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governing refugees Arrow vol 1 no 1 contents
About borderlands Volume 1 Number 1, 2002


Governing Refugees 1919-1945

Robyn Lui
Griffith University



1. Refugee issues, often conceptualised by policymakers as a 'dark side of globalisation', have shifted from the margins to the centre of politics. Many states have deployed the language of security and images of uncontrollable waves of people to rationalise the implementation of severe measures. The US Coast Guard intercepts the passage of Haitian asylum seekers from entering US waters. The Australian government adopts the policies of mandatory detention, the Border Protection Act, and the Pacific Solution; these strategies are becoming models for other liberal-democratic states. In the name of cooperation, EU countries have established sophisticated regulatory treaties like the Schengen Agreements and the Dublin Convention that subvert their treaties obligations under the Refugee Convention. Other practices of containment and non-entrée include carrier sanctions, the idea of safe countries of origins, and 'safe havens'. In addition to the barrier to entry, the emerging norms of temporary protection and repatriation are preventing the permanent settlement of refugees in receiving states.

2. As the United Nations High Commissioner for Refugees (UNHCR) ‚ the international agency with the mandate to provide international protection to refugees ‚ announced almost a decade ago, 'the subject of refugees and displaced people is high on the list of international concern not only because of its humanitarian concerns today but also because of its impact on peace, security and stability' (Ogata, 1993, iii). The UN agency argues that the global refugee crisis demands a comprehensive regime comprehensive with a number of key features: cooperation among diverse actors, coordination of activities, networking, and information-gathering and dissemination. The pursuit of inter/national order is no longer just the work of state agencies. It requires the efforts of NGOs, journalists, aid workers, soldiers, peacekeepers, international lawyers, and academics from many fields. Didier Bigo (2002), and Ayse Ceyhan and Anastassia Tsoukala (2002) note that in contemporary Europe, the characterisation of refugees as aberrations has lead to the intensification of regulatory mechanisms and techniques.

3. If the disorder of refugees is at the core these policy responses, what perception of order is being affirmed by such interventions? This purpose of this essay is to make explicit the vision of order that is shaping the modern representation of refugees. At the most fundamental level, domestic and international relations requires organisational and frameworks and administrative instruments that manage the social world. One of the most potent ordering technologies, I suggest, is the system of states. The states-system creates an ordered multiplicity out of multitudes with profound consequences for human experience and human relations. In the process of ordering, a previously bewildering conglomeration of bodies is named, categorised, and regulated. The inter-state movement of people becomes a management and security dilemma for states while intrastate movements are seen as relatively unproblematic. The subject of refugees is an effect of the division of the world's population into sovereign territorial states. Refugees become subjects of government through two tactics of subjectification: first, the universal acceptance of the national state form as the unit of political organisation; and second, the value of citizenship as exclusive membership of a political community. The problem of refugees ‚ the problem that requires intervention ‚ is that they are outside the state-citizen order of things.

4. Furthermore, if we are to understand the contemporary international refugee regime, including the apparent 'failure' of international refugee law to address the needs of vulnerable people, we need to examine the history of the institutionalisation of the 'refugee problem' and the refugee regime. For example: the principle of non-refoulement, considered as one of the core protection mechanisms of the 1951 Refugee Convention, is the outcome of political compromises in response to the Jewish refugee problem in the 1930s. Following on this, the contradiction between the right of an individual to seek asylum and the absence of the obligation of a state to grant asylum ‚ a contradiction that is at the heart of the 51 Convention - is also a consequence of political events of the 1930s and 40s. The point is that we cannot assume that the crucial task of the international refugee regime is simply humanitarian assistance.

5. The international refugee regime, I contend, is a set of interventions that produces norms and principles that affirms the state-citizen order. In its diagnostic and prescriptive functions, the regime also creates a set of shared symbols and references, and mutual expectations. In turn, the normalising effect of shared understandings sets the limit for possible action. The appeal to a common good deepens the meaning of a specific vision of order. The concern is with order as both prescription and aspiration. In short, the international refugee regime seeks to achieve international order through a process of ordering, which defines relationships between actors based on certain values and norms and principles.

6. This essay begins with an exploration of the link between refugees as a subject of government and the distinctive features of modern states-system. The cartography of sovereign states, with distinctive territorial character, maps political life according to an inside/outside grid of explanation. It distinguishes the community of citizens from the mass of non-citizens. A person's status vis-à-vis a particular state defines the rights that she can enjoy and a state's obligation towards her wellbeing. To support this proposition, I look at the historical emergence of the refugee regime in Europe after World War One when the end of empire and the creation of new nation-states coincided with the mass movement of population from Russia. The refugee regime is a form of geopolitical humanitarianism that has as its 'core business' the preservation of the value of the nation-state form and the institution of national citizenship.

7. This historical analysis hopes to temper the danger of overstating the novelty of the present and thus to exaggerate disjunction and change. The link between past and present responses is that despite the distinctiveness of contemporary conditions, the modern states-system and national citizenship continue to frame the current debate on refugees. The pre-1945 refugee regime and the present regime also share another commonality - the aim to govern the inter-state movement of people through the characterisation of refugees as disorder, security threats, and humanitarian issues.

