Mapping Refugees Protection Under International Law:
Legal Desirability And Human Rights Suitability
By Dr. Nafees Ahmad
03 June, 2015
Countercurrents.org
1. AN OVERVIEW
Refugee rights are matters of international law to the extent they derive from one of the accepted trio of international law sources: treaties, custom, or general principles of law. But while technically correct, this facile response fails to do justice to real disagreements about how rules derived from custom or general principles are to be identified and, more specifically, about whether general rules of recognition can fairly be applied to the identification of human rights norms. The sources of both custom and general principles premised on a consent-based, modern positivist view of international law. The origins of refugee rights are closely intertwined with the emergence of the general system of international human rights law. Like international human rights, the refugee rights regime is a product of the twentieth century. Its contemporary codification by the United Nations took place just after the adoption of the Universal Declaration of Human Rights, and was strongly influenced by the Declaration's normative structure. In a more fundamental sense, though, the refugee rights regime draws heavily on the earlier precedents of the law of responsibility for injuries to aliens and international efforts to protect national minorities. The essential structure of the 1951 Refugee Convention is still the primary source of refugee-specific rights in international law. Refugee rights should be understood as a mechanism by which to answer situation-specific vulnerabilities that would otherwise deny refugees meaningful benefit of the more general system of human rights protection.[1]
Refugee movement is an amazing trend occurring all over the world without any single reason. People are on the move and on many occasions crossing international borders for refuge, safety and security since the inception of humanity. Human flight causes misery and suffering that result in homelessness, joblessness and---on many occasions---statelessness. On many times, people flee hostile situations and unfavorable circumstances. In these situations people are targeted and persecuted because of their race, religion, colour, sex, language, political or other opinion and membership of particular social group, national or social origin, birth or other status. Moreover, people are also persecuted owing to the reasons of aggression, armed conflict, foreign occupation, generalized violence etc.However, desertification, deforestation, development and climate change have also caused circumstances of flight which---as of now---have not been addressed under international refugee law. Generally, all citizens including refugees are protected by their respective states and governments. In the absence of state protection international organizations or community pitched in to protect people in such situations. Therefore, refugee movement generally inflicts socio-psychological, politico-cultural and economic harm to the displaced people. The canvas of refugees depicts vulnerability, inhumanity and indignity that are greatest violations of human rights and other norms of civilization.
International refugee protection has always been important since time immemorial. Since the adoption of 1951 UN Convention Relating to the Status of Refugees (referred to hereinafter as Refugee Convention or RCwith its Additional Protocol of 1967) more than sixty years ago, millions of people got displaced in many parts of the world. The basic purpose of international refugee law is to provide, promote and extend protection to the refugees, people in refugee like situations and people outside the country of their origin or people who need it in case of displacement and migration. Protection is susceptible to many understandings in the ordinary sense but protection is still an undefined terminology under international law.The understanding of protection depends upon the patterns of influx and exodus of refugees in the circumstances that demand specific application of law. Protection is required for individual as well as group refugees in a given situation. Although, protection of refugees under international law is based on the practice of states and international institutions, treatment of minorities and indigenous people who draw protection policies from norms of international human rights law, law of asylum and international rule of law. However, this understanding is not sufficient to address the plight of refugees and their resolution. There is a need to consult International Human Rights Law along with other UN Conventions and treaties relevant to the refugee protection.
Moreover, refugee protection has also been developed within the regional arrangements and institutional jurisprudence under African Union, European Court of Human Rights and Inter-American Commission and Court. These frameworks have considerably strengthened overall international refugee law and protection. Consequently, refugee protection under international law is envisaged under international human rights standards which have been developed within the framework of a trinity of international refugee law, international humanitarian law and international human rights law. However, there is general understanding to limit and confine refugee protection and issues relating to them to the 1951 UN Convention Relating to the Status of Refugees with its Additional Protocol of 1967 that made the RC universal in its application. RC is the present law on refugee protection. It was concluded after the World War-II as a result of events happened in Europe before January 01, 1951. Subsequently, in the latter half of the twentieth century the temporal and geographical scope of the RC was expanded by adopting an Additional Protocol to the RC in 1967 in the wake of new refugee situations.
2. INTRODUCTION
Refugees have existed as long as history, but an awareness of the responsibility of the international community to provide protection and find solutions for refugees dates only from the time of the League of Nations and the election of Dr. Fridtjof Nansen as the first High Commissioner for Russian refugees in 1921. The League of Nations defined refugees by categories, specifically in relation to their country of origin. Dr. Nansen’s mandate was subsequently extended to other groups of refugees, including Armenians in 1924, as well as Assyrian, Assyro-Chaldean, and Turkish Refugees in 1928. Up until 1950 the League of Nations, and thereafter the UN, established and dismantled several international institutions devoted to refugees in Europe.[2] However, the refugee problem in Europe and beyond remained unsettled and crucial in the political priorities of the states until the establishment of the contemporary international refugee protection framework that mainly consisted of 1951 UN Convention Relating to the Status of Refugees with its Additional Protocol of 1967.
