INTRODUCTION

Faced with the prospect of being forced to undergo the tribal ritual of a clitoridectomy in her native Togo, nineteen-year old Fauziya Kasinga opted to seek asylum in the United States. However, her application for refugee status was turned down by a Philadelphia immigration judge on the grounds that "... she lacked credibility and that even if she were credible, the threat of genital mutilation did not constitute a form of persecution."1 She was then promptly imprisoned for almost a year. Upon being released, Fauziya told journalists, "I thought the US was a place of justice ... Instead of receiving protection I was punished by being put in jail."2

The case of Fauziya Kasinga brings to the fore questions about who should be regarded as a refugee and who is an illegal immigrant? The debate on the distinction between illegal immigrants and refugees is not simply of academic interest. It has a bearing on the kind of policies pursued by the South African Government, the kind of treatment meted out to illegal immigrants or refugees, and the socio-economic and political costs of hosting a large alien population. The article explores this debate and revolves around the various international legal criteria set forth to determine refugee status. Implicit in such an analysis is that those who do not meet the criteria must be termed illegal immigrants and therefore cannot be afforded the protection of the international refugee regime.

THE LEGAL DISTINCTION BETWEEN ILLEGAL IMMIGRANTS AND REFUGEES

Who is an illegal immigrant? It could be argued that it is self-evident that an illegal immigrant is one who is residing in the country illegally. Such a view would be strengthened by a perusal of this country's Aliens Control Act of 1991. This Act stipulates that a person is an 'undocumented immigrant' or 'illegal alien' if he or she:

enters the Republic of South Africa (RSA) at a place other than a port of entry;


remains in the RSA without a valid residence permit;


acts in contravention of his/her residence permit;


remains in the RSA after the expiry of a residence permit;


is prohibited from entering the RSA; or


becomes a prohibited person while in the RSA.3

The idea that a distinction can be made between illegal immigrants and refugees will be further entrenched by the current international definition of the term 'refugee'. The 1951 United Nations Convention Related to the Status of Refugees, as amended by the 1967 Protocol, defines refugees as, "... persons who are living outside their country because of a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion."4 Using this definition, Weiner classifies 18,9 million of the world's migrants as refugees.5 The breakdown of this figure is reflected in the Table.

THE CRITISISM

This UN definition has been criticised by several scholars for being too restrictive. Woehlcke,7 for instance, notes that the Convention was originally intended as a regulation of the European refugee problem after the Second World War. It is, however, no longer applicable today, where 'economic refugees' – those fleeing poverty and economic hardship – and 'environmental refugees' – those fleeing ecological catastrophe – comprise the bulk of the numbers. Loescher8 further elaborates: "... in many developing countries which have few resources and weak government structures, economic hardship is generally exacerbated by political violence. Thus it has become increasingly difficult to make hard and fast distinctions between refugees (as defined by the 1951 UN Convention with its political bias) and economic migrants."

In the same vein, Astri Surhke9 notes that the key criterion determining refugee status is persecution, usually an act of government against an individual. This, she asserts, excludes those fleeing from generalised conditions of violence, insecurity and oppression, for instance in the case of Zaire. It also excludes, according to her, the inhabitants of states where violence is externally induced. South Africa's destabilisation of the Front-Line States (FLS), throughout much of the 1980s through its support of proxy groups – such as Renamo in Mozambique; UNITA in Angola; the Lesotho Liberation Army in Lesotho, and the Mashala Gang in Zambia – is an example of externally induced unrest.10

In South Africa, scholars such as Chris Dolan, argue that the conventional distinction between illegal immigrants and refugees does not reflect empirical reality adequately and therefore is bound to produce ineffective policies.11 Many of these critics argue for a more inclusive definition of refugees and point to the Organisation of African Unity's (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted in Addis Ababa on 10 September 1969 as being such an inclusive definition. The OAU Convention notes that a person is a refugee if, "... owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part of or the whole of his country of origin or nationality, is compelled to seek refuge in another place outside his country of origin or nationality."12

THE REBUTTAL

Is this true? Is the 1951 UN Convention applicable to today's global migration crisis? On both questions, the answer appears to be negative. However, there are several reasons why the 1951 definition can be regarded as relevant to the contemporary world. More importantly, various flaws are discernible in the arguments of the critics of the 1951 UN Convention.

