An Immutable Definition? How the 75-Year-Old Grounds for Asylum Struggle to Adapt to the 21st Century

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The very word “refugee” carries a significant rhetorical, social, and legal power. While the plights of refugees and asylum seekers can mobilize civil society and invoke empathy from individuals, it is the legal definition that establishes a mark of legitimacy in the eyes of the international community and triggers state obligations. 

One can be classified as a refugee according to the 1951 Convention Relating to the Status of Refugees by fitting the description of “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion”. Thus, only the displaced who can prove that they are stateless on specific grounds of individual persecution have a route for resettlement in “honeypots”, or wealthy countries with resources to naturalize citizens and provide essential services. However, it is becoming increasingly clear how modern drivers of displacement and violence such as persecution based on LGBTQI status, gender-based violence, gang/cartel violence, or even climate change fail to align with this 75-year-old treaty. 

The refugee definition, currently used in U.S. and international law, was created to address problems specific to a post-World War Two world. The creators of the Convention saw how Germany had tried to destroy a population, the Jewish people, based on what they formulated as “immutable” grounds or characteristics which are fundamental to a person’s identity. Yet, this definition limits which identities are considered immutable and does not address the common scenarios of persecution today. Notably, the category of “sex” is missing from the definition which hurts two key groups: those with LGBTQI status and those fleeing gender-based/domestic violence.

It is important to keep in mind that the Convention and its protocol was produced in the 50s and 60s, so LGTBQI protections were not in the minds of the writers. Currently, such protection could be included under the “membership in particular social group” category, but there are two key catches to this modern reinterpretation. One catch is that the persecution has to be made on the basis of sexual identity and not sexual conduct. While it might seem like a marginal difference, proving one’s sexuality as an “identity” under the tenants of “membership in a particular social group” known as immutability, association, and recognizability, is difficult to produce. How can one show their association with others with LGBTQI status, or show that they are recognized as LGBTQI by society, if they are fleeing a country where they would be killed for doing so? The other catch is that the Trump Administration has used issued a regulation to create barriers for those applying under the “social membership” clause by strictly interpreting the role of the abuser and their relationship with the state “to the point where lesbian, gay, bisexual and transgender asylum seekers will be effectively excluded”.

One of these barriers formulates the status of the abuser into another “catch 22” situation. Most abusers are not state officials, like family members or gangs, and the US government would see this case as a form of individual violence and thus not grant asylum. The role of the state is a vital aspect of asylum cases because all cases have to prove either the government conducted the persecution or aided it by purposefully not providing protection; in addition, one needs to prove a lack of safety in another part of the state or a transitory state that one passed through to get to the US. The “catch 22” under this regulation is that even if the abuser was a government official, the new code would interpret the perpetrator as a “rogue official” and not as acting on behalf of the state. So, whether the asylum seeker was harmed by a government official or a non-state actor on the grounds of their LGBTQI status, the regulation would see the government official as a rogue actor and would not grant asylum; the same situation applies for domestic and gender-based violence. 

Another dilemma that stems from the refugee definition’s inability to keep adapt to modern conflict is persecution from non-state actors such as gangs and cartels. The refugee definition is meant to protect people from state persecution, such as from Nazi Germany, by allowing them refuge in another country. Yet, much of the violence in Central America stems from non-state actors, such as gangs or domestic abusers, to which the state is providing no protection from. Perhaps a new reinterpretation of the current refugee definition to formulate “membership in a particular social group” to include women in relationships (like marriage) or the membership in the social group to include not being in a gang, could allow for refuge to be granted to those persecuted in ways not thought of 75 years ago.

Unfortunately, the refugee definition is unlikely to be amended. A new definition would reorient state obligations on an international level and expanding the definition would be difficult to be agreed upon between states (and within them too because one would have to overcome likely domestic pushback). Having asylum codified in international law in the first place was meant to counteract a state’s structural incentive to limit refugees and not naturalize asylum seekers: changing it would have to combat this incentive and the structure of the international system. Therefore, the current refugee definition is sufficiently gridlocked despite it’s failure to block domestic governments from evading their international obligations in hyper legalized ways or its inability to address 21st century conflicts.

Yet, while the definition may need reform, it is also important to note that other principles of the Convention should remain intact and still ubiquitously apply when considering state obligations in this century. In addition to the refugee definition, the 1951 Convention also codified principles to address the dismissive way states treated those fleeing genocide during the Second World War. For example, in May 1939, the M.S. St. Louis was a ship carrying Jewish refugees that sailed to both Cuba and the US in an attempt to flee Hitler. Neither country let the ship dock and it returned to Europe: 1/3 of the passengers were murdered by the Nazis. After the war, the principle of “non-refoulement” was created, and established that states have an obligation to let people apply for asylum once they cross into a state’s territory. States cannot send asylum seekers back to their dangerous origins on the grounds that this action would facilitate their deaths: non-refoulement creates an obligation for states to protect these peoples until they’ve determined if they qualify for Asylum under the refugee definition. 

The reason non-refoulement needs to be highlighted in the 21st century is because this principle inadvertently creates incentive for states to block people from coming close to their borders in order to keep them from applying (because their border is where their obligation under international law begins). One controversial policy that seems to violate the spirit of nonrefoulment is the Trump administration’s “Migration Protection Protocols” or informally known as his “Remain-in-Mexico” policy. The policy hopes to deter people from applying for asylum, or create so much difficulty that people cannot come to their court dates, by sending asylum seekers from Central America to wait for their hearing in Mexico; 60,000 people have been sent to wait in makeshift camps for their court dates. This policy does not technically violate non-refoulement because asylum seekers are not being sent back to the state that is persecuting them. However, the policy is controversial because these camps and border towns are extremely dangerous. The Mexican cities that hold these populations such as Matamoros, Nuevo Laredo, and Reynosa are all located in the Mexican state of Tamaulipas, which is on the U.S. State Department’s  “do not travel list” due to “high risks of kidnapping, extortion, and violence”. Cartels prey on these camps as they kidnap and hold people for ransom. The sanitary conditions are dismal, and it is extremely difficult to contact people about their court dates in these camps. On top of the already backlogged cases, hearings have been suspended due to the coronavirus, which has created an impossible situation for tens of thousands that the US is obligated under both domestic and international law to protect. The Migration Protection Protocols have triggered a legal battle and the Supreme Court has decided to hear the case in 2021, however, Biden has pledged to end these Trump era regulations, which might occur before the Supreme court hearing.Overall, some of the state obligations in the 1951 Convention such as non-refoulement are still essential to protecting the rights of the stateless. However, the causes of migration and violence in the 21st century are different than those at the close of the Second World War, and the refugee definition ought to be redefined to fit such causes; persecution of those with LGBTQI status, gender-based violence, and violence from nonstate actors such as gangs and cartels struggle to fit within these categories. Yet, changing the definition of a refugee would redefine state obligations on an international level, which would be extremely difficult to coordinate. It does seem unlikely that the definition will stay the same for the next 75 years, but it also seems unlikely to overcome immense gridlock anytime soon. In the end, domestic changes in the executive branch might be the best hope for ensuring asylum seekers their due rights and refuge.

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