Paradigm shift or business as usual? A historical reappraisal of the 'shift' to securitisation of...

PARADIGM SHIFT OR BUSINESS AS USUALAN HISTORICAL REAPPRAISAL OF THE ldquoSHIFTrdquo TO

SECURITISATION OF REFUGEE PROTECTION

Natasha Saunders

This article argues that enhanced understanding of the inter-war period in the devel-opment of the international refugee regime can contribute to current debates on theextent to which current practices of ldquoburden-shiftingrdquo ndash in the form of the external-isation and securitisation of asylum ndash betray the regimersquos humanitarian origins asexpressed by the 1951 Convention Relating to the Status of Refugees It demonstratesthrough archival research that rather than being characterised by the humanitarianwish to relieve the plight of the displaced ndash a wish which at times fell victim topoliticalideological manipulation ndash the development of the refugee regime was insteadprimarily concerned with burden-limiting ethnic and racial harmony and a techno-cratic approach to the ldquodisposalrdquo of refugees This article concludes by suggesting thathistorical investigation of the development of the refugee regime can reveal the ways inwhich our ldquo solutionsrdquo and how we measure their success are inseparable from ourunderstanding of what the problem and who the refugee is ndash and that this under-standing is perhaps not as simple as the traditional picture of a humanitarian concernfor the protection of the displaced might suggest It also emphasises the need to recognizethe extent to which continued ahistorical reification of the refugee regime can entrenchrather than ldquo solverdquo the refugee problem

Keywords League of Nations history humanitarianism securitisation

1 Introduction

Recent years have seen what might be called a ldquocritical turnrdquo in Refugee StudiesBorders and camps have become problematised as ldquospaces of exceptionrdquo wherethe power of the sovereign is manifested in its exclusion of those who do notbelong1 the role of the international system of sovereign Nation-States itself inthe creation of mass displacement is being investigated2 and the role of

PhD candidate in International Relations at the University of St Andrews This work was supported by theEconomic and Social Research Council (grant number ESJ5001361) My thanks go to Patrick Hayden forhis comments on an earlier draft of this article Any mistakes or deficiencies are my own

1 See in particular J Darling ldquoBecoming Bare Life Asylum Hospitality and the Politics of EncampmentrdquoEnvironment and Planning D Society and Space 27 2009 649ndash665 B Diken ldquoFrom Refugee Camps toGated Communities Biopolitics and the End of the Cityrdquo Citizenship Studies 8(1) 2004 83ndash106

2 See in particular E Haddad The Refugee in International Society between Sovereigns Cambridge CambridgeUniversity Press 2008

Refugee Survey Quarterly Vol 33 No 3 pp 69ndash92 Author(s) [2014] All rights reservedFor Permissions please email journalspermissionsoupcomDOI101093rsqhdu010 Advance Access publication 16 July 2014

at University of St A

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httprsqoxfordjournalsorgD

ownloaded from

humanitarianism in the refugee problem is being questioned especially thedegree to which humanitarian practices can ldquosilencerdquo the refugee ndash the ways inwhich they have led to the creation of whole classes of people whose job it is toldquoknowrdquo the refugee without there being either any need or any space for therefugee herself to speak3 There is however another vein in the scholarshiprelating to humanitarianism and the refugee regime which this article seeks toproblematise Much of the literature addressing post-Cold War restrictions toasylum policies in the West contrast these ldquosecuritisedrdquo practices with a pre-ColdWar period supposedly characterised primarily by humanitarianism Since theterror attacks of 11 September 2001 (911) there has been a growing trendamong Western States not only to frame the refugee problem in national securityterms but also to expand their borders beyond the physical demarcations of theirterritories in order to control migration Such policies are largely considered tobe betrayals of the humanitarian nature of the refugee regime and derogationsfrom their Convention obligations at least in spirit if not always strictly in letterBut to what extent is this an accurate portrayal of the nature of such policiesThis article examines the pre-1951 development of the international refugeeregime in particular the ways in which the refugee a distinct ldquorefugee problemrdquoand the range of acceptable solutions came to be characterised in order to answerthis question

The creation of the United Nations High Commissioner for Refugees(UNHCR) in 1950 and the United Nations Convention Relating to the Statusof Refugees of 1951 (Refugee Convention) have become the watershed momentsin the international protection of refugees for scholarship that has been largelyahistorical and characterised by a focus on the policy implications of refugee flowsand crisis management ndash what Marfleet calls ldquorefugee policy studiesrdquo4 The inter-war period has received scant attention from scholars of forced migration in partdue to the perceived ad hoc and piecemeal nature of such efforts and in part dueto the very real concern for scholarship to be ldquoof userdquo to practitioners and policy-makers ndash historical investigation seeming not to fall into such a category The fewscholarly works that have addressed the inter-war period have either focused on thedevelopment of the legal definition of the refugee5 or the development of certainkey concepts of the regime such as voluntary repatriation6 and travel documents7

3 See in particular L Malkki ldquoRefugees and Exile From lsquoRefugee Studiesrsquo to the National Order of ThingsrdquoAnnual Review of Anthropology 24 1995 495ndash523 L Malkki ldquoSpeechless Emissaries RefugeesHumanitarianism and Dehistoricizationrdquo Cultural Anthropology 11(3) 1996 377ndash404 and J HyndmanManaging Displacement Refugees and the Politics of Humanitarianism Minneapolis University of MinnesotaPress 2000

4 P Marfleet ldquoRefugees and History Why We Must Address the Pastrdquo Refugee Survey Quarterly 26(3) 2007138

5 JC Hathaway ldquoThe Evolution of Refugee Status in International Law 1920ndash1950rdquo International andComparative Law Quarterly 33(2) 1984 348ndash380

6 K Long ldquoEarly Repatriation Policy Russian Refugee Return 1922ndash1924rdquo Journal of Refugee Studies 22(2)2009 133ndash154

7 O Hieronymi ldquoThe Nansen Passport A Tool of Freedom of Movement and of Protectionrdquo Refugee SurveyQuarterly 22(1) 2003 36ndash47

70 Natasha Saunders j ldquoShiftrdquo to Securitisation of Refugee Protection


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Skranrsquos work provides a useful overview of the development of the institutions andoffices of the regime but is more descriptive than analytical8 Soguk takes a moreanalytical approach to the historical relationship between the refugee and what heterms ldquopractices of statecraftrdquo but the inter-war period forms only a small part ofhis broader project9

This article seeks to address this gap Our understanding of how to ldquosolverdquothe refugee problem and how we measure the success of those solutions areinseparable from what we understand the refugee problem to be and the inter-war period contains valuable insights which can shed some much neededhistorical light on current practices Ultimately what the inter-war period dem-onstrates is that the refugee problem in need of a solution is fundamentally theexistence of the refugee himherself rather than ndash as much of the literature atleast implies where it is not overtly stated ndash the problems of persecution andexclusion that heshe himherself faces Thus rather than there being a paradigmshift in policy from the protection of rights to the protection of national securityas some scholars claim the documents reveal from the very earliest days ofthe regime a struggle between humanitarianism and three countervailingtendencies ndash national security the national interest and the supreme right todecide who can cross national borders ndash of which current practices can beunderstood as an extension The virtue of such an analysis is that it can allowus to move beyond the question of whether or not a particular set of policies ishumanitarian or non-humanitarian securitised or not securitised and thereforefaithful to the refugee regime or unfaithful and refocus attention on the role ofthe refugee regime itself in perpetuating the refugee problem To this end thisarticle will briefly situate the purpose of the archival research in the context ofrecent securitised asylum policies which make access to regime protections in-creasingly difficult for refugees and then examine the archival material in threesections The first will chart the more ldquotraditionalrdquo story of the evolution of therefugee problem and the birth of the refugee regime that emerge from a focussolely on the international legal accords of the inter-war period The second willexamine a wider range of sources to problematise the traditional understandingof the refugee problem to reveal that the ldquoproblemrdquo that the States were con-cerned to solve was the problem of the refugee rather than problems for refugeesThe third and final section will examine a similar range of sources to reveal theunderlying current of concern with national security the national interest andthe desire to retain control over the entry and exit of non-citizens on the part ofthe States creating the regime framework as a solution to this refugee ldquoproblemrdquoThe end result is a reframing of our understanding of the nature of the problemto be solved which unsettles the role of humanitarianism in the refugee regimeand questions the role that the regime itself might play in perpetuating theproblems faced by refugees

8 C Skran Refugees in Inter-War Europe The Emergence of a Regime Oxford Oxford University Press 19959 N Soguk States and Strangers Refugees and Displacements of Statecraft Minneapolis University of Minnesota

Press 1999

Refugee Survey Quarterly 71


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2 Externalisation securitisation and ldquoburden-shiftingrdquo

