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Who Is a Refugee?
Author(s): Andrew E. Shacknove
Source: Ethics, Vol. 95, No. 2 (Jan., 1985), pp. 274-284
Published by: The University of Chicago Press
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Who Is a Refugee?*
Andrew E. Shacknove
The term "refugee" conjures up a melange of bleak images: a
teeming
boat adrift on the South China Sea, a bloated child in
Bangladesh, a
shantytown reduced to rubble in Beirut. Determining
conceptually (if
not politically) who is, or is not, a refugee would appear to be a
relatively
simple matter. A refugee, we might say, is a person fleeing life-
threatening
conditions. In daily parlance and for journalistic purposes this
is roughly
the meaning of refugeehood. Predictably, in legal and political
circles,
among those officials who formulate refugee policies for states
and in-
ternational agencies, the meaning is considerably more
circumscribed.
The predominant, generation-old conception advanced by
international
instruments, municipal statutes, and scholarly treatises
identifies the refugee
as, in essence, a person who has crossed an international
frontier because

of a well-founded fear of persecution.' Given such broad
agreement, the
conceptual problem would appear to be resolved. But these
appearances
are deceptive.
* I wish to thank Thomas Biersteker, Robert Dahl, David
Martin, Henry Shue, and
Astri Suhrke, all of whom graciously provided guidance in the
preparation of this article.
1. The three primary international instruments currently in
effect are the United
Nations Convention relating to the Status of Refugees, done
July 28, 1951 (189 UNTS 137)
(hereafter cited as the Convention); the Statute of the Office of
the United Nations High
Commissioner for Refugees, adopted by the General Assembly
December 14, 1950 (Annex
to G.A. Res. 428, 5 UN GAOR, supp. [no. 20] 46, UN Doc.
a/1775 [1950]) (hereafter cited
as the Statute); and the United Nations Protocol relating to the
Status of Refugees, done
January 31, 1967 (19 UST 6223, TIAS no. 6577, 606 UNTS
267) (hereafter cited as the
Protocol). For conceptual purposes these instruments are
identical. The governing statute
in the United States is currently the Refugee Act of 1980 (Pub.
L. no. 96-212, 94 Stat.
102), which defines "refugee" in near conformity with the three
United Nations instruments.
The Refugee Act amended the 1952 Immigration and
Nationality Act, which defined
"refugee" in ideological and geographic terms, stating that only
persons fleeing Communist
or Middle Eastern states could qualify. The Refugee Act, unlike

the UN instruments, makes
provision for internally displaced persons (see n. 20 below).
The seminal treatise on the
subject is Atle Grahl-Madsen, The Status of Refugees in
International Law, 2 vols. (Leyden:
A. W. Sijthoff, 1966-72). Grahl-Madsen views the refugee as a
person who, for "political"
reasons, is outside his home country (p. 91). He is joined in this
view by Paul Weis, "The
Concept of Refugee in International Law," Journal du Droit
International 87 (1960): 929-
1001.
Ethics 95 (January 1985): 274-284
( 1985 by The University of Chicago. All rights reserved. 0014-
1704/85/9502-0002$01.00
274
2015 23:44:48 UTC
Shacknove Who Is a Refugee? 275
A conception of "refugee" is not, strictly speaking, a definition.
There
are in fact dozens of definitions in effect within various
jurisdictions.2
Most states have their own municipal definitions, the majority
of which
follow the construction of the UN Convention. The germane
passage of
that instrument defines a refugee as a person who, "owing to a

well-
founded fear of being persecuted for reasons of race, religion,
nationality,
membership in a particular social group or political opinion, is
outside
the country of his nationality and is unable or, owing to such a
fear, is
unwilling to avail himself of the protection of that country."3
Such concrete definitions are predicated on an implicit
argument
(or conception) that:
a) a bond of trust, loyalty, protection, and assistance between
the citizen and the state constitutes the normal basis of
society;4
b) in the case of the refugee, this bond has been severed;
c) persecution and alienage are always the physical
manifestations
of this severed bond;5 and
d) these manifestations are the necessary and sufficient
conditions
for determining refugeehood.
Thus the conception supplies the theoretical basis for the
definition.
It stipulates what is essential and universal about refugeehood.
It asserts
both a moral and an empirical claim. Moral, because it posits
the existence
of a normal, minimal relation of rights and duties between the
citizen
and the state, the negation of which engenders refugees.

Empirical,
because it asserts that the actual consequences of this severed
bond are
always persecution and alienage.
The definition of "refugee" adopted by the Organization of
African
Unity (OAU) is the only salient challenge to the proposition
that persecution
is an essential criterion of refugeehood. That definition, after
incorporating
the United Nations' persecution-based phraseology, proceeds to
state
that: "The term 'refugee' shall also apply to every person who,
owing to
external aggression, occupation, foreign domination or events
seriously
2. See Grahl-Madsen, vol. 1, chap. 1, for an elaboration of the
meaning of "refugee"
in various Western European and North American statutes.
3. Convention, art. 1A(2).
4. Grahl-Madsen uses this language explicitly (see Grahl-
Madsen, vol. 1, pp. 73-100).
5. For a discussion of the meaning of "persecution," see United
Nations High Com-
missioner for Refugees, Handbook on Procedures and Criteria
for Determining Refugee Status
(Geneva, 1979), p. 14, which states: "From Article 33 of the
1951 [Refugee] Convention,
it may be inferred that a threat to life or freedom on account of
race, religion, nationality,
political opinion, or membership of a particular social group is
always persecution. Other

serious violations of human rights -for the same reasons -would
also constitute persecution."
While Grahl-Madsen asserted in 1966 that persecution applies
exclusively to acts perpetrated
by states, governments now also consider the violence of
nonstate actors as persecution
(see vol. 1, p. 82). The term "alienage" refers here to "a person
who is outside the country
of his nationality, or if he has no nationality, the country of his
former habitual residence"
(Convention, art. IA [2]).
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276 Ethics January 1985
disturbing public order in either part or the whole of his country
of
origin or nationality, is compelled to leave his place of habitual
residence
in order to seek refuge in another place outside his country of
nationality."6
Clearly, the OAU and the UN definitions reflect markedly
different
historical contexts. The latter was a response to the European
totalitarian
experience when, indeed, refugees were primarily the
persecuted victims
of highly organized predatory states. Regrettably, similar states
still exist,

and the OAU definition provides for them. But the OAU
definition
recognizes, as the UN definition does not, that the normal bond
between
the citizen and the state can be severed in diverse ways,
persecution being
but one. Societies periodically disintegrate because of their
fraility rather
than because of their ferocity, victims of domestic division or
foreign
intervention. Much of what I say here implicitly supports the
OAU con-
ception.
A proper conception of refugeehood is an important matter. The
international community's clumsy, ad hoc responses to refugee
emergencies
are, of course, primarily due to the reluctance of sovereign
states to grant
political deference and financial support to the relevant
international
agencies, their hesitancy in assuming the burdens of material
relief, asylum,
and resettlement, and their concern that assisting refugees could
adversely
implicate other foreign policy objectives. However, the problem
is only
partially attributable to political conflicts and resource scarcity,
for con-
ceptual confusion-about the meaning of refugeehood, its causes,
and
its management-also contributes to the misery of both refugee
and host
and to the inflammation of international tension.
An overly narrow conception of "refugee" will contribute to the

denial of international protection to countless people in dire
circumstances
whose claim to assistance is impeccable.7 Ironically, for many
persons on
the brink of disaster, refugee status is a privileged position. In
contrast
to other destitute people, the refugee is eligible for many forms
of in-
ternational assistance, including material relief, asylum, and
permanent
resettlement. Conversely, an overly inclusive conception is also
morally
suspect and will, in addition, financially exhaust relief
programs and
impune the credibility of the refugee's privileged position
among host
populations, whose support is crucial for the viability of
international
assistance programs.
6. OAU Convention Governing the Specific Aspects of Refugee
Problems in Africa,
adopted September 10, 1969 (UNTS no. 14691), art. 1(2).
7. Currently, approximately 90,000 persons are fleeing
starvation in Mozambique and
crossing into Zimbabwe, yet the United Nations High
Commission for Refugees (UNHCR)
and other agencies are not mobilizing on their behalf. The
rationale is that these persons
are not victims of persecution and therefore do not come under
the mandate of the High
Commission's Statute. The reluctance of the international
community to offer its assistance
not only condemns these persons to yet more suffering but also
forces Zimbabwe, whose

own population is starving, to offer asylum unilaterally, thus
further contributing to the
destabilization of Southern Africa.
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Whether states and international agencies are obligated to assist
refugees is a crucial, but separate, issue from the one at hand. A
conception
of refugeehood is prior to a theory and policy of entitlements
and is, I
believe, sufficiently important and controversial to warrant
independent
analysis. If obligations do exist, then the persons described here
have
the strongest claim to such assistance. Frequently, states reason
in reverse
from their fear that they will be forced to shoulder the burden of
assisting
refugees unilaterally to a narrow conception of refugeehood
which limits
the number of claimants. In so doing, they are attempting to
resolve
what is in fact a procedural and institutional problem by a
legalistic sleight
of hand. I intend to address exclusively the meaning of
"refugee," deferring
for now a discussion of obligation and management.