The International Refugee Organization (IRO) was the last to precede UNHCR. The IRO was created in 1947 to deal with the problem of refugees in Europe in the aftermath of the Second World War and was to be terminated by June 30, 1950. It was soon apparent, however, that the comprehensive nature of the task it had been assigned—to address every aspect of the refugee problem from registration and determination of status, to repatriation, resettlement, and “legal and political protection”—precluded winding up of that international effort. There was also a growing conviction of the importance of a multilateral approach to resolving refugee problems. Thus, in December, 1949 the General Assembly decided to replace the IRO with UNHCR, which was established for an initial period of three years, as a subsidiary organ of the General Assembly under Article Twenty-two of the UN Charter. On December 14, 1950 the General Assembly adopted the Statute of the UNHCR. UNHCR’s tasks stated therein were to provide international protection for refugees and to seek permanent solutions to their problems by assisting governments to facilitate their voluntary repatriation or theirassimilation within new national communities.[3]
The protection of refugees under international law has been crystallized with natural principle of non-discrimination as a general rule that is well-established and duly recognized in international law. The basic rules of refugee protection are generally traced to a trajectory of sources such as customary international law, treaty-based rules on rescue operations for those persons who found themselves in danger at sea or got shipwrecked. The strengthening of the principle of non-refoulement as adumbrated in the Refugee Convention has immensely enhanced the threshold of protection of refugees in such situations. In international law, refugees are protected under 1951 UN Convention Relating to the Status of Refugees (Refugee Convention or Geneva Convention as is popularly called) with its Additional Protocol of 1967. Whereas 1966 Bangkok Principles were adopted by the then Asian-African Legal Consultative Committee, 1984 Cartagena Declaration and 1969 OAU Convention Governing the SpecificAspects of Refugee Problems in Africa takes into account plight of refugees at regional level.
However, universal declaration of human right[4]is a non-treaty document which has inspired, influenced and harmonized a series of legally binding international treaties in the latter yearswhich talks of eliminating all forms of racial discrimination[5], protecting civil and political rights[6], preserving economic, social and cultural rights[7], removing all forms of discrimination against women[8], preventing torture and other cruel, inhuman or degrading treatment or punishment[9] and protecting the rights of the child[10], restoring the rights of all migrant workers and members of their families[11], protecting the all persons from enforced disappearance[12] and extending the protection to persons with disabilities[13] with a number of additional arrangements to the main conventions like the Optional Protocol[14] to the CEDAW which acknowledges the competency of the Committee on the Elimination of Discrimination against Womento accept and deliberatesubmissions from individuals and groups regarding violations of their rights granted under CEDAW. The Human Rights Committee created under the ICCPR[15] and the Committee against Torture, under the CAT[16] can also accept and discuss individual transmissions pertaining to purported violations of commitments under these treaties. There are two Optional Protocols to the child rights convention regarding the involvement of children in armed conflict[17], sale of children, child prostitution and child pornography[18]with many other regional arrangements for refugee protection guarantees.
The refugee protection regime, within which the United Nations High Commissioner for Refugees (UNHCR) discharges his mandated functions, has its origins in general principles of human rights. The 1951 Convention has a legal, political and ethical significance that goes well beyond its specific terms: legal in that it provides the basic standards on which principled action can be based; political in that it provides a truly universal framework within which States can cooperate and share the responsibility resulting from forced displacement; and ethical in that it is a unique declaration by the States Parties of their commitment to uphold and protect the rights of some of the world’s most vulnerable and disadvantaged people. The 1951 Convention is a landmark in the setting of standards for the treatment of refugees. It incorporates, either directly or as an inevitable interpretation, the fundamental concepts of the refugee protection regime, which are as relevant in the contemporary context as they were in 1951.[19] Consequently, international refugee law cannot be appreciated and understood in a vacuum of particularity. It is the judicial and juridical responsibility of the stakeholders to interpret Refugee Convention in commensurate with the norms, principles and spirit of international human rights standards and benchmarks.
Historically, the international refugee law has been conceived, evolved and developed to protect persons who have crossed international borders while fleeing persecution in their country of origin. International refugee law essentially prohibits the forced return, deportation or involuntary repatriation of refugees to their country of origin pursuant to the principle of non-refoulement and ensures fundamental human rights protections in the country of refuge or reception or asylum. Today, the doctrine of non-refoulement has attained the status of customary law and it is regarded as jus cogens of international law wherefrom no reservation or derogation is permitted and it is binding on those states that are not party to the Refugee Convention. Therefore, international refugee law has emerged as an independent but complementary discipline of international law.
