What Would an Expanded, More Inclusive Refugee Definition Look Like?

It may seem counterintuitive, even delusional, to suggest expanding the refugee definition at a moment in history when the political tides that once provided at least partial buy-in to the proposition that people fleeing persecution deserve international protection have turned and been replaced by increasingly widespread dismissal, if not outright hostility, to the claims of those seeking asylum. Yet, the countervailing reality is that the number of people forcibly displaced and at risk is the highest in recorded history;[1] the construction of walls, closing of doors, and heightening of legal bars to protection will not make asylum seekers’ motivation to survive by crossing borders any less imperative or their reasons for fleeing any less valid. This article argues that dysfunctional asylum systems, backlogs of pending cases, and backlashes in public receptivity toward refugees are attributable, in large part, to an anachronistic and overly narrow refugee definition that has failed to align the legitimate need for protection of many of the today’s refugees with the standards needed to qualify for asylum. This article, therefore, will propose language for future legislators in Canada and the United States to consider expanding their country’s respective refugee definitions to encompass more realistically the drivers of forced migration in the mid twenty-first century and the actual threats to life and person returned people are likely to face, while recognizing that in the current political environment opening the refugee definition to change would too likely result in narrowed grounds for refugee eligibility and risk further damage to an already precarious global asylum system. Many of the life-threatening conditions that currently force people from their homes, including but not limited to lawless and indiscriminate violence, rising sea levels, desertification, and persecution based on gender or sexual orientation, were not recognized—or even contemplated—as grounds for international protection in 1951 by the drafters of the Convention Relating to the Status of Refugees (“1951 Convention”). In a world where millions are forcibly displaced for reasons that do not readily fit within the concept of being persecuted on one of the five protected grounds enshrined in the 1951 Convention, states and regions should consider a refugee definition that would encompass a broader set of people facing existential threats. While I recognize that the 47th U.S. president and the 119th Congress have signaled their intention to narrow the scope of protection provided in U.S. law, this essay will argue to the contrary that expanding the refugee standard would not only provide a more relevant and effective means of providing protection to deserving applicants but would also improve processing efficiency and lower costs.

I. “CANADA COULD LEAD THE WAY”

The proposals in this article were prompted by a hearing on October 23, 2023, of the Standing Committee on Human Rights of the Canadian Senate on forced global displacement to which I was invited to testify. In the course of the hearing, the senators raised questions about the efficacy of the 1951 Convention, and whether the refugee definition is in need of revision.[2] The Acting Chairwoman of the Committee, Senator Ratna Omidvar, posed the question: “From your point of view, sitting today in 2023, when the world is falling apart in many regions, creating a level of forced displacement that we have not seen before, is the Convention still fit for purpose?”[3]

The United Nations High Commissioner for Refugees (UNHCR) Representative, Rema Jamous Imseis, answered in the positive:

I firmly believe that the Convention is fit for purpose and, moreover, that we have all of the instruments needed at our disposal in order to deal with global displacement, as well as an array of other issues that are subsets of that. For me, what is absent in many cases are asylum systems that have the capacity to deal with these flows and international solidarity and support for refugee-hosting countries . . . We need to support those countries that have been hosting refugees for decades. That’s a form of international solidarity and contributes to the realization of the convention’s goals. There are other ways in which you can strengthen asylum systems so that people can receive the protection they need . . . I believe that what is lacking in most instances is either capacity, resources or, frankly, political will and accountability, but the Convention itself is still quite fit for purpose. That would be my view.[4]

I answered in the negative, reminding the senators that regional instruments such as the Cartagena Declaration on Refugees (“Cartagena Declaration”) and the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (“OAU Refugee Convention”) have introduced expanded refugee definitions that recognize the importance of the 1951 Convention standard of a well-founded fear of being persecuted, but go beyond it. I noted that the 1951 Convention does not include protection of victims of armed violence and victims of inhuman and degrading treatment. I also observed that the European Union’s Qualification Directive has added those protections as subsidiary protection to what is provided in the 1951 Convention.[5]

I suggested that refugee protection could be expanded by drawing from the International Covenant on Civil and Political Rights as a standard for looking at protection based on threats to life and physical integrity. I also suggested that an expanded refugee definition could provide a framework for protection when the effects of climate change are life threatening, saying, “When you have rising sea levels and islands that are going to be under water, that’s a direct threat to life. Such people should be recognized as refugees, because whether you die at the hands of the torturer or whether you die because you’re drowning, your life is being threatened one way or the other.”[6] To those who caution against opening the 1951 Convention for redrafting out of fear that the result will be a narrower, more restrictive instrument, I said:

You don’t have to take on the whole rewriting [of] the Refugee Convention and putting that up for a vote, but Canada itself can look at its refugee definition and decide that, in addition to the 1951 Convention definition, it might want to expand the refugee definition to include women and victims of generalized violence when there is a nexus to a real threat of serious harm.[7]

I noted that the 1951 Convention does not specifically provide protection for people persecuted on account of their gender or sexual orientation in the same way that it protects people from the threat of being persecuted because of their race, religion, nationality, and political opinion. I said that sexual orientation and gender-related claims have had to be “shoehorned” into the category of membership of a particular social group, which has not provided as consistent or predictable protection for women or LGBT people being persecuted on the basis of their gender or sexual orientation.[8]

“Canada could lead the way,” I said. “Canada could provide a model for a refugee definition that actually addresses in a holistic and a real way the threats that the refugees of the world are facing today.”

To read the full article, please visit: https://www.law.georgetown.edu/immigration-law-journal/wp-content/uploads/sites/19/2026/04/GT-GILJ250012.pdf

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