Governing Refugees 1919-1945
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
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
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 ones 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
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'
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
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
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
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
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
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,
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.
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,
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
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.
* 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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