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DEBATE
Forced Migration Studies: Could We Agree Just to ‘Date’?
JAMES C. HATHAWAY
University of Michigan Law School, 625 S. State Street, Ann Arbor,
Michigan 48109, USA
jch@umich.edu
This essay questions the soundness of a scholarly shift away from ‘refugee
studies’ in favour of ‘forced migration studies’. It contends, first, that
subsuming refugee studies into the broader framework of forced migration
studies may result in a failure to take account of the specificity of the refugee’s
circumstances which are defined not just by movement to avoid the risk of
harm, but by underlying social disfranchisement coupled with the unqualified
ability of the international community to respond to their needs. Second,
it argues that forced ‘migration’ (rather than, for example, forced ‘migrant’)
studies encourages a focus on a phenomenon rather than on the personal
predicaments, needs, challenges, and rights of refugees themselves. It may thus
contribute to a lack of criticality in relation to policies which subordinate
refugee autonomy to the pursuit of more systemic concerns. The first concern is
illustrated by reference to the emergence of the ‘internally displaced persons’
category, the second by reference to the determination to find and mandate
‘durable solutions’ to forced migration, including to the movement of refugees.
Keywords: refugee studies, migration studies, forced migration studies, internally
displaced persons, durable solutions, refugee law, human rights
Is the effective marriage of ‘refugee studies’ and ‘migration studies’ in the
union of ‘forced migration studies’ a good thing?
In posing this question, I am not denying that there are some clear benefits
that flow from an association of refugee studies scholars with colleagues
whose work focuses mainly on migration—insistence on enhanced sociological accuracy and greater awareness of the varied nature of the displacement experience being two key examples of migration studies contributions
to those of us who work mainly on refugees. But are these synergies really
only obtainable via a conceptual marriage of fields? My present thinking,
implied by the plea to go back to more of a ‘dating’ relationship, is that the
formal union that is forced migration studies may not be in the best interests
of at least the refugee studies partner.
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Forced Migration Studies: Could We Agree Just to ‘Date’?
First, forced migration scholarship has often failed to take account of the
unique situation of a relatively clearly defined category of persons, namely
‘refugees’, who share the bond of, at the very least, a common legal status.
The specificity of the refugee’s circumstances—including in particular the fact
that refugees are not just involuntary migrants, but are by definition the
victims of fundamental social disfranchisement and uniquely within the
protective ambit of the international community—has been largely overshadowed in the conceptual merger at the heart of migration studies
scholarship. I do not accept Malkki’s assertion that there is too much
diversity in the category of persons called ‘refugees’ for that label to define
a credible focus of scholarly inquiry (1995: 495). To the contrary, even if all
that binds refugees is their common international legal status, that is more
than enough. In the real world, legal status—and the rights that go with
various forms of legal status—routinely identify and constitute fundamental
social and political categories (citizens vs. non-citizens being the most obvious
example). What better organizing construct could there be for engaged and
solid social science than that?
Second, the shift to focus on a phenomenon—‘forced migration’—rather
than on the personal—‘refugee’—seems eerily to correspond with preferred
governmental and agency agendas which increasingly sacrifice the autonomy
of the refugee himself or herself to broader migratory management goals.
My point is not that an emphasis on forced migration studies (rather than
refugee studies) has led to the official propensity to de-emphasize autonomy
in favour of systemic management. It is rather that the comparatively
amorphous, phenomenon-oriented nature of forced migration studies is less
oriented to generating scholarship capable of challenging the downward
spiral of the social and political commitment to respect the rights of refugees.
This lack of a rights-based orientation in forced migration studies is at
the very least comforting to both governmental and agency agendas which
have sought to reconceive the refugee population as little more than a
manifestation of broader problems to be solved.
If I am correct in thinking that these risks are real, it may make sense
to reconsider the conceptual marriage of refugee studies scholarship and
migration studies scholarship. It may be better to adopt a looser affiliation—
more akin to a ‘dating’ relationship—which would allow us to continue to
explore what we can contribute to each other. An association of this
kind would be of real value, for example, by allowing refugee studies scholars
to test assumptions about the continuing viability of a protection-oriented
and rights-based system which must operate within a complex web of
broader migratory concerns. But it is not necessary to merge our fields to
achieve such benefits. Indeed, a movement away from conceptual merger
would remind us of the importance of retaining our separate identities and
points of focus.
James C. Hathaway 351
The Opposing View
Before developing my own thesis, I want to acknowledge that there are
important and thoughtful voices in our community arguing that the integration of refugee studies into the migration studies family has not gone far
enough. DeWind, for example, suggests that because the various labels
we now use—‘refugee’, ‘forced migrant’, etc.—fail accurately to capture the
reality of peoples’ lives,
the study of refugees should be linked theoretically and practically to study of
other types of migration generally, ranging from voluntary, internal rural–urban
migrants to international movements of tourism; corporate, diplomatic, and
military transfers; educational and other forms of temporary migration and the
like (correspondence with the author, 24 May and 9 June 2006).
He believes that breaking our thinking down by reference to subcategories of migrants plays into the hands of governments which invented
those labels to justify management responses that assign greater value to
some migrants than to others, with detrimental consequences for some
migrant populations, in particular persons in flight from environmental
causes and poverty. So, to strain my metaphor, DeWind not only wants the
marriage to continue, but he wants the forced migration studies couple to
move into the sprawling home occupied by the big, extended migration
studies family.
Interestingly, DeWind’s plea for an enlarged conceptual merger proceeds
from two fundamental assumptions which I share.
First and most fundamentally, he argues that scholars have an ethical
responsibility not to adopt categorical distinctions which, while perhaps
administratively convenient, fail to reflect true substantive differences. If we
buy into an arbitrarily conceived label—and worse still, if our scholarly
contributions serve to reinforce official reliance on that arbitrarily conceived
label—then we acquiesce in, and perhaps even support, that arbitrariness.