My contention is that neither persecution nor alienage captures
what
is essential about refugeehood. Persecution is a sufficient, but
not a nec-
essary, condition for the severing of the normal social bond. It
accounts
for the absence of state protection under tyrannical conditions
where a
government is predatory but says nothing about the opposite,
chaotic,
extreme where a government (or society) has, for all practical
purposes,
ceased to exist. Persecution is but one manifestation of a
broader phe-
nomenon: the absence of state protection of the citizen's basic
needs. It
is this absence of state protection which constitutes the full and
complete
negation of society and the basis of refugeehood. The same
reasoning
which justifies the persecutee's claim to refugeehood justifies
the claims
of persons deprived of all other basic needs as well.
Similarly, alienage is an unnecessary condition for establishing
refugee
status. It, too, is a subset of a broader category: the physical
access of
the international community to the unprotected person.8 The
refugee
need not necessarily cross an international frontier to gain such
access.
Thus I shall argue that refugees are, in essence, persons whose
basic
needs are unprotected by their country of origin, who have no
remaining

recourse other than to seek international restitution of their
needs, and
who are so situated that international assistance is possible.
Because this
alternative conception of refugeehood accounts more
comprehensively
than does the current notion for the dual extremes of tyranny
and chaos
which threaten the normal, minimal bonds of society, it has a
stronger
claim to moral validity. Moreover, it accounts more exactly for
those
persons who are in fact taxing asylum states and furthering the
erosion
of minimum order in Lebanon, El Salvador, and elsewhere
throughout
the world.
REFUGEES AND THE MINIMAL SOCIAL BOND
With the proponents of the current conception of refugeehood, I
take
as my point of departure the assumption that morally (if not in
fact) a
8. By "access" I mean, literally,, the ability of states or
international agencies to supply
the requisite material or diplomatic assistance unimpeded by the
government of the country
of origin, insurrectionists, invading nation, or other powers.
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normal, minimal bond of trust, loyalty, protection, and
assistance has
always existed between virtually every human being and some
larger
collectivity-be it clan, feudal manor, or modern state-and that
the
refugee is spawned when these minimal bonds are ruptured.
What I
object to is the conclusion that persecution and alienage are the
necessary
and sufficient indices of this dissolved union. The negation of
society
takes many forms and is frequently altogether unrelated to
persecution
and alienage.
In order to view the negation of society in all of its
manifestations,
we must first identify the normal, positive relation between the
citizen
and the state. A political commonwealth is formed on the
premise that
people experience a generalized condition of insecurity when
outside
the protective confines of society.9 People wish to reduce their
vulnerability
to a variety of threats, including the violent acts of others,
resource
scarcity, and natural disasters. However, it is only reasonable of
them to
join in common to fend against man-made threats, for it would
be in-

congruently illogical to expect social institutions to contend
with sources
of vulnerability beyond human control. Even in a well-ordered
society,
insecurity will persist. Only because human beings, taken all
around, are
roughly equal in strength and cunning is it sensible for them
voluntarily
to forbear aggressive acts against each other in return for a
cooperative
effort against transgressors. Thus the primary purpose of civil
society is
to reduce each person's vulnerability to every other.
In refugee policy circles, basic threats to the individual are
usually
divided into three categories: persecution, vital (economic)
subsistence,
and natural calamities.'0 Refugeehood is said to result only
from acts of
persecution. I shall look in turn at each of these three categories
of
deprivation and argue that, for purposes of defining "refugee,"
the dis-
tinction between them is neither bright nor clear, that all of
them can
equally violate the citizen's irreducible rationale for entering
society, and
that each may constitute a sufficient condition for refugeehood.
The sine qua non of the political commonwealth is to defend the
citizen "from the invasion of foreigners and the injuries of one
another.""
When a citizen becomes a victim of a predatory sovereign,
society is
undermined by the very institution created to guarantee its

survival.
However, it is not enough that sovereigns refrain from
aggressive actions
9. Thomas Hobbes, Leviathan (Indianapolis: Bobbs-Merrill Co.,
1958), p. 105. Hobbes
and, to a lesser extent, Locke and Rousseau all address the
problem of the minimally
legitimate state, crucial to an understanding of refugees. They
identified that point at
which anyone in their senses would quit society, if, indeed,
society can any longer be
meaningfully said to exist. Unlike Marx and many modern
liberals, the classical contractarians
were constructing the groundwork of society rather than the
spires. Though he never
knew the word, I suspect that Hobbes, himself an exiled victim
of the English Revolution,
in his worst nightmares dreaded the chaos of the refugee.
10. See Grahl-Madsen, vol. 1, pp. 75-76.
1 1. Hobbes, p. 142.
2015 23:44:48 UTC
against their own populations. Were such restraint sufficient,
citizens
would have gained nothing by the act of union. To be minimally
legitimate

and tolerable, the commonwealth must reduce the citizen's
vulnerability
to others, all others. The sovereign is thus required to provide a
minimally
mild environment free from the dual extremes of tyranny and
chaos,
both of which are rife with violence.
Persecution is, therefore, just one manifestation of the absence
of
physical security. The sovereign must, at least, protect the
citizen from
foreign invasion and the "injuries of one another," which
include civil
war, genocide, terrorism, torture, and kidnapping, whether
perpetrated
by state agents or others. Beneath this threshold there is no
state, and
the bonds which constitute the normal basis of citizenship
dissolve. Hence,
persecution is a sufficient, but not a necessary, basis for a
justified claim
to refugeehood. If persecution establishes a valid claim to
refugee status,
then other threats to physical security do as well.'2
When determining who is, or is not, entitled to refugee status,
natural
disasters, such as floods and droughts, are usually dismissed as
the bases
forjustified claims. Unlike the violent acts one person
perpetrates against
another, such disasters are not considered "political" events.
They are,
supposedly, sources of vulnerability beyond social control
which therefore

impose no obligation on a government to secure a remedy. The
bonds
uniting citizen and state are said to endure even when the
infrastructure
or harvest of a region is obliterated. For even an ideally just
state cannot
save us from earthquakes, hurricanes, or eventual death. The
legitimacy
of the state rests exclusively on its control of human actions
rather than
on its control of natural forces, and the obligation of a
government
extends no further than the realm of human capabilities. But as
writers
such as Lofchie, Sen, and Shue have demonstrated, "natural
disasters"
are frequently complicated by human actions.'3 The devastation
of a
flood or a supposedly natural famine can be minimized or
exacerbated
by social policies and institutions. As Lofchie says: "The point
of departure
for a political understanding of African hunger is so obvious it
is almost
always overlooked: the distinction between drought and
famine.... To
the extent that there is a connection between drought and
famine, it is
mediated by the political and economic arrangements of society.
These
can either minimize the human consequences of drought or
accentuate
its effects."'14
12. The argument for a right to revolution that Locke develops
in his Second Treatise

also justifies a right to refugeehood. Citizens are at liberty
either to prevent tyranny or to
escape it. Whether the citizen mobilizes opposition to an unjust
regime or simply quits
society is strictly a prudential calculation. See John Locke, The
Second Treatise of Government
(Indianapolis: Bobbs-Merrill Co., 1952), pp. 119-39.
13. Michael F. Lofchie, "Political and Economic Origins of
African Hunger,"Journal
of Modern African Studies 13 (1975): 551-67; Amartya Sen,
Poverty and Famines (Oxford:
Clarendon Press, 1981); Henry Shue, Basic Rights (Princeton,
N.J.: Princeton University
Press, 1980), p. 45.
14. Lofchie, p. 553 (quoted in Shue, p. 189).
2015 23:44:48 UTC
Similarly, Sen has demonstrated that the weather and other
natural
factors actually played fairly minor roles in the Great Bengal
Famine.
When starvation occurs not because of drought or flood but
because of
the hoarding of grain or the corrupt distribution of material aid,
deprivation
is no longer the result of natural conditions. To the extent that a

life-
threatening situation occurs because of human actions rather
than natural
causes, the state has left unfulfilled its basic duty to protect the
citizen
from the actions of others. All other human rights are
meaningless when
starvation results from the neglect or malice of the local regime.
Thus,
in some dire circumstances, what appears on the surface to be
the result
of natural forces may, on closer scrutiny, reveal state
negligence or in-
difference. As with threats to physical security, when the state
is unwilling
to unable to protect a citizen from the life-threatening actions of
others,
the basis for a legitimate claim to refugeehood is generated.
Threats to vital subsistence are subject to the same logic.'" To
the
extent that such threats to the survival of the citizen are due to
human
actions, they, like security threats and supposed "natural"
calamities,
create legitimate claims for state protection. It is often asserted
that the
state cannot be obligated to provide for the minimal subsistence
of its
citizens because doing so may require access to resources
beyond the
state's control. Indeed, where subsistence is threatened because
of a
genuine resource scarcity (like the absence of adequate arable
land), the
citizen cannot legitimately demand basic sustenance from the

state. How-
ever, the satisfaction of subsistence needs is only in part a
function of
resource availability. There are at least three other necessary
conditions
for the fulfillment of subsistence needs:
a) a technology for processing resources,
b) an infrastructure for facilitating commerce, and
c) a method of distribution.
All three of these conditions are subject to human control and
often
threaten subsistence more acutely than a genuine scarcity of
resources.
None necessarily requires extensive capital investment,
specialized
knowledge, heroic governmental efforts, or saintly sacrifices by
the local
affluent in order to sustain a minimal level of subsistence. A
hoe may be
an altogether satisfactory tool for processing a resource, and a
footpath
may suffice as a conduit for commerce. Similarly, a minimally
satisfactory
method of distribution (where no one suffers from a severe
protein/
caloric deficiency) is consistent with extensive inequalities of
wealth. In
situations where subsistence is threatened because of
inadequacies in
technology, infrastructure, or distribution-all factors within
human
control- the state has failed to perform its basic duty to protect
its citizens

15. For a thorough and penetrating treatment of the similarities
between the rights
to security and to subsistence, see Shue, pp. 13-34.
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from the actions of others.'6 When subsistence is in fact
threatened by
one or another of these conditions, a justifiable claim to
refugeehood
results. 17
REFUGEES AND BASIC NEEDS
In exchange for their allegiance, citizens can minimally expect
that their
government will guarantee physical security, vital subsistence,
and liberty
of political participation and physical movement."8 No
reasonable person
would be satisfied with less. Beneath this threshold the social
compact
has no meaning. Thus, refugees must be persons whose home
state has
failed to secure their basic needs. There is no justification for
granting
refugee status to individuals who do not suffer from the absence
of one
or more of these needs. Nor is there reason for denying refugee

status
to those who do. Moreover, because all of these needs are
equally essential
for survival, the violation of each constitutes an equally valid
claim to
refugeehood.
For many concerned with refugee affairs, raising the standard of
basic needs is a frightening specter. Perhaps the criterion of
persecution
is too narrow, but, they would argue, a conception of
refugeehood tied
to basic needs is surely too broad. Half the world will become
bona fide
refugees overnight, refugee programs will be indistinguishable
from de-
velopment programs, and the international machinery which
now protects
thousands of people will become so overburdened that all stand
to lose.
These arguments must be taken seriously because the
international regime
for attending to the needs of refugees is fragile and can be
shattered as
much by premature cosmopolitanism as by enduring primordial
sentiments.
A broader conception of refugeehood has utility only if
strategies of
response to refugee emergencies are similarly broad, where
transnational
procedures and institutions replace the current, predominantly
unilateral
ones. Notice, however, that none of these objections contests
the conceptual
validity of the claim that refugees are victims of states which
have failed

16. In most societies, including most developing ones, the state
increasingly controls
infrastructure, technology, and distribution. This assumption of
responsibility often directly
implicates the state in creating conditions which foster refugees.
For a discussion of the
growing role of the state in developing societies, see Alfred C.
Stepan, The State and Society
(Princeton, N.J.: Princeton University Press, 1978).
17. The assurance of the citizen's minimal preservation and thus
the minimal legitimacy
of the state require an environment conducive to subsistence.
Often, if left to their own
devices and free from external impediments, people will,
indeed, sustain themselves. By
logical implication, when they are not left to their own devices,
or when the environment,
because of human causes, is insufficiently mild to allow them
by their own industry to
secure subsistence, the state has failed to meet its minimal
responsibilities, and the social
bond has been broken.
18. By "vital subsistence" is meant unpolluted air and water,
adequate food, clothing,
and shelter, and minimal preventative health care (see Shue, p.
19). The reason for accepting
political participation and liberty of movement as basic needs is
that both are necessary if
effective institutions for self-protection, the ultimate barrier
against the deprivation of
security and subsistence, are to be built and maintained (ibid.,
p. 23).