The geopolitical character of political life and the problem of refugees

8. The system of states was instrumental to the government and pacification of the population of a Europe plagued by religious conflict and the modern notion of international order based on sovereign states grew out of a distinctive historical experience. The Treaty of Westphalia in 1648 attempted to end the religious conflict that consumed much of Western Europe for over a century. Like the Augsburg settlement of 1555 with its principle of cujus regio ejus religio (religious uniformity within the state), the Treaty sought to 'deconfessionalise' politics in Europe by formally recognizing the exclusive control of states in their own internal affairs. The modern concept of sovereignty and the related principle of non-interference were crucial for the implementation of consolidation, integration, and domestication programs within the state.

9. States as the sovereign power in the domestic and international political arenas has exclusive control over the entry of people into its territory of jurisdiction. The varying degrees of success with which states control the inflow (and outflow) of people have not diminished the belief that states have the right and authority to regulate who may and may not cross their borders. Statehood supports a particular definition of political community and belonging. The significance of sovereignty and territory for the government of population, and particularly refugees cannot be ignored. Territory maps relationships.

10. According to Kuehls (1996) and Ferguson (1996), the way we understand territory is a result of acts of territorialisation, where heterogeneous elements are transformed, regrouped and experienced as a unity. Their writings suggest that the 'mechanics' of making territory impose order and define political and social relations. Functioning alongside sovereignty, territory is deployed to problematise inter-state movement in a way that intra-state movement is not. The characterisation of the refugee problem in international relations emerges from the disciplinary and normalising effects of this territorial arrangement. The territorial ideal creates subjectivities and demands constant affirmation through territorialising and terrorising practices such as migration and refugee policy.

11. Yet, some writers have misconstrued the relationship between refugees and states. Kurt Mills (1996, p.77) claims that individuals who are not members of the state-community are forgotten people because 'we define individuals in terms of citizenship instead of humanity, and this allows us to discard human rights in favour of citizen rights'. But at closer inspection, we can see that non-members of a state are not forgotten people. One should not confuse the effects of exclusion with indifference. Non-citizens are subject to myriad forms of disciplinary and regulatory practices. The international refugee regime is an example of the policing of non-citizens. The regime is part of a larger project, like immigration policy, aimed at the international government of populations.

12. Others see refugees as an indication of the emergence of a different world order ‚ a deterritorialised politics that challenges state-centrism. Nevzat Sogut (1996) argues that by cutting across space, refugees create a new space not subject to traditional notions of boundaries and boundedness. Claudena Skran (1995, p.3) also claims that 'refugees present a challenge to conventional ways of thinking about international politics because they 'do not fit neatly into the state-centric paradigm which assumes that each individual belongs to a state'. On the contrary, the issue of refugees highlights the centrality of the order of states. Refugees is an issue in international relations because the world is divided into a plurality of states in which the human population is segmented, ordered, and governed. What will be our understanding of refugees if states are not the political and spatial foundations of modern life and the ideas of nation and nationality have no value? The presence of refugees may raise questions about the adequacy of the state-nation-citizen arrangement as a form of life but that is something quite different from claiming the refugee as a figure that challenges the confines of the national states system.

13. The refugee is an effect of a global spatial practice of governing populations that produces a regime of truth about international relations and the forms of life possible (and desirable) inside and outside the state. Indeed, the world of sovereign states delimits what and how claims can be made in international relations, as well as by whom. As Robert Jackson points out, the attributes of statehood: sovereignty, territory, population, and the legitimate use of violence anchor understandings of modern politics and fix the foundations and conditions of international relations (Jackson, 1999, p.423). Problems in international relations are represented as transgressions of the norms of political life as expressed by the order of sovereign territorial states.

14. Providing the conditions for the good life for its 'people' is usually defined as a function of states. Indeed, the crucial justification of the modern state form has rested on the assumed capacity of states to contribute to the realisation of an individual's liberty and justice. Jackson (1990, p. 267) suggests that if states cannot be justified in terms of some version of the good life, then, the classical rules of the sovereignty game will be undermined. Walker (1993, p.14) also notes that the demands of state sovereignty were advanced historically 'on the ground of universalising claims about peace, justice, reason and humanity in general'. The 'empowerment' of the state as the site on which claims of the good life can be made has affected how we have come to think of political life inside and outside the state, thus international relations.

15. If the object of government is the life, welfare, and happiness of the population of a state, then, the members of this population should be citizens. Like sovereignty, citizenship has internal and external aspects. Citizenship is a form of membership in an exclusive state-community. As a member, one has privileges within the state and has a status that is distinct from that of non-citizens. National citizenship entails legal, social as well as cultural and normative dimensions that function as markers of belonging, with important consequences for the management of inter-states population movement and the treatment of non-citizens. By outlining the rights, obligations and duties of the national population and the state in relation to each other, 'the international culture of citizenship' characterises and affirms the difference between citizens and aliens (Hindess, 1996 and 2000).

16. The migrant remains under the 'protection' of their states, and therefore, can make very few claims in the non-national states of origin. Refugees, however, constitute people who are entitled to claim a range of support from a state that is not their own because their condition indicates the failure or/and inability of their state to protect them as citizens. The social contract that gives legitimacy to states has been broken. Being a refugee, because and despite of the anomalous condition , enables the person to make various 'humanitarian' claims on the international community.