Whatever else forced migration scholars are, we have always been linked by
our determination to be a community of engaged scholars, that is, persons
who do what we do with a view to improving the lot of those whose lives we
study. As the traditional medical adage suggests, we therefore have at the
very least a duty to do no harm to those whose interests we claim to
champion.
The second and related point with which I agree is that while the drawing
of distinctions is inherent in any effort to shed focused scholarly light on
social phenomena, we should strive to achieve categorizations which actually
map onto the reality of real peoples’ lives. This is less a matter of public
policy concern than it is of scholarly integrity: we ought logically to define
the scope of our academic work in a way that is not subject to critiques
of partiality.
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Forced Migration Studies: Could We Agree Just to ‘Date’?
But while I share both of DeWind’s concerns—that any categories we
embrace must neither fail to do justice to the reality of peoples’ lives nor
support arbitrary administrative manipulation—he and I come to quite
different conclusions about the ramifications of those two principles. Whereas
DeWind takes the view that refugees and other forced migrants are first and
foremost migrants, and should therefore be studied in tandem as part of
the family of other migrants, my own view is that being a refugee is appropriately recognized as distinct from being a forced migrant, and really only
incidentally comparable to being a migrant. And whereas DeWind worries
that distinguishing refugees and other forced migrants from migrants
generally risks administrative manipulation, my belief is that the much
greater risk is that officials will fail to take account of the specificity of the
duties that follow from refugee status if refugees come to be seen as no more
than (forced) migrants.
The Value of Refugee Studies
Why are refugees appropriately distinguished from other migrants, including
other forced migrants?
Refugee status is a categorical designation that reflects a unique ethical
and consequential legal entitlement to make claims on the international
community. This is not to suggest that the refugee’s circumstances are
completely unique. To the contrary, refugee status is in part premised on
a non-unique predicament: movement to avoid the risk of serious human
rights abuse.1 But qualification as a refugee is not simply a function of flight
to avoid serious harm, nor even of such flight in the context of a failure of
home state protection.2 Were refugee status so conceived, the arguments for
collapsing the refugee category into the broader forced migration paradigm
might well be sound. But refugees are in fact distinguished from other forced
migrants in two key ways.
First, a person is a refugee only if able to show that the underlying risk
prompting flight accrues because of fundamental disfranchisement within
the home state community.3 As bad as it clearly is for anyone to face human
rights abuse, refugee status is a recognition of the special imperative to
respond to the needs of persons in flight from risk prompted by
discrimination—the prohibition of which is the most central human rights
commitment of the international community.4 Simply put, refugees are
persons who are seriously at risk because of who they are or what they
believe. Refugees are therefore doubly deserving: not only is the risk they
have fled profoundly serious, but their exposure to such risk is based on
characteristics which are either unchangeable (like race or nationality) or so
fundamental that they should not have to be renounced in order to be safe
(like religion or political opinion).5
It might be countered, though, that this ‘doubly deserving’ argument could
also be made by at least a subset of forced migrants. While not all forced
James C. Hathaway 353
migrants are at risk because of discrimination, some clearly are. Why, then,
does it make sense to distinguish refugees from at least the subset of forced
migrants whose movement was prompted by discrimination?
It is here that a second fundamental consideration comes into play.
Refugee status follows not simply from being doubly deserving, but is also a
functional designation directly linked to the capacity of the international
community to guarantee a remedy. The alienage requirement limits refugee
status to doubly deserving persons who, by crossing an international border,
are now within the unqualified protective competence of the international
community.6 Being a refugee, in other words, means being a person who
deserves protection and being a person who can, in practical terms, be
guaranteed the substitute or surrogate protection of the international
community.
Despite the often attenuated nature of sovereign power today, it remains
the case that a clear guarantee of rights can only be made to persons who are
outside their own country. The restriction of refugee status to persons who
have left their own country is logical because it defines a class of persons to
whom the international community can, as a matter of practicality, undertake
to provide an unconditional response. The special ethical responsibility
towards refugees follows not just from the gravity of their predicament, but
also from the fact that it is always possible to address their plight in ways
that, regrettably, we still cannot for those who remain inside their own
country.
My point is emphatically not that the international community should
ignore seriously at-risk persons still inside their own country—to the
contrary, in-country assistance and protection are in principle to be provided
where viable, as recent commitments by the United Nations attest.7 But it
remains that there is a fundamental difference between the circumstances of
those outside their own country and those still inside it—namely, the
unqualified ability of the international community to ensure that protection is
provided. Refugee status predicated on alienage is a sensible construct
precisely because it defines a core constituency of the doubly deserving to
whom an unqualified obligation can in practice (and hence should) be
assumed. Because ethicality is not only a function of the ‘ought’ but equally
of the ‘can’, it is not inappropriate to guarantee rights to forced migrants
who are outside their country which cannot be guaranteed to forced migrants
still inside the borders of their own state. Indeed it might sensibly be
contended that any failure to guarantee what can in fact be guaranteed would
itself be an unethical omission.
In sum, there is a sound principled basis not to lump refugees in with
all forced migrants, much less with migrants generally. Refugees are a
category of forced migrants defined by the intersection of two fundamental
concerns. First, they are uniquely deserving of protection in view not just
of their movement to avoid the risk of serious harm, but because of the
fundamental social disfranchisement that gives rise to the underlying risk.
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Forced Migration Studies: Could We Agree Just to ‘Date’?
Second, as among the population of disfranchised persons who have moved
to avoid risk to basic rights, the presence of refugees outside their own state
brings them within the unconditional protective competence of the international community. To treat refugees as no more than part and parcel of the
broader forced migrant category is to ignore the specificity engendered by
both their exceptional deservingness and our unqualified access to them.
