To commemorate World Refugee Day, Think Africa Press asked a panel of experts: "What remains the biggest gap in the international protection of refugees?"
The biggest gap in international refugee protection concerns what are called “mixed flows” – situations in which refugees and economic migrants are mixed together. In many cases, people are forcibly displaced through a combination of political repression, ethnic conflict, environmental disaster, poverty and famine. Citing the narrow “well-founded fear of being persecuted” in international refugee definition, governments commonly use the very existence of any economic motive to disqualify even the most obviously meritorious claims for asylum. They are even more likely to reject claims if the numbers of refugee claimants are large and the capacity to accommodate is limited.
Today, World Refugee Day, sectarian violence rages in Arakan state, Bangladesh. Coast and border guards push back desperate Rohingya as they clamour for safety, and their foreign minister announces, “We are not bound to provide shelter to the Rohingyas”. Rohingyas aren’t the only poor asylum seekers to have their motives questioned. As South Africa resumes deporting Zimbabweans, we again hear the rhetoric of “illegal people” and “border jumpers”. Doubts persist that South Africa, the country with the largest asylum seekers caseload, will have the capacity and the willingness to assess the complex web of reasons causing Zimbabweans to leave their country before sending them back.
Even in the face of what is perhaps the most well-known spiraling of political violence in the world, Syria, the Jordanian government announced on the eve of World Refugee Day that it would toughen its asylum screening procedures for Syrians, and began turning dozens away, questioning whether they had legitimate refugee claims. The Interior Ministry said that an estimated 125,000 Syrians had come to Jordan since the outbreak of protests, and Associated Press cited a Jordanian official as saying that Jordan was “concerned over a larger influx of individuals seeking to take advantage of its open border policy”. Until now, Jordan had welcomed Syrian refugees. But now, as the numbers grow (adding to the hundreds of thousands of Palestinian and Iraqi refugees already in the country) and it feels further strain on its economy, Jordan seems to be having second thoughts.
In neighbouring Israel, the growing number of asylum seekers has already created a backlash. Prime Minister Benjamin Netanyahu claimed that almost none of the 60,000 Africans – 88% of them from Eritrea and Sudan – who crossed Israel’s Sinai border since 2005 are refugees. “We checked how many of them are refugees – and we found that less than one in a thousand is defined as a refugee,” he said. It depends, of course, on who is doing the defining and who is making the decision. Israel does not allow Eritreans and Sudanese to lodge asylum claims, so Netanyahu is being disingenuous in saying virtually none qualify as refugees. But even for those other nationals whose claims are considered, nationals from 'enemy' states are excluded from receiving asylum and the Ministry of Interior is authorised to reject applications without appeal even at the registration stage, according to a May 2012 US State Department report.
Even in the European Union, where all member states on paper follow the same refugee definition and procedures, the asylum approval rate for the largest nationality group of asylum seekers, Afghans, varied last year from 4% in economically-strapped Greece to 33% in better-off Austria. Looking around the globe on World Refugee Day, there is hardly a place where refugees are welcome. But for refugees fleeing persecution and violence who also happen to be poor, it is almost impossible to overcome the presumption that they are economic migrants. Until governments acknowledge that also having economic reasons to flee does not nullify refugee claims, asylum will be available for the most part only to the relative few whose countries of origin are on the same economic plane as the country of refuge. And until there is equitable burden-sharing among states, they are all likely to seek to shift and divert responsibility. In the end, it is the poorest refugees who will suffer as the right to asylum erodes.
There is no doubt that the biggest gap in refugee protection is the lack of legal aid for refugees, and where it does exist there are very few lawyers who are competent in preparing testimonies and representing refugees. This situation obtains not only in the global south, but throughout the Northern states where one should be able to expect professional services for refugees. Without legal aid, the chances of a refugee being recognised are very low.