17. States that are signatories to the refugee convention have 'international' obligations toward refugees. But states can assert a right to exclude refugees, which may leave the refugee stateless, unable to enter a country of asylum and unable to return (Aleinikoff, 1995, p. 258). Moreover, under a hierarchy of obligations, the primary obligation of states is to their citizens. From this perspective, refugees are constructed as burdens who consume the scarce or limited resources of states that should be allocated to their national populations. The theme of burden-sharing in refugee discourse may at first appear to highlight an apparent tension between duty and burden. But the issue cannot be posed in dualistic terms. The very choice we are presented with is an outcome of a particular understanding of a world's population divided into sovereign states.

18. The normative debate on refugees iterates this dualism. At the core of the two related dilemmas of 'duty beyond borders' and 'duty to man and citizen' is the question of how to reconcile the claims of citizenship and humanity. International distributive justice is about fostering some of the conditions considered to be 'basic goods' intrinsic to an individual's development within the political community of states, which takes us back to the importance of inter-state relations. Moreover, whether one positions the debate along the lines of liberalism versus communitarianism, partiality or impartiality, deontology or consequentialism, the dilemma is one based on the current order of things which grounds the aspirations of 'humanity' through citizenship. We may want to pursue the good life elsewhere and change our citizenship, but we do not wish to be stateless.

19. The assumption that the role of the state is as protector and provider is very powerful. No matter how cynical and disenchanted one is with the ruling government of one’s state, the belief that a government, whether it is liberal, conservative, or socialist, is responsible in some way for the welfare and happiness of its populations has not lost its purchase. The idea that states are obliged to their 'nationalised' populations can be found in the discourses on democracy and human rights. The promotion of democracy and the observance of human rights remain tasks for the governments of states.

20. Finger-pointing exercises in international politics are directed to states. Putting it differently, if human beings are considered equal, their equality is recognized only within the bounds of the state in which they belong. We make appeals for refugees in the name of common humanity but the grounds on which universalising claims about peace, justice, and equality are advanced is not to some global cosmopolis but against a certain state which is the 'contractual guardian' of its citizens. As Arendt observed, the idea of a cosmopolitan citizen is an oxymoron. Similarly, Malkki (1994) suggests that imaginaries of the national form and the national citizen provide the grid of intelligibility in contemporary discourses of 'international community' and 'humanity'. Internationalism and cosmopolitanism, then, are not in opposition to the naturalised state-nation-citizen order; they are constitutive of the system of sovereign territorial states.

21. Indeed, the underlying rationale for the work of the UNHCR reaffirms the status of territorial states as the ultimate provider of human welfare. Its 1997 report on the state of the world's refugees draws attention to internal conflicts that are threatening human, state, regional and international security. The 'humanitarian agenda' is to provide the conditions for 'stable' government that can ensure 'human security' so that people are not 'forced' to migrate. Democratisation is seen as a positive path to 'human security'. The report also proposes that the international community has a responsibility to ensure that all states observe the principle of human rights and move toward some form of liberal democracy for the sake of both 'human security and the security of states' (UNHCR, 1997, p. 261). The state as a sovereign political-territorial ideal provides the conditions for coexistence and relative stability in a world of states and for human happiness.

22. The state as the protector of life wages a permanent social war on those external and internal threats to the vitality its population. This war claims the right to kill and justifies a range of 'demonic' treatments of some in the name of protecting others. In other words, the affirmation of the life of those others and their particular way of life compels the elimination of objects that symbolise threats. Moreover, when the affirmation of life is linked to the assumption that a nation is a society of people with a distinct cultural identity, it provides a motivation to create exclusionary governmental policies. Both points are relevant for the government of refugees because they illustrate how the characterisation of refugees as an aberrant state of being compels various forms of interventions. The contemporary campaign to characterise refugees as 'different', whether culturally, ethnically, or economically is one strategy to wage war against those who appear to threaten narratives of national community and belonging. Having said that, the anomalous condition of refugees, in fact, provides the answer to the ambiguities of community and belonging. That is, through the double move of negation and affirmation, refugees represent who 'we' are not, thereby affirming who 'we' are.

National minorities, refugees and the pursuit of order in Europe after 1919

23. The refugee regime emerged in the aftermath of World War One in Europe. Although the language of international protection was used to describe the activities of the regime, the commitment to protecting vulnerable people was secondary to aim of managing the mass population displacement at a time when immigration mechanisms were failing to achieve their objectives. The regime was considered a component of the already-existing immigration control system. It was also a part of a broader attempt to maintain the fragile order in Europe following the extensive geopolitical and demographical changes brought on by the Peace Treaties.

24. The architects of the peace treaties hoped that the political reorganisation of Europe into territorial sovereign states along national lines would be an effective strategy to govern both territory and population. But the implementation of the principle of national self-determination as the legitimate basis for statehood was interpreted as a tacit endorsement of the homogenisation of a pluralistic community into the national state. Thus a state forged on the ideal of a culturally homogeneous people ‚ the People, was simultaneously liberating and oppressive. While the end of empire has resulted in the creation of states, these same states deny the possibility of secession by disaffected groups, which are required to accept the tenet of the territorial integrity of states.