Hyndman and Mountz define the externalisation of asylum of as a ldquobundle ofpolitical securitised practices that reconstitute asylum as part of state-centricinternational relations discourse not legal discourserdquo10 Such practices includeldquoregional protection zonesrdquo ndash located at the boundaries of conflict zones toaddress asylum claims arising from regional conflicts or natural disasters off-shore detention and processing centres ndash such as those located on ChristmasIsland and Nauru to keep asylum-seekers from landing on Australian soil and araft of policies which help manifest the extension of national borders beyond thephysical demarcation of state territory ndash including ldquoAdvanced PassengerInformationrdquo screening airline carrier sanctions visa restrictions to excludeasylum-seekers and other migrants and patrols of international waters todetect and interdict vessels which could be carrying asylum-seekers andmigrants11 Such policies designed to prevent the lodging of claims for refugeestatus by restricting access to sovereign territory to those who may seek asylumare considered demonstrative of a ldquoparadigm shiftrdquo in asylum policy ndash a shiftfrom a paradigm of humanitarian-driven refugee protection ensconced in inter-national law to one prioritising the protection of national security interests12

Regional protection zones safe third-party arrangements and resettlement agree-ments such as the Regional Resettlement Agreement recently announcedbetween the Governments of Australia and Papua New Guinea13 could beclassified as strategies of ldquoburden-shiftingrdquo characteristic of externalisation poli-cies Betts argues that in the post-Cold War context refugees are increasinglyseen as a burden rather than an ideological asset and that such policies of ldquoextra-territorial burden-shiftingrdquo as those highlighted above are considered by manyWestern States (the UK being the main focus of Bettsrsquo article) as ldquoamongst theonly politically lsquofeasiblersquo strategiesrdquo in the face of the ldquomassive increase in South-North asylum movementrdquo14

Such diagnoses of paradigm shifts refugees becoming a burden in the post-Cold War world and a post-911 rush to securitise migration all rely on apicture of a refugee regime created to address a particular refugee problem ndashto alleviate the plight of the displaced characterised primarily though by nomeans purely by humanitarian principle But is this really an accurate picture ofthe refugee problem and the refugee regime While many scholars of the refugeeproblem would agree that refugee regime has never been and perhaps can never

10 J Hyndman amp A Mountz ldquoAnother Brick in the Wall Neo-Refoulement and the Externalisation ofAsylum by Australia and Europerdquo Government and Opposition 43(2) 2008 251ndash252

11 P Hayden Political Evil in a Global Age Hannah Arendt and International Theory London Routledge 200986

12 Hyndman amp Mountz ldquoAnother Brick in the Wallrdquo 25313 UNHCR UNHCR Australia-Papua New Guinea Asylum Agreement Present Protection Challenges UNHCR

Briefing Notes 26 Jul 2013 available at httpwwwunhcrorg51f2426e6html (last visited 11 Jun 2014)14 A Betts ldquoThe International Relations of the lsquoNewrsquo Extraterritorial Approaches to Refugee Protection

Explaining the Policy Initiatives of the UK Government and UNHCRrdquo Refuge 22(1) 2004 65



ndrews on N

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ownloaded from

be purely humanitarian15 the majority of scholarship nevertheless has aparticular understanding of what the refugee problem is that the regime wasinstituted to solve a picture in line with broadly humanitarian concerns ofrelieving the plight of the displaced The rest of this article will examine primarysource material from the formative years of the international refugee regime1920 to 1951 in an attempt to show that this ldquotraditional storyrdquo of the refugeeproblem is misleading and that the contest revealed in the sources betweenprivate voluntary organizations focused on securing protection for the displacedand sovereign States interested in burden-shifting which comes to characterisethe refugee regime is symptomatic of a fundamental conflict over the nature ofthe refugee problem itself a conflict which I suggest plagues the refugee regimeto this day

3 The traditional story the evolution of refugee status1921ndash1951

The dissolution of the multi-ethnic empires of Russia Austria-Hungary and theOttomans following the end of the First World War involved massive move-ments of people Some ndash namely Russians ndash fled the new regimes in their homecountries others ndash Greeks Turks and Bulgarians ndash were forcibly transferredunder international supervision in the attempt to achieve an ethnically un-mixedEurope and others ndash the Armenians ndash were simply no longer welcome wherethey had lived as a result of their ethnic ldquoincompatibilityrdquo In some of these casesmovement was accompanied by formal denationalisation but whether accom-panied by formal denationalisation or not many of the new migrants foundthemselves stranded abroad with no recognized identification papers and noState willing to claim them The ldquotraditionalrdquo story of the development of aregime instituted out of profound concern for plight of these displaced multi-tudes the purpose of which was to ensure the protection of their rights in theface of persecution seems to be given weight by an examination of the interna-tional legal accords of the inter-war period

Throughout the 1920s and 1930s the League of Nations took a series of adhoc measures in response to each new flow of ldquorefugeesrdquo These internationallegal accords show a development of the definition of the refugee from group-based juridical conceptions through to the individualist persecution-centreddefinition that forms the bedrock of the Refugee Convention16 This evolutionof refugee status mirrors an evolution in international understanding of therefugee problem from the lack of juridical status manifested in the lack ofrecognized identity documents which meant that refugees were unable totravel abroad through to the problem of a fundamental incompatibility betweenan individual and hisher State manifested in persecution or a fear of persecution

15 Hyndman Managing Displacement 3 see also GS Goodwin-Gill ldquoThe Politics of Refugee ProtectionrdquoRefugee Survey Quarterly 27(1) 2008 8ndash23

16 For a detailed examination see Hathaway ldquoEvolution of Refugee Statusrdquo 348ndash380



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compelling the refugee to abandon hisher State and the protection it wouldnormally provide

The first group of displaced people to come to the attention of the Leagueof Nations was a group of roughly 800000 Russians mainly soldiers who hadfled the Russian civil war and had since been denationalised by the Bolshevikregime The International Committee of the Red Cross (ICRC) sent a memo-randum to the Council of the League calling upon it to establish a HighCommissionerrsquos office whose primary task would be to ldquodefine the legal positionof the Russian refugees wherever they may be [ ] because it is impossible thatin the twentieth century there could be 800000 men in Europe unprotected byany legal organisation recognised by international lawrdquo17 A Conference on thequestion of Russian refugees examined the problem of their lack of legal statusand highlighted the role played by the lack of valid identity documents in pro-longing their plight18 A High Commissionerrsquos office was duly established withFridtjof Nansen serving as the first High Commissioner but the formal defin-ition of a Russian refugee was not laid down until 1926 when the competenciesof the High Commissioner ndash including the provision of identity documents ndashwere extended to Armenian refugees The Arrangement of 12 May 1926Relating to the Issue of Identity certificates to Russian and Armenian Refugeesdefines a refugee as any person of Russian or Armenian origin and who no longerenjoys the protection of either the Turkish Republic or the Union of SovietSocialist Republics (USSR) and who has not acquired another nationality19 InJune 1928 a series of agreements were signed extending the group-based refugeedefinitions to Assyrians Assyro-Chaldeans and a small group of denationalisedTurks20 and also extending certain consular services to these refugees under theauspices of the High Commissioner21 because there was still seen to exist theldquonecessity to define more clearly the legal statusrdquo of refugees22

A subtle but fundamental shift occurs in refugee definitions in the 1930ssignalling that one could be a refugee even while formally retaining the nation-ality of the State from which one has fled as a result of broad-based social andpolitical conditions The Plan for the Issue of a Certificate of Identity to Refugeesfrom the Saar of 1935 defined a refugee as a person who having previously beena resident of the Saar had ldquoleft the territory on the occasion of the plebiscite and

17 The Question of Russian Refugees ndash Covering Letter and Memorandum by the Secretary General and Annexes 2LoN Official Journal MarndashApr 1921 228 (original emphasis)

18 Resolutions adopted by the Conference on the Question of the Russian Refugees 2 LoN Official Journal 24 Aug1921 900

19 89 LNTS 47 12 May 192620 Arrangement concerning the Extension to Other Categories of Refugees of certain measures taken in favour

of Russian and Armenian Refugees 89 LNTS 63 30 Jun 192821 Agreement concerning the function of the Representatives of the League of Nationsrsquo High Commissioner for

