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9: International Refugee Law

How are refugees protected by international law?
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Sudanese refugees enter Chad. Photograph by EU Humanitarian Aid and Civil Protection.

I – INTRODUCTION

The United Nations High Commissioner for Refugees (UNHCR) recently described the forced displacement of people as ‘one of the most daunting challenges that confronts the international community in the 21st Century’[1]. Large scale movement both within and across international borders – as people flee persecution, conflict, famine, climate-related disasters and widespread human rights abuses – continues to strain both the willingness and the capacity of the international community to respond. In this context, legal instruments – at both international and regional levels – impose important obligations on states regarding the protection and treatment of refugees. They also provide an important advocacy tool for organisations and individuals seeking to advance protection in practice.

Under international law, refugees benefit from a wide range of rights provided for by international human rights treaties – notably the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) – as well as regional human rights instruments, in particular the 1981 African Charter on Human and People’s Rights (the ‘Banjul Charter’). For the most part, states’ human rights obligations under these instruments pertain to individuals within their territory or jurisdiction and without distinction as to nationality, and this is widely accepted to include refugees. For example, states party to the ICCPR who host refugees are obliged to afford them the same rights to life, liberty, freedom of opinion and equal treatment before the law as they are obliged to afford their own nationals.

II – 1951 REFUGEE CONVENTION

In addition to general human rights law, the particular needs of refugees – who are by definition without the protection of their home state – have been addressed by a number of specific legal instruments, many of which in fact pre-date the more general human rights instruments listed above. Treaties such as the 1951 Convention relating to the Status of Refugees, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, African Union’s Convention for the Protection and Assistance of Internally Displaced Persons in Africa (commonly referred to as the ‘Kampala Convention’) and the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families are designed to address the particular needs of refugees, as well as some other displaced persons.

The primary source of refugee protection under international law is the 1951 Convention relating to the Status of Refugees (the 1951 Refugee Convention). Drafted in response to large-scale displacement in Europe following World War II, the Convention was one of the first human rights treaties and is now one of the most widely ratified.

Article 1A(2) of the 1951 Refugee Convention defines a refugee as any person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country[2].”

Individuals who meet this definition are entitled to a number of rights under the Convention. While an application for refugee status ought to be assessed in a holistic manner, taking into account all of the relevant information, it is possible to identify certain distinct, though related, requirements in the above definition.

i) The applicant must be outside his or her country of nationality

The refugee protection regime is sometimes described as a system of ‘surrogate protection’ – that is, it is a mechanism by which the international community steps in to provide protection to people who are unable to obtain protection from the government in their own country of nationality. To qualify for refugee status a person must therefore have crossed an international border. People who have no official nationality, i.e. ‘stateless persons’, need to be outside the country of their former habitual residence. Though the term ‘refugee’ is often used to describe people who flee within their own countries, as a matter of law such persons are not refugees – rather, they are ‘internally displaced persons’.

ii) The applicant must demonstrate a well-founded fear of persecution

The 1951 refugee definition is said to be ‘forward-looking’ – that is, the central requirement for refugee status is fear of future harm. Such a fear must be ‘well-founded’, meaning that any subjective fear on the part of the applicant must be supported by objective information that demonstrates a ‘real risk’ that the person will be harmed if returned to his or her country of origin. Finally the harm feared by the applicant must constitute ‘persecution’. This is widely understood to mean ‘serious harm’ and may include physical or mental harm, or serious deprivation of human rights.

iii) The feared persecution must be for reasons of one of the five Convention grounds

Not all persons with a well-founded fear of persecution will quality for refugee status under the 1951 Refugee Convention; only persons fearing persecution for particular reasons will be included. This is often called the ‘nexus’ requirement and it requires the applicant to demonstrate that the persecution he or she fears is for reasons of his or her race, religion, nationality, membership of a particular social group (examples of a particular social group include women, homosexuals, and members of a particular family) or political opinion. Persons fleeing generalised violence, such as war, will only qualify for refugee status if they can show the necessary ‘nexus’ between their fear of harm and one of these five grounds. This may be relatively straightforward in the case of a war fought, for example, on religious grounds, however there will be situations where a person fleeing war or other generalised violence may not be able to demonstrate the necessary nexus.