2015 23:44:48 UTC
to protect their basic needs. The conceptual problem at hand is
logically
and politically antecedent to the procedural and institutional
issues raised
by these arguments. Yet one conceptual issue remains: Are all
persons
deprived of their basic needs refugees?
The answer, in short, is no. An unmet basic need is a necessary,
but
insufficient, condition for refugeehood: all refugees have been
deprived
of one or more of their basic needs, though not all persons so
deprived
are refugees. What separates these two groups of equally
destitute persons
is their differing positions vis-a'-vis the international
community. Most
individuals deprived of their basic needs are prevented by their
government
(or other forces) from seeking international assistance. To the
contrary,
a refugee is, in essence, a person whose government fails to
protect his
basic needs, who has no remaining recourse than to seek
international
restitution of these needs, and who is so situated that

international assistance
is possible.
Thus it is not a matter of entitlements that distinguishes
refugees
from all other persons whose basic needs are unmet by their
home gov-
ernment but a matter of dissimilar objective conditions.
Refugees, unlike
all others deprived of their basic needs, have a well-founded
fear that
recourse to their own government is futile and are, in addition,
within
reach of the international community (see fig. 1).
At this point, the time-honored criterion of alienage falters. For
centuries, the migratory crossing of an international frontier has
been
considered an essential characteristic of the refugee. The origins
of this
criterion stem from the positivistic legal norm which asserts
that states
have equal, inviolable sovereign integrity and that the
intervention in
the internal affairs of one state will reduce stability for all. The
corollary
of this proposition in the context of refugee affairs is that a
victim could
only become an international ward when beyond the reach of the
oppressive
home government. Moreover, the taking leave of one's country
is said
to be a clear indication that the normal bond between the citizen
and
PERSONS WITH NO RECOURSE

TO HOME GOVERNMENT
PERSONS DEPRIVED X (ebb > PERSONS WITH ACCESS TO
OF BASIC RIGHTS I INTERNATIONAL ASSISTANCE
REFUGEES
FIG. 1.-The necessary conditions for refugeehood
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the state has been severed. Where a strong, predatory state in
fact exists,
this characterization is appropriate. Actual circumstances,
however, often
fail to conform to this migratory model. Periodically, a regime
voluntarily
invites international assistance when the basic needs of its own
citizens
are unprotected.'9 More commonly, the regime will itself
confront invasion,
civil war, or some other threat to public order, and international
access
to the victim will result by default. Twentieth-century examples
of in-
ternational access to internally displaced persons include the
Ottoman
Greeks in the interwar period, the German Jews during the early

Nazi
years, and the South Vietnamese stranded after the American
withdrawal.20
Neither the criterion of alienage nor the archaic positivistic
theory of
international law from which it derives can account for such
conditions.
Whether a person travels ten miles across an international
border or the
same distance down the road into a neighboring province may
be crucial
for determining logistical and diplomatic action. Conceptually,
however,
refugeehood is unrelated to migration. It is exclusively a
political relation
between the citizen and the state, not a territorial relation
between a
countryman and his homeland. Refugeehood is one form of
unprotected
statelessness. Under normal conditions, state protection appends
to the
citizen, following him into foreign jurisdictions. For the
refugee, state
protection of basic needs is absent, even at home. Alienage
should be
considered one manifestation of a broader phenomenon: the
access of
the international community to persons deprived of their basic
needs.
Thus, what is essential for refugees status, distinguishing
refugees from
all other similarly deprived persons, is either the willingness of
the home
state to allow them access to international assistance or its
inability to
prevent such aid from being administered.

19. The first formal request by a state for international
assistance with "internally
displaced" persons came in 1972 from the Sudan, which
solicited UNHCR coordination
of a large-scale repatriation program. The competence of the
high commissioner to provide
such assistance was granted by the General Assembly in Res.
2958 (27), December 12,
1982. UNHCR has been assisting home countries with refugees
and displaced persons on
an unofficial basis since the Algerian War of Independence.
Similar requests have been
regularly issued since 1972. See G.A. Res. 32/67, December 8,
1977, where the General
Assembly referred to "the additional responsibilities assumed by
the High Commissioner
in different parts of the world for the benefit of an increasing
number of refugees and
displaced persons" (UNGAOR 32 [1977], supp. 45, p. 139). In
this resolution, as well as
in Res. 33/26, November 29, 1978, the General Assembly
"requests the High Commissioner
to intensify his efforts to assist refugees and displaced persons
of concern to his office"
(UNGAOR 33 [1978], supp. 45, p. 139). For a discussion of
displaced persons and their
relation to refugees, see Poul Hartling, "The Concept and
Definition of 'Refugee'-Legal
and Humanitarian Aspects," in Nordisk Tidsskrift for
International Ret, ed. Per Federspiel
(Oslo, 1979), 48, fasc. 34:125-38; and Sadruddin Aga Khan,
"Legal Problems relating to
Refugees and Displaced Persons," in Recuil des Cours (The
Hague: Academie du Droit
International, 1976), vol. 1, pp. 287-352.

20. In the 1980 Refugee Act, the Congress made provision for
such internally displaced
persons, who were clearly refugees in all but name. The
Immigration and Nationality Act,
2015 23:44:48 UTC
Refugee status should only be granted to persons whose
government
fails to protect their basic needs, who have no remaining
recourse other
than to seek international restitution of these needs, and who are
so
situated that international assistance is possible. To the extent
that refugee
status is refused to these worthy claimants, or granted to others
whose
basic needs are not injeopardy, the legitimacy of the policy is
compromised.
sec. 101(a)(42)(B), 8 USAC 1 101(a)(42)(B), June 1980, Supp.,
declares a refugee to be "any
person who, in such special circumstances as the president after
appropriate consultation
may specify" (p. 956), is still in his or her country of origin and
is persecuted or has a well-
founded fear of being persecuted. This provision was introduced
in order to resettle

members of the opposition from Argentina and Chile as well as
Soviet Jews. These examples,
along with the Algerian and Sudanese cases cited above,
indicate that the criterion of
alienage inadequately accounts for the actual circumstances
confronting states and inter-
national agencies.
2015 23:44:48 UTC
http://www.jstor.org/page/info/about/policies/terms.jspArticle
Contentsp. 274p. 275p. 276p. 277p. 278p. 279p. 280p. 281p.
282p. 283p. 284Issue Table of ContentsEthics, Vol. 95, No. 2,
Jan., 1985Front Matter [pp. i - vi]The Calculus of Moral
Obligation [pp. 199 - 223]The Demands of Justice [pp. 224 -
232]Aeschylus and Practical Conflict [pp. 233 -
267]Utilitarians and the Use of Examples [pp. 268 - 273]Who
Is a Refugee? [pp. 274 - 284]DiscussionWerner's Ethical
Realism [pp. 285 - 291]Echical Realism Defended [pp. 292 -
296]On Gewirth's Derivation of the Principle of Generic
Consistency [pp. 297 - 301]From the Prudential to the Moral:
Reply to Singer [pp. 302 - 304]'Constraints on Freedom' as a
Descriptive Concept [pp. 305 - 309]Reply to Oppenheim [pp.
310 - 314]Survey ArticlePursuing the Good-Indirectly [pp. 315
- 332]Review EssaysThe Limits of Utilitarianism and Beyond
[pp. 333 - 341]Wittgenstein on Rules and Private Language
[pp. 342 - 352]Book Reviewsuntitled [pp. 353 - 354]untitled
[pp. 354 - 356]untitled [pp. 356 - 357]untitled [pp. 357 -
358]untitled [pp. 359 - 360]untitled [pp. 360 - 362]untitled
[pp. 362 - 364]untitled [pp. 364 - 366]untitled [pp. 366 -
368]untitled [pp. 368 - 370]untitled [pp. 370 - 375]untitled
[pp. 375 - 376]untitled [pp. 376 - 378]Book Notes [pp. 379 -
405]Back Matter [pp. 406 - 407]

11813079.pdf
WHO SHALL WE HELP?
THE REFUGEE DEFINITION IN A CHINESE CONTEXT
Lili Song*
China faced refugee-related problems at least four times in the
past four decades,
namely the Indochinese refugee crisis in the late 1970s and the
early 1980s, the entry
of the North Korean escapees since the mid 1990s, and the
influx of displaced
Kokangs and Kachins from Myanmar in 2009 and 2011,
respectively. However,
how China defines a refugee remains behind the bamboo
curtain. There are no
domestic, legislative, or administrative provisions governing the
definition of refugees
or procedures of refugee status determination; the 1951 Refugee
Convention and its
1967 Protocol, to which China has been a party since 1982, has
not been incorpo-
rated into Chinese law to become fully enforceable
domestically. This article examines
China’s definition of a refugee. First, it explores the relevant
legal and policy frame-
work. Second, it looks at China’s practice with refugees and
asylum-seekers. Third, it
discusses a few factors affecting how China defines a refugee.
Keywords: refugee definition, China, 1951 Refugee Convention,
asylum
1. Introduction

Refugees are not an unheard of phenomenon in contemporary
Chinese history.
Following the Russian Revolution of 1917, tens of thousands of
Russians poured
into China, fleeing the Soviet Union.1 Between 1933 and 1941,
about 30,000
Jews arrived in Shanghai from Europe to escape Nazi
persecution and the
Holocaust.2
When the People’s Republic of China (PRC) superseded the
Republic of
China in 1949,3 there were still at least 20,000 refugees
remaining in China,
including persons of Austrian, Czech, Estonian, Greek,
Hungarian, Latvian,
* PhD Candidate, School of Law, Victoria University of
Wellington, New Zealand. The author would like to
thank Dr Caroline Sawyer and Dr Marc Lanteigne for their
comments on an earlier draft of this article.
However, the author is soly responsible for the content of this
article.
1 G. Peterson, “The Uneven Development of the International
Refugee Regime in Postwar Asia: Evidence from
China, Hong Kong and Indonesia”, Journal of Refugee Studies,
25, 2012, 329.
2 G. Pan, Shanghai: a Haven for Holocaust Victims, Discussion
Paper No. 6, the Holocaust and the United
Nations Outreach Programme, available at:
http://www.un.org/en/holocaustremembrance/docs/paper15.
shtml (last visited 14 Jul. 2013).

