Leaving the UN Refugee Convention

We need to withdraw before it's too late.

In previous articles we looked at the GOP’s strengthening stance on illegal immigration and at the core underlying moral argument against open borders. In the conclusion, I’m going to turn to the problem of refugees and asylum seekers. This is no doubt a difficult issue to look at objectively. I myself know, from personal experience, how deeply some asylum seekers yearn, and how much their futures depend on outcomes. However, like in so many other areas of our degraded society, abuse has become normal. Though my opponents will surely decry me as some kind of hypocrite, the truth must be proclaimed fearlessly. And the truth is that many are not seeking asylum from any severe threat. They are, for the most part, economic migrants, and need to stop abusing the broken asylum system.

Like the previous article, this one was written with the help of an academic at a well-known university who has well-grounded fears about his future should he write articles like this under his own name. I welcome such people to publish on Restoration. There will be no censorship here. Also like the previous articles in this series, it is a “deep dive,” and might not be to every reader’s taste. But if you really want to get to the bottom of how the UN enables refugee crises, look no further!

Economic Migrants versus Refugees

It’s clear from the previous article that there is no general right to immigrate. That right is incompatible with the right to political self-determination that belongs to all peoples. But there’s another argument we often hear from our friends in the open borders movement. They insist that whether the exclusion of a migrant is justified depends at least in part on the strength of their reason for applying, and in particular on whether it’s a matter of need or of preference. To put it another way: The state may turn away economic immigrants but not refugees. To the extent that most of those turning up at America’s borders illegally at least claim to be asylum seekers, this could be a serious objection if it can be sustained.

For what it’s worth, I agree that states owe more to refugees than to other categories of migrants. However, the point that needs to be stressed here is that the current refugee and asylum system, as defined by the 1951 UN Refugee Convention, is a hopeless way of deciding what those obligations are. But the UNRC is still being used to wrench open the borders of America and other Western nations to unsustainably huge numbers of self-described “asylum seekers,” with no end in sight.

This issue is difficult, and we need background.

Now, the 1951 Refugee Convention governs the obligations of states towards people who flee their countries because of a “well-founded fear” of persecution for “reasons of race, religion, nationality, membership of a particular social group or political opinion.” States must not send them back to danger, a principle called “non-refoulement.” Initially this applied only to people displaced in Europe prior to 1951 by the Second World War, but its provisions were extended to the whole world by the 1967 Protocol Relating to the Status of Refugees. The US, for its part, signed and ratified the UNRC and its Protocol in 1968 and formally incorporated their provisions into US law by the Refugee Act of 1980.

Initially, this did not impose a significant burden on Western countries. During the 1970s the average number of asylum cases a year in the US was only 2000-3000 and in the UK only around 200! Most were exiles from Communism. But that all changed after the Cold War, when massive population growth, cheap transport, and state failure in the Global South created an unprecedented migration wave that brought the total number of forcibly displaced persons globally to a record 110 million last year. As a result, the handful of asylum cases submitted under the Refugee Protocol in the USA has ballooned to a backlog of almost 4.3 million cases in 2023.

And on present trendlines, these numbers are bound to grow. Part of the reason is a global population explosion taking place in the least developed countries, especially in Africa, as you can see below. These predictions are of course fallible and tend to expect current trends to continue onward without a major interruption: e.g., no pandemics or famines. But even allowing for such uncertainties, the numbers from the UN are startling: whereas in 1950 there were three Europeans for every sub-Saharan African by 2050 there should be three Africans for every European. And by 2100, they are projecting almost six sub-Saharans for each European.

Another major reason is that refugees are increasingly difficult to disentangle from the much larger group of economic migrants who just want to improve their lives. According to Gallup’s "potential net migration index" there are already 900 million people in the world who say they would move permanently to another country if they could. If everyone who wants to move could, America’s population would increase by 158 million (or about 46%) and Germany’s by 42 million (or 45%). And those are just the first preferences! Add in everybody who’d take either country as a second best choice and they’d already be higher still.

So although Biden’s policies are the immediate cause of the current border crisis, the UNRC is at the root of it. It is already commonplace for illegal aliens, coached by smugglers and NGOs, to turn themselves in, claiming fear of return, and thereby initiate the asylum process. Given the scale of prospective demographic pressure, this problem will get unsustainably worse without a major change in policy.

Two Fatal Flaws in the UNRC

There are two key problems with the Convention and Protocol that have fueled this problem: asylum seeking and the definition of a refugee.

Asylum, in American nomenclature, is distinguished from refugee resettlement by reference to who starts the process. In refugee resettlement, the US government affirmatively chooses a person located abroad to bring to the USA and, as such, gets to control exactly who to bring in and where to put him. Asylum works the other way around. It is the asylum seeker who instigates the process of getting himself in (and it is usually a him!), typically without consent or legal authorization, and the asylum seeker who then demands the right to stay. The number who can make such claims is unlimited. They do not have to be the most in need of resettlement. There is no obligation in the Refugee Convention, either explicit or implicit, to claim asylum in the first safe country they reach. If successful, they can settle where they please. Once here, we are treaty-bound to consider their claims, claims that are subject to litigation in our courts.  Unlike resettlement, asylum represents a profound limitation on the public’s ability to determine which foreigners can move here.    