III – RIGHTS OF REFUGEES

Under the 1951 Refugee Convention, refugees are entitled to a range of protections, the most central of which is protection from refoulement – that is, from being returned to a place where their life or freedom would be threatened[3]. In addition, the Convention provides minimum standards of treatment for refugees within host countries – including rights to access education, equal treatment regarding housing and freedom from discrimination on the basis of race, religion or country of origin[4]. States party to the Convention – which includes most African states – are thus obliged to both identify refugees in need of protection and to ensure their rights under the Convention are upheld.

The 1951 Refugee Convention thus provides a strong basis for the protection of many displaced persons in Africa. For example, victims of the harassment and violence often perpetrated against political opponents in Zimbabwe may be able to demonstrate a well-founded fear of persecution for reasons of their political opinion. Individuals who find themselves at risk of discriminatory laws against homosexuality in countries such as Uganda may also have a well-founded fear of persecution, for reasons of their membership of the ‘particular social group’ homosexuals.

IV – LIMITATIONS OF THE 1951 REFUGEE CONVENTION

Despite the extensive ratification of the 1951 Refugee Convention it is sometimes criticised for being out of date and for its lack of effectiveness in practice.

i) Institutional oversight

Unlike other international human rights treaties, which include treaty monitoring bodies charged with the supervision and enforcement of states’ adherence to their obligations under the treaty, oversight of the 1951 Refugee Convention is left largely to states themselves. The United Nations High Commissioner for Refugees (UNHCR) plays an important role in promoting the Convention among states and in providing practical assistance to refugees, however it is not a supervisory body and does not have the power or capacity to enforce states’ adherence to its provisions. Individual refugees affected by a state’s failure to provide the requisite rights thus have little or no opportunity for redress under the 1951 Convention.

ii) Protection gaps

In addition to lack of oversight, there remains a great many people who are forced to leave their homes for safety, but who do not satisfy the fairly narrow, technical definition of a refugee in the 1951 Refugee Convention. For example, as noted above, the so-called ‘nexus’ requirement – requiring that a person’s fear of persecution be for reasons of one of the five enumerated grounds of race, religion and so on – means that people fleeing more generalised forms of harm, such as famine in Somalia or civil conflict in Libya, may face considerable challenges in bringing themselves within the scope of the 1951 Convention.

The failure of the 1951 Refugee Convention to extend protection to many who need it has led to assertions that the Convention is out of date and no longer reflects current causes of displacement. It is said that the political and historical origins of the Convention – which reflects Cold War ideologies and the concern of Western states to welcome and protect political refugees from the Eastern bloc – has resulted in a privileging of civil and political rights over socio-economic ones and has limited the Convention’s capacity to respond to the fact that, at least since the 1970s, the vast majority of refugees have come from the developing world[5]. In fact, much of this criticism fails to take account of the extensive work that has been done by scholars, advocates and policy-makers to extend the Convention’s protection beyond those who were initially envisaged by its drafters. Economic deprivation, for example, is now frequently recognised as a form of persecution under the Convention’s refugee definition, extending protection to great numbers of people who are at risk of being denied their socio-economic rights[6]. Nevertheless, these criticisms and the other limitations of the 1951 Convention discussed above have, at least in part, contributed to the development of further, more expansive refugee protection mechanisms, in particular at the regional level.

V – REGIONAL REFUGEE PROTECTION IN AFRICA

In Africa, the 1969 Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (African Refugee Convention) provides an alternative source of protection for persons falling outside the ambit of the 1951 Convention. As the ‘regional complement’ to its 1951 counterpart, the 1969 African Refugee Convention extends the term ‘refugee’ beyond the international definition to also include any 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[7].”