3. WHO IS A REFUGEE?
The meaning of what it means to be a refugee has undergone a shift, and continues to do so. In the early years of devising the refugee regime that is now referred to as international refugee law (IRL) (1920-1935) refugees were defined principally in relation to their vulnerability as individuals who did not enjoy state protection. The refugee was an anomaly within the international state system and international protection was designed so as to correct this anomaly. During this time the Minority Treaties were established to offer protection to those displaced during the First World War. These Treaties entrusted the League of Nations with the minority peoples' protection.[20]According to political theorist Hannah Arendt, the Minority Treaties made obvious what was hitherto hidden in the dealings of the Nation-State, namely that:
Only nationals could be citizens, only people of the same national origin could enjoy the full protection of legal institutions, that persons of different nationalities needed some law of exception until or unless they were completely assimilated and divided from their origin.[21]
All persons or individuals who flee and cross an international border are not entitled to have refugee status. There are specific qualifications to be regarded as a refugee under 1951 UN Convention Relating to the Status of Refugees. Therefore, the meaning of “who is a refugee” as enunciated in the Refugee Convention becomes imperative as under:
“A refugee is a person who, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a social group or political opinion, is outside the country of his origin and is unable or unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.[22]”
The definition stipulates that a person should be outside his or her country and it categorically excludes IDPs (Internally Displaced Persons) from receiving international protection. However, refugee definition focuses more on individualpersecution. It does not distinguishthe nature of circumstances of generalized violence, natural disasters and wide-ranging development projects as legitimate causes of migration. The 1967Additional Protocol[23]to the RC was adopted to eliminate the geo-political and time limitations demarcated in RC on the subject and inclusion of the same deliberated the post-World War-II backdropin which the 1951UN Convention relating to the Status of Refugees wasordered to provide aid and assistance to refugees. Although, Additional Protocol talks in the same language the RC hasexercised. It is, indeed, noteworthy that RC and Additional Protocol do not visualize the concerns and concepts relating to asylum, lawful admission and situations in which refugees are treated under these concepts as these are exclusively exercised by the States. However, the Refugee Convention envisages the principle of non-refoulement enunciated under Article 33 (1) which lays down that:
"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to…territories where his (or her) life or freedom would be threatenedon account of his race, religion, nationality, membership of a particular social group or political opinion."[24]
This is an international definition expressed in general terms. The impugned definition is subject to liberal interpretation in conformity with international human rights norms. However, international law norms complementrefugee protection regimes at regional level to a great extent. In Africa, people crossing intra-regional borders owing to the reasons of being squeezed with randomoutcomes of armed conflicts or events seriously disrupting public order are also regarded as refugees under the 1969 OAU Convention. In the same manner, Cartagena Declaration-1984 in Latin American region also recognizes refugees who have not involved in crimes against peace, crimes against humanity and war crimes or acts contrary to the purposes and principles of United Nations.
4. SOURCES OF INTERNATIONAL LAW
Refugee rights do not exist as an alternative to, or in competition with, general human rights. Nor, however, has the evolution of a broad-ranging system of general human rights treaties rendered the notion of refugee-specific rights redundant. The universal rights of refugees are today derived from two primary sources – general standards of international human rights law, and the Refugee Convention itself. the obligations derived from the Refugee Convention remain highly relevant, despite the development since 1951 of a broad-ranging system of international human rights law. In particular, general human rights norms do not address many refugee-specific concerns; general economic rights are defined as duties of progressive implementation and may legitimately be denied to non-citizens by less developed countries; not all civil rights are guaranteed to non-citizens, and most of those which do apply to them can be withheld on grounds of their lack of nationality during national emergencies; and the duty of non-discrimination under international law has not always been interpreted in a way that guarantees refugees the substantive benefit of relevant protections.[25]
There are formal (primary) and informal (secondary) sources of international law (IL) but treaties and rules of customary international law are considered to be most important sources of international law. Treaties are legally-binding instruments which set out the rights and duties of states at two levels i.e. bilateral and multilateral on a variety of fields. International treaties are also designated with such nomenclature as charter, convention, covenants, pact and protocol etc. However, customary international law as an important source of international law encompasses the unwritten rules evolved out of state practice and opiniojuris (legal obligations) which are adhered to by the states in their international transactions, inter-state relations and diplomatic parleys. Moreover, customary rules are also binding irrespective of the fact whether states are privy to such rules or consented thereto or connected therewith or not but they are bound by them. There are norms of customary law such as prohibition of refoulement, slavery, torture and genocide etc. Likewise, there is another dimension of international law known as soft law that consists of non-treaty standards like declarations, principles, paragraphs, guidelines and understandings adopted by the UN system to evolve and develop new norms in emerging spheres of international law.
In addition to the above discussion, in a nutshell, sources of international law may be summarized as under:
>> The General Principles of International Law
>> International Treaties or Agreements
>> Customary International Law
>> Decisions of the Courts and Tribunals
>> Decisions of the International Organizations
>> Publicists, Juristic and Scholarly Writings
>> Interactions of the Sources
>> International Economic Law
>> International Investment Law
>> International Trade Law
The sources of international law do not exist in exclusive zones rather they exist in an inter-connected legal environment. General principles of international law[26] are difficult to define in present state practices. The Statute of International Court of Justice recognized general principles as informal source of international law. International treaties and agreements are regarded primary sources of international law which create laws for the states and subjects of international law. Customary international law flows from the uniform practices of the states which are popularly known as opiniojuris in international legal parlance. Both treaties and customary international law enjoy parity with each other under international law. However, Court decisions and scholarly writings are secondary sources and invoked as subsidiary means to determine the rules of international law.