A rally in Minneapolis. Credit: Fibonacci Blue from Minnesota, USA, CC BY 2.0 <https://creativecommons.org/licenses/by/2.0>, via Wikimedia Commons

The second problem is the definition of who qualifies for asylum. This, in turn, has a few dimensions. If the definition of a refugee were limited to just persecution on the grounds of race, religion, nationality, or political opinion, then the situation would be more manageable. As it is, the drafters of the UNRC included a nebulous fifth category, “membership in a particular social group,” as another potential basis of persecution. Although this may originally have been intended to refer to kulaks and others targeted by Communists, it has since ballooned to encompass myriad social configurations including gang membership, domestic violence, FGM, medical conditions, and sexual orientation. This open-endedness means many illegal aliens have been granted asylum on grounds far removed from what Senators intended when they ratified the Protocol in 1980.

This problem has been exacerbated by ambiguity regarding the meaning of “persecution,” which conjures up images of death, torture and imprisonment but has increasingly been read to encompass things like employment discrimination and unequal access to health care. It also includes interpretations according to which the feared persecution is not directly instigated by the state, but by private actors like gangs. The net effect has been to make the UNRC and its Protocol an inflationary and self-propelling gift to anti-borders activists and people smugglers. This problem will likely become even more acute as the open borders lobby greenwashes a growing proportion of irregular migrants by classifying them as “climate refugees,” a category the World Bank is already projecting to be 143 million strong by 2050.

What We Must Do

 There is scope for reasonable disagreement about the level of obligations to be imposed on host countries but it is clear that a UNRC system designed for a world with 5.5 billion fewer people than we have today, 8 billion fewer than are projected by 2100, and in which a much smaller share of them were intercontinentally mobile, is seriously out of date. This is true just at the level of raw numbers, let alone once we consider the problems that arise for interpreters of a treaty written with the Nazis’ victims in mind when they’re confronted with people whose claim to asylum is based on employment discrimination or a centimeter rise in sea levels. As written, the Refugee Convention as such imposes a prospectively intolerable burden on Western countries like the United States; something has to give.   

There is a parallel here with the Samaritan’s Duty born by individuals in emergencies. As conventionally understood, this only comes into effect if there is a nearby potential victim facing a threat of death or serious injury on the one hand and a rescuer who can save them without exposing themselves to the risk of death or serious injury on the other. There is not an unlimited and unconditional obligation to take large risks to save remote victims who are not themselves even known to be at risk of drowning and without exploring any alternative means of rescue. Most people would probably judge that this latter duty was seriously flawed. It neither safeguards sufficiently urgent interests of the victim, nor avoids placing an intolerable burden on the would-be rescuer. It is reasonable to ask people to rescue drowning children. It seems less reasonable to demand Western peoples take care of every single poor person on the planet forever, never mind the cost and risks.

The same problem, broadly speaking, applies to the refugee and asylum framework as it has come down to us from the Cold War. During the first Trump Administration some significant progress was made in dealing with its excesses. For instance, we adopted the “Remain in Mexico” policy to require asylum seekers to remain over the border to await hearings on their claims. We also signed “safe third country” agreements with Central American countries. We directed immigration courts (who are employees of the Department of Justice rather than Article III judges) to narrow their interpretations of “particular social groups” when defining who is a refugee. We made real progress. Needless to say, all of this has been swept aside under Biden.

If the GOP wants to build more durable achievements in a second Trump term, it will need to go further – much further. We must prepare a plan to exit the UNRC altogether, and then create a new system based on tighter definitions of who qualifies as a refugee, with more sovereign control over resettlement and a greater use of arms-length processing for claimants. In the place of Mayorkas’s open borders diplomacy, the government could push for a less arbitrary system of assigning asylum seekers. This should be based not just on whose border they reach, but on groups of states with shared interests and cultural connections taking on “common but differentiated responsibilities.”

In practice, this would mean the bulk of refugees would be hosted in developing countries close to their nations of origin, but with greater supporting contributions from richer nations like the US. Taken together, these steps would strike a defensible balance between the needs of people who are genuinely at risk of serious persecution, on the one hand, and the collective rights of hosts. Bounded political communities that can sustain democracy and achieve a measure of domestic justice require some level of demographic closure to stay democratic and just. Otherwise, eventually even the lifeboat countries start to sink. Only in this way will the GOP be able to ensure that an asylum system that showcased Western democracy in the Cold War era cannot be weaponized by open borders activists in the very different conditions of the twenty first century to fatally subvert it.