to such limitations as a re prescribed by law and are necessary to protect public safety, order, heath, or morals or the fundamental rights and freedoms of others'. This limitation has been interpreted broadly in some instances and restrictively in others.
[49] This might include a fear of punishment for practising a religion in a manner unlawful by the laws of the applicant's country: see Wang v MIMA (2000) 105 FCR 508. See also Woudneh v MILGEA (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (Hill, Whitlam and Carr JJ, 10 February 2000) per Hill J at [41] and per Carr J at [57]
[50] Prashar v MIMA [2001] FCA 57 (Madgwick J, 7 February 2001). The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states at paragraph 71-73: The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which rights include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance... Persecution for 'reasons of religion' may assume various forms, eg. prohibition of membership of a religious community, or worship in private or public, of religious instruction, or serious measures of discrimination imposed upon persons because they practice their religion or belong to a particular religious community... Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.
[51] M Falcon, 'Gender Based Persecution' (2002) 21 Refugee Survey Quarterly 133.
[52] UN Doc. E/AC.7/SR.172, August 122, 1950, at 18-23, and UN Doc E/AC.7/SR.173, August 12, 1950, at 5.
[53] Hathaway, above n 3, 149
[54] Canada (Attorney-General) v Ward [1993] 2 SCR 689. Also referred to in Saliba v MIMA [1998] FCA 1461; (1998) 89 FCR 38, 49. See also UNHCR Handbook on Procedures and Criteria for Determining Refugee Status para 80-6.
[55] Goodwin Gill, above n 20, 49.
[56] Saliba v MIMA [1998] FCA 1461; (1998) 89 FCR 38, 49. See also UNHCR Handbook on Procedures and Criteria for Determining Refugee Status para 80-6.
[57] Musgrave, above n 17. For an excellent overview of this ground, see DIMIA, 'Particular Social Group: An Australian Perspective' (2002) 63.
[58] Statements of Mr Petren of Sweden, UN Doc A/CONF.2/SR.3, 14 (November 19, 1951) and UN Doc A/CONF 2/SR 19, 14 (November 26, 1951).
[59] According to R Plender in 'Admission of Refugees' (1977) 15 San Diego Law Review 45, 52, this ground was intended to embrace those - particularly in Eastern Europe during the Cold War - who were persecuted because of their social origins.
[60] G Goodwin Gill, 'Entry and Exclusion of Refugees: The Obligation of States and the Protection Function of the Office of the UNHCR' (1980) Michigan Yearbook International Law Studies 291,297.
[61] Hathaway, above n 3, 157. For a recent discussion of particular social group in Canadian jurisprudence, see K Daley and N Kelley, 'Particular Social Group: A Human Rights Based Approach in Canadian Jurisprudence' (2000) 12 International Journal of Refugee Law 148.
[62] I Foighel, 'Legal Status of the Boat People' (1979) 48 Nordisk Tidsskrift for Itl Ret 217, 222.
[63] A Helton, 'Persecution on Account of Membership in a Social Group as a Basis for Refugee Status' (1983) 15 Columbia Human Rights Law Review 39. He also suggests that all groups protected under any UN human rights convention, whether defined in statistical, societal social or associational terms, should be considered within the scope of the Convention.
[64] Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225, 259, per McHugh J. 65 Interim Decision 2986, March 1, 1985.
[66] Hathaway, above n 3 , 160.
[67] Ibid.
[68] Department of Immigration and Multicultural and Indigenous Affairs, Australia (DIMIA), above n 16, 69.
[69] MIMA v Khawar (2000) FCA 1130.
[70] MIMA v Sarrazola (2001) FCA 263.
[71] MIMA v Zamora [1998] FCA 913; (1998) 85 FCR 458.
[72] Mehenni v MIMA (1999) FVA 789.
[73] Lo vMIEA (1995) 61 FCR 221.
[74] MIMA v Guo Ping Gui (1999) FCA 1496.
[75] Ram v MIEA (1995) FCR 565. For further examples, see DIMIA, above n 16, 73-4.