Refugees 92 LNTS 378 30 Jun 192822 Arrangement relating to the Legal Status of Russian and Armenian Refugees 89 LNTS 53 30 Jun 1928



ndrews on N

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are not in possession of national passportsrdquo23 As Hathaway highlights refugeeshad fled the Saar after the plebiscite of 1935 reunited the territory with Germanybecause they were either politically opposed to the Nazi regime or concerned thatreligious freedoms would be curtailed24 Moreover a steady stream of people hadbegun to leave Germany following Hitlerrsquos rise to power and the ProvisionalArrangement Concerning the Status of Refugees Coming from Germany of1936 and the Convention concerning the Status of Refugees Coming fromGermany of 1938 incorporated the idea of de facto loss of government protectioninto the definition of the refugee when they defined a refugee as any ldquoperson whowas settled in that country [ ] and in respect of whom it is established that inlaw or in fact he or she does not enjoy the protection of the Government of theReichrdquo25 During the 1930s the League no longer considered the refugee prob-lem to be purely one of legal status but one of ensuring the protection of certainrights for those recognized as refugees The Convention relating to theInternational Status of Refugees concluded in 1933 was the first internationaltreaty to list the rights and privileges to which refugees would be entitled26 withmany of these rights being now also found in the 1951 Refugee Convention

The final stage in the development of the refugee definition began with theConstitution of the International Refugee Organization (IRO) in 1946 whenthe core of refugee status became the fundamental incompatibility between anindividual and hisher country of origin The definitions in the Constitution ofthe IRO leave behind the criterion of belonging to a specific national or ethnicgroup ndash except in the case of persons of German ethnic origin who were auto-matically denied the protection of the IRO ndash and cement the idea that a refugeeis a victim of persecution in need of international protection because heshefinds himherself outside of hisher country of origin or habitual residence as adirect result of such persecution27 These are the same principles we see in the1951 Refugee Convention still the most widely accepted definition of a refugeeand the bedrock of the international refugee regime The Preamble to theRefugee Convention encapsulates the humanitarian intent of the refugeeregime when it states that

[ ] the United Nations has on various occasions manifested its profoundconcern for refugees and endeavoured to assure refugees the widest possibleexercise of these fundamental rights and freedoms [contained in theUniversal Declaration of Human Rights] [and] [ ] that it is desirableto revise and consolidate previous international agreements relating to the

23 Plan for the Issue of a Certificate of Identity to Refugees from the Saar LoN Official Journal 633 No 5393 24May 1935

24 Hathaway ldquoEvolution of Refugee Statusrdquo 36225 Convention concerning the Status of Refugees Coming from Germany 192 LNTS 4461 10 Feb 1938 Art

1 77 [emphasis added]26 159 LNTS 1663 28 Oct 1933 (entry into force 12 Jun 1935)27 18 UNTS 283 15 Dec 1946 (entry into force 20 Aug 1948)



ndrews on N

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status of refugees and to extend the scope of and protection accorded bysuch instruments by means of a new agreement [ ]28

It would appear then that the international legal accords of the inter-war periodpaint a very clear picture of who the refugee is and of the purpose of the inter-national refugee regime The definition of the refugee evolved from group-basedde jure status when one could only be classified as a refugee if one belonged to acertain national group to the recognition that a refugee could be anyone whofinds himherself abroad who was a victim of persecution or who feared perse-cution and required the protection of hisher fundamental rights by the inter-national community regardless of whether or not heshe had formally lost hishernationality Similarly the purpose of international action for refugees developedfrom solely providing identity documents as a reflection of de jure status ofldquorefugeerdquo to the provision of consular services and finally to the protectionof the rights of those fleeing actual or feared persecution It is understandable thatpolicies restricting access to asylum and characterising refugees and asylum-seekers as security threats rather than victims of persecution and bearers offundamental human rights that States have a responsibility to protect wouldappear to be betrayals of a regime founded on ldquoprofound concernrdquo for the plightof the displaced and that such policies are also in violation of a Conventionlisting the very rights of refugees to be respected and protected and prohibitingtheir return to a country where they would face persecution However theseinternational legal accords do not tell the whole story If we widen our focus andexamine other sources from the period in question these agreements and con-ventions and the specific provisions they contain appear in a very different light

4 What lies beneath the development of the ldquorefugeerdquo and theldquorefugee problemrdquo between 1921 and 1951

The resolutions reports letters and meeting minutes contained in the OfficialJournals of the League of Nations as well as the minutes of the meetings of theUnited Nations Conference of Plenipotentiaries called to draft the RefugeeConvention and the various amendments offered to the draft Convention area rich resource which paints a more nuanced picture of the refugee problem andthe birth of the refugee regime They reveal a concern for national securitythe national interest and border control in addressing the problem of massdisplacement in Europe which overrides the humanitarian concerns expressedby organizations such as the ICRC and even the Statesrsquo own professions ofhumanitarianism These documents reveal that it was the refugee himherselfndash hisher very existence ndash that was the problem in need of a solution rather thanthe problems of status and documentation that heshe himherself faced Thiswas evidenced by state responses characterised by burden-limiting and revealing

28 Geneva Convention Relating to the Status of Refugees 189 UNTS 150 28 Jul 1951 (entry into force 22Apr 1954) Preamble paras 2ndash3



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that those obligations that the States were willing to take on ndash while humani-tarian to the extent that mechanisms to provide refugees with resettlementopportunities and access to many of the rights and benefits accorded to citizenswere put in place ndash were also those seen to be most economically beneficial to theStates themselves

41 The refugee as the problemFrom the very earliest days of League concern with the displaced the refugee wasregarded as a problem figure One of the earliest formal discussions in the Leagueof Nations regarding refugees was in response to a letter sent to the SecretaryGeneral by the President of the ICRC Gustave Ador on 20 February 1921 Inthe letter the ICRC requested the assistance of the League in relief efforts it wasundertaking on behalf of the almost one million Russians who had fled from theRussian civil war and congregated in the countries bordering the former RussianEmpire The memorandum warned that if no effort were made by the interna-tional community to come to their aid then the refugees were ldquoin danger ofbecoming useless and harmful elements in the Europe of tomorrowrdquo29 TheGovernments invited by the Secretary General to provide information on thenumbers and conditions of refugees in their territories for a conference onthe Russian refugee question shared this view of refugees as a pool of potentialsocial unrest or ldquouselessnessrdquo The discussions at the conference are rich inrefugee problematisations among the strongest from the Finnish representative

[O]ne of the disadvantages due to the presence of the refugees is thedemoralising influence exercised on the neighbouring Finnish populationby these multitudes composed for the greater part of persons unaccus-tomed to discipline and order and used to idleness30

The Finnish Government along with many others had felt it necessary to holdthe refugees in ldquoconcentration campsrdquo for ldquomilitary and political reasonsrdquo andplaced restrictions on their freedom of movement31 The refugees were fre-quently described as a ldquoburdenrdquo on their countries of refuge and the discussionsin the League quickly turned to the concept of ldquoburden sharingrdquo Later that yearthe League appointed Fridtjof Nansen as the first High Commissioner for(Russian) Refugees and his reports to the League contained similar conceptionsof refugees He was often critical of some States who in his opinion had notldquoshouldered any share of the burdenrdquo of the refugees32

This manner of referring to refugees was not confined to the initial discus-sions in the months before the first formal League actions on their behalf ndash the

29 The Question of the Russian Refugees 2 LoN Official Journal 1921 22830 Information provided by Members of the Conference of Enquiry held at Geneva August 22nd-24th 1921 and

Memoranda submitted to that Conference 2 LoN Official Journal Nov 1921 101031 Ibid 100932 Russian Refugees Report by Dr Fridtjof Nansen High Commissioner of the League of Nations to the Fifth

Committee of the Assembly 15th September 1922 3 LoN Official Journal Nov 1922 1137



ndrews on N

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introduction of internationally recognized identification papers the so-calledNansen Certificates ndash but continued throughout the period in questionNansen continued to speak of the ldquodanger of social and political unrestrdquo engen-dered by the presence of large numbers of refugees throughout Europe and theinterested Governments were at times reluctant to make potentially meaningfulreforms to League efforts as a result of these fears One notable example comesagain from a Finnish representative in a discussion regarding the liberalising ofthe bureaucracy involved in granting and extending entry and transit visas forrefugees ldquowith regard to the granting of visas the Finnish Government finds itdifficult to concede much greater facilities than those already granted since therefugees in question often turn out to be politically and socially undesirablepersonsrdquo33 Racial and ethnic desirability were important factors in the discus-sions of refugees Count Tosti di Valminuta an Italian representative to theLeague warned that

History will one day recount the effects of the influx of this new blood uponthe advancement of the races and their vitality The time-honoured balanceof our social classes is disturbed and the ancient order changed by millionsof Russians Greeks and Turks and the hundreds of thousands ofArmenians and Macedonians who are sowing throughout the basin ofthe Danube and the Balkans the dangerous seeds of strife and unrest34