5. WHAT IS INTERNATIONAL REFUGEE LAW?
The modern framework of international obligations in respect of persons in need of international protection dates from the end of WW-II. The international conventions were revised and updated as a result of the tremendous pressures which had arisen from the 1930s onwards in Europe.[27] The cornerstone of the international refugee protection system is the 1951 UN Convention Relating to the Status of Refugees and its 1967 Additional Protocol. The key elements of the Refugee Convention are first, that it defines who is a refugee as a person outside his or her country of nationality or habitual residence with a well-founded fear of persecution on the basis of race, religion, nationality, membership of a particular social group or political opinion. Secondly, it requires all contracting states to respect the principle of non-refoulement: no person who claims to be a refugee must be returned to the borders of the state where he or she fears persecution. Thus, all contracting states mustconsider and assess an application for refugee status and protection before any action is taken to expel a person to his or her country of origin or to any intermediate country where there is a substantial risk that he or she will suffer onwards expulsion to persecution. Thirdly it sets out the rights and obligations of state parties in respect of the treatment of refugees.[28]
The Refugee Convention permits contracting states to apply an exclusion provision where the refugee has committed particularly serious (and circumscribed) crimes or is guilty of acts contrary to the principles of the UN.[29]All EU Member States are signatories of the Refugee Convention. The original Refugee Convention had a temporal and territorial limitation – it applied only in respect of events in Europe before 1 January 1951. The 1967 Protocol lifted the two limitations – territorial and temporal. There are states, such as Turkey, which are signatories to the Refugee Convention but not the Protocol and vice versa, like the USA.[30] However, Treaty on the Functioning of the European Union[31] (TFEU)stipulates that the Common European Asylum System (CEAS) must be in conformity with the 1951 UN Refugee Convention Relating to the Status of Refugees with its Additional Protocol along with other relevant treaties on the subject.
Consequently, IRL has been created to protect and assist persons who have crossed an international border and provide them asylum from persecution. IRL framework delivers a series of well-defined rights, protections and guarantees to the refugees by treating them a special class of people. Unsurprisingly, legal protection under IRL regime also coincides with protection mechanisms enunciated in international human rights law and international humanitarian law on many points. The sources of IRL are particularly international treaty law along with well-established principles of international customary law aimed to protect and preserve human rights. IRL is considered to be the most successful human rights instrument ever created by the comity of nations. IRL has attained the status of customary international law wherefrom no derogation or reservation is permitted. Whereas debates and discourse continue to agitate the minds of international community regarding the nature and scope of protection to refugees and scale of obligations of receiving states towards them.
5.1 International Instruments:
There are two principle international instruments which govern IRL namely: 1951 UN Convention Relating to the Status of Refugees with its 1967 Additional Protocol. This convention stipulates the standards, scale and canvass of treatment of refugees in the countries of reception. Whereas human rights of refugees, protection prescriptions for refugees and their development are also deliberated under the following international human rights instruments:
>> Universal Declaration of Human Rights
>> International Covenant on Economic, Social and Cultural Rights
>> International Covenant on Civil and Political Right
>> Optional Protocol to the International Covenant on Civil and Political Rights
>> Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty
>> International Convention on the Elimination of All Forms of Racial Discrimination
>> Convention on the Elimination of All Forms of Discrimination against Women
>> Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women
>> Convention on the Rights of the Child
>> Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography
>> Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict
>> Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
>> Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
>> International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
5.2 International Human Rights Treaty System
International human rights standards are maintained by the human rights treaty system that is reflected in the following six major treaties:
>> The Convention on the Elimination of all forms of Racial Discrimination (CERD), 1969
>> The International Covenant on Civil andPolitical Rights (ICCPR), 1966)
>> The International Covenant onEconomic, Social and Cultural Rights (ICESCR), 1966
>> The Convention on the Elimination of Discrimination Against Women (CEDAW),1979
>> The Convention Against Torture (CAT), 1984
>> The Convention on the Rights of theChild (CRC), 1989
5.3 International Human Rights Treaty Bodies
The aforementioned six treaties are concomitant with six treaty bodies which have been entrusted with the task of monitoring theimplementation of treaty obligations. The meeting of the five out of the six treaty bodies meets primarily in Geneva andis assisted the by the Office of the High Commissioner for Human Rights (OHCHR). These are made of the following:
>> The Committee on the Elimination of Racial Discrimination (CERD)
>> The Human Rights Committee (HRC)
>> The Committee on Economic, Social and Cultural Rights (CESCR)
>> The Committee Against Torture (CAT)
>> The Committee on the Rights of the Child (CRC).
Whereas one treaty body i.e. the Committee on the Elimination of Discrimination against Women (CEDAW) is convened in New York and is assisted by the UN Division for the Advancement of Women. These treaty bodies are comprised of those members who are elected by each group of states parties orthrough ECOSOC in the case of CESCR.