It could be asked what the consequences of broadening this definition will be? It could be argued that widening the definition will adversely affect domestic stability, as borders effectively will be thrown open and large numbers of people from impoverished and authoritarian states will stream through national boundaries to relatively more prosperous and politically stable polities. The situation in receiving states would become more serious, since only a minority of the world's people live in societies that respect human rights or can meet the material needs of its members.

Myron Weiner13 concludes as follows: "There are, however, several legitimate objections to broadening the definition of refugees. If acts of discrimination short of persecution are the basis of claiming asylum, a large part of the world's population could do so. Asylum on the basis of discrimination could plausibly be claimed, for example, by over a hundred million Indian Muslims whose mosque at Ayodhya was destroyed and who were fearful after many Muslims in Bombay and elsewhere were killed by Hindus. Millions of women around the world could similarly point to discriminatory restrictions imposed by their state or society as justification for seeking asylum. Moreover, a country that does not want its minorities could engage in systematic discrimination and impel countries that embrace a liberal conception of refugees to admit all whose human rights have been violated. The more liberal democratic states and international agencies become in granting asylum to persecuted minorities, the greater the inducement for a nationalist regime to engage in some form of ethnic cleansing."

This was graphically illustrated in the relations between the US and Cuba. For years, the US automatically granted refugee status to all those who fled from the Communist regime in Havana. Taking advantage of this fact, Fidel Castro opened up the jails and mental asylums and encouraged these two groups to migrate to the US. Horrified at the surge of criminals and psychopaths penetrating its shores, the US has ceased to adopt such a liberal stance in granting refugee status to all Cubans. Building on this theme David Martin notes that refugee status is a 'scarce resource'.14 Individuals who have been granted refugee status are in a privileged category. It is an entitlement that allows people to move to a safe country for protection and assistance. Governments must decide to whom these entitlements should be given and how generous they should be. The broader the definition and the greater the entitlements, the more refugees will enter such a country.15 The cost of supporting these refugees must mainly be carried by the host government.

But critics of the 1951 UN Convention will not be silenced. They argue that, while it makes sense from the perspective of the interests of the potential host state to have such a narrow definition, it does not take account of the interests of the potential illegal immigrant or refugee. It is argued that the UN Convention is too state-centric and is not sufficiently sympathetic of the human imperatives driving people away from their homes.16 However, Goran Melander17 notes that the definition provided in the UN Convention is as relevant today as it has been in the 1950s when originally adopted. In practice, he notes that the 1951 definition is far more flexible than its critics would have us believe. This flexibility was evinced in the immediate aftermath of the Soviet suppression of the 1956 Hungarian uprising which saw all Western governments following the United Nations High Commissioner for Refugees (UNHCR) lead in declaring all Hungarians fleeing from their native land as refugees. More recently, the 1951 UN Convention has been interpreted broadly by the UNHCR, so that the organisation could become involved in the early stages of the Yugoslav crisis. In terms of UN Security Council Resolution 688 of 1991, the UNHCR set up 'safety zones' within Iraq to provide protection for displaced Kurds.18 According to a narrow interpretation of the refugee definition in the 1951 UN Convention – which clearly excludes internally displaced people from refugee status – the UNHCR was overstepping its mark. But, when questioned about this, a UNHCR representative noted that the organisation held a wider interpretation of the 1951 Convention's definition of a refugee. Moreover, he noted that a clear linkage existed between the internally displaced and refugees in general.

The question posed is why the definition of the term 'refugee' is not simply broadened, if it is to be interpreted broadly anyway? Then it would be interpreted even more broadly and be open to wider abuse. The broader the definition, the wider the borders, the more the numbers of refugees will be, and the more chances there are of domestic instability developing.