25. Those people denied 'external' self-determination in the nation-state projects could be dealt with in a number of ways including assimilation and segregation. Moreover, refugee-generating practices like denationalisation and expulsion were far from exceptional tactics of nation-making. In the League's view, these nationalising strategies would harm the goals of state unity and regional order. To counter these dangers, the peacemakers established provisions for the international protection of national minorities in newly created states. The Minorities Protection Treaties had the dual functions of preventing population displacement and consolidating the new geopolitical order in post-1919 Europe. On June 9th, 1928, a report to the Council outlined the aims of the Treaties:

We are unanimous in considering that the system of the protection of minorities instituted by the Treaties, while having as its principal object the protection of the minority itself, is also intended, not only to prevent that questions concerning the protection of minorities should acquire the character of a dispute between nations, but to ensure that States with a minority within their borders should be protected from the danger of interference by other Powers in their internal affairs (LNOJ, 1928, p.942).

26. The Minorities Treaties addressed the pragmatic need to render segments of the population governable through mechanisms of compensation. The conditions in the treaties contained three basic elements: right to nationality, equality before the law, and positive and negative equality. The most striking feature of the treaties and declarations concerned cultural matters. Minorities were permitted education in their own languages and the state was expected to offer financial assistance to maintain the cultural integrity of its minorities. The content of these provisions was quite remarkable as such an experiment in pluralism had yet to take hold in western-liberal states at the time.

27. The government of populations and the pursuit of order in post-1919 Europe were not easy tasks. The National Minorities Treaties focussed on the domestic aspect of international protection. This strategy was preventive in character; it sought to address the causes of forced migration. The invention of the refugee regime was a reaction to the mass movement of people from Russia that threatened to destablise the new national states and European order. Under the auspices of the League of Nations, the refugee regime worked alongside the national minorities protection system to manage population movement and to maintain the European nation-state-citizen order. While the national minorities protection system functioned to domesticate and nationalise the population within the state, the function of the refugee regime was to govern the entry and presence of non-nationals or aliens within the state's territorial jurisdiction.

28. As population displacement became increasingly complex, the division of labour between the two regimes often blurred. For example, the population exchanges and transfer carried out following the Treaties of Lausanne and Neuilly came under the administrative ambit of both the minority protection system and the refugee regime. The palliative function of the refugee regime was an adjunct to the preventive function of the minorities protection system. Although the refugee regime was not the outcome of a profound or comprehensive plan, but a series of ad hoc responses to unanticipated and successive incidents of population displacement, it nevertheless, institutionalised population displacement as a political issue.

29. The relationship between the minorities protection system and the refugee regime has been scantly acknowledged in the scholarship on the emergence of the international refugee regime. In Beyond Charity: International Cooperation and the Global Refugee Crisis (1993), Gil Loescher devotes a few paragraphs to the relationship between minorities, nation-state formation and refugees in Europe after World War One. He makes no mention of the minorities protection regime as an indication of international cooperation that sought to govern population displacement. Similarly, Claudena Skran's (1995) history of the refugee regime in Europe makes no mention of the minorities protection system. For Skran (1995, p.31), the origins of the refugee movements in Europe may have begun with the transformation of central and eastern Europe from polyethnic empires to nation-states, but the mechanisms that sought to address possibilities of population displacement caused by the creation of new states were of little consequence. This omission ignores the complex relationship between, on the one hand, the nationalisation of states and the construction of national minorities and, on the other, the development of the refugee regime and the characterisation of refugees as an international issue.

30. The links between refugees and minorities were numerous. Both refugees and national minorities were the effects of the institutionalisation of a system of national states. The inscription of nationality was the basis for definitions of refugee and minority status. Refugees and minorities were legal categories of person defined vis-à-vis states against which they could or could not claim rights. Moreover, the number of refugees who were members of national minorities in the inter-war period suggests that the tension between national state and national minorities was a major cause of population displacement. In this sense, to make a distinction between the protection of minorities and the protection of refugees is to be inattentive to the porosity of the national and international and the multi-dimensional task of governing refugees and population displacement.

31. The apparent obscurity, until recently, of the minority protection regime is a consequence of the authority bestowed on the human rights discourse in the second half of the twentieth century. Since the end of the Cold War, however, national or ethnic minorities are again objects (or subjects) of investigation. The problems of minorities and their cultural and political rights are national and international issues. Ethnic conflicts within states are seen as a primary cause of refugee movement in the late twentieth century. As 'ethnic minorities' represent populations who are mostly likely to become refugees, the international refugee regime, and human rights instruments are now perceived to be inadequate regulatory machineries. Hence, the 'resurgence' of minorities has prompted the creation of the Organization for Security and Cooperation (OSCE) in Europe High Commissioner on National Minorities in Europe. The point is that the current international concern over minority rights is not novel.

The term 'refugee'

32. Although definitions and categories appear self-evident at first, labelling and definitional boundaries are tactics that seek to standardise and differentiate individuals. The activity of categorising and labelling, with its impact on the formulation of refugee policies and the allocation of resources, should be examined as a part of the process of governing refugees and restoring international order. Knowing, naming and defining a normative order is not an act of making transparent what is merely there, a content that is passively registered by others. Instead, to know and to make claims on behalf of truth and knowledge is a political activity, an exercise of power.

