New Challenges in Refugee Situations: Africa, Latin America, and Asia

Forced displacement is one of the defining problems of modern international relations, and the legal tools built to manage it have struggled to keep pace. The 1951 Refugee Convention was designed for a very specific crisis: Europeans uprooted by the Second World War. But as wars, decolonization, civil conflict, and natural disasters pushed millions across borders in Africa, Latin America, and Asia, that original framework proved far too narrow. This post traces how three regions responded with their own instruments, why some succeeded and others stalled, and why South Asia still lacks a proper legal home for the people it shelters.

Why the old framework no longer fit 🔗

The 1951 Convention Relating to the Status of Refugees was the first comprehensive attempt to define who counts as a refugee and what protection they are owed. But it carried two crucial restrictions. It applied only to people displaced by events occurring before 1 January 1951, and states could limit it to events within Europe. In effect, the law was written with one continent and one war in mind.

This left out enormous populations. The Convention offered no help to the millions displaced by the partition of British India in 1947, and a separate UN agency had to be created to support Palestinians displaced in 1948. As decolonization spread across the British Empire and beyond, it triggered migrations on a global scale that the 1951 text simply did not anticipate.

The 1967 Protocol removed both the time limit and the geographic limit, making the Convention apply universally. This was needed because of the refugee flows resulting from decolonisation. Yet even after this fix, the core definition remained tied to individual persecution. A person had to show a well-founded fear of being targeted for their race, religion, nationality, social group, or political opinion. That standard works poorly when entire communities flee not individual persecution but generalized war, foreign invasion, or collapse of public order. New kinds of crises demanded new definitions, and regions began to write their own.

Africa: the 1969 OAU Convention 🔗

Africa faced the most urgent pressure first. Newly independent states had to build nations while sheltering people displaced by wars of liberation and the struggle against apartheid. The Organization of African Unity was established in 1963, and its refugee convention was enacted in 1969 and entered into force in 1974. The primary concern at the time was the large number of Africans fleeing conflict tied to the end of colonialism.

A much broader definition 🔗

The most important contribution of the OAU Convention was its expanded definition. Alongside the 1951 wording, it added protection for every person forced to flee owing to external aggression, occupation, foreign domination, or events seriously disturbing public order. This mattered because it shifted the focus away from proving individual persecution. Whole groups fleeing civil war or invasion could now qualify, which matched the reality on the ground far better.

The OAU Convention also emphasized the humanitarian, non-political character of granting asylum, and it strengthened protections while linking refugee issues to state security. Its influence reached well beyond the continent, shaping both the 1984 Cartagena Declaration and the 2009 Kampala Convention. Today it continues to guide protection work across a continent that hosts a very large share of the world’s displaced people.

Where it falls short 🔗

The Convention was not flawless. Notably, it does not cover internally displaced persons, people uprooted within their own country who never cross a border. The drafters in the 1960s did not expect that independence would leave behind both refugees and large internal displacement. The document has never been amended and remains the same text it was in 1969, prompting repeated calls to revisit its provisions in light of new causes of flight, including climate change.

Latin America: the 1984 Cartagena Declaration 🔗

Latin America’s turn came in the 1980s. Civil wars in El Salvador, Guatemala, and Nicaragua, along with repressive dictatorships in South America, produced refugee flows the region was not equipped to handle. Delegates from ten countries met in Cartagena, Colombia, in November 1984, recognizing that the region lacked the institutional infrastructure and legal norms to deal with such crises. The result was a progressive milestone in refugee protection law.

Borrowing from Africa, then going further 🔗

The Cartagena Declaration built on the OAU model but pushed the definition wider still. It extended refugee status to people who fled because their lives, safety, or freedom were threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights, or other circumstances seriously disturbing public order. The inclusion of massive human rights violations as a ground for protection was a genuine innovation, often described as adding a “sixth reason” to refugee determination beyond the original five in the 1951 definition.

An important point for students: the Cartagena Declaration is a non-binding document. It is not a treaty. Despite this, its provisions are widely respected and many states have written them into national law, which shows that a “soft law” instrument can still carry real weight when governments choose to honor it.

An ongoing regional process 🔗

What makes Cartagena distinctive is that it became the start of a continuing project rather than a one-time text. Its signatories have met roughly every ten years to renew and expand commitments, producing successor declarations including the 1994 San José Declaration, the 2004 Mexico Declaration, and the 2014 Brazil Declaration, with the reach extended to Caribbean nations. A practical example of its modern use came in 2019, when Brazil applied the expanded Cartagena definition to accept asylum petitions from Venezuelans fleeing their country’s collapse.

Asia: the Bangkok Principles 🔗

Asia’s regional effort actually predates both of the above, though it took a very different path. The Bangkok Principles on the Status and Treatment of Refugees were adopted in 1966 by the Asian-African Legal Consultative Organization, an intergovernmental body now headquartered in New Delhi. They emerged from the spirit of the Bandung Conference and the Non-Aligned Movement, making them an early Afro-Asian attempt to grapple with refugee questions.