As concerned as I am that the uniqueness of the refugees’ circumstances
should not be lost by incorporating them into the forced migrant paradigm,
I am at least equally worried by the more subtle, but potentially more
profound, shift implied by the movement away from ‘refugee studies’ and
towards ‘forced migration studies’. As the words make clear, whereas refugee
studies scholarship is centred on studying particular persons (‘refugees’),
forced migration studies focuses on analysis of a phenomenon (‘forced
migration’—notably, not ‘forced migrants’). As would be expected, this shift
implies greater scholarly attention to phenomenological concerns—in
particular, the conditions of, and solutions to, forced movement as such—
displacing to at least a significant degree the primacy of refugee studies’
commitment to the analysis of individuals, groups, and their rights. The
willingness to conceive the focus of contemporary scholarly concern as a
variant of the migration question seems to have resulted in greater academic
openness to more routinized, more managed policy options which may be
very much at odds with the goals of refugee protection.
Refugee protection, properly understood, actually amounts to a direct
challenge to migration-based thinking. It is predicated on the assumption that
the neat and orderly world of managed migration is not realistic—and
perhaps not even always desirable. As codified politically and legally, refugee
status is first and foremost a ‘trump card’ that can be played in order to avoid
the usual rules of migration control. It is a needs-based recognition of
the inherent implausibility of managed migration in circumstances where the
need to flee is both ethically and pragmatically more powerful than the usual
rules of migration control. Most important of all, refugee status amounts
to a trump card which is held not by states, but by real, live human beings
who dare to take their fates into their own hands. Indeed, the exemption
of refugees from the usual right of governments to impose immigration
or other penalties for illegal arrival or presence (see Hathaway 2005:
405–412) makes absolutely clear that the refugee protection system is a selfoperationalizing, fundamentally autonomous mechanism of human rights
protection.
Yet it is precisely the commitment to this understanding of refugee
protection that is increasingly under siege, leading a former UNHCR
Director of International Protection to observe that ‘non-compliance with
international treaty obligations for refugees is becoming something of a
global norm’ (UNHCR 1997). If there has been a single overarching trend in
refugee protection over the last decade or so, it has been the official drive to
rein in, to control, to constrain, to render orderly and hence manageable the
James C. Hathaway 355
arrival of refugees. At the risk of overstating the point, the goal has been to
render the refugee as much a migrant as possible.
To be clear, I am not suggesting that efforts to organize the process of
refugee protection are necessarily bad ideas. To the contrary, Alex Neve and
I were among the first to propose a shift towards a more collectivized and
dependable system of access to refugee protection (Hathaway and Neve 1997;
Hathaway 1997). But the difference between what we proposed and most of
what is on the table today is that the variants of orderliness, of structure,
of systematization now under discussion do not begin from, nor are they
primarily directed to, the provision of meaningful protection options to
refugees. Current reform initiatives seem instead primarily designed to
achieve state-based migration management goals (Hathaway 2004).
Most obvious, of course, are systems which artificially designate so-called
‘countries of first arrival’ as the sole place in which protection may lawfully
be sought—a proposition with no basis in the Refugee Convention itself
(Hathaway 2005: 322–333). Many states, despite Art. 31 of the treaty, have
also sought to penalize refugees who dare to arrive without authorization—at
least by denying them access to basic social services, if not by outright
subjecting them to criminal or administrative sanctions (ibid.: 370–439).
Less egregious, but equally control-oriented, are the latest proposals for
extraterritorial, and perhaps even extra-regional, ‘processing’ of refugees—
again, an obvious effort not necessarily to deny protection, but very much to
constrain options, to channel efforts, to organize and hence ‘de-refugee’
refugees (ibid.: 339–342).
To say the least, then, the scholarly de-emphasis on the specificity of the
refugee’s predicament and his or her rights has come at a very bad time.
When refugees are collapsed into the category of migrants (or at least forced
migrants), and when (forced) migration is studied as a phenomenon rather
than from the optic of personal aspirations and rights, it should come as no
surprise that the resultant scholarship is less capable of being invoked
to contest the protection-reducing efforts of governments and international
agencies.
It might be countered that this reorientation was needed, that at least
the original refugee studies movement was actually too focused on refugee
rights and insufficiently attentive to broader systemic questions, as well as to
the contexts within which protection must occur. More pointedly, it could be
said that the early refugee studies movement was too advocacy oriented,
and that it attracted academics whose social commitments often outweighed
their scholarly acumen. There is, in my view, some truth in each assertion.
But for all its foundational weaknesses, there is a central value to the notion
of refugee studies which I fear has been diluted in the shift to forced migration studies. The real beauty of refugee studies is its unremitting commitment
to the centrality of the refugee himself or herself, and consequently to the
critical analysis of policy and practice from the optic of the autonomy
of refugees.
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Forced Migration Studies: Could We Agree Just to ‘Date’?
In sum, my worry is that when we subsume the specificity of refugee
studies into the broader migration studies family (or even the forced
migration subset thereof), we run afoul of both of DeWind’s principled
concerns. First, we fail to take account of the specificity of the refugee’s
circumstances which are defined not just by movement to avoid the risk
of harm, but by underlying social disfranchisement coupled with the unqualified ability of the international community to respond to their needs. Second
and related, a focus on the phenomenon of migration (or even on all forms
of forced migration) rather than on the personal predicaments, needs,
challenges, and rights of refugees themselves may contribute to a lack of
criticality in relation to policies which subordinate refugee autonomy to the
pursuit of more systemic concerns.
I will seek to illustrate my first concern in the context of the emergence
since the 1990s of attention to the ‘internally displaced persons’ category,
and the second by reference to the more recent determination to find and
mandate ‘solutions’ to forced migration, including to the movement of
refugees.
‘Internally Displaced Persons’
The evolution of ‘refugee studies’ into ‘forced migration studies’ coincided
with, and was largely the result of, the exponential growth of scholarly
interest in internal displacement. Whereas the alienage requirement of the
refugee definition excludes the internally displaced, the forced migration
studies label seemed neatly to capture what is common to both groups:
involuntary movement.
