The horrific September 11 terrorist attacks on the United States have wrought serious collateral damage on an unexpected target: global attitudes towards refugees and asylum-seekers. Since the attacks, some countries have curtailed their refugee-resettlement programs, others have tightened their border controls, and many are making an unwarranted link between the words “refugee” and “terrorist.” Prior to September 11, the international regime established to protect refugees and asylum-seekers was already under attack from other quarters. An increase in irregular migration, a burgeoning business in human smuggling, and mass arrivals containing a confusing mix of economic migrants and genuine refugees had prompted some states to urge a legal retrenchment. International laws established to deal with refugees, they argued, were inadequate to meet the challenges at hand and should be either scrapped or drastically amended. Domestic legislation crafted in response to those challenges invariably put states’ interests ahead of refugees’ needs and upset the delicate balance that should be maintained between the two. In the wake of the terrorist attacks and the attacks on the value of the international refugee-protection regime itself, it is worth reviewing the history of that regime.

The Birth of Refugee Protection

People have fled persecution since earliest history, when they began to form communities. A tradition of offering asylum began around the same time, and when nations began to develop an international conscience in the early 20th century, efforts aimed at helping refugees went global.

After the League of Nations appointed the first high commissioner for refugees in 1921, a body of refugee law began to develop. The 1933 League of Nations’ Convention relating to the International Status of Refugees and the 1938 Convention concerning the Status of Refugees coming from Germany provided limited protection for uprooted peoples. The 1933 instrument introduced the notion that signatory states were obligated not to expel authorized refugees from their territories and to avoid “non-admittance [of refugees] at the frontier.” But only eight countries ratified that convention, several of them only after imposing significant limitations on their obligations. The Evian Conference of 1938, in which 32 nations gathered to discuss “the question of involuntary emigration,” proved unable to address the issue of Jews compelled to flee their home countries in Europe.

The need for further, broader measures to protect refugees was clear. When the United Nations High Commissioner for Refugees (UNHCR) was established in 1950, his main task was to provide legal assistance, particularly in entry and integration into asylum countries, to some one million refugees in Europe who had fled Nazism and the rise of communism. One year later, a legal foundation for UNHCR’s work was created. The 1951 Convention relating to the Status of Refugees was drafted by representatives of 26 countries, most of them Western or liberal in orientation. For the first time, the Convention codified a universal definition of a refugee—an individual who flees his or her country because of a well-founded fear of persecution on the grounds of race, religion, nationality, membership of a particular social group, or political opinion—though it imposed geographical and temporal limitations on that definition.

Regardless of those limitations, the 1951 Convention established the baseline principles on which the international system of refugee protection was to be built. Refugees should not be returned to face persecution or the threat of persecution (the principle of non-refoulement). Protection must be extended to all refugees without discrimination. The refugee problems are social and humanitarian in nature and therefore should not become a cause of tension between states. States must cooperate with the UNHCR if measures taken to address the problem of refugees are to be effective.

Since the grant of asylum may place heavy burdens on certain countries, satisfactory solutions to the problems of refugees can only be achieved through international cooperation. Persons escaping persecution cannot be expected to leave their country and enter another country in a regular manner and should therefore not be penalized for having entered or for being illegally in the country where they seek asylum. And finally, given the potentially serious consequences of expelling a refugee, such an action should only be taken in exceptional circumstances that directly affect national security or public order.

Testing the Conventions’ Limits

In the decade that followed, refugee problems began to emerge worldwide. In African countries going through the painful process of decolonization, some refugees no longer fell within the scope of the refugee definition contained in the 1951 Convention. Yet, despite the large numbers involved, countries around the world were generous in assisting the refugees. This was largely due to the positive way in which the decolonization process was viewed, and also because of the expectation that refugees would repatriate once their countries of origin gained independence.

During this period, the UN General Assembly extended UNHCR’s mandate to protect and assist refugees falling outside the ambit of the 1951 Convention and its geographical limitation. It became clear, however, that the legal regime also had to be expanded, and UNHCR began consultations with the aim of removing the temporal and geographical limitations on the definition of refugees in the 1951 Convention. On the basis of a background paper submitted by UNHCR, 13 independent experts discussed ways of modifying the refugee definition of the 1951 Convention to reflect contemporary realities. A draft protocol removing the dateline was submitted through UNHCR’s governing body, the Executive Committee, to the General Assembly. Within months, the UN Secretary-General opened the 1967 Protocol to the 1951 Convention to accession by states.

At the same time, regional instruments were also being developed. An “extended” refugee definition was established and included in the 1969 Organization of African Unity (OAU) Convention on the Specific Aspects of Refugee Problems in Africa. While incorporating the existing 1951 Convention refugee definition, the OAU Convention added a paragraph specifying that the term “refugee” would also apply to every person who, as a result of external aggression, occupation, foreign domination, or events seriously disturbing public order in his/her country of origin or nationality, was compelled to leave a place of habitual residence to seek refuge in another place outside the country of origin or nationality. This was a decisive move that both reflected the regional realities at the time and set an invaluable standard for other parts of the world. The new protection regime emphasized voluntary repatriation as an important solution to refugee problems, and the 1970s was clearly a decade of repatriation. Millions of refugees returned home to Angola, Mozambique, Guinea-Bissau, Bangladesh, and other countries.