The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-First Century

Table of ContentsI. Introduction: Protecting the Human Rights of Refugees.......83II. The Beginnings of the Modern International Refugee Law Regime.......85III. Challenges to the Refugee Convention 86IV. Why and How the Refugee Convention Matters Today: An Examination of New Agents and Targets of Persecution.........91A. The Changing Nature of the State and Agents of Persecution 92B. The New Agents of Persecution under the Refugee Convention 100C. The New Targets of Persecution under the Refugee Convention: Particular Social Groups Today 107V. What Has Enabled the Refugee Convention to Adapt to Changes over Time? 119VI. Conclusion 124"The sine qua non of the political commonwealth is to defend the atiben 'from the invasion of foreigners and the injuries of one anotherI. INTRODUCTION: PROTECTING THE HUMAN RIGHTS of RefugeesWhen governments established the U.N. in 1945, war and persecution had displaced over forty million people in Europe alone. Today's state system continues to produce large numbers of forced migrants in connection with such causes. At the same time, new forms of displacement related to natural disasters and climate change challenge governments and civil society to respond in humane and effective ways to ensure that the crisis needs of all people are met in a non-discriminatory fashion.1 2 Experts agree that new norms beyond those established for persecution and war refugees need to be developed.3 As the international community carefully considers how to deal with the latest forms of forced migration, officials, advocates, and scholars of human rights might learn from the evolution and implementation of the core human rights treaty on forced migration created in 1951-the Convention Relating to the Status of Refugees ("Refugee Convention").4 For that reason alone, why and how this treaty matters today merits reflection.An even more compelling reason to investigate this human rights treaty is that State Parties have tried for some time to minimize its relevance to today's forced migrants. In a 2000-2001 report for the Australian Parliament, one researcher called the treaty "outdated" and "obsolete."5 In contrast, I argue that the treaty created in 1951 to address then-contemporary international displacement is reasonably alive and well with respect to today's persecuted refugees and has enabled states to protect many of these particular forced migrants.This study, then, will closely examine the Refugee Convention's application to the changing nature of forced migration. As such, it aims to contribute to the recent and ongoing examinations being conducted by the International Law Commission regarding "Treaties over time/Subsequent agreements and subsequent practice in relation to interpretation of treaties."6My focus will be on the evolution of the substantive law in terms of whom this treaty protects as refugees pursuant to the international definition, which has remained unchanged since its creation. States negotiated this definition in a particular Western historical context: the aftermath of the Second World War and the very early days of the Cold War. How viable is this definition in today's world?I will argue that this definition possesses core characteristics that have enabled adjudicators, advocates, the United Nations High Commissioner for Refugees (UNHCR), and scholars to apply it to the protection needs of persecuted refugees in today's world. While this has not occurred without struggle and challenges, my claim is that the "refugee" definition, now in its seventh decade of life, has proven adaptable to the changing nature of persecution.One clarification before I present this analysis: I am on record elsewhere critiquing a significant limitation of the international refugee regime as well as ways that states have implemented the treaty. …