3 For purpose of this article, unless otherwise expressed or
implied by the context, China refers to the mainland
of the People’s Republic of China, excluding Hong Kong
Special Administrative Region, Macau Special
Administrative Region and Taiwan.
Refugee Survey Quarterly, Vol. 33, No. 1, pp. 44–58 �
Author(s) [2014]. All rights reserved.
For Permissions, please email: [email protected]
DOI:10.1093/rsq/hdt022
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Lithuanian, Norwegian, Polish, Romanian, Russian, Spanish,
Ukrainian, and
Yugoslav background.4 Though the newly founded PRC was
excluded from
the United Nations (UN) at that time, it allowed the
International Refugee
Organisation (IRO) and later the United Nations High
Commissioner for
Refugees (UNHCR) to operate in China to assist the exit of

these refugees.
By the time of 1969, most of these refugees had been resettled
to third countries
with the help of the IRO or the UNHCR.5
After 1949, China received few refugees and asylum-seekers
before the
arrival of the Indochinese refugees. The influx of more than a
quarter million
Indochinese refugees from Vietnam, Laos, and Cambodia in
1978 was the first
refugee crisis China faced since its establishment in 1949. The
Indochinese
refugees were assisted by the Chinese Government upon their
arrival; later
they were officially recognized as refugees and resettled to six
southern provinces
in China. The Indochinese refugee influx led to the
establishment of the
UNHCR Office in Beijing in February 1980 and subsequently
China’s accession
to the 1951 Convention relating to the Status of Refugees (the
Convention) and
the 1967 Protocol relating to the Status of Refugees (the
Protocol) in September
1982.
After the Indochinese refugee influx, the number of refugees
and asylum-
seekers received by China had been low until the mid 1990s, but
has gradually
increased since then.6 In the past 20 years, China faced at least
three large-scale
inflows of displaced persons from neighbouring countries,
namely the arrival of
North Korean escapees since the mid 1990s, the so-called

“Kokang Incident” in
2009, and the Kachin influx from 2011 to 2012. China’s
response to each of
these groups is distinctive, but it generally refuses to recognize
them as refugees.
As of March 2013, 301,055 identified refugees are living in
China accord-
ing to the UNHCR.7 Of them, 300,895 are Indochinese refugees
who came in
the late 1970s and 1980s; the rest, a total of 160 persons, are
refugees identified
through individual refugee status determination (RSD) by the
UNHCR Office
in Beijing (UNHCR refugees).8 In addition, there are 261
asylum-seekers resid-
ing in China.9 These figures only include those who have
registered with the
UNHCR. The actual number of refugees and asylum-seekers in
China is
4 Peterson, “Uneven Development in Asia”, 328. The
International Refugee Organisation (IRO) began its
operation in China in 1947 and resettled about 19,000 refugees
to a third country between 1947 and 1952.
The United Nations High Commissioner for Refugees (UNHCR)
took over the IRO operations in China in
January 1952; between 1952 and 1969, around 20,000 refugees
exited China.
5 Ibid., 331.
6 S.Y. Liang, guoji nanmin fa [International Refugee Law],
Beijing, China Intellectual Property Publishing
House, 2009, 272.
7 UNHCR Regional Representation for China and Mongolia,

Fact Sheets, Mar. 2013, available at: http://www.
unhcr.org/5000187d9.pdf (last visited 14 Jul. 2013).
8 Ibid.
9 Ibid.
Refugee Survey Quarterly 45
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estimated to be higher, as the UNHCR does not always have
access to refugees
and asylum-seekers in China.10
With several neighbouring countries struggling with
dictatorship, poverty,
and tension between ethnic and religious groups, China’s
potential exposure to
cross-border human displacement should not be underestimated.
As China’s
economic and political strength continues to grow, how China
defines a refugee

will not only affect the lives and hopes of persons forced to
leave their home
country to seek refuge in China, but also significantly impact
the stability of the
Asia-Pacific region.
In this context, this article examines China’s definition of a
refugee. First, it
explores the relevant legal and policy framework. Second, it
looks at China’s
experience with refugees and asylum-seekers. Third, it
discusses a few factors
affecting how China defines a refugee.
2. Absence of an effective legal definition in China
On 24 September 1982, China acceded to the Convention and
the Protocol,
being one of the first Asian State Parties to these key legal
instruments in refugee
protection. Article 1A(2) of the Convention, when read together
with the
Protocol, defines a refugee as any person who is outside the
country of her
nationality (in the case of a stateless person, the country of
former habitual
residence) and is unable or unwilling to return there or avail
herself to the
protection of that country, on account of a well-founded fear of
persecution
for reasons of race, religion, nationality, membership of a
particular social group,
or political opinion.
The Convention and the Protocol, however, have not become
fully enforce-

able in China. On the one hand, there are no clear legal
provisions or established
practice regarding whether treaties ratified by China could be
directly applied
domestically. China’s Constitution is silent on the legal status
of treaties and
their hierarchy in the domestic legal system. Though in practice
a few treaties
pertaining to commercial and civil matters have been directly
applied by Chinese
courts, strictly speaking, treaties ratified by China do not
automatically become
part of domestic law and therefore do not automatically become
enforceable in
China.11 On the other hand, China has not codified its
obligations under the
10 The UNHCR’s requests to access North Koreans, the ethnic
Kokangs and the ethnic Kachins in China were
generally denied by the Chinese Government. See e.g. UNHCR,
UNHCR Seeks Access to North Koreans
Detained in China, 21 Jan. 2003, available at:
http://www.unhcr.org/3e2d81b94.html (last visited 14 Jul.
2013); UNHCR, China: UNHCR Calls for Access to Myanmar
Refugees, 4 Sep. 2009, available at: http://
www.unhcr.org/4aa108159.html (last visited 14 Jul. 2013);
UNHCR, UNHCR Reaches Kachins Sent Back
from China, 7 Sep. 2012, available at:
http://www.unhcr.org/5049cdba9.html (last visited 14 Jul.
2013).
11 H.Q. Xue and Q. Jin, “International Treaties in the Chinese
Domestic Legal System”, Chinese Journal of
International Law, 8(2), 2009, 300. For more discussions on
domestic implementation of treaties in China,
see S.Z. Guo, “Implementation of Human Rights Treaties by

Chinese Courts: Problems and Prospects”,
Chinese Journal of International Law, 8(1), 2009, 161; X.Q.
Zhu, guoji tiaoyue zai zhongguo guonei de shiyong
yanjiu [Study on Application of International Conventions in
China], Bureau of International Cooperation of
China Academy of Social Science, 20 Jun. 2001, available at:
http://bic.cass.cn/info/Arcitle_
Show_Study_Show.asp?ID¼2257&Title¼%B9%FA%BC%CA%
CC%F5%D4%BC%D4%DA%D6%
46 Lili Song j The Refugee Definition in a Chinese Context
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Convention and the Protocol into domestic law; nor have the
Convention and
the Protocol been directly applied by Chinese courts.
In addition, the Convention and the Protocol lack a strong
monitoring
mechanism. The institution charged with the task to supervise
the implemen-

tation of the Convention and the Protocol, the UNHCR, unlike
treaty super-
visory bodies formed under a few human rights treaties, does
not have the
function of reviewing state reports or determining individual or
inter-State com-
plaints.12 It is very much within a State party’s sovereign
discretion as to whether
to take steps and, if so, which steps, to protect refugees within
its jurisdiction.13
It should be noted that the Convention and the Protocol only
serve as a state-
ment of the minimum rights of refugees; State parties may
provide wider pro-
tection to refugees or extend their protection to non-refugee
groups. In the past
few decades, although the Convention and the Protocol remain
the key instru-
ments in defining who is a refugee, the refugee concept in the
sense of interna-
tional law has developed significantly through regional
responses to changing
patterns of forced displacement and the practice of the
UNHCR.14 Many State
Parties to the Convention and the Protocol have either expanded
their refugee
definition in accordance with regional arrangements or provided
complementary
or subsidiary protection to persons who do not fall within the
Convention
definition but are in need of protection, such as persons fleeing
armed conflicts
or general violence. The UNHCR also considers persons who do
not fall within
the Convention definition but whose life, physical integrity, or

freedom is threa-
tened as a result of generalised violence or events seriously
disturbing public
order as refugees under its mandate.15
It is worth mentioning that although the Indochinese refugee
crisis in the
late 1970s and early 1980s undoubtedly played a crucial role in
China’s acces-
sion to the Convention and the Protocol, China’s accession most
likely was also
partly driven by Beijing’s desire to obtain international
approval. Following
China’s opening up in the late 1970s and a revival of interest in
law after the
Cultural Revolution (1966-1976), China ratified a series of
international human
rights instruments as well as a significant number other
international legal
D0%B9%FA%B9%FA%C4%DA%B5%C4%CA%CA%D3%C3%
D1%D0%BE%BF&strNavigation¼%
CA%D7%D2%B3-%3E%BF%BC%B2%EC%D1%D0%BE%BF-
%3E%CE%C4%BB%AF (last visited
12 Jul. 2013); Y.W. Liu, “guoji tiaoyue zai zhongguo shiyong
xinlun [Some New Thoughts on
Application of Treaties in China]”, Faxuejia [Jurists Review], 2,
2007, 143.
12 G.S. Goodwin-Gill, “Convention Relating to the Status of
Refugees & Protocol Relating to the Status of
Refugees”, UN Audiovisual Library of International Law,
available at: http://untreaty.un.org/cod/avl/ha/prsr/
prsr.html (last visited 14 Jul. 2013).
13 G.S. Goodwin-Gill & J. McAdam, The Refugee in