This concern with racial and ethnic homogeneity is evident even in the formallegal accords of the period though perhaps stated in less stark terms than by theItalian Count The 1938 conference in Evians-les-Bains called by US PresidentRoosevelt and resulting in the establishment of the IntergovernmentalCommittee on Refugees (IGCR) worked from an awareness that ldquothe involun-tary emigration of large numbers of people of different creeds [ ] is disturbingto the general economy [ ] [and] that the involuntary emigration of people inlarge numbers has become so great that it renders racial and religious problemsmore acute [ ]rdquo35

As with the way in which the League spoke of refugees themselves themanner in which the League characterised the refugee problem is illuminatingFrom the very beginning the Leaguersquos concern was expressed in economic termsFrench statesman Gabriel Hanotaux submitted in 1921 one of the first reportson the Russian refugee question oriented by the consideration required by theLeague Council of the Member States on the establishment of HighCommissioner stating that

The Russian refugee question is not merely a political social and humani-tarian question it is mainly a financial problem [ ] The fugitives

33 Work of the Governing Body of the Nansen International Office for Refugees during its First and Second SessionMay 1931 12 LoN Official Journal Jun 1931 1009

34 Soguk States and Strangers 11335 International Assistance to Refugees Action Taken on the Initiative of the President of the United States of

America 19 July 1938 19 LoN Official Journal 8ndash9 1938 676ndash677



ndrews on N

ovember 19 2014


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unemployed through no fault of their own constitute a very heavy chargeupon several governments either because they have taken refuge on theirterritory or because they are still in receipt of assistance in the form of foodsubsidies36

Concerted action on the part of the League was necessary ldquoin order to relieve thecountries concerned of their responsibilities in regard to these refugeesrdquo37 Manyof the memoranda submitted by the States to the conference highlight the eco-nomic burden placed on them by hosting large numbers of unemployed refu-gees The French Government spoke of the ldquovery heavy burden of their foodsupply their support and their housingrdquo38 while the British Governmentincluded an extensive summary of money spent in various territories in caringfor the refugees making a point to note that ldquothe Russian refugees at presentbeing maintained by His Majestyrsquos government originally became a charge on thepublic funds at the beginning of 1920rdquo39 The Finnish memorandum drewattention to the potential social problems brought by situations of unemploy-ment in their territories on account of the presence of refugees ldquothe Ministry forHome Affairs has organized either State or private employment for them Thismeasure has however the disadvantage of increasing the number of out-of-workFinns and has created discontent among themrdquo40

Eight years later as Europe and North America plunged into depressionafter the Stock Market Crash of 1929 Governments adopted ever more protec-tionist attitudes towards labour markets making even the possibility of overseasemigration for refugees difficult Focus was thus placed on addressing the prob-lems in Europe rather than trying to find resettlement opportunities for refugeesabroad The first convention to list the rights and privileges of refugees in theircountries of refuge was concluded in 1933 and a similar convention for refugeescoming from Germany was concluded in 1938 Despite the enumeration ofspecific rights and privileges for refugees the way in which these measureswere discussed demonstrate clearly not only an economic side of the problemthat needs to be addressed but that the problem is the refugee himherself Thefollowing are just a handful of examples

[ ] considering that their presence in those countries constitutes an eco-nomic financial and social problem which can only be solved by interna-tional collaboration [ ]41

36 The Question of Russian Refugees Report by M Hanotaux 27 June 1921 2 LoN Official Journal 1921 75737 Ibid38 Information provided by Members 2 LoN Official Journal Nov 1921 101039 Ibid 1012 [emphasis added]40 Ibid 100941 Organisation on an International Basis of Assistance to Refugees (Jewish and Other) coming from Germany ndash

Resolution adopted by the Assembly 11th October 1933 14 LoN Official Journal 12 1933 1617 [emphasisadded]



ndrews on N

ovember 19 2014


ownloaded from

Appreciating the difficulty experienced by Governments in continuing to sup-port the direct and indirect charges imposed on them by the presence of largenumbers of unemployed refugees in their territories [ ]42

[ ] involuntary emigration [ ] is disturbing to the general economy sincethese persons are obliged to seek refuge [ ] in other countries at a timewhen there is serious unemployment that in consequence countries ofrefuge and settlement are faced with problems not only of an economicand social nature but also of public order [ ]43

For a five-year period during the 1920s the relief functions and the search fordurable solutions in the form of employment programmes for refugees wereseparated between the International Labour Office (ILO) and the HighCommissioner but in the immediate aftermath of the Second World War theywere combined in the IRO It was the opinion of the States that drew up the IROConstitution that refugees needed to be ldquoput to useful employment in order toavoid the evil and anti-social consequences of continued idlenessrdquo44 Perhaps themost telling expression of the economic burden that States considered the refugeesto be is found in the first annual report of the IRO to the United Nations It gavean overview of repatriation and resettlement efforts undertaken and detailed thedifficulties faced by the IRO in regard to the following groups of people un-employed individuals and families without a wage earner individuals in familieswho have been rejected by country selection missions because of social or healthproblems unaccompanied children and families with a seriously ill member45

Each of these groups of refugees would be considered ldquocharges on the publicfundsrdquo with no State willing to accept them and who thus came to make upthe ldquohard corerdquo of the remaining refugees who could not be repatriated or resettledand whom the UNHCR was created to assist46

Finally the technocratic language often used to describe what needed to bedone about the presence of refugees in Europe portrays the refugee as a problemto be solved Words and phrases that one does not expect to encounter whendiscussing human beings such as ldquoliquidationrdquo ldquoequitable distributionrdquo ldquoallo-cationrdquo and ldquodisposalrdquo were employed throughout the earliest years of theLeaguersquos involvement with the refugee question They were not only employedby Government representatives but also by High Commissioner Nansen and hisdeputies in their reports and recommendations One noteworthy and

42 Annexe 1541 ndash Work of the Inter-Governmental Advisory Commission for Refugees during its Seventh Session 20May 1935 16 LoN Official Journal Jun 1935 657 [emphasis added]

43 Action Taken on the Initiative of the President of the United States of America 19 LoN Official Journal 8ndash91938 676ndash677 [emphasis added]

44 United Nations Economic and Social Council (ECOSOC) Refugees and Displaced Persons UN Doc ERES18 (III) 3 Oct 1946

45 ECOSOC First Annual Report of the International Refugee Organisation to the United Nations UN Doc E1334 31 Mar 1949 23

46 M Marrus The Unwanted European Refugees in the Twentieth Century Oxford Oxford University Press1985 345



ndrews on N

ovember 19 2014


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particularly disturbing example of this is in reference to a group of 1000Russian refugees who also happened to be invalids describing them as ldquothemost difficult category of refugees to dispose ofrdquo47 This kind of instrumentallanguage when combined with representations of refugees as ldquounfortunate peo-plerdquo who are a ldquoburdenrdquo to those countries in which they seek refuge who pose aldquodanger of social and political unrestrdquo and a threat to ethnic harmony constructsthe refugee as far more (or less depending on onersquos perspective) than an indi-vidual lacking legal status and finding himherself outside of hisher country oforigin

5 Developing solutions the state-centric nature of ldquoprofoundconcernrdquo

In addition to the refugee being the problem figure for which a solution must befound the sources also reveal three principles underlying the development ofsolutions to the refugee problem ndash burden-limiting economic self-interest andnational security ndash which repeatedly took precedence over humanitarian con-cerns as expressed by private voluntary organizations

51 Burden-limitingThe over-riding concern when it came to developing solutions to the refugeeproblem and the specific measures to implement them was not humanitarianismas is often supposed but rather to limit the burden placed by refugees on sov-ereign States We can see this principle of burden-limiting most clearly in theabdication of financial responsibility evidenced in the funding (or lack thereof )of the various High Commissioners created by the League and the UnitedNations

Studies of the UNHCR often highlight the fact that the funds granted bythe budget of the United Nations are for purely administrative purposes andcannot be used for the direct assistance or relief of refugees This practice beganunder the League with the very first High Commissioner for Russian refugees Increating the High Commissariat it was stipulated that the High Commissionercould not make himself in any way directly responsible for the relief of refugeesbut would instead coordinate relief efforts undertaken by various voluntary or-ganizations48 In March 1922 Nansen delivered a report to the Council of theLeague in which he made multiple references to a lack of adequate funds andhow this had hindered his ability to ldquosolve the problemrdquo as quickly as he couldhave ldquohad even a small part of these sums been placed at his disposalrdquo49 This

47 Russian Refugees ndash Report by Dr Nansen submitted to the Council on July 20th 1922 3 LoN Official JournalAug 1922 924

48 Annexe 321 ndash General Report on the Work accomplished up to March 15th 1922 by Dr Fridtjof Nansen HighCommissioner of the League 24 March 1922 3 LoN Official Journal May 1922 385

49 Ibid 385ndash386 See also Annex 384 ndash Russian Refugees ndash Report by Dr Nansen submitted to the Council 20 July1922 3 LoN Official Journal Aug 1922 923ndash928 for similar complaints



