It is the best of times and the worst of times to be talking about refugee law.
The predicament of refugees was encapsulated by Chaim Weizmann in 1937 when he said in reference to the first Jewish refugees fleeing the Third Reich, that “for refugees the world is divided into places where they cannot live and places into which they cannot enter.”
This was an impetus for the creation of the international refugee law framework in the 1951 Convention, as part of an effort to codify international human rights law obligations.
The “political predicament of refugees” concerns the situation in which refugees have been recognized as such and live in a state of asylum. In that state, they are deprived not of the right to freedom, because this is now granted to them, but rather of the right to action. Not of the right to think whatever they please, but of the right to an opinion that counts politically.
My first proposition is that recognized refugees are qualitatively different from other noncitizen residents. What they lack after recognition is full membership in an effective political community and uniquely they lack it for an indeterminate period of time.
My second proposition is that recognized refugees be treated as if they were their citizens by those states that have granted them asylum. In particular, that they be afforded rights that states would usually grant to those subject to a citizenship qualification.
Protection under the 1951 Convention has historically been interpreted as being fundamentally external protection – that is, protection granted to a person outside of their country. A human rights-friendly interpretation suggests that, in 2017, protection should also have and does have an internal dimension – that is, the way an individual can expect their state to treat them.
After recognition, what happens to refugees? They may enjoy a conditional security of residence. This is in contradistinction to permanent security of residence, which is provided through naturalization. The Convention, and human rights law more generally, does not require countries of asylum to naturalize recognized refugees, even long-term ones. The only other country that would be legally required to take back that recognized refugee is their own country of origin. That country is a country to which, as a recognized refugee, that person cannot be sent.
When a state grants somebody refugee status, nobody knows how long that status will have to last. That is because the Convention stipulates a closed list of six conditions under which refugee status ceases. The assumption is that a refugee, once recognized, retains that status indeterminately and indefinitely.
During that period of “civic limbo,” the recognized refugee is often excluded from electoral processes. In relation to elections in their state of origin – assuming that state holds periodic elections – recognized refugees have no realizable option of returning in order to participate in elections. Indeed, if they were to return to that state or indeed to vote externally by going to an embassy or consulate of that state, UNHCR guidelines warn that they would potentially be re-availing themselves of the protection of that state, retying themselves politically to a state with which their political ties have been indeterminately, not permanently, severed.
Notably, the position of recognized refugees can be distinguished from the position of persons displaced by conflict where, as part of conflict resolution, transitional elections are held. Indeed, in those situations, displaced persons are often among those most encouraged to participate to facilitate their repatriation process.
Generally speaking, recognized refugees are entitled not just to protection afforded by the Convention but indeed to protection under other human rights treaties to which a state of asylum is party. The 1951 Convention predicted that such protections may ensue. Article 5 stipulates that “nothing in the Convention shall be deemed to impair any rights and benefits granted by a contracting state to refugees apart from this Convention.”
Neither the Refugee Convention nor human rights law requires states of asylum to enfranchise any noncitizen. Nevertheless, this does not mean that a state of asylum is prohibited from extending the franchise to noncitizens in some or all elections. I contend that there is much in international refugee law, interpreted in 2017 in the light of developments in human rights law in relation to the meaning of protection, to militate in the direction of extending the franchise.
Note, first, the expressive meaning of recognition. When the state of asylum has recognized somebody as a Convention refugee, the state has said, effectively, we recognize that person has no functional political ties to their state of origin that they can exercise.
The conditions under which that has transpired are ones that mandate recognition and protection. Importantly, the refugee definition is declaratory: A state recognizes refugees because they are refugees; they are not refugees because they are recognized as such. I suggest there are good grounds to say that it should also recognize the need for political remedies.
Consider next the significance of the indeterminacy of refugee status. When a state of asylum grants refugee status, then unless it is willing to extend an offer of naturalization, it has no control over how long that person will remain a refugee. It will either depend on the actions of the refugee or on occurrences that are external to the state of asylum.
I suggest a state of asylum says to a person: “We consider you now to be somebody who is indeed in need of a political community, who may be with us a for a long time and who in our mutual interest should feel a part of society. We therefore believe that you should have a stake in society and should participate in its affairs.”
That person should indeed be a person whose opinions are meaningful and whose actions are important. It would be entirely sensible and entirely within the spirit of the Refugee Convention, if not its requirements, to grant that person not just refugee status but also access to membership in its political community.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Refugees Deeply.