The upsurge of scholarly interest in internal displacement mirrored a shift
in official policy (see Hathaway 2005: 290–300). The flight of refugees from
former Yugoslavia into Western Europe during the early 1990s marked
a critical turning point. Coming hard on the heels of generalized European
efforts to limit their obligations to protect refugees by a variety of non-entre´e
mechanisms—including visa controls, carrier sanctions, and the more
formalized Schengen and Dublin regimes—governments responded to the
Yugoslav exodus initially by forcing the refugees into so-called temporary
protection regimes (which often did not meet basic international legal
standards) (see e.g. Noll 2000). Not satisfied with that effort, they successfully
co-opted the UN High Commissioner for Refugees to proclaim the ‘right to
remain’ of would-be refugees in former Yugoslavia, granting the agency lead
competence (and major funding) to minister inside former Yugoslavia to
the needs of at-risk involuntary migrants (see e.g. Barutciski 1996; Hathaway
1995). These persons would in most cases have qualified for refugee status
had they not been encouraged, and at times compelled, to remain inside
their own country. As we now know all too well, enforcement of what often
amounted to a duty to remain exacted horrific costs—for example, in
Srebrenica and Bihac.
James C. Hathaway 357
A key part of the strategy of containment was to mask the withdrawal
of European states from their refugee protection responsibilities with what
appeared to be a protection-oriented initiative: protection of the rights of
‘internally displaced persons’ (IDPs)—that is, precisely the persons who
would have been refugees in Europe but for implementation of the ‘right
to remain’ policies. While strategically successful, the new-found interest in
IDPs was conceptually odd (see Geissler 1999: 455–456). IDPs had long been
a part of the international landscape, but had traditionally attracted little
scholarly or institutional attention, despite the fact that over the course of
history, as now, the number of IDPs often surpassed the number of refugees
(Bennett 1998: 4). There is little doubt that the sudden interest in IDPs was,
in at least large measure, a strategy designed to deflect scrutiny of the refusal
of states to live up to their responsibilities to refugees:
The growing number of internally displaced people also results from changing
priorities within the international humanitarian regime. The current preoccupation with limiting refugee flows and avoiding long-term settlement has resulted
in a policy shift towards ‘internalising’ displacement. Thus, greater efforts are
made to keep people within their own countries, even if they are away from
their original homes (Bennett 1998: 4).
The decision in the 1990s to designate the UN’s refugee agency (UNHCR)
also to be its (very generously funded) IDP agency resulted in an institutional
shift from emphasis on the legal protection of refugees to become what
Harrell-Bond describes as ‘the world’s largest welfare organization’ (personal
correspondence, 24 May 2006). In short, the IDP agenda significantly
displaced the refugee agenda as a matter of international concern.
There can be little doubt about the success of the effort to re-focus
attention on forced migration in general (including in particular, on IDPs)
and away from the traditional focus on refugees. At the official level,
guidelines have been issued and embraced (Guiding Principles on Internal
Displacement 1998), special rapporteurs appointed (see e.g. Kälin 2006), and
agency mandates and agendas modified (see Martin 2004; Cohen 2005).
Non-governmental initiatives have been similarly retooled away from a focus
specifically on refugees. (It is noteworthy that the two most prominent
human rights NGOs, Amnesty International and Human Rights Watch,
have each restyled the mandate of their specialized refugee unit to focus on
migrant rights as well.) The forced migration agenda has also had enormous
appeal in the academic community, not least because it furthers the more
general scholarly commitment to eschew traditional categories of analysis in
favour of arguably more holistic understandings. The refugee label has come
to be seen as largely legalistic, perhaps even anachronistic.
A number of justifications have been offered for the redirection of
attention towards the relatively inclusive category of forced migrants—
including, in particular, to IDPs—and away from a more constrained focus
on refugees. The original claim centred on the perceived privileging of those
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Forced Migration Studies: Could We Agree Just to ‘Date’?
forced migrants able to cross an international frontier (refugees) vis à vis
those unable to do so (IDPs) (see e.g. Lee 1996). Why, it was asked, should
refugees get rights and the benefit of the protective energies of an
international agency (UNHCR) when (internal) forced migrants did not?
This is, in fact, a specious argument:
The leading argument was that the crossing of national boundaries was overemphasized and ascribed a certain ‘magical quality’. However, it should be
recognized that equal treatment of refugees and internally displaced persons is
only feasible if their factual legal situation can be compared. As this is not the
case, there is no space for analogy to or even synthesis with the legal status of
refugees under international law (Geissler 1999: 457).
As earlier explained, the refugee label attaches not simply as a function of
being ‘doubly deserving’—a condition shared by at least a subset of IDPs—
but also because a refugee is by definition within the absolute protective
competence of the international community (which IDPs are not). To distinguish refugees from other forced migrants is not to suggest that refugees are
more important or more deserving, but simply to recognize the distinctiveness
of their circumstances (Hathaway 1997a).
This point is clear from an examination of the actual rights that refugees
receive under international law. Despite the allegations of ‘privileging’,
refugee rights are in fact irrelevant to internal forced migrants. It is simply
not the case that refugees benefit from rights of generic utility arbitrarily
bestowed on the lucky minority able to cross a border. To the contrary, the
rights which follow from refugee status are directly related to the predicament
of being outside their country of origin.
Specifically, refugees are entitled to protection against refoulement,
the right not to be sent back to their country of origin for the duration of
risk (see Hathaway 2005: 278–370). They also receive a catalogue of entitlements designed to compensate them for the traditional disadvantages of
their alien status. Refugee rights simply establish the duty of states to treat
refugees on par with others in their own population. Refugee rights are
sometimes guaranteed to the same extent granted to nationals, but often only
at the level provided to most favoured foreigners, or even to aliens in general
(ibid.: 192–200, 228–238). Rights of this kind would be of no value whatever
to IDPs who are by definition still within their own country. As citizens
of that state, internally displaced persons are clearly already entitled to
a standard of treatment that meets or exceeds that owed to refugees.