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ovember 19 2014


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was a recurring refrain throughout the League of Nations years and privatevoluntary organizations frequently stepped in to close vital funding gaps Inthis same report Nansen spoke of the ldquoinvaluablerdquo services the private organ-izations making up the Advisory Committee of Private Organizations attached tothe High Commissionerrsquos office had rendered most notably in the case of raisingthe necessary funds to continue to feed 25000 starving Russian refugeesstranded in Constantinople after the French Government announced that itwould no longer take on the responsibility for their maintenance50 In anotherreport that same year Nansen highlighted the role played by the Russian RedCross in striking an arrangement with the Bulgarian Government for the evacu-ation of 1000 invalids and their families to Bulgaria Under the arrangementthe Bulgarian Government would be relieved of the financial responsibility ofcaring for the refugees and this burden would be taken on by the Red Cross ndashwhich would in fact not only pay for the upkeep of the refugees but also pay theBulgarian Government for allowing them access to its territory in the firstplace51

In 1929 in its report on the re-organization of the work of the League theAdvisory Commission to the High Commissioner for Refugees recommended aprolongation of the High Commissariat but stipulated once again that theLeague would be responsible only for funding the administrative expenses ofthe office They further stated that the cost of relief for refugees unable to workshould come from the sale (to refugees) of the ldquoNansen stampsrdquo which validatedtheir identity certificates and any private donations which may be made bycharitable organizations52 This recommendation was formalised in the Statuteof the Nansen International Office (1931ndash1938) Using money obtainedthrough the compulsory sale of Nansen stamps to refugees for relief purposes ndashthereby relieving the States from any formal responsibility for financing the workundertaken internationally ndash was first suggested formally in 1926 when themoney was put into a revolving fund to provide for the cost of transportationand settlement of refugees53 ndash another expense for which States refused to beliable We encounter the same abdication of formal financial responsibility byStates with each incarnation of the High Commissionerrsquos office in 1931 19331938 and finally 1950

Even the comparatively well-financed IRO had state-imposed restrictionsplaced on its resources The IRO was mandated to among other things facilitate

50 Annexe 321 3 LoN Official Journal May 1922 387ndash388 This is also an interesting early example of theldquomission creeprdquo which would characterise UNHCRrsquos early activities in Europe ndash in particular its response tothe Hungarian crisis in 1956 ndash and its expansion of operations into Africa Nansen states in the report thatarranging for the sustaining of the refugees trapped in Constantinople was technically beyond his remit ndash tosecure employment opportunities for refugees

51 Annexe 401 ndash Russian Refugees ndash Report by Dr Nansen submitted to the Council on Sept 1st 1922 3 LoNOfficial Journal Nov 1922 1226

52 Report of the Advisory Commission to the High Commissioner for Refugees submitted to the Council on June 12th1929 10 LoN Official Journal Jul 1929 1079

53 89 LNTS 49 1929



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ovember 19 2014


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resettlement and repatriation and this could include large-scale resettlementprojects Its Constitution however stated that ldquothe members undertake to con-tribute to the large-scale resettlement expenditures on a voluntary basis andsubject to the requirements of their constitutional procedurerdquo54 This stipulationwas added by the Member States to the draft constitution prepared by commit-tee which had originally stipulated that all expenditure ndash including resettlementprojects ndash would be financed by mandated contributions from MemberGovernments55

The general attitude governing the financing of the search for and imple-mentation of solutions particularly by the High Commissionerrsquos office can bestbe summarised in the following statement from the Minutes of a Council meet-ing in October 1927

Every member of the Council was filled with the most humanitarian feel-ings and if it were in the Councilrsquos power to help all those who stood inneed he would be the first to propose that such assistance be given After adecision had been taken however the states were called upon to pay thebill When that moment came the general attitude became somewhat morestringent56

This overriding concern on the part of Governments to relieve themselves of thefinancial burden of caring for destitute refugees is evident in the practical func-tions of the High Commissionerrsquos office Nansen saw his primary object as HighCommissioner as ldquothe dispersal of the refugees [ ] to places where they couldobtain employmentrdquo57 and recognized that the ldquonumber for whom intergov-ernmental action is necessary with a view to securing them employment is stillvery largerdquo58 It had quickly become evident to Nansen that the most significantobstacle in the way of achieving this dispersal was the fact that the refugees hadno valid identity documents which would allow them to travel in search ofemployment

A great many Russian refugees in Europe have suffered considerably for thesole reason that they have been unprovided with any legal paper of identitywithout which they were unable to travel from the countries in which theyfound themselves to other countries [ ] where they might have hadgreater opportunities of obtaining productive employment59

54 Art 2(2)(i) IRO Constitution55 ECOSOC UN Doc ERES18 (III) 3 Oct 1946 Art 10(4)56 Extension to other Categories of Refugees of the Measures Taken to Assist Russian and Armenian Refugees 8 LoN

Official Journal Oct 1927 113857 Annexe 321 3 LoN Official Journal May 1922 38658 Ibid 39359 Annexe 321a ndash Special Report by the High Commissioner of the League Requesting the Assistance of the

Governments of Members of the League in the Accomplishment of his Work 24 March 1922 3 LoN OfficialJournal May 1922 396



ndrews on N

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In his request to the Members of the League to help him develop a solution tothis problem he was keen to frame the problem in state-centric terms high-lighting the ldquoimportance [ ] of securing the movement of refugees to countrieswhere they will not be a charge on the public funds [ ]rdquo60 It would appearthen that the decision to develop an identity document for Russian refugees wasnot taken for ldquopurely humanitarianrdquo reasons and out of a profound concernwith the refugeersquos lack of legal status in and of itself It seems rather that theconcern on the part of the League to remedy this lack of legal status was basedprimarily on their desire to relieve themselves of an economic burden that thepresence of refugees placed on their public funds Being without valid identitydocuments was indeed difficult for the refugees but state concern with this issuewas due to the fact that without identification papers the refugees had no free-dom of movement which of course meant that they had to stay where they wereand without work (either because there was none available or becauseGovernments felt obliged to reserve work for their own citizens) they becamecharges on the public funds It was this problem that the Members of the Leaguewere keen to address

Further evidence in support of this interpretation can be found in theprocess of reforming the identity certificates to allow for the placing of returnvisas Prior to 1924 the Nansen certificates contained no authorisation for therefugee to return to the issuing country In his report to the League in June 1924Nansen suggested that in addition to extending the Nansen certificate system toArmenian refugees Governments were also to grant return authorisation to therefugees who were issued these documents He did so however because

[I]t has been found that if the refugee certificate authorises return to theissuing country the economic position of the holder is improved by thefacilities which he thus obtains for visiting temporarily other countrieswhich may offer him opportunities for employment or business and hisdefinitive emigration to another country is in fact encouraged61

The Arrangement of 12 May 1926 which affirmed the principle of affixingreturn visas to the Nansen certificates would not only confer benefits uponrefugees but ldquoalso on the countries for whom the unemployed refugees representa heavy expense and on the immigration countries anxious to increase theirproductive populationsrdquo62

60 Ibid 39861 Annexe 637 ndash Armenian Refugees Report by Dr Nansen High Commissioner for Refugees submitted to the

Council on June 12th 1924 5 LoN Official Journal Jul 1924 96862 Annexe 884 ndash Conference on Russian and Armenian Refugee Questions Report by Dr Nansen High

Commissioner of the League of Nations for Refugees submitted to the Council on June 10th 1926 7 LoNOfficial Journal Jul 1926 984



ndrews on N

ovember 19 2014


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52 Economic self-interestThe concept of self-interest is intimately linked with the burden-limiting prin-ciple discussed above but there is a sense in which economic considerationsdictated not only the limiting of state responsibility but also their offers ofsanctuary As detailed above the League of Nations addressed the refugee prob-lem from an economic perspective from its earliest days This led I would argueto a system whereby refugees were ldquoselectedrdquo for resettlement to fill the labourneeds of States One early example of this is in the years immediately followingthe First World War the French policy of relying on Russian refugees to replace aproportion of the labour force it lost to the fighting and then promptly reversingthis policy and embracing a degree of protectionism in the latter half of the1920s63 Indeed the economic depression caused by the Stock Market Crash of1929 saw increased protectionism on the part of States in regard to access toemployment opportunities for non-nationals but also in regard to their bordersGaining lawful entry became increasingly difficult for refugees throughout the1930s and this is nowhere more evident than as Long highlights in policiestowards Jewish refugees from Germany who had been stripped of all their prop-erty by the Nazi regime Visa restrictions were redoubled to prevent arrivals atthe border64 and Jews were often turned away once they did arrive