This expansion of the term ‘refugee’ was part of a broader intention of the drafters of the African Refugee Convention to reflect the particular nature and challenges of displacement on the continent at the time of drafting; in particular, to ensure that so-called ‘freedom fighters’ – those resisting colonial rule in African states – would be able to access protection in neighbouring states.

The African Refugee Convention thus provides a more expansive protection regime for African refugees. There is considerable debate among scholars and practitioners about the precise scope of the Convention’s expanded refugee definition, but most people agree that the breadth of its terms – in particular to include any person fleeing ‘events seriously disturbing public order’ – makes it a more humanitarian and less restrictive source of protection, and better suited to the often large-scale nature of displacement on the African continent.

In addition to expanding the concept of a ‘refugee’, the African Refugee Convention has been praised for the liberalisation of refugee protection in other ways, including its strengthening of the principle of asylum, the absolute nature of its prohibition on refoulement (which does not include the 1951 Convention’s exception on grounds of national security) and its explicit provision for voluntary repatriation[8]. The African Refugee Convention itself does not provide an extensive rights regime for refugees, however its intention to provide the ‘regional complement’ to the 1951 Convention presents a strong argument in favour of extending an equivalent range rights to refugees under both instruments.

VI – BROADER PROTECTIONS UNDER CUSTOMARY INTERNATIONAL LAW

The refugee rights and other protections discussed so far are all contained in treaties, and thus depend not only on an individual satisfying various definitional requirements, but also on the individual’s host country having both ratified the relevant treaty and implemented it under its domestic law. Forced migrants who do not satisfy such requirements, or find themselves in a country not party to such treaties, may nevertheless benefit from the broader customary international law principle of non-refoulement which, unlike treaty obligations, prohibits all states from returning a person to certain forms of harm, regardless of their other treaty-based obligations.

VII – CONTINUING PROTECTION CHALLENGES AT INTERNATIONAL AND REGIONAL LEVELS

Despite the many important protections provided for refugees under international law, the scope and implementation of the refugee protection regime continues to pose challenges for protection in practice.

i) Internally displaced persons and other forced migrants

Significant numbers of people forced to leave their homes will still fall outside either the international or regional definitions of the term ‘refugee’. As noted above, refugee status is premised on a person having crossed an international border, thus excluding great numbers of IDPs – those displaced from their homes by conflict, persecution, natural disaster or even development-related projects, but who have not crossed an international border. Migrant workers, too, largely fall outside the scope of refugee protection instruments, which are mostly founded on risks faced only in one’s country of nationality. While migrant workers are not necessarily forced migrants per se, they may become so, for example where they have been victims of trafficking, or where conditions in their country of residence deteriorate, such as happened in Libya in 2011.

Displaced persons not entitled to refugee status are frequently said to fall into a ‘protection gap’ within international and regional protection regimes. Recent developments, however, have shown an increasing willingness by states, particularly African states, to address this gap. The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families provides important rights for migrant workers in their country of residence, though it does not specifically address the issue of displacement, and the African Union’s Convention for the Protection and Assistance of Internally Displaced Persons in Africa (the ‘Kampala Convention’), when it comes into force, will provide binding obligations on African states party to provide for the protection of persons displaced within their own borders.

ii) Implementation in practice

Perhaps the greatest challenge to the capacity of international and refugee legal protection mechanisms, however, is in their implementation. Limited resources and institutional capacity, combined with a lack of political will, frequently result in African states falling short of their obligations to refugees and other forced migrants. In many parts of Africa, UNHCR plays a significant role in achieving some level of protection for such persons – for example, by conducting refugee status determination and/or providing material assistance – however, as noted above, its capacity to ensure effective protection by states is limited.