International Law, 3rd ed., Oxford, Oxford University
Press, 2007, 528.
14 Ibid.
15 UNHCR, Self-Study Module 1: An Introduction to
International Protection. Protecting Persons of Concern to
UNHCR, 1 Aug. 2005, Section 3.1.4, available at:
www.refworld.org/docid/4214cb4f2.html (last visited 14
Jul. 2013).
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instruments in the early 1980s. Among the 27 human rights
instruments to
which China is a party as of 2012, eight were ratified between
1981 and 1984.16
After China acceded to the Convention, the lack of
understanding and

misunderstanding of the Convention definition of refugees as
well as China’s
rights and obligations under these instruments seemed to remain
for a long time.
An officer from the Office of Indochinese Refugee Reception
and Resettlement
recalled that:
[after joining the Convention] we still dared not asked for
[international
assistance], fearing losing China’s face, [. . .] Later, senior
UNHCR officers
and overseas friends told us that, as a party to the Convention
and
the Protocol, China had [. . .] the right to apply and it was a
very normal
practice. They also taught us how to write applications to the
UHNCR, [. . .] We asked for approval from the Central
Government and
began to work [on application for international assistance.]17
In 1989, seven years after China’s accession to the Convention,
the Jiangxi
Province Resident ID Issuance Office submitted an enquiry to
the Ministry of
Public Security (MPS) regarding the Indochinese refugees’
eligibility for Chinese
ID cards. In the enquiry, the Jiangxi office referred to the
Indochinese refugees
as “refugees who returned to motherland (guiguo nanmin)”,
obviously confusing
the concept of refugees (nanmin) and returned overseas Chinese
(guiguo
huaqiao).18 MPS in its reply pointed out that:19
refugees should refer to any person who, due to reasons of race,

politics and
religion, etc, stays outside of her country of origin and is unable
or unwill-
ing to receive protection from that country, including stateless
persons who,
due to such reasons, are unable to stay in her country of
habitual residence,
and unable or unwilling to return to that country.
The requirements of persecution and well-founded fear, which
are critical in the
Convention definition, were omitted in the reply. It did not
mention member-
ship of social groups as a ground for refugee status claims
either. Though there
are no sources to verify the reasons for such omissions, poor
understanding of the
Convention definition is a likely explanation.
16 “2012 Progress in China’s Human Rights”, 14 May 2013,
available at: http://news.xinhuanet.com/english/
china/2013-05/14/c_132380706.htm (last visited 14 Jul. 2013).
17 W. Shi, “28 wan yinzhi nanmin zai zhongguo [Two Hundred
and Eighty Thousand Indochinese Refugees in
China]”, Zhongguo Shehui Daokan [China Society Periodical],
10, 1999, 53.
18 Between the 1950s and 1970s, due to anti-Chinese
movements in Malaya, Indonesia, and India, several
waves of overseas Chinese nationals returned from those
countries. Most Indochinese refugees are ethnic
Chinese and received treatment at par with those Chinese
nationals returning from Indonesia and India.
This is probably the cause of the Jiangxi office’s confusion. But
see G. Peterson, “Uneven Development in

Asia”. Peterson argues that, apart from the complex problems
surrounding their nationality status, some
Indonesian Chinese returning in 1960 might have gained
Indonesian nationality and would seem to have fit
UNHCR’s refugee definition quite closely.
19 MPS Security Management Bureau Reply to Jiangxi Province
Resident ID Issuance Office’s Enquiry about
Whether to Issue ID Card to Refugees Returning to China 1989,
GONGSAN[1989]NO350.
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At the domestic level, China does not have any legal or
administrative
provision pertaining to the definition of a refugee. Refugee
issues in general
are rarely touched upon in the domestic law system. Prior to 1
July 2013,
legal provisions serving as the legal basis for refugee protection

in China were
clause 2 of Article 32 of the PRC Constitution (1982) and
Article 46 of the PRC
Law on Administration of Entry and Exit of Borders of Aliens
(1985), each being
one simple sentence of 33 Chinese characters. The former
provides that “The
People’s Republic of China may grant asylum to foreigners who
request it for
political reasons.” The latter, promulgated by the Standing
Committee of the
National People’s Congress (NPC),20 stipulates that
“Foreigners seeking asylum
for political reasons, subject to the approval of governing
authority in China, are
allowed to stay and live in China.”
On 1 July 2013, the Law on Exit and Entry Administration (the
Exit and Entry
Law) which was promulgated by the Standing Committee of the
NPC on 30 June
2012, entered into force, superseding the 1985 Law on
Administration of Entry and
Exit of Borders of Aliens.21 Under Article 46, the new law
allows applicants for
refugee status to stay temporarily in China during the RSD
process and persons
granted refugee status to stay and live in China. These are the
first provisions
regarding the treatment of refugees in China’s domestic law,22
but the new law is
silent on who qualifies as a refugee and the procedures of RSD.
Other relevant documents are an administrative regulation
promulgated by
the State Council, the National Emergency Plan on Sudden

Incidents Involving
Foreign Factors (2005) and its counterparts at provincial,
municipal, and county
levels. These plans are not specialised in addressing the refugee
situation, but
they provide guidelines for dealing with emergencies involving
foreigners.
Chinese authorities followed these plans to deal with the
massive influx of
ethnic Kokangs from Myanmar in 2009 in a timely and orderly
manner.23
The absence of legal framework dealing with refugee matters
may be attrib-
uted to several factors. First, China is relatively new to refugee
protection. As will
be discussed below, before the Indochinese refugee crisis,
China had little, if any,
knowledge of the international refugee regime. Second, except
the Indochinese
refugees, China had little experience of receiving refugees or
asylum-seekers
before the mid 1990s. Having strictly restricted the entry of and
the residence
in China of all aliens up to the late 1970s, China had few
provisions encouraging
20 For introduction of China’s legislation structure, see e.g.
“China’s Current Legislation Structure”, 28 Sep.
2003, available at:
http://www.china.org.cn/english/kuaixun/76212.htm (last visited
17 Jan. 2013).
21 The Exit and Entry Law also superseded the 1985 PRC Law
on Administration of Exit and Entry of Borders of
Chinese Citizens.

22 UNHCR, Submission by the United Nations High
Commissioner for Refugees for the Office of the High
Commissioner for Human Rights’ Compilation Report -
Universal Periodic Review: People’s Republic of China,
Mar. 2013, available at: http://www.refworld.org/cgi-
bin/texis/vtx/rwmain?page¼search&docid¼5135
b0cb2&skip¼0&query¼Universal%20Periodic%20Review:%20P
eople’s%20Republic%20of%20China&
coi¼CHN (last visited 14 Jul. 2013)
23 “Yunnan sheng zhengfu jiu dangqian zhongmian bianjin
jushi juxing xinwen fabuhui (Yunnan Provincial
Government Held Press Conference on Situations at China-
Myanmar Border)”, 31 Aug. 2009, available
at:
http://www.scio.gov.cn/xwfbh/gssxwfbh/xwfbh/yunnan/200908/
t398584.htm (last visited 14 Sep. 2011).
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or facilitating inflows of foreigners until the mid 1980s.24 The
motivations for
developing a legal framework for refugee protection was
probably lacking. Third,
like many former Soviet Bloc countries, China traditionally
makes little legally
distinction between refugees, foreign tourist, and immigrants.
Former Soviet
Bloc nations had typically resisted the concept of refugees
throughout the
Cold War; it was common practice among these countries to not
legally classify
refugees as a category of population movements.25
Since the 1990s, the Chinese Government (specifically Ministry
of Foreign
Affairs (MFA), MPS, and Ministry of Civil Affairs (MCA)) has
been working on
the drafting of a refugee law with assistance of the UNHCR.
Several symposiums
were held jointly by the Chinese Government and the UNHCR
between 2004
and 2007 to discuss issues such as State sovereignty and refugee
protection, RSD
mechanism and procedure, treatment of refugees, cooperation
between the
Chinese Government and the UHNCR, and relevant experience
of other
Asian-Pacific countries. At the end of 2008, a draft refugee
regulation was
submitted to the State Council for its final deliberation, but the
draft was
never adopted.26 In a report submitted to the UN Committee on
the
Elimination of Discrimination against Women in early 2012,

China says the
Rules for Identification and Administration of Refugees, which
provides for refugee
definition, authorities in charge of refugee affairs, RSD,
temporary settlement
and repatriation of refugees, and loss and removal of refugee
status, has been
drafted.27 It also says it is making efforts to finish the
legislation work as soon as
possible, but no time line is provided.28
According to a leading Chinese immigration law scholar, the
slows progress
in the making of China’s refugee law is related to inadequate
cultural tolerance
and diversity in the Chinese society, political considerations
involving neigh-
bouring countries, and the fear for attracting more refugees.29
These factors
make China reluctant to act promptly to enact domestic
legislation to imple-
ment the Convention and the Protocol and to establish a RSD
mechanism.
3. Development of China’s refugee policy
Considering the silence of Chinese domestic law on refugee
definition and the
absence of an effective mechanism to ensure the domestic
application of relevant
24 See generally G.F. Liu, Chinese Migration Law, Surrey
(UK), Ashgate, 2010.
25 M. Redei, “Hungary”, in S. Ardittis (ed.), The Politics of
East-West Migration, New York, St. Martin’s Press,