The policies pursued by the IRO during its three years of operations afterthe end of the Second World War are further examples of this logic of economicself-interest The IRO was empowered to enter into bilateral resettlement agree-ments with Governments by which the IRO would determine the eligibility ofthose applying for its help for refugee status and Governments could then sendldquoselection missionsrdquo to the refugee camps administered by the IRO in order toselect refugees with the required skills to fill labour shortages Once the refugeeshad been through the selection process the IRO would arrange for theirtransport to the country in question where the refugee would be required towork in the pre-determined industry for a pre-determined period of time65 Thefollowing excerpt is from the Agreement [of 21 July 1947] between theGovernment of the Commonwealth of Australia and the PreparatoryCommission of the International Refugee Organization (PCIRO)

The Commonwealth will submit [ ] to the PCIRO [ ] particulars of thenumbers and qualifications of desired immigrants [ ] The

63 Skran Refugees in Inter-War Europe 2464 K Long ldquoWhen Refugees Stopped Being Migrants Movement Labour and Humanitarian Protectionrdquo

Migration Studies 1(1) 2013 11ndash12 Asylum policy was also weak in the 1930s due to international politicalcalculation on the part of Members of the League who did not want to offend or alienate Germany and thislay behind League reluctance to extend the protections afforded Russian and Armenian refugees to thosefleeing Germany See in particular F Caestecker amp B Moore (eds) Refugees from Nazi Germany and theLiberal European States New York Berghahn Books 2010

65 ECOSOC First Annual Report UN Doc E1334 9



ndrews on N

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Commonwealth estimates that during the balance of 1947 the number ofworkers and dependants desired will approximate a total of 4000 personsThe Commonwealth shall have the full right of selection by officers of theDepartment for Immigration [ ] The PCIRO will be responsible forinstituting such preliminary selection as may be required by theCommonwealth [ ]66

The IRO resettled over one million refugees under such arrangements in just fiveyears67 but it drew sharp often politically motivated criticism from theCommunist countries They had refused as a bloc to be Parties to the IROand accused the Western States of using it as an employment agency and furtherthat by so doing they had politicised what was an inherently humanitarianissue There is no doubt some degree of political posturing involved in theseaccusations which take up a significant proportion of the contributions of theCommunist countries to the discussions of how best to replace the IRO when itsmandate expired68 but there also appears to be some degree of truth in thischaracterisation of the work of the IRO This is especially so when we considerthat the UNHCR was founded to address the problem posed by the continueddisplacement of the so-called ldquohard corerdquo refugees who could not be repatriatedbecause they were too old too young invalids or in some other way incapable ofskilled or unskilled labour They were of no value to country selection commis-sions and were thus left behind still languishing in refugee camps in a Europestruggling to recover from the ravages of war

53 National security and the grant of asylumldquoNational securityrdquo appears from even a cursory examination of the sources asthe supreme burden-limiter built in to all the international agreements andconventions of the period in question The very first international agreementregarding the Leaguersquos action for refugees the Arrangement of 5 July 1922 wasby comparison with later accords severely limited in its actions ndash providingsimply for the issue of a certificate of identity to Russian refugees However itwas still subject to reservations on the grounds of national security The Spanishsignature contained the following reservation ldquogranting of the certificate andvisa in no way infringes on the right of the Government where national interestrequires to expel the refugee and that the Government from whence therefugee came is obliged to readmit him to their territoryrdquo69 Throughout theLeaguersquos period we see qualifications attached to the issuance of the identity

66 L Holborn The International Refugee Organisation A Specialised Agency of the United Nations ndash Its Historyand Work 1946-1952 London Oxford University Press 1956 676

67 Ibid 36568 See for example United Nations General Assembly (UNGA) Summary Record of the Two Hundred and

Twenty-Eighth [and Two Hundred and Twenty-Ninth] Meeting UN Doc AC3SR228 and AC3SR22912 May 1949

69 Arrangement with respect to the Issue of Certificates of Identity to Russian Refugees 12 LNTS 240 5 Jul1922 (authorrsquos translation from the French original)



ndrews on N

ovember 19 2014


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certificate ndash lobbied for so persistently by voluntary organizations70 ndash intendedto enable the refugees to travel in search of work that such issue shall in no wayinfringe the right of the State ldquoto supervise and control foreignersrdquo71 The exactphrasing of these qualifications implies that this supervision and control ex-tended not simply to the entry of other nationals but also to their movementwithin the State once admitted

In spite of the efforts made by the High Commissioner and private volun-tary organizations to develop a travel document allowing refugees to enter otherStates legally these international charitable organizations and the HighCommissioner had noted on several occasions throughout the late 1920s andearly 1930s that States were making increased use of their powers of expulsion offoreigners particularly with regard to refugees72 A report of the Inter-Governmental Advisory Commission for Refugees in 1933 noted that despiteits repeated recommendations state practice of expelling refugees continued andwhile recognizing that States had the right to regulate entry and expulsion theCommission recommended the use of ldquointernal measuresrdquo of a security nature todeal with refugees who had unlawfully entered a Statersquos territory73 TheCommission further noted that States had been attempting to circumventtheir obligations under previous arrangements to allow for the return (subjectto the appropriate visa) of a refugee to the country which issued the certificateand where the refugee was thus deemed lawfully to reside In many cases Stateshad been submitting such applications for return on the part of refugees tolengthy administrative and bureaucratic procedures ldquodepriving the [re-entry]clause of all valuerdquo74 Jacques L Rubinstein a prominent legal figure andRussian refugee noted that the Assembly of the League still had to issue repeatedresolutions ndash in 1933 1934 and 1935 ndash condemning the practice of expellingrefugees indicating that state practice was not becoming more liberal in this areabut in actual fact more and more restrictive75

Even the 1951 Convention generally considered to be the most compre-hensive expression of humanitarian sentiment and protection of refugee rights isqualified by Statesrsquo concern for national security The Ad Hoc Committee onStatelessness and Related Problems established by the United Nations GeneralAssembly to prepare a draft Convention discussed the issue of expulsion and

70 See I Glynn Asylum-Seeking in Europe in the 1930s and 2010s Compared paper presented Centreon Migration Policy and Society University of Oxford Annual Conference 2009 available at httpwwwcompasoxacukfileadminfilesEventsAnnual_conferencesconference_2009A_Glynn_Asylum-seeking20in20the201930s20and202010s20comparedpdf (last visited 11 Jun 2014)

71 For example in the Plan for the Extension of a Certificate of Identity to Refugees from the Saar 16 LoN OfficialJournal 1935 1681

72 Annex 1440 ndash Work of the Intergovernmental Advisory Commission for Refugees during its Fifth Session andCommunication from the Nansen International Office for Refugees (22 May 1933) 14 LoN Official JournalJul 1938 855

73 Ibid74 Ibid75 J Rubinstein ldquoThe Refugee Problemrdquo International Affairs 15(5) 1936 724



ndrews on N

ovember 19 2014


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came to the conclusion that the ldquosovereign right of a State to remove or keepfrom its territory foreigners regarded as undesirable cannot be challengedrdquo butthat expulsion should be dictated by reasons of national security or publicorder76 The discussion of a national security qualification to the prohibitionof expulsion of refugees continued throughout the 1951 Conference ofPlenipotentiaries by way of amendments submitted by the UK77 andSweden78 A new paragraph was inserted into Article 33 stating that ldquothe benefitof the present provision may not however be claimed by a refugee who there arereasonable grounds for regarding as a danger to the security of the country inwhich he is [ ]rdquo79 Article 32 of the Convention on expulsion (the practicerather than the prohibition) contains a similar national security qualifier butgoes so far as to insert it into the subsection allowing the refugee to appeal anexpulsion order The Italian representative had submitted an amendment callingfor the removal of any right to appeal by the refugee80 and by way of a com-promise with the Belgian81 and French82 amendments the right to appeal wasretained but the ability of the refugee to submit evidence to clear hisher namewould be subject to the exigencies of national security The individual State inquestion would of course be the party to decide whether or not a refugeerepresents such a threat to national security and can therefore be expelled ndashthereby relieving themselves of the responsibility of guaranteeing to the refugeeall the other rights enumerated in the Convention

Article 1 of the Refugee Convention contains a formal recognition of theinherent role of political and social forces in refugee status and yet theConvention contains little by way of guaranteeing the right to a political exist-ence for the refugee once heshe reaches safety The rights listed in theConvention are broadly speaking economic and social rights rather thancivil and political rights and Article 15 on the ldquoRight of Associationrdquo goes sofar as to deny to refugees rights of political association in its express protection ofonly the right to ldquonon-politicalrdquo association The words ldquonon-politicalrdquo were notin the draft Convention when it came before the Conference During the

76 United Nations Ad Hoc Committee on Statelessness and Related Problems Status of Refugees and StatelessPersons ndash Memorandum by the Secretary General UN Doc EAC322 3 Jan 1950 22