Impliedly conceding this point, the first Special Representative on the
Human Rights of Internally Displaced Persons, Francis Deng, candidly
observed ‘[t]he challenge posed by internal displacement involves principles of
humanitarianism and human rights . . . physical protection, shelter, food,
clothing, basic health care, and the integrity of the person and the family . . .’
(1993: 134). Their needs, in other words, can be answered by the effective
implementation of generic human rights. Indeed, the much vaunted
James C. Hathaway 359
Guiding Principles on Internal Displacement add virtually nothing to the
pre-existing corpus of already binding international human rights law. Even
rights to private property (including to restitution of same) are not themselves
legally binding, in this sense representing no net advance on the (equally
non-binding) reference to property rights in the Universal Declaration of
Human Rights (Hathaway 2005: 519–522). All that has really been added
to substantive law is the equivalent of explanatory text, making clear how
existing law applies to the circumstances of the internally displaced
(Cohen 2002: 17). Nor has any major progress been achieved at the
institutional level where we now have what is called a ‘cluster approach’—
essentially an agreement among relevant UN agencies to ‘play nice’ with each
other, including preparedness both to coordinate and to divide up various
protection and assistance tasks intended to benefit IDPs.8
The fact that neither new law nor new institutions have evolved despite
the massive investment in reorienting attention away from refugees and
towards forced migration in general should give us pause. Are we really
sure that the forced migration label bespeaks a coherent and discrete category of concern? If so, why has so little of practical value been achieved
in relation to this category during a period of intense governmental and
agency interest?
My own view is that the paucity of concrete progress in achieving rights
and remedies to forced migration suggests the non-viability of the forced
migration label. It groups together two sets of persons—refugees and the
internally displaced—who in fact share little other than the shared symptoms
of involuntary movement. IDPs may—or may not—be the victims of
discrimination. They may—or may not—presently be at risk or vulnerable.
They may—or may not—be amenable to the palliative or protective efforts
of the international community. In each of these ways, IDPs are by definition
differently positioned than are refugees.
Indeed, on closer examination, it becomes obvious that there is a fundamental truth underlying Francis Deng’s original insistence, amplified and
confirmed in the Guiding Principles, that IDPs really need only access
to meaningful enforcement of generic internationally recognized human
rights. The reason they need no more than this is that the real community of
interest is not—as forced migration studies would suggest—between refugees
and IDPs, but instead between IDPs and other internal human rights
victims.9
Indeed, in contrast to the assertions of the original generation of IDP
advocates, the more plausible ‘privileging’ argument is logically advanced
against those who favour a particularized focus on internally displaced
persons. As the UN’s Assistant High Commissioner for Refugees recently
remarked,
. . . [T]he question being asked is whether it is artificial, in a complex emergency,
to make a distinction between persons actually displaced and the broader
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Forced Migration Studies: Could We Agree Just to ‘Date’?
population of the country, who may be just as vulnerable. This is illustrated
well, perhaps, by the situation in the eastern provinces of the Democratic
Republic of Congo (DRC). . . It is exceedingly difficult to distinguish between
IDPs and the population at large. Humanitarian assistance is lacking; the
population as a whole faces constant harassment by armed elements; sexual and
gender-based violence is rife; there is no rule of law; and corruption is
everywhere endemic and rampant. In these circumstances, should international
responsibilities begin and end with IDPs only? (Feller 2005).
If the primary needs of the internally displaced are in fact best defined by
reference to generally applicable human rights, why should they be treated
as a category of concern distinguished from other internal human rights
victims who have not been displaced?
Undoubtedly recognizing the illogic of distinguishing IDPs from other
internal human rights victims if the answer lies in the implementation of
generic human rights, forced migration scholars today sometimes anchor their
argument for the ‘forced migrant’ category on the basis of pure pragmatism:
because refugee and IDP flows are mixed, at least during initial flight and
during repatriation, it makes sense to treat them as a single group (Cohen
2005: 10). But the same could be said of IDPs and non-displaced human
rights victims, who are clearly a commingled group both at the outset of risk
and during return and reintegration. Why then link refugees and IDPs rather
than IDPs and internal human rights victims?
The most thoughtful contemporary appeal is instead made on the basis of
the alleged specificity of the IDP predicament. As the current Representative
for the Human Rights of Internally Displaced Persons, Walter Kälin,
explains:
As persons who left their homes involuntarily, internally displaced persons, like
refugees, confront specific problems and needs that are different from those
who may remain at home. While in flight, they may be attacked or cross into
mine fields in areas they do not know. Families might become separated, with
members losing contact with one another. Once they arrive at their destinations,
they need food, shelter, and access to health services. Often they are not
welcomed by the host population but suffer discrimination. Their children may
encounter difficulties in getting a proper education. IDPs in many countries run
higher risks than those remaining at home of having their children forcibly
recruited, of becoming the victims of gender-based violence, or of remaining
without jobs [or] other means of livelihood. One particular risk internally
displaced persons and refugees face is the loss of property left behind and the
inability to recover it . . . (2006a: 176).
What, exactly, is the claim being made? In part, it is simply that IDPs face
different forms of human rights abuse than do internal non-displaced persons:
for example, family separation, transit through mined areas, lack of hospitality in their destinations, etc. But Kälin does not only point to differences in
the nature of harms experienced, but also asserts that IDPs as a class face
James C. Hathaway 361
quantitatively greater risk of experiencing at least some forms of harm—in
particular, of the forced recruitment of children, gender-based violence,
and long-term unemployment. And in at least one case—property loss—
IDPs are said to be comparably situated to refugees in a way that
distinguishes them qualitatively (not just quantitatively) from the internally
non-displaced.
Addressing the first point, it is difficult to understand why IDPs should be
conceptually elevated out of the ranks of other internal victims if they simply
face different kinds of human rights abuse than the internally non-displaced.
It may well be the case, for example, that internally displaced persons are
more likely to become separated from their family as the result of movement.