5.4 Functions of the International Human Rights Treaty Bodies
The functions of the international human rights treaty bodies mainly include monitoring which is fulfilled through different modes as under:
>> All states parties to the treaties are required to make State Reports on domestic standards and practices with regard to observance of the treaty rights and obligations. The treaty bodies periodically review these reports in the presence of state representatives and make comments, observations and statements on the compliance and sufficiency status of these reports relating to treaty obligations whether these reports have been implemented or not by the states parties in conformity with such review.
>> Individuals may lodge complaints regarding violations of their rights protected under the four human rights treaties (ICCPR, CAT, CERD, and CEDAW). The treaty bodies consider these complaints whether a case of any violation is made out or not as contemplated under these four treaties.
>> The treaty bodies adopt inquiry procedure in the matter of CAT and CEDAW whereunder inquiry procedure stipulatesthat missions to states parties take into account the anxieties regarding systematic or serious or grave violations of treaty rights and obligations. Moreover, treaty bodies also prepare and write General Comments or Recommendations that contribute to the development and understanding of international human rights. These comments and commentaries are on the nature of treaty rights, freedoms and obligations which needed to be adumbrated, expanded and executed.
5.5 The Aims of theInternational Human Rights Treaty System
The fundamental aims of the international human rights treaty system may be outlined as follows:
>> To foster a culture of human rights
>> To concentrate the human rights system on standards and obligations
>> To involve all states in the treaty system
>> To interpret the treaties through reporting and communications
>> To identify benchmarks through general comments and recommendations
>> To present a correct, pragmatic, excellent report in the form of commentaries, recommendations and observations for each state
>> To provide a corrective forum for individual complaints
>> To encourage a serious national process of review
>> To make reformthrough collaborations at the national level
>> To operationalize standards
>> mainstream human rights in the UN system and mobilizethe UN community to assist with implementation and thedissemination of the message of rights and obligations
The contemporary civilizations, societies and human assemblies are mapped and measured on the footing of human rights. Human rights determine the health of the society in which people exercise and enjoy these rights. Human rights are the essence of human existence. Human rights are the custodian of humanity and its vertical and horizontal development. Human rights ensure discipline, decency and dignity in the lives of the people and nations. But, unfortunately, there are many people in every region and geo-political entity where they have still been struggling for a modicum of human rights and refugees are not an exception to this struggle. The quality of life in any society speaks volumes of human rights availability as well as their vulnerability. It is the human rights which have become crucial in any international discourse on peace, progress and prosperity in every walk of life. Human rights of refugees are also the same as that of the ordinary citizens in every part of the world. Thus, human rights are universal values which have universal legitimacy in the cycle of human accomplishments in the modern world. Human rights lay down a certain blue print for states and governments to make them accountable to the people in their actions, reactions and transactions. Human rights are minimum guarantees available to the people at large in their respective countries against any action of state and non-state actors.
5.2. Regional Instruments
There are regional instruments whereunder fundamental principles of refugee protection and an expansion of refugee convention definition has been addressed in a pragmatic manner while dealing with major causes of refugee migration such as generalized violence, internal conflicts and massive human rights violations etc. These regional instruments[32] such as 1969 Organization for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa and 1984 Cartagena Declaration on Refugees for Latin America have further developed international refugee law.The 1951 UN Refugee Convention provides the traditional individualistic definition of what constitutes a refugee, with war and persecutionbeing the classic drivers. However, if we look beyond the Western perception of what constitutes a refugee, we find that theunderstanding of refuge is far more inclusive than the narrow UNConvention allows. Due to the issues presented by regional conflicts,states have developed the Refugee Convention to match theprinciples of humanitarianism, as well as that of expediency.[33]
The environment encompassing the drafting of the Refugee Convention post-World War II was restrictive innature and failed to sufficiently react to the situations of the following decades.[34] For the drafters of the Refugee Conventionoverlooked and failed to imagine the problems that might be generated from underdeveloped states.[35]The OAU felt that in light of the struggles for independence across the continent, the Refugee Convention needed to be elaborated in order to be more effective in handling the myriad refugee problems facing Africa. The OAU Convention highlights in detail the needs of the African states in meeting refugee crises and reflects the generosity of the African peoples in granting hospitality to those in distress.[36] It is perceived as being in harmony with the Refugee Convention[37], as much of the drafting of the OAU Convention was done in conjunction with legal representatives of the UNHCR. Whilst continuing with the basic refugee definition prescribed by the UNHCR, the OAU differed by asserting that the term refugee:
shall also apply to every person who, owing to externalaggression, occupation, foreign domination or events seriously disturbing public order in either part or thewhole 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 origin or nationality.[38]
The OAU definition relating to refugees was the first ‘salient challenge’ to the idea that persecution is the fundamental criteria for refuge.[39]Indeed, the definition allows for the fact that unfortunately, states will still persecute their citizens, thuscreating refugees. However it recognizes, where the UNHCR doesnot, that the link between the citizen and the state can be dissolved in numerous ways, with ‘persecution’ being but one way.[40]The OAU definition allowed for a number of uniquespecifications. Article 1 highlighted that the term refugee would be available to individuals who had fled their country of origin owing to external aggression, occupation, foreign domination, or events seriously disturbing the public order. Unlike the Refugee Convention, individuals under the OAU could obtain ipso factorefugee status: they would not have to provide evidence of the persecution.[41] The new definition of refugee is qualitatively different from the classical definitions for it considers situations where the qualities of deliberateness and discrimination need not be present [...] they allowed the grant of refugee to asylum-seekers whose fears were grounded in the accidental but nonetheless dangerous consequences of intensive fighting and associated random lawlessness in their countries of origin.[42]From the beginning there was an accord amongst the OAU draftersthat the Refugee Convention's definition was not adequate for handling the issues present within an African perspective. Hence, the language of the OAU Convention and definition highlighted evident humanitarian problems and aimed to provide a realistic solution to the issue of establishing refugee status; for the massive exoduses experienced made the individual assessment of the UNHCRapproach unworkable.[43]For an alternative definition of refugee protection, the Cartagena Declaration on Refugees---adopted by theColloquium on the International Protection of Refugees in Central America, Mexico and Panama in 1984---is an apt example to be relied upon.