33. Prior to 1921, the needs of the displaced were mainly met by of voluntary agencies and non-government organizations like the International Committee of the Red Cross (ICRC) (Holborn, 1975, p.4). Relief, largely in the form of material assistance, was temporary. Integration, repatriation, and resettlement were not institutionalised responses. There were few international legal arrangements that addressed the plight of these people and the bilateral negotiations that existed lacked the institutional mechanisms to make them effective.

34. Russian nationals were the first group of people to receive international assistance from governments in Europe. The League of Nations took tentative steps toward a more coordinated relief effort after an appeal by Gustave Ador, President of the ICRC in 1921. Ador pointed out that close to two million Russians were scattered across Europe, without status and protection (Kulischer, 1948, p.54). The figures given by various European countries in August 1921 to the League of Nations was lower ‚ around one and a half million (Kulischer, 1948, p.54). According to Hope Simpson's calculations, there were 863 000 Russian refugees in 1922 (1938, p.78-80). Opinions differed sharply about the implications of further involvement in matters concerning population displacement. In postwar Europe, some states felt there were more urgent matters than humanitarian assistance. France and Britain, however, had a stake in advocating a 'burden-sharing' approach. Likewise, the new states in eastern Europe were eager to adopt measures to control the presence of Russians in their territories.

35. The passport system in its modern form developed during the First World War, when states were eager to curb the emigration of persons of military age and the immigration of 'suspicious' persons. Subsequently, the passport came into use as a way of regulating the flows of population and for certifying nationality (Marrus, 1985, p.92). The Resolution of the League of Nations on Passports, Customs Formalities and Through Tickets on 21 October 1920 and the Convention of Gratz on Passports on 27 January 1921 confirmed the significance of the passport as a measure that governed the movement of population across state boundaries.

36. The nascent international agreements on refugees centred on the issue of identification papers rather than the construction of a legal definition of refugees or the scope of legal protection. The first legal instruments were identity papers that allowed Russian refugees a degree of regulated movement. Those registered as refugees were issued certificates of identification for one year, which enabled them to travel within and between states in search of employment. The travel documents were issued by the police departments of European countries rather than by foreign offices. The 'Nansen passport' was renewable but became invalid if the bearer returned to the country of origin. It was important that refugees were able to travel to find work because at the time, concentrations of refugees in Poland and Germany were becoming an economic burden and a political risk to the governments of these countries. Of course, the recognition of such a travel document required agreement among states. The understanding was that no state was obliged to receive refugees bearing such certificates, but that all parties agreed to recognize them as valid identity papers.

37. Because only Russian refugees were of concern to the League, it did not bother to define the term 'refugee'. As requests for assistance widened, the League accepted responsibilities for other groups of displaced persons and labelled them as refugees. Between 1922 and 1945 , international agreements adopted a group category approach to the definition of refugees. The instruments that determined the status of refugees were based on national origins and not a general definition of the concept or an abstract notion of individual persecution. The idea of a universal definition of a refugee was proposed by the Institute for International Law in 1936, but failed to receive support.

38. The League of Nations gave attention only to those refugees from regions that were considered most disruptive to the new European order, such as the Russians and later, the refugees from the former Ottoman Empire. In 1936, it expanded its protection activities for refugees from Nazi Germany with the Provisional Arrangement of 1936 concerning the Status of Refugees coming from Germany and the 1938 Convention for refugees from the Saar and Germany.

39. Due to the international economic crisis, the refugees of the 1930s faced tight restrictions. With high unemployment and inflation, the welfare resources of many states were stretched to their limits. States were increasingly reluctant to accord special treatment to refugees, because they would further drain resources and compete with their citizens for employment opportunities. To counter the obligations under the refugee regime, many European states did not distinguish between refugees and other categories of aliens in their national legislation. Before the 1930s, the League and the bodies in charge of the management of refugees did not have a clear policy on expulsion or non-refoulement, and during this period, expulsion and forcible return were widespread practices.

40. Indeed, the concept of non-refoulement did not exist in international law. The general stance was that Russian refugees should not be forcibly repatriated. The instruments of 1933, 1936, 1938, and 1939 introduced a vague idea that receiving states had an obligation not to forcibly return refugees under certain circumstances. For example, the 1933 Convention Relating to the Status of Refugees attempted to restrict the practice of expulsion and to ensure that refugees had access to the courts, education, employment, and welfare in countries in which they found themselves. Most countries were reluctant to expand their obligations to refugees, and did not accede to these conditions (Stenberg, 1989, p.45). These states were also opposed to the originally proposed rule of non-refoulement, which allowed no exceptions. Subsequently, the idea of non-refoulement in the ratified version of the 1933 Convention did not preclude the removal of a refugee where she had not succeeded in obtaining admission into another state.

41. Immediately after World War Two, the legal status of 'refugees' and 'displaced persons' (DP) was defined in terms of nationalities. But other categories of displaced persons emerged in the attempt to give order to the immense wave of displaced population. The main classifications were: evacuees, war or political fugitives, political prisoners, forced labourers, deportees, civilian internees, ex-prisoners of war, and stateless persons. This method of organising a conglomerate of people into definable categories with specific conditions and experiences enabled the formulation of 'target' solutions to the problem. It also functioned to exclude some people from assistance. It was intentional that the Volksdeutsche and Reichdeutsche who had been living in the occupied territories of Eastern Europe before the war would be denied both refugee and DP status, and therefore, did not qualify for assistance (Salomon, 1990, p.161).

