The key concepts of migrants and refugees

 

Even though the issue of migration has become increasingly central in the transformations of both originating and receiving societies and has also become a strategic topic of interest in the 21st century, there is no universally accepted definition for the term "migration".

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The International Organization for Migration (IOM) classifies this phenomenon as an "umbrella term" in relation to destination (international or national), time (temporary or permanent) and voluntary nature or forced. "umbrella term" in relation to destination (international or national), time (temporary or permanent) and voluntary nature or forced. The migrant current definition encompasses the "common lay understanding of a person who moves away from his or her place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons"[1]. Considering this concept, there are three crucial elements outlined by the IOM: border, time, and nature.

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Relating to the nature of migration, when understanding the willingness of the movements, one should notice that among those who do not make the free decision to migrate, who have, through displacement, a form of survival, fall under the classification of forced migration[2]. Refugees are a particular category of migrants under the forced migration subclassification, defined by the 1951 Geneva Convention as someone who, due to the events occurring in Europe before 1 January 1951, "is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion"[3].

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Later, the 1967 Protocol removed the Refugee Convention's temporal and geographical restrictions so that the Convention would apply universally, and Article 1 of the Protocol says that countries that ratify it agree to abide by the Refugee Convention as well – even if they are not a party to it[4]. Instruments adopted at the regional level build upon the Convention and Protocol definition by including specific reference to a number of objective circumstances which may compel a person to leave their country. For example, Article 1(2) of the Convention Governing Specific Aspects of Refugee Problems in Africa[5] includes in the definition of refugees also any person compelled to leave his or her country "owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country or origin or nationality". Similarly, the 1984 Cartagena Declaration states that refugees also include persons who flee their country "because their lives, security or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order"[6].

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It is worth noting that, although the definition of a refugee has been expanded, not every person undergoing forced migration (internally displaced people, environmentally displaced people, displaced people due to humanitarian crises, among others) is considered a refugee. Therefore, such characterization is reserved only for those who meet specific requirements defined by objective and subjective criteria of international treaties[7].

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Furthermore, it is interesting to highlight that under international refugee law, the recognition as a refugee is declaratory and not constitutive. According to the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, a person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition, which necessarily occurs prior to the time at which the refugee status is formally determined. Thus, the recognition of the refugee status does not make that person a refugee but declares to be one as "he does not become a refugee because of recognition, but is recognized because he is a refugee"[8].

 

[1] UN. IOM. Glossary on Migration. N 34. Available at:  https://publications.iom.int/system/files/pdf/iml_34_glossary.pdf. Access in: 13/11/2023.

[2] Denise Marini. Humanitarismo e Militarismos : o protagonismo das Forças Armadas na resposta do Estado brasileiro às migrações venezuelanas (2018-2022). Doctoral Thesis. Universidade Federal Fluminense, Instituto de Estudos Estratégicos, Niterói, 2023. P. 124.

[3] Convention relating to the Status of Refugees. Adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137. Art. 1A(2). Available at: https://www.unhcr.org/media/convention-and-protocol-relating-status-refugees. Access in: 13/11/2023.

[4] Protocol relating to the Status of Refugees. Adopted 16 December 1966 by the General Assembly in resolution 2198 (XXI), entry into force 4 October 1967. Available at: https://www.unhcr.org/media/convention-and-protocol-relating-status-refugees. Access in: 13/11/2023.

[5] Convention Governing Specific Aspects of Refugee Problems in Africa. Adopted 10 September 1969, entered into force 20 June 1974. 1001 UNTS 45. Available at: https://www.unhcr.org/fr-fr/en/media/oau-convention-governing-specific-aspects-refugee-problems-africa-adopted-assembly-heads. Access in: 13/11/2023.

[6] Cartagena Declaration on Refugees, adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, Cartagena de Indias, Colombia, 22 November 1984. Available at: https://www.unhcr.org/fr-fr/en/media/cartagena-declaration-refugees-adopted-colloquium-international-protection-refugees-central. Access in: 13/11/2023.

[7] Denise Marini. Op. Cit. P. 125.

[8] UN. United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (2011) HCR/1P/4/enG/Rev. 3, para. 9). Available at: https://www.unhcr.org/fr-fr/en/media/handbook-procedures-and-criteria-determining-refugee-status-under-1951-convention-and-1967. Access in: 13/11/2023.