The Cartagena Declaration follows in the footsteps of the OAU, and argues that due to the evolving nature of refugee flows in the Latin American region, the definition of a refugee needed to be broadened from the narrow Refugee Convention term.[44] The ‘new’ refugees within the Latin American region were challenging. These were not prestigious or well-known individuals, as was seen up till the 1970s. No longer were the refugees principally from urban areas, nor were they mainly representatives of the social or political elite who had fled authoritarian rule. The ‘new’ refugees of Latin America were predominantly rurally based, ethnically diverse individuals, who congregated in isolated areas bordering their country of origin.[45]Therefore, it was considered that a revised definition was obligatory to safeguard the life, liberty and safety of the refugees.
6. REFUGEE PROTECTION UNDER INTERNATIONAL LAW
Refugee law is apowerful sign of solidarity with the world’s most severely at-risk people. It is theonly international human rights remedy which can be engaged directly andimmediately by at-risk persons themselves. Most important of all, it is afundamentally practical remedy which can be reconciled to the most basicinterests of states. It is, in sum, a uniquely valuable asset which must never beallowed to atrophy.[46]The Refugee Conventiontherefore requires all state parties to treatrefugees who make a clean breast of their illegal entry or presence asnon-transgressors.[47] Thus, there are three important areas of international law which have emerged to have established them as separate but complementary branches of law which are inter-woven within the framework of international fundamental freedoms wherein protection of refugees has been comprehensively contemplated namely:
>> International Refugee Law
>> International Human Rights Law
>> International Humanitarian Law
These three major branches of international law envelop the provisions of protection to refugees and asylum seekers. The standards fossilized in these complementary divisions of international law are integral to refugee protection and execution and implementation thereof is entrusted to United Nations High Commissioner for Refugees (UNHCR) --- the main agency to protect and assist refugees around the world.Primarily, problem of refugees is a human right issue which must be dealt with under human rights treaties on torture, non-discrimination, protection of civil and political rights, socio-economic and cultural rights etc. The international protection of refugees under various human rights instruments is provided as follows:
>> To protect against torture (Article 3, UN Convention against Torture (CAT), 1984)
>> To protect civil and political rights (Articles 5, 9, 12, UN Covenant on Civil and Political Rights (ICCPR), 1966)
>> To protect against racial discrimination (Article 5 d (i), UN Convention on Elimination of Racial Discrimination)
>> To protect fundamental freedoms (Article 3, European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 1950)
>> To promote the right to seek and be granted asylum [Article 22 (7), American Convention on Human Rights (ACHR)]
6.1 Asylum
The concept of a refugee ought not to be conflated with that of an asylum-seeker. Traditionally, asylum meant a right to refuge and an asylum-seeker was one who sought out such refuge in a state other than one of his origin or habitual residency. With time, however, the term has undergone a shift and is now increasingly interpreted as the right of the state to give protection to exiles and refugees. This was clearly emphasized in the Asylum case before the International Court of Justice (ICJ).[48]Article 14 of the UDHR speaks of the “right to seek and to enjoy in other countries asylum from persecution,”[49] whereas there is no explicit mention of a right to be granted asylum. The RC does not even address asylum, but rather considers it to be a matter best left to state discretion.[50] The right to “receive” or “be granted” asylum, which establishes a positive obligation upon states can only be found in various regional arrangements, such as: Article 22(7) of the American Convention on Human Rights, Article 27 of the American Declaration on the Rights and Duties of Man, and Article 12(3) of the African Charter on Human and Peoples’ Rights. While Member States of the European Union affirmed the fundamental importance of asylum at the European Council Meeting in Tampere in 1999.[51] Unfortunately, the right to asylum still does not find a proper place in any of the legally-binding regional human rights instruments in the European context.