42. Ethnic Germans expelled from Poland, Hungary, Czechoslovakia, Romania, and Yugoslavia were the responsibility of the German authorities. The suspicion that German nationals and worse still, German spies were disguising themselves as DPs lead to tight controls on the movement, reception and distribution of German nationals across Europe (Schechtman, 1947, p.262). Nationality screenings and eligibility checks at borders and assembly centres also operated as exclusionary procedures. When the movement became out of control, the Potsdam agreement authorized a program of compulsory transfer or removal of Volksdeutsche remaining in Poland, Czechoslovakia, and Hungary.

International Refugee Agencies

43. The international refugee agencies were crucial to the management of population displacement. The mandates of these international governing bodies and their activities served to affirm the significance of an international order of states as a mechanism to govern human populations and to realise peace and stability. These organisations generated knowledge about population displacement and institutionalised the phenomenon as an issue of concern. Their mandates and constitutions set the limits of operation, including who would receive assistance, what forms of assistance were offered, who participated in the decision-making process, and who carried out the programs. International governmental agencies coordinated and harmonised the activities of states and various agents, distributed funds, and functioned as a forum for consensus-building and collective action.

44. The key institutional body of the refugee regime was the League of Nations rather than the refugee agencies. The League gave consent to their establishment. The refugee agencies had to turn to the Council and Assembly of the League for funding and approval, and to the Secretariat for expertise. Both the Council and the Assembly received reports from the High Commissioner for Refugees, and provided a forum for League members to discuss refugee issues (Skran, 1995, p. 77). The Council was designed originally to consist of representatives from the Principal Allied and Associated Powers, and four non-permanent members selected by the Assembly. Despite the facts that the United States did not join the League and that membership of the permanent Council varied, it exerted strong influence over refugee matters.

45. The mandate of the High Commission of Refugees, the first international agency for refugees, applied only to displaced persons of Russian origin, though the Russian refugees constituted only one of the many groups needing assistance. In light of the immense task of post-war reconstruction, many states were reluctant to cooperate in any international 'humanitarian' exercise. Nevertheless, the strict limitation on the forms of assistance offered and the exclusion of other groups made the proposal acceptable to some states.

46. Foreign policy concerns undoubtedly swayed the decision to assist the Russians. Britain and France shared an antagonism against the Communists and supported the White Russians during the Civil War. With the Communist victory, both states found themselves burdened with a Russian refugee problem. By 1921 France and Britain had spent approximately 3.8 million pounds and 1 million pounds respectively on assisting Russian refugees (Skran, 1995, p.89). Britain tried to persuade eastern European countries to settle refugees in their territory,. but the idea was promptly rejected. Furthermore, Britain and France failed in their attempt to organise repatriation agreements with the Soviet Union. The cost and inadequacy of a unilateral approach to the Russian refugee problem prompted Britain and France to turn to the League for assistance. States playing host to Russian refugees were also keen to ease their financial burden. Clearly, a number of states had interests in internationalising the Russian refugee issue and in encouraging international cooperation. They also figured that if refugees were to be an item on the League's agenda, they would have to represent refugees in terms of their connection to 'international peace and security'.

47. The League of Nations appointed an Office of the High Commission of Refugees to address the problem of Russian refugees. A function of the refugee regime was the management of a population as a human resource. The initial failure of the Russian repatriation program marked the beginning of the involvement of the International Labour Organization (ILO) in the management of refugees. In 1924, Nansen persuaded the ILO to assist in the technical problems of employment, settlement, and migration. The Refugee Service of the ILO made inquiries in all European countries into the conditions of refugees, their occupations, and whether they were employed, or employable (Simpson, 1939, p. 203). The Service conducted investigations about the possibilities of settlement of large numbers of refugees in South America. It was also responsible for the vocational training of refugees.

48. Gradually, the activities undertaken by the High Commission for Refugees expanded. The Inter-governmental Arrangement of 1922-28 authorised the High Commission to carry out consular functions - 'services' that were normally the tasks of the national governments. Its responsibilities now included:

certifying the identity of the position of the refugees; their family position and civil status; testifying to the regularity, validity, and conformity with the previous law of their country of origin, of documents issued in such countries; certifying the signature of refugees and copies and translations of documents drawn up in their own language; testifying before the authorities of the country to the good character and conduct of the individual refugee, to his previous record, to his professional qualifications and to his university or academic standing; recommending the individual refugee to competent authorities, particularly with a view to his obtaining visas, permits to reside in the country, admission to school, libraries, etc (Holborn, 1975, p.11)

49. Such 'services' allowed refugees to be documented and to be 'assimilated' or 'integrated' into their countries of refuge. If refugees could not be repatriated to their countries of origin, then it was important for the High Commission to facilitate the creation of a new bond between the refugee and the country of refuge. Since being a refugee was an anomalous condition in the regulatory citizen-state arrangement, the task was to convince the host state that the refugee had the necessary temperament to become a good citizen.