But non-displaced victims—often those who are too disabled, too old, or
simply too encumbered by family responsibilities to leave their homes—may
be more likely to remain directly in the line of attack, with clear risk to life or
limb. Indeed, internally displaced populations may in some circumstances
be the relatively fortunate sub-population of internal human rights victims
since they can at least access relative safety within their own country. Just
because IDPs face different threats than the non-displaced, does this fact
alone justify scholars or the international community giving priority attention
to their predicament?
And if the remedial tools are the same for both IDPs and the internally
non-displaced—specifically, the corpus of general international human rights
law—does it make any sense to argue for greater institutional attention to the
enforcement of such rights in one case over the other? If the international
community can somehow manage to cross sovereign frontiers to address the
needs of IDPs, then why shouldn’t that access be exploited to benefit all
internal human rights victims, whether displaced or not? And if the argument
is that there are simply not enough resources to go around, then shouldn’t
international energy be allocated on the basis of relative need, rather than
on the rather superficial fact of being displaced or not? As Aeschlimann
has argued,
The ICRC is bound by its mandate to . . . act in favour of all the victims of
armed conflict and violence, and cannot therefore a priori delegate or forgo
some or all of its activities in favour of IDPs. Being essentially a situationdriven organisation, the ICRC deploys its resources based on its judgement of
a given situation and after a thorough evaluation of the resulting humanitarian consequences. We are careful not to create positive discrimination or to
advantage certain categories of beneficiaries in a manner detrimental to other
victims . . . In some contexts this may lead the ICRC to focus on populations
remaining in remote areas while other organisations concentrate on IDPs in
camps (2005: 25).
Isn’t this focus on relative needs and access rather than on categorical
classification and prioritization a more sensible way to proceed as a general
matter?
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Forced Migration Studies: Could We Agree Just to ‘Date’?
Nor is this concern adequately answered by Kälin’s second set of
arguments, which focus on relative degrees of exposure to particular types
of human rights abuse. Unless it were shown—rather than simply asserted—
that IDPs around the world face an across-the-board greater risk of exposure
to the gravest forms of human rights abuse relative to non-displaced victims,
there is no good case for normative, institutional, or other privileging of their
predicament. In fact, conditions vary. The Internal Displacement Monitoring
Centre estimates
that more than half of the world’s IDPs, some 14 million people in over 20
countries, were at high risk of falling victim to physical violence threatening
their lives in 2005 . . . At the other end of the spectrum, there are a number of
internal displacement situations where IDPs generally do not have acute
protection or humanitarian needs (2006: 14–15).
This leaves us with the third branch of the contemporary argument in
favour of focusing attention on IDPs—ironically the argument that best
justifies reliance on the ‘forced migrant’ label. Kälin makes a convincing
argument that IDPs face at least one form of human rights abuse that is
qualitatively different from that which affects the non-displaced: the loss of
property, in particular of their homes. He writes:
Imagine: There is a war in your country, an attack on your village and town is
imminent and, in order to save your life, you decide to flee with your family to
a region not yet touched by the conflict. There is little space to carry personal
belongings with you and you have to leave your house, apartment, or farm
behind, hoping that no one will break the carefully locked doors, enter your
property, take it away, or destroy it. After the conflict is over and you plan to
return home, you discover that your property has been destroyed, or that it was
taken over by another family who with the agreement of the local authorities
refuses to leave. This is the experience of many internally displaced persons all
over the world (Kälin 2006: 175).
It is moreover true that loss of home and other property is a fact that often
unites refugees and IDPs, and that generic international human rights law
provides no guarantee of property rights as such (Hathaway 2005: 519–522).
Yet it is doubtful that this single qualitative difference from the predicament of non-displaced human rights victims (and parallel to the situation of
refugees) is a sufficient basis to carve out a scholarly, legal, or operational
niche for the internally displaced (much less to justify the merged ‘forced
migrant’ category). The consequences of property loss—risks to health,
security, and economic well-being—are, of course, not unique to IDPs (or to
refugees) and are moreover already matters on which binding human rights
commitments have been assumed (ibid.: 439–516). Should it really matter to
us just how these consequences arise? Is there something worse about
lack of security that results from property deprivation than lack of security
that follows from other causes, such as military or other invasion? If not,
James C. Hathaway 363
why should we focus on property loss per se? And even if property loss is
thought a critical value as such—contrary to the prevailing position in
international human rights law—is it an important enough concern to justify
a segmentation of the community of internal human rights victims?
Most important from the perspective of my argument, is the fact that both
refugees and IDPs face property loss issues really enough to justify collapsing
the specificity of the refugee predicament—in which addressing the
disadvantages of involuntary alienage is the primary goal, and for which a
binding international commitment to provide a remedy exists and can be
implemented—into the merged, diffuse ‘forced migrant’ category? What is
the conceptual or other upside secured by losing sight of the specificity of the
refugee’s circumstances and options?
‘Durable Solutions’
The assimilation of refugees and IDPs into the ‘forced migrant’ category is
objectionable not just because it occludes the particular nature of the
refugee’s circumstances, but more importantly because it facilitates policy
manipulation detrimental to refugees. This was precisely what happened as
concern for IDPs took hold during the early 1990s: not only were would-be
refugees ‘persuaded’ not to leave Bosnia, but those who managed to cross the
border into Western Europe were denied access to refugee status determination procedures and relegated to so-called ‘temporary protected status’ with
less-than-Convention rights (Castillo and Hathaway 1997). Not even
UNHCR, charged with the responsibility to supervise application of the
Refugee Convention, protested the denial of refugee rights to persons who
were in fact classic Convention refugees. They were instead dealt with merely
as forced migrants with a purely moral claim to (discretionary and highly
qualified) protection and assistance (IGC 1995).
