1
LAW
Law
International Human Rights Law
Protection of Refugees under International Law
2 DESCRIPTION OF MODULE
Items Description of Module
Subject Name Law
Paper Name International Human Rights Law
Module Name/Title Protection of Refugees under International Law Module Id
Objectives To Study the Concepts of Refugee, Asylum Issues and their Rights with possible solutions
Key words Refugee, Persecution, Migration, Human Displacement, International Law, Protection, Refugee Status, Asylum, Non-refoulement, IHRL, IRL, IHL, Treaty System
LEARNING OUTCOME
This module tries to explore the issues raised in the following questions:
Why so many people are fleeing their countries?
What are the causes of human displacement and migration?
What are the rights of refugees under international law?
What can the international community do to help refugees?
Role Name Affiliation
Principal Investigator Prof. (Dr.) Ranbir Singh Vice Chancellor, National Law University, Delhi Co-Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law
University Delhi
Paper Coordinator Dr. Srinivas Burra Assistant Professor, faculty of Legal Studies, South Asian University, New Delhi Content Writer/Author Dr. Nafees Ahmad Assistant Professor, South
Asian University-New Delhi Content Reviewer Dr. Sanoj Rajan Professor and Head
School of Law ITM University New Delhi
3 e-Pathshala Module
On
PROTECTION OF REFUGEES UNDER INTERNATIONAL LAW TABLE OF CONTENTS
ACRONYMS
Quadrant-I E-Text
1. AN OVERVIEW
2. INTRODUCTION
3. WHO IS A REFUGEE?
4. SOURCES OF INTERNATIONAL LAW
5. WHAT IS INTERNATIONAL REFUGEE LAW?
5.1 International Instruments 5.2 Regional Instruments
6. REFUGEE PROTECTION UNDER HUMAN RIGHTS AND HUMANITARIAN LAW
6.1 Asylum
6.2 Determination of Refugee Status 6.3 Non-Refoulement
Quadrant-II
E-Tutorial Law- PPTs on Protection of Refugees under International Law Quadrant-III
Further Reading Resources
4 ACRONYMS
ACHR American Convention on Human Rights
AU African Union
CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
CEDAW International Convention on the Elimination of Discrimination against Women
CERD International Convention on the Elimination of All Forms of Racial Discrimination
CRC Convention on the Rights of the Child
ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms
EXCOM Executive Committee of the High Commissioner’s Program
HRC Human Rights Committee
IACHR Inter-American Commission on Human Rights
ICCPR International Convention on Civil and Political Rights
ICESCR International Convention on Economic, Social, and Cultural Rights ICJ International Court of Justice
IDP Internally Displaced Peoples IFA Internal Flight Alternative
IHL International Humanitarian Law
IHRL International Human Rights Law
IRL International Refugee Law
IRO International Refugee Organization OAS Organization of American States
OHCHR Office of the High Commissioner for Human Rights
RC 1951 Convention Relating to the Status of Refugees and its 1967 Protocol
UDHR Universal Declaration of Human Rights
UN United Nations
UNGA United Nations General Assembly
UNHCR United Nations High Commissioner for Refugees UNRRA United Nations Relief and Rehabilitation Association
5 Quadrant-I: E-Text
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PROTECTION OF REFUGEES UNDER INTERNATIONAL LAW 1. AN OVERVIEW
Refugee mobility is an alarming and amazing trend happening all over the world attributable to the numbers of causes. People have been crossing international borders for refuge, safety and security. On many times, people are compelled to flee unfriendly conditions, unfavorable situations and persecutory practices and policies of the home state. Human migration causes distress, destitution and deprivation that result in homelessness, joblessness and statelessness. Thus, in these circumstances people are tyrannized, tormented and persecuted on the basis of birth, caste, color, ethnicity, language, race, religion, sex, political opinion and membership of a particular social group, nationality or social origin, or other status or otherwise.