50. The Nansen International Office replaced the High Commission in 1930. It was an agency under the direction of the League of Nations (Holborn, 1975, p.12). Its task was to settle the remaining refugees in a ten-year period. But the objectives of the Office were hindered by the economic depression and the declining influence of the League of Nations. The appearance of refugees from Germany, although small in number compared to the Russians and Armenians, presented new problems to the refugee agency. These predominantly Jewish refugees were scattered throughout Europe at a time when many countries were experiencing economic depression. Anti-immigration sentiments were widespread. At the ILO conference in June 1933, representatives from Holland, France and Belgium argued that the influx of refugees threatened to disturb the labour markets in their countries. The issue was raised before the Assembly of the League of Nations, but Germany opposed direct intervention by the League in this matter.

51. In 1939, the Nansen Office and the High Commissioner for Refugees from Germany were combined to create the Office of the High Commissioner for all Refugees under League of Nations Protection. The understanding among governments was to resist any move that might suggest new obligations to refugees. Consequently, no proposal of international protection was made on behalf of refugees from the Spanish civil war. To further reduce the cost of international protection, the Office was not authorised to directly assist refugees. Its function was to process the paperwork associated with refugee conventions and certificates of identification, to coordinate humanitarian assistance among private organizations, and to promote resettlement.

52. The scale of population displacement caused by flight, expulsion, and organized population transfers across Europe during the Second World War, as well as the specific character of the conflict raised the political stakes on refugee issues. The previously impotent Inter-Governmental Committee on Refugees (IGCR) was revived and its mandate rewritten to serve new political conditions. The Committee expanded to thirty-six members, and its administrative budget was increased. The British and American governments funded the operational expenditure of the IGCR. This was a departure from previous practices under the League when governments expected private, voluntary agencies to finance humanitarian relief for refugees (Holborn, 1956, p.12).

53. In fact, the IGCR began to subsidise the relief programs of voluntary agencies. In an effort to coordinate the work of voluntary relief and welfare organizations during and after the war, the British and American governments introduced innovative administrative measures to the organizational structure of the Committee. Its mandate was broadened to include the Spanish refugees. In practice, however, the Committee would not include in its activities the nationals of member governments unless it had been requested to do so (Vernant, 1953, p.28).

54. As the war continued, the role of IGCR was enlarged from a diplomatic one of coordinating the efforts of governments to include operational tasks. The Committee's new function was 'to undertake negotiations with neutral or Allied States or with organizations, and take steps as may be necessary to preserve, maintain and transport' refugees within its mandate (Sjöberg , 1991, p.16). It coordinated its activities with those of the High Commissioner of the League of Nations, the ILO, and later the War Refugee Board of the US and the United Nations Relief and Rehabilitation Administration (Holborn, 1975, p.18). It devised an orderly migration program for the thousands of refugees, and thereby laid the foundation for the massive international migration scheme of the International Refugee Organization (IRO).

55. Before World War Two, only the International Committee of the Red Cross and its British and American branches worked alongside military authorities. After the war, voluntary agencies were used much more vigorously. Consultative bodies of voluntary agencies were formed in Britain and America: the Council of British Societies for Relief Abroad (COBSBRA) and the American Council of Voluntary Agencies for Foreign Services (ACVAFS). Governments relied on these agencies to carry the distribution of relief to refugees.

56. The prospect of a large-scale uncontrolled movement of people near the end of the war was a major concern. It was feared that spontaneous repatriation of displaced persons may result in 'roving bands of vengeful pillaging looters on trek (sic) to their homes' (Proudfoot, 1957, p.117). A number of methods were deployed to discipline the refugees and the displaced. They were instructed by means of leaflets dropped from the air, radio broadcasts, and through resistance groups to stay put until the route for their movement could be organised by the military (Proudfoot, 1957, p.117). The military police made sure their movement did not congest main routes required for military purposes. Collecting points were locations from which displaced persons would be moved under police escort to transit areas or camps. From there, they moved to assembly centres for medical examination and for a 'comprehensive dusting of DDT powder'. After medical clearance, the person would be registered for repatriation. To ease the task of administration, DPs were segregated into nationality groups. They were given meal cards while their cases were being processed. Some DPs were employed in the war effort - largely in manual tasks. Border control stations were set up to further regulate the movement of returnees, while information and reception centres received them and assisted in their assimilation.

Durable Solutions

57 . A refugee is an anomaly in a world where the human population is managed by 'belonging' to a sovereign states as a national citizen. It is as a citizen of an exclusive state community that one can enjoy the 'universal' principles of equality, fraternity and liberty. A refugee is someone without the protection of her state and must seek protection in another state, where she is 'out of place'. Refugeehood indicates a transgression of the social contract between a state and its citizen. The purpose of international protection is to provide a surrogate state-citizen condition until an authentic one can be established through repatriation, integration or/and settlement - the durable solutions for refugees. A durable solution is one that creates or restores the bond between a person as a citizen and a state as her legal protector.

58 . Immediately after World War One, repatriation was the preferred permanent solution for the Russian refugees. But the High Commissioner could not persuade the Soviet Union to agree on a repatriation scheme along similar lines to the population resettlement programs in the Balkans. The absence of agreement between countries of origins and countries of asylum also frustrated attempts to repatriate refugees. The nationalistic temperament of the time was unfavourable for Russian refugees, as their presence threatened the nationalizing tasks of newly formed states of eastern Europe. According to Skran (1993, p.39), minorities already comprised at least fifteen percent of the populations in every state in the region, while the minority populations in Czechoslovakia, Yugoslavia, Poland and Romania constituted thirty-three percent of the total population. From 1921 to 1939, the general attitude was that organised repatriation programs, as a solution to the refugee problem were unworkable. Hope Simpson (1939, p. 529) concluded that 'repatriation had not provided a complete solution of any of the important post-War refugee movements, and it could be ignored as an important element in any future program of international action aiming at the practical liquidation of the existing refugee problems'.