1994, 89.
26 UNHCR, Universal Periodic Review.
27 Combined Seventh and Eighth Periodic Reports of China to
Committee on the Elimination of
Discrimination against Women, CEDAW/C/CHN/7-8, 2012,
para. 225, available at: http://www2.ohchr.
org/english/bodies/cedaw/docs/CEDAW.C.CHN.7-8_ch.pdf (last
visited 14 Jul. 2013).
28 Ibid.
29 G.F. Liu, “zhongguo weilai raobuguo nanmin yiti [China
Cannot Avoid the Issue of Refugees in the Future]”,
23 Feb. 2012, available at:
http://news.xinhuanet.com/world/2012-02/23/c_122744895.htm
(last visited
14 Jul. 2013).
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international treaties, it may be useful to look at China’s
policies and practice
relating to refugee matters. Officially the Chinese Government
has never pub-
lished any policy document regarding the treatment of refugees
or asylum-see-
kers in China. Information of its refugee policy can be found in
officials’
presentations at UN meetings, MFA and other Government
body’s press con-
ferences, China’s State reports to international organizations,
officials’ speeches
at academic conferences, articles written by Government
officials in academic
journals and mass media reports.
China probably began to pay attention to the refugee issue and
the
international refugee regime after the influx of Indochinese
refugees in 1978.
An article in a periodical with links to the MCA revealed
China’s “unenlight-
enment” upon the arrival of the Indochinese refugees:
China was caught completely unprepared by [the arrival of ] the
Indochinese refugees, everything had to be learned from
scratch, what [em-
phasis added] is a refugee, why establish refugee camps, what
obligations do
we have, what rights do we enjoy, how to apply for
international assistance,
refugee affairs officials gathered relevant knowledge little by
little . . .30
The Indochinese refugee crisis is a milestone for China in terms

of policy de-
velopment relating to in-coming refugees and asylum-seekers.
The crisis leaves
rich and mixed legacies to China. Indochinese refugee crisis
introduced China to
the contemporary international refugee regime, led to the
establishment of a
UNHCR office in Beijing in 1979 and paved the way for
China’s accession to
the Convention and the Protocol in 1982. China soon actively
participated in
the international discussions on the Indochinese refugees and its
refugee policy
gradually took its initial shape during this time. For example, in
1979, China,
along with the US, Australia, and Japan, defended Southeast
Asian countries’
demand for significant financial and resettlement assistance,
arguing that the
international community’s assistance was essential.31 In the
1984 executive
Committee of the High Commissioner’s Programme, China
argued that the
main problem of the lengthy Indochinese refugee crisis was that
“none of the
root causes of outflows had been eliminated”.32 Since the
UNHCR barely had
operation in refugees’ country of origin at the time, China’s
proposal was con-
sidered quite radical.33 However, this proposal quickly gained
support from
other countries. China still repeatedly emphasises burden
sharing and addressing
the root causes when it addresses the international refugee
problem today.

30 J. Zhang, “zhongguo weishenme bushe nanminying [Why
China Did Not Establish Refugee Camps]”,
Zhongguo Shehui Daokan [China Society Periodical], 5, 2002,
62.
31 UNGA, Summary Record of the 305th Meeting on 9th
October 1979, Executive Committee of the High
Commissioner’s Programme, Thirtieth Session, UN Doc.
A/AC.96/SR.305, 11 Oct. 1979, p. 9, cited from
S. Davies, Legitimising Rejection: International Refugee Law in
Southeast Asia, Leiden, Martinus Nijhoff,
2008, 122.
32 Davies, Legitimising Rejection, at 177.
33 Ibid.
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In December 2001, China’s then Vice Foreign Minister Wang
Guangya

proposed four points to address the refugee issue at a
ministerial meeting of State
parties to the Convention: (1) to safeguard world peace and
promote common
development in order to prevent the emergence of refugees at
the root; (2) to
effectively uphold the authority of the Convention and the
existing regime for
international protection and actively explore new ways and
means for resolving
the refugee problem; (3) to adhere to the principles of
“international solidarity”
and “burden sharing” and carry out international cooperation
effectively;
(4) strictly define the boundaries of the refugee issue,
preventing the
abuse of the protection regime and asylum policies as
prescribed in the
Convention.34
The points proposed by Wang Guangya in 2001 were repeatedly
expressed
in one way or another by high-ranking Chinese officials.35
However, the call for
strictly defining the refugee issue and adherence to the existing
protection regime
never reappeared. In recent statements made in 2010 and 2011,
China expressed
its support for the UNHCR to update and improve refugee
protection mech-
anism in light of changes of international circumstances; it still
called for pre-
vention of abuse of international asylum system, but emphasised
the balance
between expanding the protection and preventing abuse of
international asylum

system and explicitly expressed that protection should be given
to refugees and
other displaced people.36
These changes can be regarded as positive signals from China
that it is
interested in dealing with the refugee issue in a less restrictive
way, especially
considering the fact that China had set up temporary camps to
accommodate
and feed tens of thousands of ethnic Kokang fleeing from
Myanmar to China in
2009 (see later).
4. China’s varying responses to refugees and asylum-seekers
China did not have much experience of receiving refugees or
asylum-seekers
between 1949 and 1978. On the one hand, its economic
backwardness and
34 G.Y. Wang, PRC Vice Foreign Minister, “Statement at the
Ministerial Meeting of States Parties to the 1951
Convention Relating to the Status of Refugees”, Geneva, 12
Dec. 2001, available at: http://pg.china-
embassy.org/eng/zt/rqwt/t46963.htm (last visited 14 Jul. 2013).
35 See G.Y. Wang, Vice Foreign Minister of PRC, Remarks at
the Opening Ceremony of The Third APC
Mekong Sub-regional Meeting on Refugees, Displaced Persons
and Migrants, Beijing, 8 Aug. 2002, available
at: http://www.fmprc.gov.cn/eng/wjdt/zyjh/t25088.htm (last
visited 14 Jul. 2013); C. Luo, Statement by Mr
LUO Cheng of the Chinese Delegation at the Third Committee
of the 64th Session of the UN General
Assembly, on Refugees”, New York, 3 Nov. 2009, available at:

http://www.china-un.org/eng/hyyfy/t624524.
htm (last visited 14 Jul. 2013); Ministry of Foreign Affairs of
China (MFA), “Dai Bingguo Meets with UN
High Commissioner for Refugees Guterres”, 3 Sep. 2010,
available at: http://www.fmprc.gov.cn/eng/wjb/
zzjg/gjs/gjsxw/t738076.shtml (last visited 14 Jul. 2013).
36 Y.F. He, Statement by Ambassador Yafei HE on the 61st
UNHCR Excom, Geneva, 4 Oct. 2010, available
at: http://www.china-un.ch/eng/hom/t758725.htm (last visited 4
Jun. 2013); Y.F. He, Statement by
H.E. Ambassador HE Yafei at the intergovernmental event at
the ministerial-level of Member States of
the United Nations to commemorate the 60th anniversary of the
1951 Convention relating to the Status of
Refugees and the 50th anniversary of the 1961 Convention on
the Reduction of Statelessness, Geneva, 8
Dec. 2011, available at: http://www.china-
un.ch/eng/hom/t885656.htm (last visited 14 Jul. 2013).
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Socialist political system may not have looked attractive to
outsiders. On the
other, China had strictly restricted the entry of all aliens; there
was ubiquitous
distrust and hostility towards most foreigners deriving from
concerns of spying
and China’s isolation in the international society at that time.
However, China did provide political asylum to a few aliens
prior to 1978.
The most well-known individual who received asylum in China
is probably the
former King of Cambodia, Norodom Sihanouk. China granted
him political
asylum when he was deposed and sentenced to death in a coup
by the American-
backed General Lon Nol in 1970.37 Norodom Sihanouk lived in
China for
about 5 years before returning to Cambodia in 1975. Asylum
was also provided
to an Indonesian ambassador to China, Djawoto, in April 1966
in the midst of
intensifying diplomatic and political tension between Beijing
and Jakarta.38
Djawoto later assumed the position of the Afro–Asian
Journalists’ Association
in Beijing and lived there for more than a decade.
Between 1978 and 1982, more than a quarter million people
flooded into
China from Vietnam, Laos, and Cambodia, escaping persecution
against ethnic
Chinese in those countries.39 China had not ratified the 1951

Convention at
that time, but the Chinese Government provided accommodation
and food to
them upon their arrival, and later recognized them as refugees,
allowed them to
stay and gave them jobs. China also provided resettlement for
about 2,500
Indochinese refugees from camps in Thailand.40 On 4 August
1979, a working
meeting on Indochinese refugee (the 1979 Meeting) was
convened, presided by
then Chairman of China Li Xiannian and vice minister of the
State Council
Chen Muhua.41 The 1979 Meeting officially announced China’s
recognition of
the Indochinese’s status as refugees of in China. However, no
formal RSD was
conducted on the Indochinese before or after the meeting.42 The
Chinese
Government has never published any document to formally
grant refugee
status to the Indochinese in China.
Nowadays, the Indochinese refugees are well integrated in the
local
community, enjoying a social-economical status at par with
Chinese citizens.43
Their local integration is considered by the former UNHCR
António Guterres
as “one of the most successful integration programs [of
refugees] in the world”.44
37 M.P. Colaresi, Scare Tactics: The Politics of International
Rivalry, Syracuse, Syracuse University Press, 2005,
197.

38 D. Mozingo, Chinese Policy towards Indonesia, 1949-1067,
Ithaca, Cornell University Press, 1976, 250.
39 T. Lam, “The Exodus of Hoa Refugees from Vietnam and
their Settlement in Guangxi-China’s Refugee
Settlement Strategies”, Journal of Refugee studies, 13, 2000,
374; P.M. Chang, Beijing, Hanoi, and the Overseas
Chinese, Berkeley, University of California, 1982, ch. III and
IV.
40 D. Feith, Stalemate: Refugees in Asia, Parkville, Asian
Bureau Australia, 1988, Appendix.
41 Liang, International Refugee Law, 274.
42 V. Muntarbhorn, The Status of Refugees in Asia, Oxford,
Clarendon Press, 1992, 60.
43 UNHCR, UNHCR Regional Representation in China,
available at: http://www.unhcr.hk/unhcr/sc/about_us/
China_Office.html (last visited 14 Jul. 2013).
44 J. Song, “Vietnamese Refugees Well Settled in China, Await
Citizenship”, 10 May 2007, available at: http://
www.unhcr.org/464302994.html (last visited 14 Jul. 2013).
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Several Vietnamese defectors were also granted asylum in the
late 1970s and
early 1980s when ideological rift between China and Vietnam
was acute.
Although the time they came to China coincided with that of the
massive
influx of Indochinese refugees, they came and received asylum
in a different
manner. In July 1979, then Deputy Chairman of the Vietnamese
National
Assembly, Hoang Van Hoan, made his way to China when his
flight from
Hanoi to East Berlin stopped to refuel in Karachi, Pakistan.45 It
was only a
few months after the Sino–Vietnam war; Hoang was well
received by China and
spent the rest of his life in China. On 2 December 1978 and 16
December 1981
respectively, the official newspaper of the Communist Party of
China, Renmin
Ribao [People’s Daily], reported that asylum was granted to a
Vietnamese cadre
and a group of 10 Vietnamese.46 The former escaped to China
by foot while
working at the border area. The latter, including a pilot officer,
fled to China in a
military helicopter.47 Asylees in both cases were reported to
have attributed their
escape to the Vietnamese Government’s political persecution.48