Likewise, people are also targeted and subjected to persecution due to armed conflict, civil strife, foreign invasion, alien occupation, generalized violence and massive violations of human rights and fundamental freedoms etc. Though, climate change and development have also created conditions of human migration that, unfortunately, do not find any redress under international refugee law (IRL) yet. Ordinarily, refugees are identified with inhumanity, indignity and vulnerability that inflict upon them psychological and mental atrocities. Protection of refugees has been important since ancient times. Usually, all people including refugees enjoy security and protection of their own states and national governments. Without state protection, international community and organizations are looked up to for refugee protection.
Since the inception of IRL in the form of 1951 UN Convention Relating to the Status of Refugees with its 1967 Additional Protocol (hereinafter referred to as IRL) that is popularly known as Refugee Convention more than six decades ago, millions of people got displaced from their roots in different parts of the world. The main purpose of IRL is to promote, support and provide protection to refugees and people who are in refugee-like situations and people outside the country of their origin or people who require aid and assistance to cope with human displacement and migration. Protection is prone to many conceptions, constructions and understandings but in the common sense, protection still remains an open-ended term under international law. The interpretation of protection rests on the patterns of refugee influxes and outflows in the circumstances that demand particular application of IRL.
Protection is needed for individual as well as group of refugees in specific situations.
6 While protection of refugees under IRL is based on the state practices, international organizations, governmental responses to minorities and indigenous people who derive protection policy principles and norms from international human rights law, international asylum law and international law and customary international law. But this line of argument is not satisfactory to tackle the predicament of refugees while attending and addressing their problems. Thus, it is incumbent upon all stakeholders
to have recourse to all IHRL mechanisms, mediums and methods applicable to the protection of refugees adopted by the UN and its agencies.
Besides what has been stated above, regional arrangements like African Union, Inter-American Commission and Court and European Court of Human Rights have also developed the institutional frameworks for refugee protection and produced institutional jurisprudence. These institutional structures significantly made refugee protection stronger under a trio of IHRL, IHL and IRL. Accordingly, refugee protection under international law originates with the parallel development of IHRL, IHL and IRL as independent and complementary disciplines to each other. But, unfortunately, Refugee Convention is still perceived by many to be the only available law on refugee protection and their issues. 1951 UN Convention Relating to the Status of Refugees was adopted after World War-II to protect the European refugees.
Initially, it was limited to Europe in its application but in 1967 an Additional Protocol to 1951 UN Convention Relating to the Status of Refugees was concluded in wake of world-wide refugee movements which warranted uniformity in international response, therefore, application of Refugee Convention was made international without any geo-political demarcations.
2. INTRODUCTION
Refugees are not a new phenomenon or something unusual. 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.1 Nevertheless, Europe and beyond its boundaries states could not come out with any settlement of refugee problem until the conclusion and adoption of 1951 UN Convention Relating to the Status of Refugees with its Additional Protocol of 1967 whereunder present IRL framework has been contemplated.
The International Refugee Organization (IRO) was established as a temporary inter-governmental UN agency in 1947 to cope with the refugee problem in Europe after World War-II. The IRO came into force in 1948 for an initially limited period up
1 Erika Feller, The Evolution of the International Refugee Protection Regime, Journal of Law & Policy, Vol. 5:129 130
7 to June 30, 1950 but very soon it was to be replaced by the UNHCR for refugee protection. Primarily, IRO was dominated by the US and Western European countries that made it unacceptable to erstwhile USSR. But it was quickly evident that all inclusive nature of the work it had been entrusted with which included addressing all aspects of refugee problem inter-alia registration, refugee status determination, repatriation and resettlement. However, these international efforts tried hard to prevent its wrapping up. Nevertheless, there has been an emerging commitment to the magnitude of a multifarious and multidimensional approach in addressing the mounting problems of refugees. While UN General Assembly (UNGA) decided in December 1949 to have a new organization called UNHCR in place of IRO under Article 22 of the UN Charter. Accordingly, UNGA adopted the Statute of the UNHCR on December 14, 1950. UNHCR statute and its mandate envisaged to provide international protection to refugees and to strive for durable and permanent solutions to refugee problems by aiding national governments to enable voluntary repatriation or assimilation within host communities of refugees.