As noted earlier, however, the paradigm shift has not been simply from
‘refugee studies’ to ‘forced migrant studies’, but rather to the phenomenonoriented ‘forced migration studies.’ This reorienting of scholarly focus away
from the fundamentally personal (‘refugees’) and towards the phenomenon
(‘forced migration’) has coincided with an official move to de-emphasize the
personal autonomy of refugees and to recast refugee protection as a process
to be managed; in short, to treat refugees as people caught up in an
unfortunate predicament which needs to be managed and, at least ideally,
solved. In line with the approach, much forced migration scholarship is
similarly directed to the need to define and implement broadly framed
‘solutions’.
Solutions, at least for those who want them, are of course good things.
But refugee protection, despite much UNHCR rhetoric to the contrary,10
is not primarily about looking for solutions. Refugee protection is
instead fundamentally oriented to creating conditions of independence
and dignity which enable refugees themselves to decide how they wish to
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Forced Migration Studies: Could We Agree Just to ‘Date’?
cope with their predicaments. It is about autonomy, not about externally
imposed ‘fixes’.
Increasingly, though, there is impatience with the duty simply to honour
the rights of persons who are Convention refugees. The focus of much
contemporary discourse is instead on the importance of defining and
pursuing so-called ‘durable solutions’ to refugee flight.11 The main goal of
a refugee protection regime oriented towards ‘durable solutions’ is effectively
to find a way to bring refugee status to an end—whether by means of return
to the country of origin, resettlement elsewhere, or naturalization in the host
country. Indeed, those who focus on achieving durable solutions increasingly
regard respect for refugee rights as little more than a ‘second best’ option,
to be pursued only until a durable solution can be implemented. UNHCR’s
Executive Committee, for example, has ‘[r]ecogniz[ed] the need for Governments, UNHCR and the international community to continue to respond to
the asylum and assistance needs of refugees until durable solutions are found’
(UNHCR 2000: Preamble, emphasis added).
In contrast to this emphasis on the pursuit of durable solutions, the
Refugee Convention gives priority to allowing refugees to make their own
decisions about how best to respond to their predicament.12 Rather than
propelling refugees towards some means of ending their stay abroad, the
Refugee Convention emphasizes the right of refugees to take the time they
need to decide when and if they wish to pursue a durable solution.
In some cases, refugees will choose not to pursue any solution right
away, but will prefer simply to establish a reasonably normal life in the
state party where they sought protection. This is a fully respectable
alternative, which may not lawfully be interfered with by either governments
or international agencies. Because refugee rights inhere as the result of the
individual’s predicament and consequent status, rather than as a result
of any formal process of adjudication by a state (see Hathaway 2005:
154–160), they provide refugees with a critical, self-executing arsenal
of entitlements which may be invoked in any of the state parties to the
Refugee Convention. They afford refugees a real measure of autonomy and
security to devise the solutions which they judge most suited to their
own circumstances and ambitions, and to vary those decisions over time
(ibid.: 913ff).
Yet when refugees are reconceived as merely part and parcel of a broader
phenomenon of ‘forced migration’, the logic of seeing them as manifestations
of a problem to which a solution must be found seems sound. In lieu of the
‘refugee’ label, which attaches precisely in order to guarantee individual
autonomy through the acquisition of particularized rights, the relative
neutrality of the ‘forced migrant’ label seems almost to invite efforts to
‘fix’ the movement which, as ‘forced’, ought presumably never to have
occurred in the first place. The pursuit of ‘durable solutions’—a logical part
of reframing refugee protection as first and foremost a means of remedying
‘forced migration’—demands that systemic homeostasis be re-established,
James C. Hathaway 365
which means that any conflicting priorities of refugees themselves are
secondary, if relevant at all.
As scholars increasingly opt into this phenomenon-oriented field of forced
migration studies, our work is decreasingly relevant to vindicating the
specificity of the refugee’s circumstances and the internationally enforceable
remedies that follow from that predicament. And as we join in the call to
‘find solutions’, we impliedly acquiesce in official efforts to ‘de-refugee’ the
refugee population, and to turn them into little more than persons to be
managed.
Could We Just ‘Date’?
My goal here is not to propose a definitive way forward, but simply to
engender what I trust will prove a thoughtful debate about how best to
evolve as a scholarly community. I believe passionately that scholars must
not sacrifice the specificity of refugeehood on the altar of a misguided
effort to pursue formal equality with other migrants, or fail to recognize
the real loss of personal and communal autonomy that follows from an overemphasis on the phenomenon of forced migration and the perceived
imperative to find solutions to it.
Put simply, refugees are different: not only are they by definition both
seriously at risk and fundamentally disfranchised, but they are within the
unconditional protective competence of the international community.
Refugees are in consequence uniquely entitled to claim rights designed to
enable them to function autonomously despite their enforced alienage, and
specifically to conceive and pursue the solutions they wish to their own
predicaments, in their way, and on their timetable. None of us has any
authority to interfere with those rights.
As scholars we have in my view a responsibility to conceive our work in
a way that does not deny recognition of the specificity of the refugee’s
circumstances, and which does not lead to the denial to them of the modest,
but critical, set of rights which ensure their relative autonomy. For the
reasons set out here, I believe that the collapsing of refugee studies into
forced migration studies poses each of these risks, and therefore favour
a scholarly regimen predicated on at least some measure of disaggregation of
refugee studies from the broader study of forced migrants, forced migration,
and migrants and migration more generally. I believe that the centrepiece of
refugee studies should be the persons and not just the phenomenon, and that
the specificity of the refugee’s circumstances does and should matter. A body
of scholarship unconditionally anchored in at least these two commitments
could make a critical contribution towards the restoration of balance in the
international protection regime.
As a starting point, I believe that it makes most sense for us to eschew
the awkward notion of being ‘forced migration’ specialists in favour of
developing real expertise in some disciplinary branch of either refugee or
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Forced Migration Studies: Could We Agree Just to ‘Date’?
migrant/migration studies. A second step is to undertake solid crossdisciplinary analysis within either refugee or migrant/migration studies,
always insisting upon the analytical rigour that comes with hard scrutiny by
those with real expertise in the disciplinary tools we deploy. It is at this point
that a more flexible understanding of forced migration studies has most
merit: rather than replacing either refugee studies or migrant/migration
studies, the umbrella of forced migration studies might best be conceived as
a loose structure within which to subject our work to a final level of scrutiny.
