Colonial Continuities – 71 Years of the Geneva Refugee Convention
The Geneva Refugee Convention of July 28, 1951 provides a narrow definition of the term “refugee”. It is an expression of genuine colonialism and needs modern reform.
Of Nadiye Unsal and Koray Yilmaz Gunay Tuesday, 07/26/2022, 3:00 p.m|last updated: Tuesday, 07/26/2022, 1:09 p.m Reading time: 9 minutes |
Since the Russian invasion of Ukraine, in addition to countless welcome messages and condemnations of the war, there has been a debate about uniform racism in flight and migration policy, parallel to but in the shadow of this exertion: the rights of white refugees would be overruled by those affected by people from the United States and classified as Muslim read refugees. Reports and talk shows have provided a number of examples of this. In particular, the activation of EU Directive 2001/55/EC (“Mass Influx Directive”), which grants citizens of Ukraine blanket privileges in the right of residence, access to the labor market and social security, has triggered many critical reactions, because even people from the Ukraine, who do not have Ukrainian citizenship, are excluded from these privileges, although they are fleeing from the same war.
The directive dates back to 2001, but was put into effect for the first time even though there would have been countless other occasions over the past 21 years to enable group-specific humanitarian protection – not only in the context of the refugee movements around 2015. Instead it happened On the contrary: Italy and Greece temporarily suspended the Geneva Refugee Convention (GFK) completely in 2015. Since then, Germany has relied on vague terms such as “good” or “bad perspectives to stay”, “safe countries of origin” and other categories that are intended to prevent that “2015 repeats itself”. This defense against those seeking protection even has an effect on white people from Ukraine: To this day, the vast majority of people are accommodated privately – and where the state feels responsible, these are often temporary arrangements that are not intended to be permanent.
Meanwhile, many people from non-European countries are waiting in Germany and other EU member states for protection and prospects. The conditions under which millions of people in Turkey and other Mediterranean countries have been waiting for years to be relocated by the UNHCR are hardly ever reflected in local debates.
“The sorting by value follows a continuity that has its main cause in colonialism.”
The sorting by value follows a continuity that has its main cause in colonialism. Only selected groups and individual access to the EU should be granted. The legal order in the area of flight, as it emerged after the Second World War, is the result and almost uninterrupted continuation of conditions that prevailed long before. Northern and Western Europe, still shaped by the war, was soon to become a “civilizing power” again and continue to be on the side of the “West” in the competition between systems that characterized the Cold War. The right to asylum, as codified in the Basic Law and in international agreements, does not simply exist. It was created and enforced against a concrete background and with identifiable goals and interests.
“Legal studies conclude that legal developments in Europe have always focused on their own economic and geopolitical interests – instead of a universal humanitarian protection system.”
The research of the last 30 years, which is critical of colonialism and racism, examines the history of the origins of Western European and international refugee law from a critical perspective. Legal studies in particular conclude that legal developments in (Western and Northern) Europe have always focused on their own economic and geopolitical interests – instead of, as is repeated in the discourse here, a universal humanitarian protection system for everyone based on human rights. A recent study by the renowned sociologist Lucy Mayblin shows that the United Kingdom, in particular, as an active colonial power, demanded that the protection claims of refugees from the colonies of European countries should not be taken into account during the negotiations in Geneva. But other colonial powers and states of the Global North also called for a narrow definition in the negotiations under the umbrella of the newly founded United Nations.
“It was therefore the intention from the outset to protect European refugees from the World War and, on the other hand, people who died in the USSR and wanted to leave their sphere of influence. The “better system” should be a haven for the chosen ones.”
In fact, 71 years ago, a temporally and geographically limited definition was established that refers to “events that occurred in Europe before January 1, 1951” (Art. 1 GFK). It was therefore the intention from the outset to protect European refugees from the World War and, on the other hand, people who died in the USSR and wanted to leave their sphere of influence. The “better system” should be a sanctuary for the chosen ones. Following the spirit of the times, gender-specific reasons for fleeing have not made it into the GFK either: The Geneva norm is still fleeing men.
The former colonies, which had already become formally independent by then and were also present at the negotiations in Geneva, criticized the definition – as did the delegate from Pakistan. However, in 1967 the “Protocol on the Legal Status of Refugees” was passed, in which geographical and temporal restrictions were lifted. But is compliance with the NVC less West European and white?
“The term “convention refugee” is still narrowly defined today, so those seeking protection must be outside their country of origin (in “exile”). This makes illegal entry into another country a condition for effective protection.”