The refugee protection in international law has been developed with principles of natural justice like non-discrimination. The fundamental norms of refugee protection are derived from customary international law, international treaty obligations for rescue operations at sea or for shipwrecked people. The principle of non-refoulement in the Refugee Convention immeasurably augmented the level of refugee protection. At regional level, many refugee protection mechanisms were emplaced like Asian-African Legal Consultative Committee in 1966 adopted the Bangkok Principles, 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and 1984 Cartagena Declaration have been concluded for attending refugees and their plight and flight.
However, universal declaration of human right2 is a non-treaty document which has inspired, influenced and harmonized a series of legally binding international treaties in the latter years which talks of eliminating all forms of racial discrimination3, protecting civil and political rights4, preserving economic, social and cultural rights5, removing all forms of discrimination against women6, preventing torture and other cruel, inhuman or degrading treatment or punishment7 and protecting the rights of the child8, restoring the rights of all migrant workers and members of their families9, protecting the all persons from enforced disappearance10 and extending the protection to persons with disabilities11 with a number of additional arrangements to the main conventions like the Optional Protocol12 to the CEDAW which acknowledges the competency of the Committee on the Elimination of Discrimination against Women to accept and deliberate submissions from individuals and groups regarding violations of their rights granted under CEDAW. The Human
2 UN Universal Declaration of Human Rights, December 10, 1948
3 UN Convention on the Elimination of All Forms of Racial Discrimination, 1965
4 UN Covenant on Civil and Political Rights, 1966
5 UN Covenant on Economic, Social and Cultural Rights, 1966
6 UN Convention on the Elimination of All Forms of Discrimination against Women, 1979
7 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
8 UN Convention on the Rights of the Child, 1989
9 UN Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families, 1990
10 UN Convention for the Protection of All Persons from Enforced Disappearance, 2006
11 UN Convention on the Rights of Persons with Disabilities, 2006
12 Optional Protocol to the UN Convention on the Elimination of Discrimination against Women, 1999
8 Rights Committee created under the ICCPR13 and the Committee against Torture, under the CAT14 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 conflict15, sale of children, child prostitution and child pornography16 with many more regional arrangements for refugee protection guarantees and securities.
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 1951.17 As a result, IRL cannot be grasped in a void of exactitude. It is the interpretative equilibrium administered by the judiciary and juridical fraternity to construe the Refugee Convention in conformity with international human rights norms and standards.
Historically, IRL has been evolved and developed to provide protection to people fleeing persecution in their country of origin and crossing international borders. Basically, IRL encourages the idea of non-refoulement and safeguards protections for refugees under basic human rights regimes of countries of reception.
Presently, the principle of non-refoulement is regarded an inalienable part of customary international law. It has also been elevated to the status of jus cogens under international law and any derogation, exemption or reservation is not possible from this principle. It is a binding obligation on states irrespective of their being parties to the Refugee Convention or not. Thus, IRL has developed itself as a separate discipline but complements international law and its principles.
3. WHO IS A REFUGEE?
The word “refugee” is in constant change in its meaning and understanding.
Initially, refugee regime (1920-1935) construed it in relation to vulnerability of refugees who do 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.18 According to political
13 Optional Protocol to the UN Covenant on Civil and Political Rights, 1966
14 Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2002
15 Optional Protocol to the UN Convention on the Rights of the Child, 1989 on the Involvement of Children in Armed Conflict, 2000
16 Optional Protocol to the UN Convention on the Rights of the Child, 1989 on the Sale of Children, Child Prostitution and Child Pornography, 2000
17 Erika Feller, International Refugee Protection 50 Years on: The Protection Challenges of the Past, Present and Future, [2001] IRRC Vol.
83 No. 843
18Arendt, 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.