The protection concerns of refugees will, of course, often overlap with those
of other forced migrants, and even of migrants more generally. Internal
forced migrants will be in flight for many of the same reasons as refugees.
And transborder migrants, be they refugees or not, all confront the systemic
strictures of the international migration regime. The conditions for a meaningful scholarly dialogue are thus in place since, despite the fundamental
differences that distinguish refugees from other forced migrants, and forced
from non-coerced migrants, there is still enough overlap among our
scholarly worlds to ensure that we will often have something meaningful to
say to each other.
A forum for dialogue of that sort is a good thing and is what I believe
forced migration studies should be. In short, could we just ‘date’?
Acknowledgements
The author acknowledges with gratitude the contributions of Michael
Barutciski, Catherine Dauvergne, Josh DeWind, Alice Edwards, Bill
Frelick, Matthew Gibney, Barbara Harrell-Bond, Susan Martin, and
Norman Zucker to the conceptualization of this paper. This text is based
on remarks delivered at the opening plenary session of the 10th biennial
meeting of the International Association for the Study of Forced Migration,
York University, Toronto, 18 June 2006. The final version has benefited from
the research assistance of Alla Karagodin and the comments of anonymous
reviewers.
1. ‘Persecution . . ., undefined in the Convention, has been ascribed the meaning of
sustained or systemic violation of basic human rights demonstrative of a failure
of state protection’: Ward v. Canada, [1993] 2 SCR 689 (Can. Sup. Ct., June 30,
1993, per LaForest J.).
2. ‘. . . [The Refugee] Convention is one of several important international treaties
designed to redress ‘‘violation[s] of basic human rights, demonstrative of a failure
of state protection’’ . . . It is the failure of state protection, so often repeated in
the history of the past hundred years, that led to the exceptional involvement
of international law in matters concerning individual human rights’: MIMA
v. Khawar, [2002] HCA 14 (Aus. High Ct., Apr. 11, 2002, per Kirby J.).
3. ‘The necessary discriminatory element may be supplied by the non-state agents
who perpetrate the maltreatment or it may be supplied by the state which fails
to protect the victims . . . [T]he discriminatory practice of the state is at least as
James C. Hathaway 367
4.
5.
6.
7.
8.
9.
10.
important as the discriminatory practice of the attackers . . . If there are thugs
about perpetrating serious acts against the population as a whole, but the state
offers protection to some of its citizens, and not to others, in my view those
citizens are being persecuted in just the sort of way that merits the surrogate
protection of other states under the Convention’: Horvath v. SSHD, (Eng. C.A.,
Dec. 2, 1999, per Hale L.J.) The regional OAU Refugee Convention also requires
recognition of the refugee status of persons in flight from ‘aggression,
occupation, foreign domination or events seriously disturbing public order’,
even when the risk is not linked to discrimination based on civil or political
status: Convention Governing the Specific Aspects of Refugee Problems in Africa,
UNTS 14691, entered into force June 20, 1974, at Art. I(2).
The duty of non-discrimination is the only form of human rights protection
specifically mandated by the UN Charter, at Art. 1(3). Indeed, ‘[e]very instrument, whether international or regional, requires the state to respect and ensure
to all persons within its territory and subject to its jurisdiction the guaranteed
rights without distinction of any kind’ (Jayawickrama 2002: 174).
‘. . . [W]hatever the common characteristic that defines the [at-risk] group, it must
be one that the members of the group either cannot change, or should not be
required to change because it is fundamental to their individual identities or
conscience’, Matter of Acosta, U.S. B.I.A. Dec. No. 2986 (1985).
R. (European Roma Rights Centre and Others) v. Immigration Officer at Prague
Airport [2003] EWCA Civ 666 (Eng. C.A., May 20, 2003), at paras. 37, 43,
affirmed in this regard by the House of Lords at [2004] UKHL 55 (Dec. 9, 2004),
at paras. 13–17.
See in particular UN Security Council Res. 1674 (2006), UN Doc. S/RES/1674
(2006), 28 April.
A coordinating UN agency is named for each of nine humanitarian sectors
(UNHCR is the designated lead agency on three of these) with accountability to
a UN Humanitarian Coordinator (Norwegian Refugee Council 2006: 20).
‘Unlike refugees, who have been deprived of the protection of their state of
origin, IDPs remain legally under the protection of national authorities of
their country of habitual residence. IDPs should therefore enjoy the same rights
as the rest of the population’ (Norwegian Refugee Council 2006a; see also Kälin
2006b: 3).
‘The limitations of . . . traditional solutions, coupled with the growing scale of the
refugee problem and the changing nature of the international political and
economic order, have prompted UNHCR to develop a new approach to the
question of human displacement. This approach is proactive and preventive,
rather than reactive . . . UNHCR’s work is becoming more and more linked with
a wide range of UN efforts, from political negotiations, economic and social
development, to the defence of human rights and environmental protection’
(Ogata 1995: 8–9). There is, however, reason for some optimism that the new
High Commissioner’s insistence on a rededication of UNHCR to the primacy of
protection will reverse this trend, at least in part. The agency’s current ‘Mission
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UNHCR’s primary purpose is to safeguard the rights and well-being of refugees.
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In its efforts to achieve this objective, UNHCR strives to ensure that everyone
can exercise the right to seek asylum and find safe refuge in another state, and to
return home voluntarily. By assisting refugees to return to their own country or
to settle permanently in another country, UNHCR also seeks lasting solutions
to their plight’ (UNHCR 2006).
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1959 and 2000 which call upon states to find ‘durable solutions’ to refugee
situations; by way of a ‘sample text’, it provides GA Res. 38/121, para. 8, which
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Persons of Concern’ in May 2003.
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