One of the most fundamental criticisms of the 1951 Refugee Convention is that it is unclear on what constitutes persecution. Critics assert that emphasis on the individual negates the concept of 'group persecution'. This criticism, however, is unfair. While the UNHCR makes it clear that there is no universally accepted definition of persecution, this does not mean that there is no internationally acceptable criteria for determining whether a person has a 'well-founded fear of persecution'.19 Melander observes that there is a growing tendency to refer to basic human rights, as a set of criteria for defining persecution, in other words, the applicant fears the violation of his or her basic human rights. These human rights violations need not only include civil and political rights, but also economic, social and cultural rights violations.

According to Melander, the existing human rights instruments may also be used by the UNHCR as a means of assistance to interpret 'persecution'. For instance, the Universal Declaration on Human Rights of 1948 and the International Covenant on Civil and Political Rights of 197620 provide good guidelines, when persecution is involved. A person who fears arbitrary detention, contrary to Article 9 of the Universal Declaration, may be persecuted. The same applies to a person who fears punishment, contrary to Article 19 of the Universal Declaration. Melander notes that all substantive articles of the Declaration can be used to understand the meaning of 'persecution'.

However, this could lead to a very broad understanding of who a refugee is, depending on how expansive the basic rights are. Therefore, it is also stipulated that every person who has been or will be faced with a human rights violation in his country of origin cannot be considered to be a refugee. An important prerequisite is that the violation must reach a certain degree of severity in order to be considered as persecution. An arbitrary arrest must be for a certain period of time to fulfil the criterion. Thus, the continued incarceration of Moshood Abiola in a Lagos jail, now into its third year, would warrant preferential treatment under the refugee regime; the overnight imprisonment of a Nigerian journalist critical of the Abacha regime would not. In addition, the human rights violation must be motivated by one or more of the five causes of persecution mentioned in the 1951 Convention: race, religion, nationality, membership of a particular social group, or political opinion.21

Finally, according to the 1951 UN Refugee Convention, in order for the fear of persecution to be individualised, it is necessary that the applicant himself or herself fears? such human rights violations. This fact, however, does not preclude group persecution or group violations of human rights, for instance when it is based on race. For example, the policy of apartheid was directed against every single person in South Africa who did not belong to the white minority. As such, black South Africans were accorded the status of refugees in the respective host states, such as Zambia and Tanzania.

In the same vein, Nobel22 argues strongly for the retention of the 1951 Convention. He notes that any confusion related to the status of refugees, is harmful to their protection. Moreover, he attacks scholars, such as Woehlcke and Loescher, who wish to extend refugee status to economic and environmental migrants, pointing out that such terms as 'economic refugee' and 'environmental refugee' do not exist in international law.23 The underlying rationale for this legal stance is obvious: a distinction can be made between an illegal immigrant and a refugee, based on the causes prompting a person to leave his/her country and to settle in another.

According to Toolo and Bethlehem24, "[i]t is possible to argue that there is a difference between refugees who have been driven from their own countries in large numbers as a result of a national crisis and illegal immigrants who make a primarily individual decision to come to South Africa. While such an individual decision may reflect the conditions faced by people in the home country, this would be different from the crisis-driven nature of refugees. Refugees are only in a position to return home when the crisis in their own country has been resolved, whereas illegal immigrants would not be dependent on a political/military solution."

Contrary to the claims of critics of the 1951 Convention, the 1969 OAU Convention does not extend protection under the refugee regime to illegal immigrants. Myron Weiner notes that there are more similarities than differences between the two conventions. Both definitions view refugees as individuals who lack the protection of their own government. Neither definition applies to displaced persons within a country, irrespective of whether there is persecution or violence, or to individuals fleeing from natural disasters such as floods, droughts, or earthquakes. Moreover, neither definition includes individuals who flee from a tyrannical regime, unless they are personally persecuted or their society is torn by life-threatening violence.25 Thus, it would be wrong to counterpose the two conventions, since they are so similar. Furthermore, in the preamble to the 1969 OAU Convention, it is categorically stated that it is meant to complement and not oppose the 1951 Refugee Convention.