[76] However, it has been noted by the United Nations Executive Committee of the High Commissioner's Programme, Note on International Protection, (13 September 2001) 23, that 'a certain tendency over recent years to restrict the application of the 1951 Convention refugee definition within narrow confines has continued in a number of countries around the world, although there have been positive signs in certain jurisdictions'. The states which supposedly give a narrow interpretation to the Convention were not named.
[77] Equality and non-discrimination are synonymous. They are universal concepts. Under European Community Law the principle of equal treatment requires that like cases should not be treated differently and unlike cases must not be treated alike unless objectively justified (Case 147/79, Hoechstrass v Court of Justice ECR 3305 [1980]). In the Australian context the same definition has been adopted: see, for example, Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 480. In essence, discrimination is to treat people differently when they are similar in relevant respects or to treat them similarly when they are different in relevant respects, that is to discriminate is to treat someone differently without a relevant basis for the difference.
[78] Goodwin-Gill, above n 20, 297.
[79] It has been argued that there are such things as objective universal norms: see M Bagaric, 'A Utilitarian Argument: laying the foundation for a coherent system of law' (2002) 10 Otago Law Review (NZ) 163.
[80] See T Campbell, The Legal Theory of Ethical Positivism (1996) 161-88, who discusses the near universal trend towards Bills of Rights and constitutional rights as a focus for political choice. By rights talk we also include the abundance of declarations, charters, bills, and the like, referred to below that seek to spell out certain rights. There were numerous declarations, and the like, of rights prior to the Second World War, such as, the Declaration of Independence of the United States (1776) and the Declaration of the Rights of Man and Citizens (1789), however it is only in relatively modern times that such documents have gained widespread appeal, recognition and force.
[81] SI Benn, 'Human rights - For Whom and For What?' in E Kamenka and A E Tay (eds), Human Rights (1978) 59, 61.
[82] T Campbell, 'Realizing Human Rights' in T Campbell et al (eds), Human Rights: From Rhetoric to Reality (1996) 1, 13.
[83] Almost to the point where it is not too far off the mark to propose that the 'escalation of rights rhetoric is out of control': L W Sumner, The Moral Foundation of Rights (1987) 1.
[84] Ibid.
[85] H L A Hart, Essays in Jurisprudence and Philosophy (1983), 196-7.
[86] B S Chimni, 'Globalization, Humanitarianism and the Erosion of Refugee Protection' (2000) 13 Journal of Refugee Studies 243, 251. See also G S Goodwin-Gill, 'Asylum 2001 - A Convention and a Purpose' (2001) 13 International Journal of Refugee Law 1, 8 who states that we turn to human rights to fill out the grey areas in refugee law.
[87] 10 February 1948, entered into by Australia on that day.
[88] 4 January 1976, entered into by Australia on 10 March 1976.
[89] 23 March 1976, entered into by Australia on 13 November 1980. Australia has also ratified (in September 1991) the First Optional Protocol to the ICCPR which makes it possible for complaints to be made to the UN Human Rights Committee.
[90] UDHR, article 3 and ICCPR, article 6.
[91] UDHR, article 3 and ICCPR, article 9.
[92] UDHR, article 5 and ICCPR, article 7.
[93] UDHR, article 22 and ICESC, articles 9 and 15.
[94] UDHR article 12 and ICCPR, article 17.
[95] UDHR, article 24 and ICESC, article 7(d).
[96] UDHR, article 25 and ICESC, article 11. It does not end there. In addition to this, Australia has entered into or voted for numerous other specific human rights instruments such as the: Declaration on the Rights of Mentally Retarded Persons; Declaration on the Rights of Disabled Persons; Convention on the Elimination of all forms of Discrimination Against Women; Convention Relating to the Status of Refugees; Protocol Relating to the Status of Refugees; Declaration on the Rights of the Child; Convention on the Rights of the Child; Discrimination (Employment and Occupation) (ILO Convention 111); International Convention on the Elimination of all Forms of Racial Discrimination; Declaration on the Elimination of All Forms of Religious Intolerance; and the Convention Against Torture and other Cruel Inhumane and Degrading Treatment or Punishment.
[97] M Bagaric, 'In Defence of a Utilitarian Theory of Punishment: Punishing the Innocent the Compatibility of Utilitarianism and Rights' (1999) 24 Australian Journal of Legal Philosophy 95, 121-43; Sentencing and Punishment: A Rational Approach (2001) ch 4.