77 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons DraftConvention Relating to the Status of Refugees United Kingdom Amendment to Article 28 UN Doc ACONF269 11 Jul 1951

78 United Nations Conference of Plenipotentiaries Sweden Amendment to Article 28 UN Doc ACONF27011 Jul 1951

79 Art 33(2) of the 1951 Refugee Convention80 United Nations Conference of Plenipotentiaries Italy Amendment to Article 27 UN Doc ACONF257 9

Jul 195181 United Nations Conference of Plenipotentiaries Belgium Amendment to Article 27 UN Doc ACONF2

68 10 Jul 195182 United Nations Conference of plenipotentiaries France Amendment to Article 27 UN Doc ACONF63

10 Jul 1951



ndrews on N

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discussions in the Ad Hoc Committee the French representative had wanted toamend the wording of a potential article on rights of association permittingContracting States to restrict the political activity of refugees83 TheCommittee felt it unnecessary to include such a paragraph because ldquoevery sov-ereign government retains the right to regulate any activities on the part of analien which it considers objectionablerdquo84 Despite this assurance the issue wasagain broached during the Conference this time by the Swiss representativewith the support of the Egyptians The Swiss delegate explained that one of theconditions of granting asylum as his Government understood it was that theperson granted asylum should not engage in any political activity Therefore theConvention should contain such an express stipulation which would serve theadditional purpose of providing Contracting States with a measure of ldquosecurityrdquowhen it came to granting asylum85 The Swiss amendment recommended theinclusion of the words ldquoas regards non-political and non-profit-making associ-ationsrdquo that we see in the final Convention There was little discussion aboutwhat exactly was meant by the ldquopolitical activityrdquo that refugees might be engagedin but it would seem odd that the recognition of the role played by politicalforces in refugee flight would not entail any guarantee of political rights orpolitical ndash however broadly or tightly defined ndash existence for a refugee onceshe reaches safety if the Convention was primarily designed to solve the prob-lems that refugees themselves face However this prohibition on political activityon the part of refugees makes perfect sense if the problem to be addressed is infact the problems that the existence and presence of refugees pose to the States inwhich refugees reside The imbalance in the Convention of the rights granted torefugees can be interpreted as an example of the conflict between humanitarianactors lobbying for rights and protections for refugees and States interested pri-marily in shifting the burden of the refugees

The ultimate expression of this conflict inherent in the development of therefugee regime can be found I suggest in the discussions on naturalisation andasylum The primary documents used by the Ad Hoc Committee which draftedthe 1951 Convention were two memoranda written by the Secretary GeneralThe first of these highlights regarding naturalisation the fact that

[D]ecisions of the State granting naturalisation is absolute It cannot becompelled to grant its nationality even after a long waiting period to arefugee settled in its territory since naturalisation confers on the naturalisedcitizen a series of privileges including political rights86

83 United Nations Ad Hoc Committee on Statelessness and Related Problems Report of the Ad Hoc Committeeon Statelessness and Related Problems UN Doc EAC325 17 Feb 1950 41

84 Ibid85 United Nations Conference of Plenipotentiaries Summary Record of the Eighth Meeting UN Doc A

CONF2SR8 5 Jul 1951 986 Memorandum by the Secretary General UN Doc EAC322 24



ndrews on N

ovember 19 2014


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The Secretary General was not proposing any new ideas in the realm of natur-alisation and political rights but the concern that States so frequently expressedthroughout the process of drawing up a new Convention regarding naturalisa-tion and the right of asylum indicates that this issue was an important one toclarify The wake of a devastating war which had seen not only millions ofsoldiers die and civilians caught in the crossfire and bombing raids but alsowilful murder on an industrialised scale aided by the denationalisation of mil-lions by the Nazi regime had led to the development of the UniversalDeclaration of Human Rights in 1948 which contains the right of everyperson to a nationality87 This had led to quite intense debate over what thismeant for the refugee regime and was the subject of discussion during a meetingof the 263rd session of the General Assembly in the Committee on Refugees andStateless Persons The French representative summarised his Governmentrsquosunderstanding of the right to nationality as follows

The lsquoright to nationalityrsquo did not mean that receiving countries were to berequired to grant their nationality to the refugees It was rather directed tothose States which deprived their subjects of their nationality or placedthem in such a difficult situation that they were obliged to leave theircountry of origin88

The question of what meaning a right to nationality would have to the dena-tionalised if States had no obligation to grant nationality was not addressedAccess to naturalisation (and thus to a recognized political status) for a refugeeis dependent in the first place on hisher securing asylum and the asylum-seeking process is not addressed by the 1951 Convention or any previousAgreement The only mention made of asylum in the Refugee Convention isthe mere recommendation that Governments ldquocontinue to receive refugees intheir territoriesrdquo89 found in the not-legally-binding ldquoRecommendationsrdquo of theFinal Act of the Conference of Plenipotentiaries The Government Members ofthe Conference were at pain to stress and to confirm that the Convention madeno provision regarding the grant of asylum and contained no obligations onGovernments to admit refugees to their territories Indeed the draft Conventionincluded the ldquoright of asylumrdquo in its Preamble90 and yet the final Conventionspeaks only of the ldquogrant of asylumrdquo The following two quotes from theColombian and UK representatives are two of the starkest examples of the

87 Universal Declaration of Human Rights UNGA Res 217 A (III) 10 Dec 1948 Art 1588 UNGA Provisional Summary Record of the Two-Hundred and Sixty-Third Meeting UN Doc AC3SR263

15 Nov 1949 389 United Nations Conference of Plenipotentiaries Final Act of the United Nations Conference of

Plenipotentiaries on the Status of Refugees and Stateless Persons UN Doc ACONF2108Rev1 25 Jul 195190 United Nations Conference of Plenipotentiaries Texts of the Draft Convention and the Draft Protocol to be

Considered by the Conference UN Doc ACONF21 12 Mar 1951 Preamble para 5



ndrews on N

ovember 19 2014


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logic behind this fundamental alteration ldquoterritorial asylum could not be re-garded as a duty incumbent on statesrdquo91 (Columbia) and ldquothe right of asylumwas only a right belonging to the State to grant or refuse not a right belonging tothe individual and entitling him to insist on its being extended to himrdquo92 (UK)It would seem that at every step along the way humanitarianism was forced tobow at the altar of national security and the national interest

It was not lost on the voluntary organizations observing the 1951Conference that perhaps they were engaged in a different battle to that of theStates charged with writing the Convention and ldquofinding solutionsrdquo to therefugee problem Mr Rees Chairman of the Standing Committee ofVoluntary Agencies represented 23 international and nine national organizationswhich had been deeply engaged in relief work in partnership with the IRO andhad offered an equal measure of assistance to UNHCR and was present at thedeliberations throughout the Conference His following statement perhaps en-capsulates this conflict and is worth quoting at length

It [the Conference] had in fact to use a popular expression thrown thebaby out with the bath water Its decisions had at times given the impressionthat it was a conference for the protection of helpless sovereign states againstthe wicked refugee The draft Convention had been in danger of appearingto the refugee like the menu at an expensive restaurant with every coursecrossed out except perhaps the soup and a footnote to the effect that eventhe soup might not be served in certain circumstances It would be therefugees themselves who would most earnestly study the convention and hewould appeal to the Conference to ensure at long last that its deliberationssounded a note of generosity and liberalism not one of fear andniggardliness93

6 Conclusions

The purpose of this examination of the inter-war period and questioning thehumanitarian origins of the refugee regime has not been to deny any place for orrole of humanitarianism in the development of the refugee regime Rather it hasbeen to question the dominant understanding of the refugee problem Thedevelopment of the refugee regime in the inter-war period reveals a fundamentalconflict at its heart between those actors which created and sustain it (sovereignNation-States) and those who work within it (aid workers rights advocatesdoctors lawyers and many thousands of others) The conflict being that thosewho instituted the regime saw the problem as the refugee himherself whereas

91 United Nations Conference of Plenipotentiaries Summary Record of the Thirteenth Meeting UN DocACONF2SR13 22 Nov 1951 7

92 Ibid 893 United Nations Conference of Plenipotentiaries Summary Record of the Nineteenth Meeting UN Doc

ACONF2SR19 4ndash5



ndrews on N

ovember 19 2014


ownloaded from

those who worked within it attempted to solve or at the very least alleviateproblems for refugees ndash problems that this investigation suggests were not thosethat the regime was instituted to solve