CONCLUSION

The preceding analysis appears to find that the 1951 Convention steers a middle path between the rights of the individual and those of the State. Undue emphasis on the rights of individuals can only lead to anarchy (open borders with its attendant domestic instability), while undue emphasis on the rights of states can only lead to authoritarian regimes unconcerned with their moral obligations to the suffering of broader humanity outside the confines of citizenship. As a result, any attempt to widen the definition of the term 'refugee' should be resisted. Concomitant to this, and from a South African perspective, is the fact that anyone falling outside the parameters of the 1951 Convention and inside the Aliens Control Act of 1991, must be termed illegal aliens or undocumented migrants. Thus, the estimated eight million illegal immigrants residing in South Africa cannot and should not receive protection under the international refugee regime; and South Africa must take up this growing problem with its neighbours.

What is the present situation of Fauziya Kasinga? The Board of Immigration Appeals, the highest immigration court in the US, has reopened her case. Lawyers for the Immigration and Naturalisation Service have asked the Board to rule that genital mutilation can be a form of persecution in certain cases, especially where force is involved. The appeal is pending.

ENDNOTES

The cruellest cut, Weekly Mail and Guardian, 3 May 1996.



Ibid.



Aliens Control Act No. 96 of 1991, Republic of South Africa, 1991.



United Nations Convention Relating to the Status of Refugees, 28 July 1951, Art 1.2.



M Weiner, The Global Migration Crisis: Challenge to States and to Human Rights, Harper Collins, New York, 1995, p. 2.



M Woehlcke, Environmental Refugees, Aussenpolitik, 43(3), 1992, pp. 287- 288.



G Loescher, Refugee Movements and International Security, Adelphi Papers, 268, Brasseys for the International Institute for Strategic Studies, London, 1992, p. 7.



Weiner, op,cit., p. 6.



Quoted in H Solomon, In Search of Canaan: A Critical Evaluation of the Causes and Effect of Migration within Southern Africa, and Strategies to Cope with them, Southern African Perspectives, 24, Centre for Southern African Studies, University of the Western Cape, Bellville, 1993, pp. 3-4.



H Solomon, Change and Continuity in South Africa's Foreign Policy, 1978-1991, unpublished MA dissertation, University of Durban-Westville, 1994, p. 169.



C Dolan, Policy Challenges for the New South Africa, Southern African Migration: Domestic and Regional Policy Implications, Workshop Proceedings, 14, Centre for Policy Studies, Johannesburg, 1995, pp. 53-54.



Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, Addis Ababa, 10 September 1969, Art 1.2, p. 2.



Weiner, op. cit., p. 189.



D Martin, The Refugee Concept: On Definitions, Politics and the Careful Use of a Scarce Resource, in H Adelman (ed.), Refugee Policy, York Lane Press, Toronto, 1991.



Weiner, op. cit., p. 190.



See in this regard, A Shacknove, Who is a Refugee, Ethics, January 1985, pp. 274-284.



G Melander, The Two Refugee Definitions, Report 4, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund, Sweden, 1987.



Weiner, op. cit., p. 156.



UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, UNHCR, Geneva, 1979, p. 14.



C Humana, World Human Rights Guide, Hutchinson, London, 1983, pp. 13-23.



UNHCR, op. cit., p. 14; Melander, op. cit., pp. 13-14.



P Nobel, Protection of Refugees in Europe as seen in 1987, Report 4, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund, Sweden, 1987, p. 28



Ibid., pp. 26-27.



H Toolo and L Bethlehem, Labour Migration to South Africa, raper read at the Workshop on Labour Migration to South Africa, National Labour and Economic Development Institute (NALEDI), Johannesburg, 31 August 1994, p. 5.



Weiner, op. cit., pp. 188-189.