Patricia Tuitt, a legal scholar at London’s Birkbeck University, states that the GFK, even with this addition, still has an inherent “exilic bias”: The term “convention refugee” is still narrowly defined today, so that those seeking protection outside their country of origin (in “exile ” ) condition. This makes illegal entry into another country a condition for effective protection.
Thus, Tuitt writes, people fleeing civil wars are seldom considered convention refugees. Because they are not in exile, the assumption is that they are not fleeing state persecution either, although they are “de facto refugees”. These legal uncertainties led to some countries in the Global South applying for and implementing their own conventions.
The most prominent example of this is the Organization for African Unity (“Convention Relating to the Specific Aspects of Refugee Problems in Africa”, 1969). In it, “refugee” is defined much more broadly, admission and resettlement are regulated much less restrictively. The Convention grants group-specific protection in cases of natural disaster, famine or civil war. Being abroad is not made a requirement.
“In 1990, the Organization for Islamic Cooperation (OIZ) concludes in Article 12 of the Cairo Declaration of Human Rights in Islam that all people have the right to freedom of movement and settlement. This right expressly includes the right to seek asylum.”
The OAE Convention came into effect on June 20, 1974, the date set for World Refugee Day. The South American Cartagena Declaration of 1984 follows the example of the OAE Convention. Many Muslim-majority states have not even signed the GFK. Instead, they refer to traditions of Islamic jurisprudence. The Organization for Islamic Cooperation (OIZ), for example, concludes in Article 12 of the Cairo Declaration of Human Rights in Islam in 1990 that all people have the right to freedom of movement and settlement. This right expressly includes the right to seek asylum. The point of reference for this is provided by the “Hijra” law, which goes back to the flight of the Prophet Mohammed from Mecca to Medina.
Postcolonial legal research and legal practice show that there is an international and transnational debate about the legal definition of “refugee”, but also about questions of reception, protection and the operationalization of asylum procedures. So it is much more than a legal concept of “refugee” and “asylum”.
“It doesn’t count the protection request of each person, but the Global North, above all the European Union, decides along (neo-)colonial geopolitical interests who is in need of protection – and above all: who is not.”
Nevertheless, a regime that is based on the Western European-influenced GRP has prevailed worldwide. The philosopher and legal scholar Dana Schmalz states that an exclusive selection was made in and with the NVC. It is not the protection request of each person that counts, but the Global North, above all the European Union, decides along (neo-)colonial geopolitical interests who is in need of protection – and above all: who is not. Beyond humanitarian aid, asylum policy and practice are still linked to a calculation that puts economic, geopolitical and demographic considerations in the foreground. Those who receive protection should confirm the prevailing narratives (Christian-Jewish, white, “democratic”, “civilized”) and be usable in the context of current economic interests. This has not changed since the UN special conference in Geneva, where the GRP was adopted on July 28, 1951.
“A world order that confronts the history of European imperialism and colonialism would need a thorough decolonization not only in terms of production, trade and supply chains, but also in the migration regime.”
A world order that confronts the history of European imperialism and colonialism would need a thorough decolonization not only in terms of production, trade and supply chains, but also in the migration regime. As long as the right of asylum is the only (albeit far too often: unsafe) way for a large part of the world population to leave their own country, the colonial continuities of the NVC will confirm global imbalances rather than eliminate them.
But because none of this will happen without pressure from civil society, migrant, anti-racism and decolonial initiatives are fighting in Germany and worldwide for migration rights that compensate for historical injustice, but also for economic and trade relations that are based on a completely different foundation. Our work in the Berlin Migration Council, an umbrella organization for migrant organizations in Berlin, is part of this fight. Every day we experience how selective and unfair the asylum system is. In order to deal with these contradictions and still enable prospects to remain, we and others have developed resistance strategies for centuries.
“But it speaks to centuries of exploitation of people and resources, enslavement, destruction… and much more to recognizing the price of one’s prosperity, as well as some who have paid the price so far.”
There is nothing wrong with providing people from Ukraine with the minimum of a decent life – on the contrary. However, centuries of exploitation of people and resources, enslavement, destruction of natural resources, the establishment of anti-popular regimes and much more speak for taking note of the price of one’s prosperity, as well as those reportedly paying the price so far. The right to a decent life, especially when it can only be achieved outside one’s own country, requires migration law that treats everyone equally well. A right to move and stay for everyone.
Editorial Panorama