6.2 Determination of Refugee Status
The general human rights law adds a significant number of rights to the list codified in the Refugee Convention, and is regularly interpreted and applied by supervisory bodies able to refine the application of standards to respond to contemporary realities. Convention rights can obviously not be claimed until all the requirements of the Convention refugee definition are satisfied, including departure from one's own state. But since refugee rights are defined to inhere by virtue of refugee status alone, they must be respected by state parties until and unless a negative determination of the refugee's claim to protection is rendered. This is because refugee status under the Convention arises from the nature of one's predicament rather than from a formal determination of status. Refugee rights, however, remain inchoate until and unless the refugee comes under the de jure or de facto jurisdiction of a state party to the Convention. This is because the Convention binds particular state parties, each of which is required to meet obligations only within its own sphere of authority.As the degree of attachment between a refugee and a state party increases, so too do the rights which the refugee may claim. All of the rights acquired by simple physical presence – to enter and remain in the asylum state; freedom from arbitrary detention or penalization for illegal entry; protection of physical security; access to the necessities of life; protection of property; respect for family unity; free exercise of thought, conscience, and religion; access to basic education; documentation of identity and status; and to benefit from administrative assistance and access to the courts – continue for the duration of refugee status. But once a refugee is not only in fact under the jurisdiction of a state party to the Convention, but also lawfully present in that country, he or she acquires three additional rights.[52]
The determination of refugee status refers to the legal act by which the particular conditions giving rise to an individual's flight are examined with the aim to determine whether or not the individual is deserving of international protection. The RC does not expressly provide for how such procedures ought to be organized and function. Unfortunately, in Latin America, the Middle East, and Africa, few states have adopted any such procedures. For those states that have not developed such procedures, the responsibility often falls to the UNHCR to determine status and subsequently to make recommendations to the respective governments.[53]However, UNHCR addresses such refugees as mandate refugees who also enjoy the same rights under international refugee law.
6.3 Non-Refoulement
Non-refoulement is the obligation to necessarily admit people to their respective territories; they have created a right of refugees and asylum-seekers to not be returned to a country in which one is likely to be tortured or subject to cruel, inhuman, or degrading treatment. Despite its importance, Article 33(2) of the RC permits derogation from the principle of non-refoulement, in the name of "security of the country" when a refugee "has been convicted by a final judgment of a particularly serious crime" and thereby "constitutes a danger to the community of that country." Nevertheless, the principle of non-refoulement and its status as a preemptory norm has been established in human rights law. As a pre-emptory norm, human rights treaty bodies, regional human rights courts, and domestic courts have ruled that the right to be free from torture, cruel, inhuman or degrading treatment is absolute and under no circumstances may it be violated.[54] Undoubtedly, the institution of non-refoulement in international refugee law has become sacrosanct, paramount and dominant while dealing with the problems arising out of refugee flight across the globe.
It is, indeed, difficult to contemplate a situation in which the protection of refugees under international refugee law could be met most effectively by agencies other than UNHCR and other UN subsidiaries. The biggest challenge in addressing the root causes of why refugees exist is a political one. States must interpret existing IRL according to its "object and purpose"- namely “to assure refugees the widest possible exercise of these fundamental rights and freedoms.”[55]Nevertheless, protection of refugees will continue to be the major concern for the international community at one hand and on the other hand it shall remain a central theme, a litmus test and a challenge in international law to be braced in future.
7. THE WAY AHEAD
Off late,the international refugee law has been confronting with a world wide web of denial of fundamental principles of equality, liberty and fraternity based on diversity, affinity and justice in the global human rights parameters. International legal framework for refugees which gives primacy to refugee personhood in state practices and regional mechanisms must be strengthened to mitigate their sufferings. International refugee law must evolve cosmopolitan orientation life to address the present issues of refugee rehabilitation, re-integration and repatriation. There are two significant challenges in international refugee law which have been evolving since long, one is status-based protection challenge and second is rights-based challenge which have not been treated adequately. The international legal order should discourage the categorization and compartmentalization of human sufferings. The issues of definitional dilemma, detention, repression and enclosures are human rights concerns and required to be attended in human rights contexts. Thus, the future of international refugee law must contour the centrality of refugee protection as its raison d’etre that emanates from global human rights advocacy. In tune with global human rights discourse, the status-based and rights-based protection challenges must reflect in the ref-conceived, re-constructed and re-imagined international refugee law that subsumes classical norms, contemporary trends and prognostic prospects for a paramount and pragmatic international protection of refugees and refugeehood.
Dr. Nafees Ahmad
Ph.D. (International Refugee Law & Human Rights)
LL.M. (International Law & Human Rights)
LL.B. (H) B.A. [(H)-Anglo-American English Literature]
Assistant Professor of International Law
224, II Floor, Akbar Bhawan
Faculty of Legal Studies, South Asian University,
Satya Marg, Chanakyapuri, New Delhi-110021
INDIA
Webbress: [email protected]
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http//drnafeeslaw.blogspot.com/
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[1]James C. Hathaway, The Rights of Refugees under International Law, Cambridge University Press , 2005, ISBN:9780521542630
[2]Erika Feller, The Evolution of the International Refugee Protection Regime, Journal of Law & Policy, Vol. 5:129 130
[3]Ibid.