In the post-Indochinese refugee crisis era, the UNHCR Office in
Beijing
takes the lead to conduct RSD in China. China does not
substantially involve in
the RSD process.49 It acknowledges the refugee status of the
UHNCR refugees
and allows them to stay temporarily in China until a durable
solution, usually
resettlement, is found by UNHCR for them.50 It does not issue
travel docu-
ments to them or grant them the right to work.51 Despite the
fact that China
does not substantially involve in the RSD process led by the
UNHCR, it dealt
with at least three massive influxes of displaced aliens in the
past 20 years and
generally denied the UHNCR’s access to the displaced
concerned.
Since the mid-1990s when great shortage of food hit North
Korea, large
numbers of North Koreans have risked crossing the border into
northeast China
illegally. The Chinese Government identifies these North
Koreans as illegal mi-
grants and denies them refugee status on the basis that they
illegally entered
China for economic reasons. Therefore, these North Koreans
face the risk of
45 T.S. An, “Vietnam: the Defection of Hoang Van Hoan”,
Asian Affairs, 7, 1980, 288.
46 Z. Wang, “zhengzhi bihu: zhongguo zhengfu gei ruantingyin
zhengzhi bihu li [Political Asylum: Case Study

of Political Asylum Granted to Ruantingyin by China]”,
available at: http://www.zgdmlaw.com/more_
index_show.asp?news_Id¼2622 (last visited 14 Jul. 2013); “wo
youguan bumen genju zhongguo falu guid-
ing yunxu qiaoqinglu deng shiren zai woguo juliu [China
Allowed Ten Vietnamese to Reside in China
According to Relevant Legal Provisions]”, Remin Ribao, 16
Oct. 1981, available at: http://rmrbw.net/read.
php?tid¼578834&fpage¼13 (last visited 14 Jul. 2013).
47 “China Allowed Ten Vietnamese to Reside in China”.
48 Ibid.
49 Although the Chinese Government and the UNHCR had
mutually agreed that refugee status determination
should be jointly conducted by both parties, due to the lack of
relevant legal provisions, in practice the
Chinese Government does not substantially involved in the
process. Y.J. Wang, “guanyu jianli woguo
nanmin baohu falu zhidu de jidian sikao [Several Thoughts on
Establishing Legal Mechanism for
Refugee Protection in China]”, Gongan yanjiu [Public Security
Studies], 12, 2005, 47.
50 UHNCR, UNHCR Regional Representation in China.
51 UNHCR refugees hold identification documents issued by
UNHCR and depend on UNHCR for assistance
in terms of food, accommodation, health care, and children
education. Liang, International Refugee
Law, 260.
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deportation if caught by the Chinese authorities. China’s
treatment of North
Koreans has not always been consistent. A few local authorities
allowed certain
types of North Koreans, mainly females who are married to
Chinese men and
have children and those who have lived in China for a long
period without
causing problems, to stay and even issued temporary resident
permits or iden-
tification cards to them,52 though very likely without the
consent of the central
Government.
In early August 2009, about 37,000 civilians fled to China’s
Yunnan
Province from the Kokang Special Region in Myanmar’s Shan
State to escape
armed conflicts between Myanmar Government army and
Kokang’s local
army.53 The Chinese authorities quickly opened seven camps to
accommodate

the displaced Kokangs and provided them food, blanket, and a
small amount
daily allowance.54 China referred to them as border residents
and insisted that
they were not refugees. In early September 2009, most of the
Kokangs volun-
tarily went back to Myanmar as the situation in Kokang got
better and the camps
were removed.
In June 2011, ethnic Kachins began to cross into China to
escape armed
conflict between Myanmar Government troops and Kachin
Independence Army.
By June 2012, it’s estimated that 7,000–10,000 displaced
Kachins were staying
in China’s Yunnan Province. Though the situation of the
Kachins appears to be
similar to that of the Kokangs, China seems to have taken a
different approach to
the Kachins. It let in most of the Kachins who sought to enter
China and
generally tolerated their stay in Yunnan Province.55 It did not
provide any as-
sistance to them, but allowed a few non-governmental
organizations to access
the Kachins.56 In mid-August 2012, however, China began to
send back the
Kachins. In September 2012, the UNHCR estimated that about
5,000 Kachins
had been sent back to Myanmar.57
In May 2013, another influx of citizens of Myanmar took place
on the
Chinese–Myanmar border. Over 800 villarers from Myanmar’s
Shan State fled

to China after clashes between the Government army and the
Shan State Army,
taking refuge in their relatives’ home across the border river.58
Whether the clash
in Shan State would drive more people into China and how
China is going to
deal with them is to be seen.
52 Liu, Chinese Migration Law, 91.
53 The number includes Chinese merchants who were doing
business in Kokang and returning to China.
“Yunnan Government Held Press Conference”.
54 Ibid.
55 Human Rights Watch, “Isolated in Yunnan: Kachin Refugees
from Burma in China’s Yunnan Province”, Jun.
2012, available at:
http://www.hrw.org/sites/default/files/reports/china0612_forins
ertForUpload.pdf (last
visited 14 Jul. 2013)
56 Ibid.
57 UNHCR, UNHCR Reaches Kachins Sent Back from China.
58 “Burma Army Goes to War against Shan on Sino-Burma
Border”, 9 May 2013, available at: http://www.
english.panglong.org/index.php?option¼com_content&view¼art
icle&id¼5403:burma-army-goes-to-war-
against-shan-on-sino-burmese-
border&catid¼86:war&Itemid¼284 (last visited 14 Jul. 2013).
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5. Refugee definition in the Chinese context: present and future
Who are refugees in China? Few people had bothered asking
this question for
years. It was not until the problem of North Koreans in
northeast China emerged
and stirred up controversy in the late 1990s that this question
started to attract
growing interest.
The answer to the question is not readily available. In the
absence of a
refugee definition in Chinese domestic law and an effective
mechanism to ensure
the domestic implementation of relevant international treaties,
opacity and un-
certainty feature in China’s practice in receiving refugees and
asylum-seekers.
China’s responses to different groups of refugees and asylum-
seekers are distinct
and are mainly based on its own political, diplomatic, and
security consider-

ations. For example, China’s relations with the displaced
person’s country of
origin had significantly influenced China’s approach to the
displaced concerned.
Traditionally, political asylum had been provided in an effort to
denounce the
asylee’s country of origin with which China was no longer at
friendly terms. At
the time of the Indochinese influx, the Sino–Vietnamese
relation had long been
soured by the ideological rift between the two countries;
China’s long-term good
relations with North Korea is known as one of the reasons
behind China’s
reluctance to recognize North Koreans as refugees. The
displaced person’s
ethnic and cultural linkage to China also seems to play a role.59
The two
groups China assisted, the Indochinese refugees and the ethnic
Kokangs, both
happened to be ethnic Chinese. Ninety eight per cent of the
Indochinese refu-
gees are ethnic Chinese and were initially accepted and allowed
to stay as re-
turning overseas Chinese national. Ethnic Kokangs are
decedents of Chinese who
migrated to the Kokang region about 300 years ago; Chinese
language is the
main spoken and written language in the Kokang region and the
region has
maintained close economic and cultural relations with China.
Generally speaking, China has been very cautious in granting
refugee status
to aliens. In retrospect, China faced at least four massive
influxes of displaced

people from neighbouring countries in the past four decades,
with three of them
happening in the past 20 years. For a Government with very
limited experience
in receiving refugees and asylum-seekers in its history, the
challenge and pressure
could be overwhelming. Regarding itself as a developing
country with the
world’s biggest population and relatively limited natural
resources, China obvi-
ously does not lack motivations to control irregular migration.
Its reluctance to grant legal status to asylum-seekers could also
be under-
stood in light of the general resistance to international refugee
law by Asian
countries. The majority of Asian countries are not yet a party to
the Convention
and the Protocol; there have been no regional refugee
arrangements specifically
tailored for Asia. As noted by the UNHCR, the limited
understanding of the
59 To what extend the ethnic and cultural linkage has
influenced China’s decision is a question that requires
more research. Historically, the Chinese Government felt a
responsibility for overseas Chinese, regardless of
their nationality. See S. Fitzgerald, China and the Overseas
Chinese: A Study of Peking’s Changing Policy 1949-
1970, Cambridge, Cambridge University Press, 1972.
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protection dimension of population displacement issues and a
general orienta-
tion to deal with refugees from a narrow national security and
border control
angle continues to hinder the promotion of a favourable refugee
protection
environment in East Asia.60 This is probably true to China.
Thirty years after
China’s accession to the Convention and the Protocol, the term
“refugee” still
sounds unfamiliar and remote to most Chinese people. For the
Government, the
refugee issue remains a sensitive one. In China, media coverage
of refugees in
China and their conditions is little; publications on refugees are
few; legal studies
on refugees are in a primary phase.61
Perhaps, national stability is China’s primary consideration
when it comes
to refugee definition in its domestic law system. China attaches
great importance
to maintaining national stability.62 The new Law on Exit and

