Refugees

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According to the 1951 Convention Relating to the Status of Refugees, a "refugee" is an individual who

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country….

The Office of the United Nations High Commissioner for Refugees (UNHCR) reported that in 2003 there were approximately 10.6 million refugees in the world, broken down as follows: Asia (4 million), Africa (3.3 million), Europe (2 million), North America (600,000), Oceania (65,000), and Latin America (41,000). The largest refugee-producing countries were Afghanistan (2.4 million), Burundi (574,000), the Sudan (505,200), Angola (433,000), and Somalia (429,000). Those countries hosting the largest number of refugees were Iran (1.3 million), Pakistan (1.2 million), Germany (980,000), Tanzania (690,000), and the United States (485,000).

The definition of refugee has several components. The first requirement for refugee status is that a claimant must be outside of his or her country of origin. This, of course, severely restricts the class of those able to obtain refugee protection, and in fact, the population of those termed internally displaced persons—essentially refugees who have not left their country of origin—is now considerably larger than the world's refugee population. As an aside, the U.S. definition of refugee does not mandate that a claimant be outside his or her country of origin, and as of 2004 upwards of 80 percent of those admitted as refugees to the United States had never previously left their country of origin.

The second requirement for refugee status is that the claimant must have a "well-founded fear" of persecution. This "fear" component has traditionally had both an objective and a subjective element to it. Because the insufficiency of state protection is the basis for recognizing an individual as a refugee, the appropriate starting point for determining the conditions within the refugee claimant's state of origin is an examination of that country's general human rights record.

How much fear rises to the level of a well-founded fear? Certainly, one can have a well-founded fear of an event happening when there is less than a 50 percent chance of it taking place. According to the standard enunciated by the U.S. Supreme Court in INS v. Cardoza-Fonseca (1987):

Let us … presume that it is known that in the applicant's country of origin every tenth adult male person is either put to death or sent to some remote labor camp…. In such a case it would be only too apparent that anyone who has managed to escape from the country in question would have "wellfounded fear of being persecuted" upon his eventual return.

The key to the refugee determination process is a careful consideration of the claimant's own evidence. In that way, how the claimant has been treated in the past is a vital consideration in determining refugee status. In addition, even if the claimant cannot substantiate his or her past persecution, it is enough to show evidence of harm to persons similarly situated. Despite this legal standard, some adjudicatory bodies have shown a great reluctance to recognize as refugees persons whose fear is shared by large numbers of fellow citizens, the apparent concern being that no limiting principle exists when generalized oppression or persecution is present. Thus, rather than helping the claimant, there often has been a "perverse-inverse" relationship between levels of human rights abuse and the granting of refugee protection.

The third requirement for refugee status is the notion of persecution, left undefined by the Convention's drafters. As a general rule, refugee protection is premised on the need to safeguard an individual from serious harm, although this harm does not have to be of life-and-death proportions. Essentially, refugee protection consists of an international response to disenfranchisement from the usual benefits of nationality. States are split on who the agents of this persecution must be. The European approach has been to limit refugee protection to those instances where state agents are responsible for persecution, whereas the

U.S. approach has been a willingness to recognize persecution at the hands of nonstate actors.

The final requirement for refugee status under international law is that the claimant must also establish that the persecution he or she faces is based on one of five factors: race, religion, nationality, membership in a particular social group, or political opinion. The rationale for this limitation was not that other persons were less at risk, but rather, that persons affected by these forms of fundamental sociopolitical disenfranchisement were less likely to seek effective redress within the state.

In terms of actual state practice, despite the repeated cries in Western states of "compassion fatigue," or the feeling on the part of Western governments and Western peoples that they are overwhelmed by human suffering in other parts of the world and they are tired of dealing with these issues, nearly all refugee protection takes place in developing states. The number of refugee claims in Europe continues to decline mainly because of visa requirements in states experiencing gross human rights abuses as well as the institution of "safe" third country programs, whereby claimants who have passed through a safe country (even fleetingly) are denied the ability to file a refugee claim.

U.S. refugee policy has two important aspects. The first is an overseas quota program under which the United States admits on the order of 70,000 refugees—although these numbers have been severely slashed since September 11, 2001. The second is that individuals who are within the United States can apply for refugee status. However, the government's Haitian interdiction program indicates some of the lengths to which the U.S. government will go in order to prevent claimants from arriving in the United States. This policy was upheld in Sale v. Haitians Centers Council (1993) when the Supreme Court found that the legal duty not to return an individual to a country where his or her life would be threatened (so-called nonrefoulement) only arises after that person has arrived in this country.

Immigration and Immigrants; United Nations.

Aleinikoff, T. Alexander, David Martin, and Hiroshi Motomura. Immigration and Citizenship: Process and Policy, 5th ed. St. Paul, MN: West Publishing, 2003.

Gibney, Mark. "A 'Well-Founded Fear' of Persecution." Human Rights Quarterly 10 (1988):109–121.

Goodwin-Gill, Guy. The Refugee in International Law. Oxford, UK: Clarendon Press, 1983.

Hathaway, James. The Law of Refugee Status. Toronto, Canada: Butterworths, 1991.

INS v. Cardoza-Fonseca 480 U.S. 421 (1987).

Loescher, Gil, and John Scanlan. Calculated Kindness and America's Half-Open Door: 1945 to Present. New York: The Free Press, 1986.

Raufer, Susan. "In Country Processing of Refugees." Georgetown Immigration Law Journal 9 (1995):233–262.

Sale v. Haitians Centers Council 509 U.S. 155 (1993).

Shacknove, Andrew. "Who Is a Refugee?" Ethics 95 (1985):274–284.

United Nations High Commissioner for Refugees. Refugees by Numbers: 2003 Edition. <http://www.unhcr.ch>.

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