Blog post by Tristan Harley, Kaldor Centre for International Refugee Law, University of New South Wales (Sydney, Australia). This blog post is based on excerpts of his paper, Refugee Participation Revisited: The Contributions of Refugees to Early International Refugee Law and Policy, published in Refugee Survey Quarterly and available here.
A new examination of the historical record reveals that refugees and persons with lived refugee experience played a far more substantive role in the development of early international refugee law and policy than previously recognised.
Between 1921 and 1955, refugees and persons with lived refugee experience utilised their skills in law and diplomacy to actively participate in the drafting and deliberation of key international instruments such as the 1933 Convention Relating to the International Status of Refugees and the 1951 Convention Relating to the Status of Refugees.
They were also substantively involved in the responses coordinated by international organisations such as the League of Nations and UNHCR, including by serving in several senior leadership roles within these organisations. For example, the first High Commissioner of UNHCR, Gerrard van Heuven Goedhart, had lived experience of forced displacement. Even the initial idea of creating a binding international law treaty to deal specifically with refugees was first proposed by a refugee in 1927 – Jacques Rubinstein.
Surprisingly, these contributions have been largely hidden from view until now. This oversight is in part because most legal analysis of the development of international refugee law has tended to focus on the role of States as the key architects in legal development. However, it also reflects a broader trend that has largely rendered invisible the contributions of refugees to their own protection. This phenomenon has emerged despite many of the key thinkers of international law and refugee protection having lived experienced of forced displacement, such as Hugo Grotius and Hannah Arendt.
The contributions of refugees and persons with lived refugee experience to the development of early international refugee law and policy are significant. While refugees as a categorised group held no formal decision-making power at the time – and negotiations on matters of international law were, and still are, largely inter-State affairs – these contributions nevertheless reorient our understanding of the ways in which international law and policy pertaining to refugees have been developed and negotiated to date, They also provide a practical example of how refugees can more meaningfully be included in the creation of laws and policies that affect them going forward.
These contributions demonstrate how refugee involvement in the development of international refugee law and policy can enhance the specificity and practical application of legal provisions and policy choices, drawing in part on the lived realities of refugee displacement and experience. This inclusion can lead to better outcomes for both refugees and States.
For example, during the drafting of what is now Article 31 of the 1951 Refugee Convention on “Refugees unlawfully in the country of refuge”, the first High Commissioner of UNHCR, Van Heuven Goedhart, discussed his escape to England to highlight the need to provide immunity for refugees from penalties in situations where they are required to transit through other countries in search of protection. He noted that:
“in 1944, he had himself left the Netherlands on account of persecution and had hidden in Belgium for five days. As he had run the risk of further persecution in that country, he had been helped by the resistance movement to cross into France. From France he had gone on into Spain, and thence to Gibraltar. Thus, before reaching Gibraltar, he had traversed several countries in each of which the threat of persecution had existed.”
Van Heuven Goedhart argued that “it would be very unfortunate if a refugee in similar circumstances was penalized for not having proceeded direct to the country of asylum”.
Second, these contributions demonstrate some of the benefits that can arise in an environment where refugee organisations and representatives have direct, sustained and systematic communication with States and international organisations over several years. When Jacques Rubinstein first proposed the idea of a binding international convention relating to refugees in 1927, Fritjof Nansen and the League of Nations were able to act on the suggestion within a matter of weeks, even though it took a further six years before States adopted the first binding treaty on refugees. The prompt consideration of Rubinstein’s idea was in part due to the established communication channels that were already in place between the League of Nations and refugee organisations dating back to 1921, as well as the cultural and political acceptance at the time of the value and importance of these types of collaboration.
While care is needed when considering how past practices can inform the development of laws and policies that affect refugees going forward, the contributions of refugees to early international refugee law and policy point to the opportunities and benefits that can arise from drawing on the considerable expertise of refugees over a sustained period, and by avoiding policy approaches that treat refugees as simply passive victims in need of rescue.
This piece was originally published on 11 December, 2020 in the Refugee Law Initiative Blog on Refugee Law and Forced Migration, you can read the full article here. An open-access version of the full article is available here.