Entry
Administration emphasises in article one that its purposes are to
safeguard the
sovereignty, security, and social order of the country as well as
to promote ex-
change with the outside world. On the one hand, it is reality that
there are
refugees and asylum-seekers in China; the uncertainty of their
legal status may
become a threat to social stability. As pointed out by an author
from Beijing
Public Security Bureau in 2000, financial stress and mental
distress resulting
from the lack of a legal status would, in turn, leads to crimes or
actions disturb-
ing public order.63 On the other hand, there are concerns that
granting legal
status to refugees and asylum-seekers in China may encourage
more people to
come to seek asylum in China,64 which may bring potential
problems of drug
trafficking and terrorism.
China has shown emerging interest in dealing with the refugee
problem in a
more cooperative way, as demonstrated by officers’ statements
in recent years, its
assistance to ethnic Kokangs and its tolerance of ethnic
Kachins’ temporary stay
in Yunan Province. It is also worth mentioning that although the
refugee issue
remains a sensitive one for the Chinese Government, it is not a
taboo. There
have been discussions on the necessity and benefit of a RSD
mechanism as well
as calls for a refugee definition in domestic law.65 There is

growing awareness
among scholars and Government officers that a sound
mechanism for RSD will
60 UNHCR, 2013 Regional Operations Profile – East Asia and
the Pacific, available at: http://www.unhcr.org/
pages/49e45b276.html (last visited 14 Jul. 2013).
61 Liang Shuying’s book International Refugee Law, which was
published in 2009, was considered “the first of its
kind in China” by Veerapong Vongvarotai, then UNHCR
Regional Representative for China & Mongolia,
in his foreword for the book.
62 China’s “social stability maintenance” expenses are now
larger than its defence budget. Human Rights
Watch, “World Report 2012: China”, 2012, available at:
http://www.hrw.org/world-report-2012/world-
report-2012-china (last visited 14 Jul. 2013).
63 C.D. Liu, “dui gongan churujing guanli bumen jiaqiang
nanmin guanli de jidian sikao [Several Thoughts on
Improving Refugee Administration by Border Exit and Entry
Administration Department of Public Security
System]”, Beijing remin jingcha xueyuan xuebao [Journal of
Beijing People’s Police College], 4, 2000, 47.
64 Liu, “China Cannot Avoid Refugees Issue”.
65 See e.g. Wang, “Establishing Legl Mechanism”; Liu,
“Improving Refugee Administration”; K.P. Gan,
“woguo nanmin baohu falu zhidu de queshi yu goujian [The
Absence of Legal Mechanism for Refugee
Protection in China and Mechanism Construction Proposals]”,
Kexue jingji shehui [Science, Economy and
Society], 1, 2010, 151.

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facilitate to enhance China’s international image, improve
border entry and exist
management and contain security risk caused by the presence of
displaced for-
eigners. If China becomes more confident in maintaining its
domestic stability, it
is conceivable that China will adopt a less conservative refugee
policy.
The year of 2013 marks the 31st anniversary of China’s
accession to the
Convention and the Protocol. Three decades ago, China showed
great generosity
to the Indochinese refugees when the country was still poor.
Today, China is
rising as a global economic and political power. As Mr
Veerapong Vongvarotai,

the former UNHCR Regional Representative for China and
Mongolia, puts it,
China is “in an opportune position to further enhance refugee
protection in
China and play a leading role in the region”.66 With its new
refugee law at the
horizon, it is possible that China will assume a more positive
role in protecting
refugees and asylum-seekers on its territory in the future.
66 V. Vongvarotai, “Foreword”, in Liang, International Refugee
Law.
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736020722.pdf
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State Capacity, State Failure, and Human Rights
Author(s): NEIL A. ENGLEHART
Source: Journal of Peace Research, Vol. 46, No. 2 (march
2009), pp. 163-180
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Sage Publications (Los Angeles, London, New Delhi,

RESEARCH Singapore andWashington DC)
http://jpr.sagepub.com
DOI10.1177/0022343308100713
State Capacity, State Failure, and Human Rights*
NEIL A. ENGLEHART
Department of Political Science, Bowling Green State
University
While it is universally recognized that
states are responsible for human rights conditions in their
jurisdictions, it is less often noticed that this responsibility has
two dimensions, one normative and one
empirical. Normatively,
most people agree that states ought
to prevent human rights abuses. Empiri
cally, however, states may not always be able
to do so. In weak and failing states, agency loss and the
inability to police effectively can lead
to abuses by private individuals and rogue agents of the
state.
Thus, on balance, weak states typically have worse human
rights records than strong
ones. This is dem
onstrated by a global time-series cross-section analysis showing
that indicators of

state weakness ? low
tax revenues, corruption, and lack of law and order
? all have a negative impact on human rights to per
sonal security. The effect differs for different kinds of rights.
Extrajudicial killings
are highly sensitive to
state capacity, while political imprisonment is
more sensitive to democracy. Overall, however, it appears
that the totalitarian model of human rights abuse by excessively
strong
states applies to a restricted set
of cases. The more common problem is states that cannot
effectively protect human rights. We
must
take state failure seriously when thinking about the
causes of - and remedies for - human rights abuse.
Introduction
There is an implicit tension in the relation
ship between states and rights: states are
simultaneously a threat to human rights and
their principal protector (Donnelly, 2003:
35-37). It is now universally accepted that
states are responsible for human rights con
ditions within their borders, but this respon

sibility has two dimensions that may conflict
with one another. Normatively, it is widely
agreed that states ought to ensure that the
rights of their citizens are respected by both
abstaining from abuse and preventing pri
vate parties from committing abuses. Yet,
*
I would like to thank Emilie Hafner-Burton, Kisangani
Emizet, Melissa Miller, Steven Poe, James Ron, and three
anonymous reviewers for their helpful comments on this
article. The analysis was conducted using Stata 9. The
data used in this article and results of alternative speci
fications of the model can be found at http://www.prio.
no/jpr/datasets. Correspondence should be directed to
[email protected]
empirically, it is possible that states may be
unable to discharge this normative respon
sibility. Many states are weak, plagued with
corruption, and unable to effectively police
their territories. Even if well-intentioned,
weak states may not be able to prevent
abuses by powerful private actors. States
with corrupt, poorly paid police, judges,

and civil servants may be unable to control
their own agents.
These possibilities are of real interest, since
many countries with poor human rights
records are weak and failing states.1 If the
1 I follow Rotberg's (2004) distinction between weak and
failing states. Weak states are those that have difficulty
delivering services to citizens, owing to lack of resources,
corruption, poor infrastructure, and so on. This includes
the most basic service: security. Failing states are a subca
tegory of weak states, in which there is armed opposition to
the government. Rotberg also distinguishes failing states,
where opposition is active, from failed states, where oppo
sition movements have destroyed the central government
but have been unable to reconstitute a new order.
163
2014 13:04:45 UTC
164 journal of PEACE RESEARCH volume 461 number 21
march 2009
weakness of the state itself leads to human

rights abuses, this has important implica
tions for where the blame should be lodged
and how problems can best be addressed. For
instance, shaming governments with poor
human rights records has been one of the
primary ways NGOs have sought leverage on
human rights issues. Shaming can work only
if a state has the capacity to remedy human
rights abuses and lacks the will. Willingness
to create better conditions is a moot point if
states cannot
police their territories
or con
trol their agents.
I argue that the inability to police terri
tory and to control agents of the state has a
significant negative impact on human rights
conditions. Weak states create conditions
ripe for human rights abuse because they
cannot restrain powerful citizens and lose
control over their own employees. I test the
argument using time-series cross-section
data, accompanied by robustness tests. State
capacity turns out to be a robust predictor of

human rights measures, although its impact
varies depending on the particular rights in
question. This has important implications for
determining responsibility for human rights
abuses and addressing them effectively.
Agency Loss, Poor Policing, and
Human Rights Violations
The presumption that states are responsible
for rights is founded on the legal theory of
sovereignty. Theoretically, sovereign states
have legal supremacy over their territories:
no greater authority exists. It has long been
recognized that this legal supremacy is Active
in many places. States are not always able
to control their own territories or otherwise
realize the authority with which they are the
oretically endowed (Jackson, 1990; Krasner,
1999; Badie, 2000). As Nettl (1968) argued
almost 40 years ago, empirically the state
must be treated as a variable rather than the
constant supposed by legal theory.
One useful way to think about this
difference between the state in theory and in
practice is through principal-agent theory.

Although governments as principals have the
authority to give instructions to their agents,
agents may or may not comply. If agents fail
to accomplish what their principals intend,
this is described as agency loss, a central
problem in principal-agent theory (Ross,
1973; Moe, 1984; Arrow, 1985). Principals
may be unable to control the behavior of
agents because of information asymmetries
or because of conflicting incentives. In the
former case, the agent often knows more
than the principal and may have incentives
to conceal information displeasing to the
principal. In the latter case, the agent may
want to do things that the principal does not
want, or may have incentives that do not
motivate the desired behavior.
Mitchell has insightfully applied prin
cipal-agent theory to human rights abuse.
He assumes that 'human rights violations
are a policy'. As with any policy, agents of
the state must be given incentives to carry
it out (Mitchell, 2004: 17-18). Mitchell
recognizes the problem of agency loss, but
his major examples of this phenomenon
are instances in which principals surrender

control intentionally in order to reward
followers or inflict cruelties while denying
culpability. For instance, principals may
exploit agency loss by creating 'artificial
information asymmetries', choosing not to
know what agents are doing in the expec
tation that they will likely commit abuses
(Mitchell, 2004: 48).
However, it would be perverse to suggest
that principals lose control over their agents
only by choice. We can easily extend the
principal-agent logic introduced by Mitchell
to the context of weak states, where agency
loss is rampant. Indeed, Mitchell gives a
few examples of such unintended agency
loss, for instance Indian prison guards who
abuse prisoners so that they will be bribed
2014 13:04:45 UTC
Neil A. Englehart Human rights 165
to stop (Mitchell, 2004: 46). This is not a

policy of the Indian government, but rather
something the guards do on their own initia
tive, exploiting their public power for private
gain.
Such circumstances are sadly
common:
poorly paid state employees are weakly
incentivized by their official salaries to fol
low the rules and often face little oversight.
They may choose to use their power to com
mit abuses, either for profit or out of innate
cruelty, and there are few disincentives to
deter them.
State officials may also be bribed by
private parties to commit abuses or ignore
them. For instance, police might be bribed
by landlords to beat tenants, by business
people to intimidate rivals, by criminals to
extort resources, or by politicians
to coerce
voters.
Alternatively, private

actors may
bribe or intimidate officials to ignore abuses
committed by their own agents. If the state
is unable to police effectively, powerful
citizens may commit abuses with impunity,
knowing they will not be sanctioned. In
many weak states, locally powerful figures
effectively usurp state authority altogether
(Migdal, 1988; O'Donnell, 1993). These
petty despots are seldom accountable to
any higher authority, in part because they
control the local representatives of those
authorities. They are free to use violence
and intimidation to maintain their power,
resulting in human rights abuses.
The human rights literature increasingly
recognizes private
actors as
potential abu
sers, including corporations, international
financial institutions, criminals, insurgents,
and even families (Paust, 1992; Thomas &
Beasley, 1993; Weissbrodt, 2002; Brysk,
2005). Similarly, the growing literature on
the 'dark side' of civil society suggests that

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