[4]UN Universal Declaration of Human Rights, December 10, 1948
[5] UN Convention on the Elimination of All Forms of Racial Discrimination, December 21, 1965
[6]UN Covenant on Civil and Political Rights, December 16, 1966
[7]UN Covenant on Economic, Social and Cultural Rights, December 16, 1966
[8]UN Convention on the Elimination of All Forms of Discrimination against Women, December 18, 1979
[9] UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984
[10] UN Convention on the Rights of the Child, November 20, 1989
[11] UN Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families, December 18, 1990
[12]UN Convention for the Protection of All Persons from Enforced Disappearance, December 20, 2006
[13]UN Convention on the Rights of Persons with Disabilities, December 13, 2006
[14] Optional Protocol to the UN Convention on the Elimination of Discrimination against Women, December 10, 1999.
[15]Optional Protocol to the UN Covenant on Civil and Political Rights, December 16, 1966
[16] Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 18, 2002
[17] Optional Protocol to the UN Convention on the Rights of the Child, November 20, 1989 on the Involvement of Children in Armed Conflict, May 25, 2000.
[18] Optional Protocol to the UN Convention on the Rights of the Child, November 20, 1989 on the Sale of Children, Child Prostitution and Child Pornography, May 25, 2000
[19]Erika Feller, International Refugee Protection 50 Years on: The Protection Challenges of the Past, Present and Future, [2001] IRRC Vol. 83 No. 843
[20]Arendt, Hannah. "Decline of the Nation-State; End of the Rights of Man" in: H. Arendt. Imperialism: Part Two of the Origins of Totalitarianism. [1968] New York: Harcourt, Brace and World Inc., 152-153.
[21]Ibid. 155
[22]Article 1A (2) of UN Convention Relating to the Status of Refugees, June 20, 1951
[23]Additional Protocol, 1967 to the UN Convention Relating to the Status of Refugees, June 20,1951
[24] UN Convention Relating to the Status of Refugees, June 20, 1951
[25]Supra note 1
[26] Article 38-Paragraph 1 (C) of the Statute of International Court of Justice (ICJ) applicable to “ General Principles of Law Recognized by Civilized Nations”
[27]GS Goodwin-Gill and J McAdam, The Refugee in International Law, 3rd Ed., (Oxford: OUP, 2007).
[28]Ibid.
[29]As per the Handbook on Procedures and Criteria for Determining the Refugee Status under the 1951 UN Convention and the 1967 Protocol Relating to the Status of Refugees, HCR/IP/4/Eng/Rev 1. UNHCR explains that the purposes and principles of the UN as referred to in Article 1of the RC are those set out in the Preamble and Articles 1 and 2 of the UN Charter. Also See M. Zard, Exclusion, Terrorism and the Refugee Convention’, (2002) 13 FMR 32.
[30]Ibid.
[31]Article 78 of the Treaty on the Functioning of the European Union, March 30, 2010
[32] SeeBond Rankin, M., Extending the Limits or Narrowing the Scope? Deconstructing the OAU Refugee Definition Thirty Years On, New Issues in Refugee Research, No. 113, 2005, Okoth-Obbo, G., Thirty Years On: A Legal Review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa, Refugee Survey Quarterly, Vol. 20, No. 1, 2001
[33]Eduardo Arboleda,Pragmatism, IJRL 2(1991), p. 195
[34]Ibid, 185
[35]Ibid, 185
[36]UNHCR ‘Note’ Website
[37]UNHCR ‘Note’Website
[38]OAU Website
[39]Supra note 4, pp. 274-284
[40]Gillian McFadyen, The Contemporary Refugee: Persecution, Semantics and Universality, e-Sharp, Special Issue: The 1951 UN Refugee Convention-60 Years On (2012), pp. 9-35, ISSN: 1742-4542
[41] Ibid
[42]Supra note 11, p. 195
[43]Supra note 31, p. 195
[44]UNHCR ‘Cartagena’ Website
[45]Supra note 31 p. 200
[46]Hathaway, James C., Why Refugee Law Still Matters, Melbourne Journal of International Law, [2007] Vol. 8. 103
[47]Ibid. p 91
[48] Colombia v. Peru, [1950] I.C.J.
[49]Article 14 of the Universal Declaration of Human Rights, 1948.
[50]Supra note. 31
[51]Claire Reid, International Law and Legal Instruments, [2005] 7
[52]Supra note 1
[53]Claire Reid, International Law and Legal Instruments, [2005] 8
[54]UNHCR EXCOM, 'Non-refoulement', Conclusion No. 6 (XXVIII), 1977 UNHCR, 'Note on International Protection', UN doc. A/AC.96/830, 7
[55]Preambular Paragraph 2, 1951 UN Convention Relating to the Status of Refugees
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