Hyndman and Mountz maintain with a certain sense of incredulity thatboth Australia and the European Union ndash the poster children for the external-isation of asylum ndash argue that they observe their commitments under theRefugee Convention and indeed there have been no legal repercussions foreither in light of their policies94 What therefore does it say about the refugeeregime itself that despite these policies such States are still able to claim com-pliance Some may argue that this merely signals the fact that the problem is oneof a lack of stricter enforcement measures but what I have tried to show in thisexamination of the inter-war period is that if we look closely enough we can seethat the logic of the international refugee regime was developed according to theexigencies of the sovereign State with its concern for national security itssupreme right to decide who can cross its borders and the determination toundertake only those obligations which may be beneficial to itself It is perhapsworth remembering that it was at the behest of the States that founded UNHCRthat it lacks any mechanism by which to enforce the provisions of the RefugeeConvention and that it lacks any right or mechanism by which to address thecauses of refugee flows UNHCR and other actors have been able to makeimportant interventions on behalf of refugees and expand their initiallynarrow remit and have found a useful avenue for doing so in humanitarianismas highlighted by Long95 But UNHCR remains an arm of a refugee regimeoriented more towards shifting the burden of refugees from States onto otheractors than towards providing real solutions for refugees themselves

As of the beginning of 2013 there were over 35 million persons of concernto UNHCR globally just under one third of whom were refugees or in ldquorefugee-type situationsrdquo96 In the 63 years since the drafting of the Refugee Conventionthe solutions to the refugee problem remain resettlement repatriation or as-similation and yet the number of people trapped in protracted refugee situ-ations living years perhaps even their entire lives in refugee camps on theborders of ldquosaferdquo countries increases While historical investigation of the refugeeproblem and the refugee regime may not yield determinate policy prescriptionsand will not end protracted refugee situations the insights that it can provide canbe invaluable if taken seriously in highlighting the ways in which our under-standing of the approach we take to ldquodeal withrdquo the refugee problem is insep-arable from what we understand that problem to be If we continue to rely onthe comforting but perhaps mistaken belief that the refugee regime is an ex-ception to the logic of the international state system then we run the risk offurther entrenching rather than ldquosolvingrdquo the refugee problem

94 Hyndman amp Mountz ldquoAnother Brick in the Wallrdquo 5895 Long ldquoWhen Refugees Stopped Being Migrantsrdquo 4ndash2696 UNHCR UNHCR Global Appeal Update 2013 Geneva UNHCR 2013 available at httpwwwunhcr

org50a9f81b27html (last visited 11 Jun 2014)



ndrews on N

ovember 19 2014


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humanitarianism in the refugee problem is being questioned especially thedegree to which humanitarian practices can ldquosilencerdquo the refugee ndash the ways inwhich they have led to the creation of whole classes of people whose job it is toldquoknowrdquo the refugee without there being either any need or any space for therefugee herself to speak3 There is however another vein in the scholarshiprelating to humanitarianism and the refugee regime which this article seeks toproblematise Much of the literature addressing post-Cold War restrictions toasylum policies in the West contrast these ldquosecuritisedrdquo practices with a pre-ColdWar period supposedly characterised primarily by humanitarianism Since theterror attacks of 11 September 2001 (911) there has been a growing trendamong Western States not only to frame the refugee problem in national securityterms but also to expand their borders beyond the physical demarcations of theirterritories in order to control migration Such policies are largely considered tobe betrayals of the humanitarian nature of the refugee regime and derogationsfrom their Convention obligations at least in spirit if not always strictly in letterBut to what extent is this an accurate portrayal of the nature of such policiesThis article examines the pre-1951 development of the international refugeeregime in particular the ways in which the refugee a distinct ldquorefugee problemrdquoand the range of acceptable solutions came to be characterised in order to answerthis question

The creation of the United Nations High Commissioner for Refugees(UNHCR) in 1950 and the United Nations Convention Relating to the Statusof Refugees of 1951 (Refugee Convention) have become the watershed momentsin the international protection of refugees for scholarship that has been largelyahistorical and characterised by a focus on the policy implications of refugee flowsand crisis management ndash what Marfleet calls ldquorefugee policy studiesrdquo4 The inter-war period has received scant attention from scholars of forced migration in partdue to the perceived ad hoc and piecemeal nature of such efforts and in part dueto the very real concern for scholarship to be ldquoof userdquo to practitioners and policy-makers ndash historical investigation seeming not to fall into such a category The fewscholarly works that have addressed the inter-war period have either focused on thedevelopment of the legal definition of the refugee5 or the development of certainkey concepts of the regime such as voluntary repatriation6 and travel documents7

3 See in particular L Malkki ldquoRefugees and Exile From lsquoRefugee Studiesrsquo to the National Order of ThingsrdquoAnnual Review of Anthropology 24 1995 495ndash523 L Malkki ldquoSpeechless Emissaries RefugeesHumanitarianism and Dehistoricizationrdquo Cultural Anthropology 11(3) 1996 377ndash404 and J HyndmanManaging Displacement Refugees and the Politics of Humanitarianism Minneapolis University of MinnesotaPress 2000

4 P Marfleet ldquoRefugees and History Why We Must Address the Pastrdquo Refugee Survey Quarterly 26(3) 2007138

5 JC Hathaway ldquoThe Evolution of Refugee Status in International Law 1920ndash1950rdquo International andComparative Law Quarterly 33(2) 1984 348ndash380

6 K Long ldquoEarly Repatriation Policy Russian Refugee Return 1922ndash1924rdquo Journal of Refugee Studies 22(2)2009 133ndash154

7 O Hieronymi ldquoThe Nansen Passport A Tool of Freedom of Movement and of Protectionrdquo Refugee SurveyQuarterly 22(1) 2003 36ndash47



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Press 1999



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53 89 LNTS 49 1929



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10 Jul 1951



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6 Conclusions




ACONF2SR19 4ndash5



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Press 1999



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53 89 LNTS 49 1929



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10 Jul 1951



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6 Conclusions




ACONF2SR19 4ndash5



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53 89 LNTS 49 1929



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10 Jul 1951



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6 Conclusions




ACONF2SR19 4ndash5



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ovember 19 2014


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53 89 LNTS 49 1929



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10 Jul 1951



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6 Conclusions




ACONF2SR19 4ndash5



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53 89 LNTS 49 1929



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10 Jul 1951



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6 Conclusions




ACONF2SR19 4ndash5



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ovember 19 2014


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ovember 19 2014


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53 89 LNTS 49 1929



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10 Jul 1951



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6 Conclusions




ACONF2SR19 4ndash5



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ovember 19 2014


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53 89 LNTS 49 1929



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10 Jul 1951



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6 Conclusions




ACONF2SR19 4ndash5



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53 89 LNTS 49 1929



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10 Jul 1951



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6 Conclusions




ACONF2SR19 4ndash5



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ovember 19 2014


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53 89 LNTS 49 1929



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10 Jul 1951



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ovember 19 2014


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ovember 19 2014


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6 Conclusions




ACONF2SR19 4ndash5



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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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53 89 LNTS 49 1929



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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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10 Jul 1951



ndrews on N

ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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6 Conclusions




ACONF2SR19 4ndash5



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ovember 19 2014


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ndrews on N

ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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53 89 LNTS 49 1929



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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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10 Jul 1951



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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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6 Conclusions




ACONF2SR19 4ndash5



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ovember 19 2014


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ovember 19 2014


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ndrews on N

ovember 19 2014


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53 89 LNTS 49 1929



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ovember 19 2014


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10 Jul 1951



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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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6 Conclusions




ACONF2SR19 4ndash5



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ovember 19 2014


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ndrews on N

ovember 19 2014


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53 89 LNTS 49 1929



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10 Jul 1951



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ovember 19 2014


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6 Conclusions




ACONF2SR19 4ndash5



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10 Jul 1951



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6 Conclusions




ACONF2SR19 4ndash5



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10 Jul 1951



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6 Conclusions




ACONF2SR19 4ndash5



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ovember 19 2014


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ovember 19 2014


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10 Jul 1951



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6 Conclusions




ACONF2SR19 4ndash5



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10 Jul 1951



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6 Conclusions




ACONF2SR19 4ndash5



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ovember 19 2014


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ovember 19 2014


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10 Jul 1951



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ovember 19 2014


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6 Conclusions




ACONF2SR19 4ndash5



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ovember 19 2014


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ovember 19 2014


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10 Jul 1951



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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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6 Conclusions




ACONF2SR19 4ndash5



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ovember 19 2014


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ovember 19 2014


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ovember 19 2014


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6 Conclusions




ACONF2SR19 4ndash5



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ovember 19 2014


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ovember 19 2014


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6 Conclusions




ACONF2SR19 4ndash5



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6 Conclusions




ACONF2SR19 4ndash5



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Paradigm shift or business as usual? A historical reappraisal of the 'shift' to securitisation of...

Documents

Transcript of Paradigm shift or business as usual? A historical reappraisal of the 'shift' to securitisation of...