9 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.19
All people fleeing and crossing international borders cannot avail the status of refugee as there is a criterion to be followed under IRL. Accordingly, the expression
“who is a refugee” as enshrined under Article 1 of the 1951 UN Convention Relating to the Status of Refugees becomes crucial to be understood as follows:
“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.20”
The above definition lays down that a person ought to be outside his or her country of origin and it also excludes Internally Displaced Persons (IDPs) from international protection. However, definition of refugee emphasizes on individual persecution whereas it does not address the nature of circumstances like civil strife, mass violence, and natural disasters and across the board development projects which cause human migration and displacement. The 1967 Additional Protocol21 to the Refugee Convention was adopted to eliminate the geo-political and time limitations demarcated in Refugee Convention on the subject and inclusion of the same deliberated the post-World War-II backdrop in which the 1951UN Convention relating to the Status of Refugees was ordered to provide aid and assistance to refugees. Although, Additional Protocol talks in the same language that Refugee Convention has employed. It is, indeed, worth mentioning that Refugee Convention 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 threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."22
19 Ibid. 155
20 Article 1A (2) of UN Convention Relating to the Status of Refugees, June 20, 1951
21 Additional Protocol, 1967 to the UN Convention Relating to the Status of Refugees, June 20,1951
22 UN Convention Relating to the Status of Refugees, June 20, 1951
10 Thus, it is evident that the refugee definition is international in its application but has been construed in general expressions. Although, this definition is liable to be interpreted in tune with international human rights standards while international law norms supplement IRL at regional level.
In Africa, people who cross intra-regional borders owing to the grounds of being confronted with haphazard consequences of armed conflicts or events dangerously disrupting public order are also deemed as refugees under the 1969 OAU Convention.
Similarly, 1984 Cartagena Declaration adopted for Latin American countries also acknowledges the refugees who are not indulged in crimes against humanity, war crimes and crimes against peace or acts contrary to the principles and purposes of UNO.
4. SOURCES OF INTERNATIONAL LAW
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 opinio juris (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.23
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
23 Nafees Ahmad, Mapping Refugees Protection Under International Law: Legal Desirability And Human Rights Suitability, http://www.countercurrents.org/ahmad030615.htm
11 The sources of international law do not exist in exclusive zones rather they exist in an inter-connected legal environment. General principles of international law24 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 opinio juris 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 cited as subsidiary means to establish 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.25 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 must consider 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.26
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.27 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.28 However, Treaty on the Functioning of the European Union29 (TFEU) stipulates that the Common European Asylum System (CEAS) must be in conformity with the 1951 UN
24 Article 38-Paragraph 1 (C) of the Statute of International Court of Justice (ICJ) applicable to “ General Principles of Law Recognized by Civilized Nations”
25 GS Goodwin-Gill and J McAdam, The Refugee in International Law, 3rd Ed., (Oxford: OUP, 2007).
26 Ibid.
27 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.
28 Ibid.
29 Article 78 of the Treaty on the Functioning of the European Union, March 30, 2010
12 Refugee Convention Relating to the Status of Refugees with its Additional Protocol along with other relevant treaties in this regard.
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.30 However, debates and discourse keep on advocating the international community regarding the nature and scope of refugee protection and scale of obligations of receiving states.
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:31
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
30 Supra note 23
31 Supra note 23
13 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:32
The Convention on the Elimination of all forms of Racial Discrimination (CERD), 1969
The International Covenant on Civil and Political Rights (ICCPR), 1966)
The International Covenant on Economic, 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 the Child (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 the implementation of treaty obligations. The meeting of the five out of the six treaty bodies meets primarily in Geneva and is assisted the by the Office of the High Commissioner for Human Rights (OHCHR). These are made of the following:33
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 or through 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.
