Revisiting the Definition of Particular Social Group in the Refugees Convention and Increasing the Refugee Quota As a Means of Ameliorating the International Displaced Person's Crisis

Abstract

The number of displaced people in the world is at a record high. Governments around the world have been unable to find a mechanism for dealing with the rising tide of desperate people leaving their country of origin in search of a safe destination for them and their families. Approximately one third of the 60 million displaced people are refugees. The legal instrument that has for the past six decades provided the platform for facilitating asylum for more displaced people than any other is the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”). Regrettably, some of the limitations in this instrument relating to the definition of a refugee unfairly and arbitrarily preclude many deserving people from being granted asylum in countries which have the clear capacity to absorb them. The current displaced person crisis should result in a critical reflection of the operation of the Refugee Convention with a view to expanding the people who come within its scope. In order for a person to qualify as a refugee they must be in fear of persecution for one of five designated and precise reasons, namely: race, religion, nationality, political opinion or membership in a particular social group. The most obscure and unsettled refugee ground is ‘membership of a particular social group’. In this article, I examine the meaning of this concept and argue that it has been defined too narrowly, resulting in large numbers of people being excluded from the potential sanctuary that is offered by the Convention. I propose a broader definition, which contrary to existing orthodoxy does not require the trait which underpins membership of the group to be an immutable characteristic. In doing so, I draw upon jurisprudence in other countries (especially Australia) regarding the meaning of particular social group. The outcome of my proposed reform is that the Refugee Convention will provide a pathway to many more people being granted asylum in a manner which is consistent with the underpinning and intention of the Convention. In addition to this, which is the second key reform proposal in this article, the United States should proactively settle many more displaced people that are currently located in refugee camps around the world. It should lift its quota approximately five-fold to 500,000 people per year. This is commensurate with the economic and social capacity of the United States to absorb more destitute people and would set a desirable example for other first world countries, thereby significantly ameliorating the displaced person crisis. My proposal will not provide a total solution to the displaced person crisis, however the approach I take in this article will hopefully provide a catalyst for a more critical and humanistic approach and reinterpretation of other potential pathways for displaced people to gain asylum.

Keywords: refugees, asylum, international displaced persons