There is a misconception that refugees in the South are recognised prima facie; today, individual refugee status determination adjudication is becoming the norm. Refugee law, the most complicated area of law, is constantly evolving. Yet courses in international public law look solely at the 1951 Refugee Convention. In 1982, outside the Refugee Studies Centre at Oxford and at Osgoode, Canada, there were no law schools offering it as a field of specialism; more courses are now available, but concentrated in the North.
Most legal advisers learn on the job, a serious disadvantage to refugee clients. Fahamu aims to address this situation through opportunities for training, through tuition from resource persons for specially complicated cases, its 'list serv' platform where lawyers may exchange information, and its monthly newsletter. W2EU is another website, which focuses on refugees entering Europe; Asylumlaw.org, another site provides resources for both refugees and lawyers defending their claims.
Funding for legal aid for indigent refugees is almost non-existent. There is meagre state-funding for legal aid in the UK, for example, and none in the US. A recent EU directive requires all member states to provide free legal aid for refugees appealing rejections. This is too late – even then, the chances of getting a competent advocate are slim. In Cyprus, refugees, not their representative, must convince a judge s/he has more than a 50% chance of winning to access legal aid. On June 7, 2012, a Cuban woman, who was groomed for her presentation in court, became mute when asked further questions by the judge – her ‘appeal’ for an appeal was denied.
The international legal framework for the protection of refugees has come a long way in the 60 or so years since the adoption of the 1951 Refugee Convention. International and regional treaties, developments in customary international law and other ‘soft law’ instruments have extended the scope of international protection beyond the archetypal post-World War II ‘political refugee’ to include people fleeing civil war, generalised human rights abuses, domestic violence, socio-economic deprivation and other forms of discrimination.
While significant work remains to be done – such mechanisms are still a long way from addressing the needs of all displaced persons – the more challenging issue for refugee protection remains the continuing, and in some cases increasing, gap between law and practice. For a multitude of reasons – including limited resources, weak domestic legal cultures and sometimes open political hostility – the protection aims of international legal mechanisms are frequently undermined by their ineffective (or non-existent) implementation by states in practice. Many signatories to the 1951 Refugee Convention, for example, continue to rely on an under-resourced and over-stretched UNHCR to conduct refugee status determination within their territories.
Individuals are still returned, sometimes forcibly, to situations where they face persecution or other harms despite the principle of non-refoulement being enshrined in customary international law. Where states fail to fulfill their protection obligations, affected individuals and communities have little opportunity for redress owing to their inability to challenge state practices at the international level. The challenge for international refugee protection in the coming years and decades is to strengthen the willingness and capacity of governments to implement the extensive range of international protection obligations currently in force. In many parts of the world, important developments are already taking place – across Africa, for example, many states have recently assumed responsibility for protection activities, such as refugee status determination, that were previously undertaken by the UNHCR. The biggest challenge will be to ensure that such developments continue and that international legal protection mechanisms are implemented in practice in a way that promotes, and does not subvert, the humanitarian purposes for which they are intended.
A vital concern for the international community is the protection of civilians in armed conflict; notwithstanding an expanded legal framework aimed at protecting them, civilians remain the primary victims of war. There is a need to incorporate multiple understandings of protection and to expand the notion of ‘protection spaces’ to include community-based protection in light of the fact that the vast majority of conflict-affected people not only lie beyond the reach of humanitarian and human rights actors, but are typically the first and last providers of their own protection.
As Simon Addison of the Refugee Studies Centre notes, "a central question in the debate over the effectiveness of humanitarian protection programming asks how practitioners can design programmes that incorporate the perspectives, conceptions needs and desires of conflict-affected people more effectively to support and reinforce their own coping strategies and capacities". Internally displaced populations and refugees are social actors. They are the ones who most care about the safety of themselves, their families and communities. One of the gaps in the current international protection system is the limited consideration of what constitutes protection and safety and how they can be actively involved in its promotion. Internally displaced populations and refugees are social actors whose input has been overlooked in protection efforts, and has the potential to strengthen current international frameworks and prevent the escalation of future violence.
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