32 Supra note 23
33 Supra note 23
14
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 stipulates that 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.34
5.5 The Aims of the International 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 reform through collaborations at the national level
To operationalize standards
mainstream human rights in the UN system and mobilize the UN community to assist with implementation and the dissemination of the message of rights and obligations.35
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
34 Supra note 23
35 Supra note 23
15 in their actions, reactions and transactions.36 Thus, human rights are bare minimum guarantees for the people in their respective countries.
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 instruments37 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 persecution being the classic drivers. However, if we look beyond the Western perception of what constitutes a refugee, we find that the understanding of refuge is far more inclusive than the narrow UN Convention allows. Due to the issues presented by regional conflicts, states have developed the Refugee Convention to match the principles of humanitarianism, as well as that of expediency.38
The environment encompassing the drafting of the Refugee Convention post- World War II was restrictive in nature and failed to sufficiently react to the situations of the following decades.39 For the drafters of the Refugee Convention overlooked and failed to imagine the problems that might be generated from underdeveloped states.40 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.41 It is perceived as being in harmony with the Refugee Convention42, 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 external aggression, occupation, foreign domination or events seriously 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 origin or nationality.43
36 Supra note 23
37 See Bond 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
38 Eduardo Arboleda, Pragmatism, IJRL 2 (1991), p. 195
39 Ibid, 185
40 Ibid, 185
41 UNHCR ‘Note’ Website
42 UNHCR ‘Note’Website
43 OAU Website
16 The OAU definition relating to refugees was the first ‘salient challenge’ to the idea that persecution is the fundamental criteria for refuge.44 Indeed, the definition allows for the fact that unfortunately, states will still persecute their citizens, thus creating refugees. However it recognizes, where the UNHCR does not, that the link between the citizen and the state can be dissolved in numerous ways, with
‘persecution’ being but one way.45 The OAU definition allowed for a number of unique specifications. 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 facto refugee status: they would not have to provide evidence of the persecution.46 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.47 From the beginning there was an accord amongst the OAU drafters that 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 UNHCR approach unworkable.48 For an alternative definition of refugee protection, the Cartagena Declaration on Refugees---adopted by the Colloquium 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.49 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.50 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
44 Supra note 4, pp. 274-284
45 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
46 Ibid
47 Supra note 11, p. 195
48 Supra note 31, p. 195 49UNHCR ‘Cartagena’ Website
50 Supra note 31 p. 200
17 Refugee law is a powerful sign of solidarity with the world’s most severely at- risk people. It is the only international human rights remedy which can be engaged directly and immediately by at-risk persons themselves. Most important of all, it is a fundamentally practical remedy which can be reconciled to the most basic interests of states. It is, in sum, a uniquely valuable asset which must never be allowed to atrophy.51 The Refugee Convention therefore requires all state parties to treat refugees who make a clean breast of their illegal entry or presence as non- transgressors.52 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:53
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).54 Article 14 of the UDHR speaks of the “right to seek and to
51 Hathaway, James C., Why Refugee Law Still Matters, Melbourne Journal of International Law, [2007] Vol. 8. 103
52 Ibid. p 91
53 Supra note 23
54 Colombia v. Peru, [1950] I.C.J.
18 enjoy in other countries asylum from persecution,”55 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.56 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 1999.57 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 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.58 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.59 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
55 Article 14 of the Universal Declaration of Human Rights, 1948.
56Supra note. 31
57Claire Reid, International Law and Legal Instruments, [2005] 7
58 Claire Reid, International Law and Legal Instruments, [2005] 8
59UNHCR EXCOM, 'Non-refoulement', Conclusion No. 6 (XXVIII), 1977 UNHCR, 'Note on International Protection', UN doc.
A/AC.96/830, 7
19 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.” 60 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.61 Thus, in consonance with global human rights discourse, the status-based and rights-based protection tests must reflect in the ref-conceived, re-constructed and re-imagined IRL that incorporates classical standards and contemporary trends for a supreme and realistic worldwide protection of refugees.
60 Preambular Paragraph 2, 1951 UN Convention Relating to the Status of Refugees
61 Supra note 23
20
