The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-First Century

46 Pages Posted: 13 Jun 2015  

Andrew I. Schoenholtz

Georgetown University Law Center

Date Written: June 11, 2015

Abstract

When the fledgling U.N. negotiated a treaty to protect refugees after the Second World War, member states focused on Europe as well as on events causing forced migration that occurred prior to 1951. No one imagined that cross-border escape from persecution would become a global phenomenon and remain one more than sixty years later, or that this human rights treaty would be needed in the twenty-first century. In fact, as increased numbers of asylum seekers from developing countries reached the most developed regions of the world during the last thirty years, critics have questioned the merits of this treaty and argued that the Refugee Convention has become outmoded and obsolete.

This Article considers how well-suited this treaty is for the protection of refugees fleeing persecution in today’s world. The author first looks at how the nature of the state itself has evolved and finds that too many governments today fail at providing significant portions of their citizenry with the most basic level of human security. A new cast of persecutors apart from the state now exerts authority and power in such societies, targeting particular societal groups using new forms of persecution. Examining how states have adapted this multilateral agreement to these changing circumstances, the author finds that this treaty continues to be vital in protecting the human rights of refugees thanks to two important treaty elements: a clear and fundamental purpose to protect individuals whose governments have been unwilling or unable to do so, and flexible terms that have enabled jurists and government officials to adapt the refugee definition to the changing nature of forced migration. Accordingly, the author’s analysis confirms the conclusion of the International Law Commission Special Rapporteur on Treaties over Time that “subsequent practice by the parties may guide an evolutive interpretation of a treaty.”

Keywords: Refugee Convention, persecutor, persecuted, particular social group, treaties over time

Suggested Citation

Schoenholtz, Andrew I., The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-First Century (June 11, 2015). Chicago Journal of International Law, Vol. 16, No. 1, 2015. Available at SSRN: https://ssrn.com/abstract=2617336

Andrew I. Schoenholtz (Contact Author)

Georgetown University Law Center ( email )

Washington, DC
United States

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