[98] T Campbell, Justice (1988), 54.
[99] See for example, M Tooley, ‘Abortion and Infanticide’ in P Singer (ed.), Applied Ethics (1986) 69, 70-1. See also P Singer, ‘All Animals are Equal’ in P. Singer (ed.), Applied Ethics (Oxford University Press, 1986) 215.
[100] These examples are cited by J Kleinig, ‘Human Rights, Legal Rights and Social Change’ in E Kamenka and A E Tay (eds), Human Rights (1978) 36, 40.
[101] S I Benn, ‘Rights’ in P Edwards (ed), Encyclopedia of Philosophy vol 7 (1967) 196.
[102] H L A Hart, Essays in Jurisprudence and Philosophy (1983) 195.
[103] T Campbell, The Legal Theory of Ethical Positivism (1996) 165.
[104] Ibid.
[105] For example, see G L Warnock, Contemporary Moral Philosophy (1982 ed) 24-6.
[106] The limits of rights discourse in the refugee domain is also noted by Nathwani, above n 14, 365-7, who believes that if all human rights violations were taken seriously states could not pursue their restrictive immigration policy.
[107] J Bentham, Introduction to the Principles of Morals and Legislation (1948 ed) ch 17.
[108] For a view that the notion of necessity should underpin refugee law, see Nathwani, above n 14. However, Nathwani does not expand on the violation of what sorts of rights or interests come within the scope of the necessity rationale.
[109] Goodwin-Gill raises the suggestion that human rights which are violated as a result of deliberate harm are perhaps more egregious and hence of greater 'value' than other forms of deprivations: G S Goodwin-Gill, 'Asylum 2001 - A Convention and a Purpose' (2001) 13 International Journal of Refugee Law 1. He does not develop this point. It is one with which the authors obviously disagree - a person who dies of starvation is no less dead than one who is killed by a bullet.
[110] H J McCloskey, Meta-Ethics and Normative Ethics (1969) 180-1. A similar example to McCloskey's is provided in E F Carritt, Ethical and Political Thinking (1947) 65.
[111] R Nozick, Anarchy State and Utopia (1974) 206-7.
[112] The distinction made between intuitive moral judgements and those formed after due reflection is similar to that made by R M Hare between intuitive and critical levels of moral thinking: see R M Hare, Moral Thinking: Its Levels, Methods and Point (1981).
[113] See Bagaric, above n 97, where a number of examples are given where society readily sacrifices individual lives for the good of the whole.
[114] This has been used as an argument against a naturalistic view of morality. However, see C R Pigden, 'Naturalism' in P Singer (ed), A Companion to Ethics (1991) 421, 422-6, where he points that this phenomenon simply reflects the conservative nature of logic - 'you cannot get out of it, what you do not put in'.
[115] According to Mill, rights reconcile justice with utility. Justice, which he claims consists of certain fundamental rights, is merely a part of utility. And 'to have a right is ... to have something which society ought to defend .... [if asked why]... I can give no other reason than general utility': J S Mill, 'Utilitarianism' in M Warnock (ed), Utilitarianism (1986) 251, 309. T Campbell, in The Legal Theory of Ethical Positivism (1996), 161-85, also proposes a reductive approach to rights, however, underlying his rights thesis is not utilitarianism, but rather (ethical) positivist ideals. Ethical Positivism is also discussed in T Campbell, 'The Point of Legal Positivism', in T Campbell (ed), Legal Positivism (1999) 323.
[116] J S Mill, ibid, 141-183.
[117] These rights, however are never decisive and must be disregarded where they would not cause net happiness (otherwise this would be to go down the rule utilitarianism track).
[118] See J Raz, Morality of Freedom (1986), 191. Raz also provides that rights are useful because they enable us to settle on shared intermediary conclusions, despite considerable dispute regarding the grounds for the conclusions.
[119] See for example, see N Kelley, 'The Convention Refugee Definition and Gender- Based Persecution: A Decade's Progress' (2002) 13 International Journal of Refugee Law 559; M Falcon, 'Gender Based Persecution' (2002) 21 Refugee Survey Quarterly 133.