The widespread lack of effective and affordable legal assistance available in Africa further undermines the ability of refugees and other forced migrants to access the rights to which they are entitled. Given the absence of any complaints or redress procedure for individuals affected by states’ failure to fulfil their international protection obligations, the strength of African states’ domestic legal frameworks may ultimately determine the extent to which the protection aims of international and regional regimes are realised in practice.

VIII – CONCLUSION

In sum, therefore, there are a range of international and regional instruments that impose important obligations, in addition to general human rights obligations, on African states to ensure sufficient protection and standards of treatment for vulnerable refugees and other displaced persons. While regional instruments such as the 1969 African Refugee Convention and the 2009 Kampala Convention for IDPs may be particularly relevant to displaced persons in Africa, these sit within a broader body of treaty-based and customary international law. Ultimately, however, it is the implementation of international refugee law in practice that will ensure that persons forced to flee their homes receive the assistance, protection and ultimately durable solutions they need.

For more information about the course please read our introductory blog post.

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QUESTIONS TO CONSIDER:

1. Is the 1951 refugee definition out of date? If so, what should be done about it?

2. Should people who are displaced within their own country be treated differently under international law to those who have crossed an international border?

3. What other 'protection gaps’ can you identify in the legal instruments described above?

4. To what extent does the international refugee protection regime facilitate ‘burden-sharing’ among states?

5. How have the causes of refugee flight changed since the adoption of the 1951 Refugee Convention?

FURTHER READING:

Andrysek, O (1997) ‘Gaps in International Protection and the Potential for Redress through Individual Complaints Procedures’ International Journal of Refugee Law 9: 392

Arboleda, E (1991) ‘Refugee Definition in Africa and Latin America: The Lessons of Pragmatism’ International Journal of Refugee Law 3(2): 185

Barnett, L (2002) ‘Global Governance and the Evolution of the International Refugee Regime’ International Journal of Refugee Law 14: 238

Edwards, A (2006) ‘Refugee Status Determination in Africa’ African Journal of International and Comparative Law 14: 204

Feller, E, Turk, V and Nicholson, F (eds) (2003) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection Cambridge: Cambridge University Press

Foster, M (2007) International Refugee Law and Socio-Economic Rights: Refuge from Deprivation Cambridge: CUP

Goodwin-Gill, G, and McAdam, J, The Refugee in International Law Oxford: OUP

Hathaway, J (1993) The Law of Refugee Status Toronto: Butterworths

McAdam, J (2007) Complementary Protection in International Refugee Law Oxford: OUP

McAdam, J (2011) Swimming against the Tide: Why a Climate Change Displacement Treaty is Not the Answer’ International Journal of Refugee Law 23:1

Okoth-Obbo, G (2001) ‘Thirty Years On: A Legal Review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa’ Refugee Survey Quarterly 20(1): 79

Shacknove, A (1985) ‘Who is a Refugee?’ Ethics 95: 274

UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol relating to the Status of Refugees, available at:
http://www.unhcr.org/3d58e13b4.html

Zimmerman, A (ed) (2011) The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford: Oxford University Press)

Websites:

www.forcedmigration.org

www.refworld.org

www.rsc.ox.ac.uk

www.refugeecaselaw.org

www.unhcr.org



[1] UNHCR Global Appeal 2012-2013, ‘Ensuring protection for People of Concern’.

[2] 1951 Convention relating to the Status of Refugees (1951 Refugee Convention), Art 1A(2).

[3] See 1951 Refugee Convention, Art 33.

[4] See Arts 2 – 34 of the 1951 Refugee Convention for a full list of refugee rights.

[5] See generally, Laura Barnett, ‘Global Governance and the Evolution of the International Refugee Regime’ (2002).

[6] See generally, Michelle Foster, Refuge from Deprivation (2007)

[7] 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Art I(2).

[8] See generally, George Okoth-Obbo, ‘Thirty Years On: A Legal Review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa’ (2001).

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