Home Secretary Suella Braverman is right to criticise the international asylum system, but wrong to blame the Refugee Convention. In this blog, Jonathan Thomas shows why states sharing responsibility for legitimate refugees is a political, not legal, problem.
Suella Braverman is right that there is a crisis in how the world affords protection and rights to refugees. But she is wrong that this is the fault of the UN Refugee Convention. And she seems to know that. Her own speech demonstrates why.
She says that “we will not be able to sustain an asylum system if simply being gay or a woman, and fearful of discrimination in your country of origin, is sufficient to qualify for protection”. But it isn’t. She says that the world is a very different place now from 1951 when the Convention was agreed. If it is, then far more, not less, gay people and women were discriminated against around the world in 1951 than they are now.
Indeed, most of those arguing like Suella that the Convention is “not fit for our modern age” argue that it is now too narrowly, not too broadly, drawn. There is no obvious place within the wording of the Convention, for instance, to fit ‘climate change refugees’ – so legally they do not exist.
The Refugee Convention focuses not on protecting people in such situations, but rather protecting those who have fled their country because of a well-founded fear of persecution. A very different thing. Her speech admits that she is on board with that: “Where individuals are being persecuted, it is right that we offer sanctuary”.
She says that “The status quo, where people are able to travel through multiple safe countries, and even reside in safe countries for years, while they pick their preferred destination to claim asylum, is absurd and unsustainable”. But this status quo is not mandated by the Refugee Convention. Indeed, quite the opposite. The Refugee Convention does nothing to prevent people being returned or transferred anywhere, as long as that is not somewhere where they will be in danger to their life or freedom.
There are significant defects of the Refugee Convention. But not ones that the Home Secretary points out. In negotiating the Convention, states were concerned to protect their national interests and room for manoeuvre. As a result, they failed to reach agreement on two important things.
The first was that while states did agree in the Convention what a refugee was, and on a broad suite of rights that a refugee should be given, they did not agree to an obligation to actually open up their territory so as to allow access by those claiming to be refugees. The outcome has been that in practice states instead do the exact opposite; doing all they can to stop potential refugees arriving on their territory. And for their part, of course, refugees do all that they can to arrive, by whatever means possible, to get access to refugee protection and to refugee rights. It is hard to think of a system more supportive of dangerous journeys and people smuggling profits.
The second, and indeed the biggest reason for this repelling action by states, is that there is no agreed operating mechanism within the Convention for states to share the burden of, and responsibilities, for refugees. This is one of the reasons that a small number of states, often among the poorest in the world, host huge refugee populations while a large number of states host hardly any. States are generally unwilling to help each other out in this regard. They are also scared stiff that, unless they are as tough as the toughest in repelling refugees, then they too might be the recipient of a large number of refugees on their territory, which other states will then not help them out with.
Welcome to what The Economist once termed the ‘dystopian game show’ of the international refugee system. But this is fixable without any ripping up of, or even amendment, to the Refugee Convention. How states should share responsibility for legitimate refugees – those being persecuted and in fear of loss of life or liberty, not those being discriminated against or inconvenienced which falls short of such persecution no matter how unfortunate that might be – is a political, not a legal wording, problem. It was not easy to solve in 1951. So states did not fix it. They kicked the can down the road. We are still staring at that can today.
In Europe this political problem is particularly pressing, heightened by the tension within the EU between national and multilateral interests. The best, perhaps the only, way out of this mess is to break the link between where a refugee claims asylum and where they are settled. That means sending some people to safe third countries, but making sure that the UK accepts its fair share of refugees in return.
Keir Starmer’s recent statement along these lines about the potential for better sharing responsibility for refugees across Europe is therefore a more promising starting point for taking control of the dysfunctional international refugee system than the current government’s arrangement with Rwanda. This will be hard and painstaking. But we need to work with other countries to find a solution that wins consent from voters, but also does justice by the vulnerable millions seeking sanctuary so they can just get on with their lives.