What the principles cover 🔗

The Bangkok Principles set out core commitments including the obligation to grant asylum and to uphold non-refoulement, the rule against returning a person to a place where they face danger. The text was strengthened over the years with addenda on the right to return and on burden sharing, and a revised final version was adopted in 2001 at AALCO’s 40th Session in New Delhi. The revised definition echoes the broader African approach, covering people who flee owing to external aggression, occupation, foreign domination, or events seriously disturbing public order.

The binding problem 🔗

Here lies the key weakness. The Bangkok Principles are commonly regarded as the only comprehensive regional standards of refugee protection in Asia, although they are not legally binding. They are a soft law instrument with no enforcement mechanism. Unlike Latin America, Asia never built a continuous political process around them, so they have remained largely an expert reference rather than a working system. Their relevance is being newly debated in the context of crises such as Rohingya displacement, but a binding Asian framework still does not exist.

South Asia: protection without a law 🔗

South Asia presents the starkest gap of all. The region has experienced repeated mass displacement since Partition in 1947, yet it has no comprehensive legal framework for refugees. Most states here, including India, are not parties to the 1951 Convention or its 1967 Protocol, and they tend to handle displacement through bilateral diplomacy and case-by-case national measures.

The Indian case 🔗

India is a major refugee-hosting country. It has sheltered Tibetans, Sri Lankan Tamils, Partition refugees, Chakmas, Afghans, Rohingya, and others, yet it is not a signatory to the 1951 Convention and has passed no dedicated refugee law. In the absence of specific legislation, refugees are dealt with under older statutes like the Foreigners Act of 1946, which has no distinct “refugee” category and treats them much like any other non-citizen.

This does not mean refugees are entirely without protection. Indian courts have read constitutional guarantees, particularly the right to equality under Article 14 and the right to life and liberty under Article 21, as extending to non-citizens as well. But protection that depends on case law and executive discretion tends to be uneven. As one analysis puts it, the absence of a formal law lets the state deal with refugee groups on an ad hoc and arbitrary basis.

Why the reluctance? 🔗

Several reasons are usually given. One is concern over sovereignty and oversight by international bodies. Another, voiced by India and its neighbours, is the view that migration is a matter for bilateral rather than multilateral relations. There is also a sense that the original Convention was Eurocentric and ill-suited to the region’s porous borders and huge populations.

This bilateral instinct runs deep across the region. The South Asian Association for Regional Cooperation deliberately kept population movement off its agenda, primarily out of fear that including it might disrupt the organization. Refugee questions have instead been settled through direct talks between governments, such as dialogues between Bhutan and Nepal over Bhutanese refugees, and between India and Bangladesh over Chakma refugees. The trouble is that this approach leaves the people concerned in a legal grey zone, their fate shifting with the political weather rather than resting on settled rights.

What these regional stories tell us 🔗

Read together, these instruments show international law adapting unevenly to a changing world. Africa created a binding treaty with a genuinely broad definition. Latin America matched that breadth and added a living political process, though through soft law. Asia produced thoughtful principles that never became binding. South Asia, despite hosting some of the largest displaced populations, still relies on diplomacy and discretion. The common thread is that the 1951 definition was too narrow for displacement driven by war and disorder, and each region tried, with varying success, to fill the gap. The unfinished business, especially in South Asia, is turning generosity in practice into protection in law.

What do you think? Should South Asia develop a binding regional refugee framework of its own, or does the bilateral, case-by-case approach better suit the region’s realities? And does a non-binding instrument like the Cartagena Declaration prove that strong political will can matter more than a formal treaty?

References

1. https://www.unhcr.org/about-unhcr/overview/1951-refugee-convention
2. http://refugeehistory.org/blog/2021/1/14/how-eurocentric-is-the-1951-un-refugee-conventionand-why-does-it-matter
3. https://en.wikipedia.org/wiki/Protocol_Relating_to_the_Status_of_Refugees
4. https://www.fmreview.org/faith/okello/
5. https://www.unhcr.org/us/news/briefing-notes/africa-40th-anniversary-oau-1969-refugee-convention
6. https://en.wikipedia.org/wiki/Convention_Governing_the_Specific_Aspects_of_Refugee_Problems_in_Africa
7. https://www.migrationpolicy.org/article/protecting-forcibly-displaced-latin-america-evolving-refugee-and-asylum-framework
8. https://rightsinexile.org/cartagena-declaration-on-refugees/
9. https://en.wikipedia.org/wiki/Cartagena_Declaration_on_Refugees
10. https://www.aalco.int/Establishment%20of%20AALCO%20and%20Its%20Contributions%20%20PANDIARAJ.pdf
11. https://www.refworld.org/legal/resolution/aalco/1966/en/18604
12. https://academic.oup.com/rsq/article/44/3/393/8120192
13. https://www.academia.edu/26297366/Understanding_Indias_Refusal_to_Accede_to_the_1951_Refugee_Convention_Context_and_Critique
14. https://www.stimson.org/2022/the-geopolitics-of-indias-refugee-policy/
15. https://www.hg.org/legal-articles/why-india-did-not-sign-the-1951-refugee-convention-41414
16. https://refugeereview2.wordpress.com/2015/05/28/understanding-indias-refusal-to-accede-to-the-1951-refugee-convention-context-and-critique/