59 . Besides repatriation, integration and resettlement were the other possible permanent solutions. Integration referred to the settlement in the country of refuge, while resettlement was the relocation of refugees to a 'third country'. The domestic labour requirements of receiving countries influenced the possibility for integration and resettlement. Both schemes fitted into the increasingly regularised system of international migration.

60. There were two types of resettlement schemes. One programme relocated refugees from densely populated cities and towns, where their presence was believed to be unsettling, to sparsely populated rural areas. The other plan transported refugees to 'under-populated' regions of the world. The assumption that population pressure led to war was widely accepted and disseminated by politicians, scholars, and international public servants (Citroen, 1951). Lebensraum was a powerful idea in Europe and geopolitical knowledge had been influential in shaping the relationship between territory and population. Themes of 'manpower equilibrium', 'national health', and 'excess population' were part of the language used to promote organised migration. Add these ideas to the anxiety over peace in Europe and the need for labour elsewhere in the world, resettlement schemes appeared to be an intelligent and practical solution.

61. The requirement of post-war reconstruction in some European states and the general demand for labour in settler states allowed resettlement to be a viable solution in the early and mid 1920s and again in the mid 1940s. The conditions in France indicated how resettlement was an acceptable and successful solution to population displacement. The French government perceived the health and wealth of the country as dependent on the size of its population. During World War One, France suffered the loss about 1.5 million members of its male population. This demographic situation prompted the government to encourage immigration, offer special incentives payments for large families, and outlaw birth control. From 1922-1925 France permitted the entry of about 1.5 million foreign workers, of which 400 000 were Russian refugees willing to perform menial jobs (Marrus, 1985, p.96). Recruiters were sent to Sofia and Constantinople to persuade displaced Greeks and Macedonians to move to France (Marrus, 1985, p.114).


63. A world of sovereign states and a humanity comprising citizens are the grids of intelligibility through which we secure the meaning and value of political community, identity, security, peace and order. The state-citizen connection creates a hierarchy of duties and obligations. Each state is accountable, first and foremost, for the welfare and protection of its own citizens. Citizenship as membership of a state is an inclusive mechanism that enables individuals to enjoy their rights as human beings. In other words, human rights are enjoyed within the framework of rights as a citizen. At the same time, national citizenship sanctions discrimination against those who are nominally the responsibility of another state.

64. Within this global political framework, the movement of people is a highly regulated affair and the refugee regime is a practical system within a wider assemblage of practical systems concerned with regulating inter-state movement. But the term 'refugees', as we have seen, refers to population movement of a very particular kind. Refugees are distinct from migrants because of their inability to actualise either the formal or substantive qualities of modern citizenship. Unless stateless or denationalised, refugees are citizens who do not enjoy even the most basic benefits of the state-citizen compact. The failure of their 'protector' states to provide the minimal conditions for political life forces them to seek protection elsewhere. A key character of being a refugee is the compulsion to move; it is forced migration.

65. At the beginning of the twenty-first century, the original promise of the nation-state, that is, the possibility of realising at least punitive legal, political, and eventually even social equality, remains seductive. The fulfilment of this sacred promise, according to some discussions on globalisation is being threatened by, among other things, unregulated migration. Governments and international agencies are investing enormous resources to manage this so-called dark side of globalisation. The recent link alleged between asylum seekers and transnational organised crime and terrorism are developments that will have implications for the design and deployment of regime practices. Any 'progressive' push to change the treatment of refugees will have to contend with the fact that the key institutions of international protection such as non-refoulement and asylum are conceivable because states have agreed to treat non-citizens in a particular way. Likewise, durable solutions depend on the willingness of states to accept the (re)entry and integration of certain groups of people.

66. I hope this historical exploration has, in some way, demystified the current attraction to international law as a panacea to issues of justice and the faith in refugee agencies to 'do no harm'. The refugee regime is made up of inter-state and non-state institutions, emergency aid assistance, handbooks and code of conduct manuals, experts, research institutions, academic publications, briefing notes, information kits, evaluations, camps and transit centres, safe havens, international laws and travel documents. Taken together, they produce a regime of truth about political life and social relations, and more directly, the nature, character, and causes of refugee movement. They legitimate certain kinds of political interactions and solutions, and affect a sense of shared interests and common modes of perception through and in political discourses, persuasions, and negotiations. The question of who is included and excluded from the category of 'refugee' and the benefits of international protection is just as important as inclusion and exclusion from the nation-state community. Categorisation and characterisation of population displacement are techniques of ordering that reflect power relations and political calculations. International protection is a political act.

Robyn Lui is a researcher at the Key Centre for Ethics, Law, Justice and Governance, Griffith University. Her research interests include the politics of humanitarianism, the international refugee regime, and post-conflict reconstruction. She is currently working on a monograph on the biohistory of the international refugee regime. Email:


* The author would like to thank the anonymous referees and the editors for their helpful comments and suggestions. All errors are of course my own.

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