Salvaging the 1951 Convention from the Dustbin of History: Seyla Benhabib on the Future of Refugee Rights

“We need to push the 1951 Convention, perhaps to its breaking point.” Professor Seyla Benhabib paused to let her exhortation hang in the air before a rapt virtual audience. Professor Benhabib, Professor Emerita at Yale University and Professor of Law Adjunct at Columbia Law School, was fielding a question about whether we can make any meaningful distinction between human rights and social justice given the intimate connection between the two. Her answer was a resounding yes. Her contention that we need to critically engage with questions of state implementation and behavior around the 1951 Refugee Convention rights—rather than abandon them to the annals of international law history—forms the central thesis of this year’s Annual Human Rights Day Lecture at LSE. States’ attempts to abdicate their responsibilities via deterritorializing and restricting immigration policy does not merit the abandonment of the 1951 Convention, Benhabib argues. She instead proposes a “cosmopolitan interdependence” to generate meaningful solidarity with and protections for refugees.

Benhabib began her talk with an image of the infamous Moria camp in Lesbos, Greece, which most recently made headlines after a fire devastated the camp in September of this year and left more than 13,000 refugees unhoused. She quickly pivoted to a discussion of the legal and normative discussions of the normative and legal underpinnings of the media narratives describing Europe’s so called “refugee crisis” that so often dominate public consciousness. It is these questions, Benhabib points out, that determine either the realization or violation of migrants’ human rights. Obscured beneath panicked depictions of influxes of migrants arriving on Europe’s shores are the triple trends of “crimmigration”, privatization, and securitization in migration management. The three distinct yet interlocking forces produces a toxic combination employed by states in order to abdicate their obligations to refugees under international law.

Deterritorialization and crimmigration

The increasing deterritorialization of today’s world creates a global political context in which states perceive an escalating sense of “losing control” as the transnational movement of goods, information, services, technology, and even viruses becomes ever more prevalent. This deterritorialization is both a product of the neoliberal economic project of globalization and a response to the anxieties contained therein. People in general and migrants in particular are an inevitable foil to deterritorialization. Despite the near-wholesale transfer of our social, professional, academic, and emotional lives online this year, human beings remain fixed in physical space. The body thus “becomes the site on which the control of the state is exercised.” Liberal democratic states cannot reasonably exercise this control over the existing members of their own polities—though, Benhabib notes, the erosion of democratic principles and institutions makes them more likely to try.

The migrant has become the criminalized scapegoat for states’ existential dilemmas about how to maintain legitimacy in a world that increasingly undermines their coercive powers of control, which rely on the ability to regulate the membership of those residing within their borders. The strain between the primacy of state sovereignty in the modern liberal order and the expansion of international human rights mechanisms only adds to the pressures of deterritorialization.

Interpretation, implementation, and state behaviour

The 1951 Convention has an array of well-documented defects that are too numerous to recount in Benhabib’s lecture or in this article. The Convention’s most obvious gap is the often-overlooked fact that the Convention only applied to post-WWII refugees from Europe as originally written. The 1967 Protocol later broadened the definition of refugees to all persons fleeing from a “well-founded fear of persecution” regardless of their temporal or spatial origins. This expansion remained flawed, however, limiting the definition of “Convention refugees” to those escaping violence across international borders “for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” Aside from failing to encapsulate the majority of forcibly displaced people worldwide, these categories provide no clear legal protections for a number of persecuted groups. These include LGBTQI+ individuals and those who experience gender-based violence, though asylum policy and practice at the national and regional levels has more recently evolved to recognize claims made on these bases as legitimate.

More concerning, however, is that most migrants still do not qualify for protection under existing legal human rights instruments and that states are increasingly criminalizing them even when they do. The political economy of forced migration means that it is exceedingly difficult to distinguish between refugees and economic migrants. This is particularly true when conflicts become protracted—as is the case in 78% of refugee situations—and cause widespread economic collapse that may force those who are not direct recipients of violence to move. The blurry distinction between refugees and economic migrants has profound impacts on migrants’ access to human rights, both in terms of their legal and material access to protection and the discourses that shape migration policy.

States seeking to implement restrictive immigration policies capitalize on the messiness of the forced migration continuum to justify keeping asylum seekers out. The narrative of the archetypal refugee as a passive victim provides a justification for state punishment of those who act with any kind of agency, most notably those who attempt onward “illegal” migration from a country of first asylum. The deterritorialization of migration control means fewer and fewer asylum seekers are reaching their intended borders. This decoupling of territorial governance and forced migration jurisprudence means states are able to keep migrants out of the collective sight and mind of their national populations. The result is blatant violations of international law so pervasive as to raise the question of whether the 1951 Convention remains a useful tool for protecting human rights.

A look to the future

2021 marks 70 years since the advent of the Refugee Convention. Its myriad flaws are enough to make human rights advocates wonder whether they might be better served by an entirely new mechanism of refugee law. Few scholars—and certainly not Benhabib—would argue that the absence of a fixed dichotomy of refugees on one side and economic migrants on the other means we should do away with the refugee protection regime altogether. The model Benhabib offers in her lecture is reminiscent of her earlier works on “critical cosmopolitanism,” which suggest that communities can use critical discourse to interpret and institutionalize human rights in national and subnational contexts. Here she proposes a framework of “cosmopolitan interdependence” that seeks to address the deeper causes of forced migration while simultaneously resisting the “ontology of containment” that criminalizes and weaponizes the bodies of those on the move.

An important question raised by lecture chair Dr Ayça Çubukçu is why the Convention’s gaps might not prompt us to advocate for a Rawlsian abolition of international borders. The more compelling element of Professor Benhabib’s response is that free movement does not solve the central problem of a need for more robust human rights institutions. Her secondary argument, which relies on the moral link between physical territory and democratic self-governance, is less convincing. If cities and regions are truly at the heart of the cosmopolitan imagination, and if, as Professor Benhabib points out, localities are the site of embodied refugee protections, then we may have no good reason to accept the nation-state as the natural unit of governance under a better refugee law regime. The question of whether and how to salvage the 1951 Convention therefore hinges on her initial response. Can we use cosmopolitanism creativity to expand the covenant to its maximal utility for all migrants at the local and regional levels, as Professor Benhabib suggests? In a political order currently dominated by increasingly isolationist and restrictive national policies, it may be our best, if not our only, way forward.


Watch the lecture recording here.

Read Professor Benhabib’s July 2020 article “The End of the 1951 Refugee Convention? Dilemmas of Sovereignty, Territoriality, and Human Rights“.

This post was originally published on LSE Human Rights.