The Volokh Conspiracy

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The Case for Expanding the Legal Definition of "Refugee"

The narrow definition allows governments to expel numerous migrants fleeing violence, terrorism, forced labor, and other severe oppression.


Today is World Refugee Day. Sadly, this year's observance comes at a time when, thanks in part to Russia's invasion of Ukraine, there are more migrants fleeing war and oppression than at any other time in recent history. It's as good a time as any to rethink the cruelly narrow legal definition of who qualifies as a "refugee" governments are not allowed to expel back to their country of origin.

In ordinary language, we usually use the word "refugee" to refer to anyone fleeing war, violence, and oppression. But the legal definition is much narrower. The 1951 Refugee Convention (as later amended) bars governments from deporting refugees, defined as people whose "life or freedom would be threatened on account of [their] race, religion, nationality, membership of a particular social group or political opinion." US law has a very similar definition.

This definition excludes vast numbers of people fleeing horrific violence and oppression. For example, it doesn't include the vast majority of North Koreans, subjects of the world's most repressive regime. For the most part, that government's victims are targets of what we might call "equal-opportunity oppression" doled out to almost everyone who lives under the regime's rule, not just to members of specific racial, ethnic, religious or other "social" groups. It doesn't even include people subjected to forced labor, as long their enslavement wasn't based on any of the above prohibited characteristics. Thus, the US government's  cruel and ridiculous policy barring asylum to people enslaved by terrorist groups is acceptable under this definition, so long as the terrorists are equal-opportunity slaveowners.

The same point applies to most people fleeing violence and war. As long as the threat to their safety emanates from the general conditions facing people in the region, as opposed to being specifically targeted on the basis of one of the prohibited characteristics, they don't qualify as refugees.

Even if terrorists or repressive governments target you personally, you still don't qualify for refugee status unless their motive was one of the criteria listed above. When I clerked for the US Court of Appeals for the Fifth Circuit, back in 2001-02, the court heard the asylum case of a Peruvian migrant targeted for death by the communist Shining Path terrorists. He had opposed the establishment of a Shining Path-controlled union at his workplace. The government didn't dispute the evidence that the terrorists really did threaten his life. Rather, the case turned on whether the dispute in question was "economic" or "political" in nature. If the man was targeted because of his political opinions, he could qualify as a refugee. But if it was just a disagreement over an "economic" issue, he was out of luck.

After the migrant's lawyer unwisely conceded in oral argument that the dispute was indeed "economic" in nature, the court ruled against him. The case bothers me to this day. I can only hope that, if (as is likely) he was deported, this man wasn't killed by the Shining Path when he was forced to return to Peru.*

Many of the Ukrainians fleeing Russian aggression also probably don't qualify as refugees under current international law standards. While the Russians have targeted some people based on their political views, many more are fleeing the Russian military's indiscriminate violence, and the oppression Putin's regime inflicts on everyone living under its control. Some international law experts argue that Russia is perpetrating genocide against ethnic Ukrainians. If so, arguably any ethnic Ukrainian fleeing Russian-controlled territory might qualify as a refugee.

But many of the residents of the regions seized by Russian forces are  ethnic Russians, including almost 40% of those living in the Donbass region, which has seen some of the most extensive Russian aggression. Although Russia has repressed these people as much or almost as much as ethnic Ukrainians, they still would not qualify as refugees. In Ukraine, as in many multi-ethnic societies, the lines between members of different groups are, in any case, often far from clear. The distinction between "Russian" and "Ukrainian" is an extremely fuzzy one, with many people having mixed ancestry.

To be sure, many governments are letting in Ukrainians fleeing the war, regardless of whether they qualify as "refugees" or not. But they aren't legally required to do so, and the openness might not last, if the war continues for a long time.

There are similar situations from around the world. The above examples of people who don't qualify as refugees, despite facing terrible dangers, could easily be augmented with cases drawn from Africa, the Middle East, and elsewhere.

Ideally, we should expand the definition of "refugee" to cover everyone fleeing violence, war, and repression, regardless of the oppressors' motives for targeting the person in question. If that isn't feasible, for political reasons, legal scholars and other experts have advanced a variety of proposals for incremental expansion of the "refugee" category.

If incremental expansion is the only alternative, we should try to prioritize people facing the most severe types of oppression, which in many cases might not be those facing it on the basis of characteristics covered by the present legal definition. In Chapter 8 of my book Free to Move: Foot Voting, Migration, and Political Freedom, I discuss a variety of incremental reforms in greater detail, while also making the case for a more sweeping expansion.

Some opposition to expanding the definition of "refugee" is likely driven by fears that accepting "too many" refugees would harm destination countries. But, in reality, refugees—like other migrants—make important economic and social contributions to host nations, and migration restrictions inflict a variety of harms on natives, as well as would-be migrants. Many of America's greatest scientists, innovators, and entrepreneurs were migrants fleeing war and oppression, or children thereof. To the extent migration does have negative side effects, there are almost always ways to mitigate them through "keyhole solutions" that are less cruel and harmful than exclusion.

Perhaps the simplest and best way to deal with the difficulty of defining "refugee" is to eliminate the distinction between them and other migrants and create a presumption of freedom of movement for all. Where people are allowed to live and work should not depend on arbitrary circumstances of  parentage and place of birth. But, if as is likely to be the case for a long time to come—we continue to distinguish between "refugees" and other potential migrants, there is a strong case for expanding the former category.

At the very least, we can broaden it to include people facing severe violence and oppression that isn't based on currently specified categories. If your definition of "refugee" excludes many  people subjected to forced labor, or threatened with death by terrorists, it may be time to reconsider.

*The above account of the Shining Path case is based entirely on public information. Ex-clerks not allowed to reveal internal court deliberations, and I have not done so here.