[120] See also, M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, (1993), 104; S Joseph, 'The Right to Life' in The International Covenant on Civil and Political Rights and United Kingdom Law, D Harris and S Joseph (eds), (1995) 155.
[121] P Singer, Practical Ethics (2nd ed, 1993) 85.
[122] House of Lords, Report of the Select Committee on Medical Ethics vol 1 (1994) 13. For further discussion regarding the foundation and scope of the right to life, see K Amarasekara and M Bagaric, Euthanasia, Morality and Law (2002) ch 5.
[123] As is noted in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, above n 39, 'there is no universally accepted definition of "persecution", and various attempts to formulate such a definition have met with little success'.
[124] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, above n 39.
[125] Hathaway, above n 3, 104-5.
[126] S Haddad, 'Qualifying the Convention Definition of Refugee' in Immigration Review (2002), 1.
[127] See Chan v MIEA (1989) 169 CLR 379, 4321. See further, Syan v Refugee Review Tribunal (1995) 61 FCR 284 (extortion); Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; Thalary v Minister for Immigration and Ethnic Affairs (1997) 73 FCR 437; 50 ALD 349; Gunaseelan v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 594 (discrimination in employment and education); Minister for Immigration and Multicultural Affairs v Gutierrez [1999] FCA 990; (1999) 92 FCR 296; 59 ALD 89 (exposure to civil litigation).
[128] See for example, Ahmadi v MIMA [2201] FCA 1070 (Wilcox J, 8 August).
[129] As cited by J Fitzpatrick, in 'The Refugee Convention at 50' in US Committee for Refugees, World Refugee Survey 2001 (Immigration and Refugee Services of America, Washington, 2002) 22, 23.
[130] J Drumtra, 'The Year in Review' US Committee for Refugees, World Refugee Survey 2001 ((Immigration and Refugee Services of America, Washington, 2002)14, 16. See also, UNHCR 'The Asylum Dilemma' in The State of the World's Refugees 1997-98 (1998) 182.
[131] This has some similarities with the UN definition for internally displaced people: persons who have been forced to flee their homes suddenly or unexpectedly in large numbers, as a result of armed conflict, internal strife, systematic violations of human rights or natural or man-made disasters, (and who are within the territory of their own country}. Analytical Report of the Secretary-General on Internally Displaced Persons, E/CN 4/19992/93, 14 February 1992, para 17.
[132] In Australia, the persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Migration Act 1958 (Cth).
[133] See further, M Zan 'Refugees and the International Refugee Convention: Some Issues, Reform Proposals and Realistic Constraints', Malaysian Law News, April 1996, 23.
[134] Hathaway, above n 3, 233.
[135] Hathaway, above n 3, 232.
[136] Recent estimates put the number of internally displaced people at approximately 20 million: US Committee for Refugees, World Refugee Survey 2001 ((Immigration and Refugee Services of America, Washington, 2002) 6. It is agreed that there is a desperate need for greater international protocols concerning the treatment of the internally displaced. As is noted by 'refugees have an international agency and legal structure to turn to for protection and assistance. The internally displaced have nothing comparable': R Cohen, 'Protecting the Internally Displaced' in US Committee for Refugees, World Refugee Survey 1996 (Immigration and Refugee Services of America, Washington, 1996) 20, 23. The proposed definition does not impose any obligation on the States whose actions arguably create or cause the refugee influx into other countries. The Convention has been criticised on this basis, with some jurists arguing that principles of State responsibility should be used to draft international legal rules that would make a state internationally responsible for creating massive refugee movements by its actions (say human rights violations) within its borders. Although a preventative approach of this kind is attractive in theory, the fact that state sovereignty remains so important in the current international climate suggests that there would be a strong resistance to "interference in internal affairs' by states. Hence, such a proposal is perhaps too idealistic right now. See further, Zan, above n 133, 24.
[137] Nathwani, above n 15, 367, citing Otto Kimminich, Der Internationale Rechtsstatus des Fluchtlings (1962).
[138] Hathaway, above n 3, v.
[139] Collinson, above n 10, 59.
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