12 History of International Refugee Law: Cold War Origins to Right of People who are Non-Citizens

Rohini Sen

General introduction-

The primary responsibility of any State is to protect their citizens. When citizens suffer such serious violations of their rights, they are forced to leave their homes, and often even their families, to seek safety in another country. The governments are unable or unwilling to protect them. Since, by definition, the governments of their home countries no longer protect the basic rights of citizenship and protection of their own citizens who become refugees, the international community then steps in to ensure that those basic rights are respected. Hence, emerged the field of International refugee law.

Learning Outcomes:

 

1) To understand the evolution of the international refugees law.

2) To understand the definition of refugee in the modern context.

3) To understand the various conventions relating to refugees.

Instances Which Finally Led To The Emergence Of International Refugee Law:

Historically, there have been numerous instances which finally led to the emergence of International Refugee Law. Following are some of the prominent once:

Edict of Fontainebleau, France (1685): When King Louis XIV of France issued a proclamation stating that if the people practised their Protestant faith freely, they would be killed. This was the first known displacement of masses clearly recognised in history. Historians estimate that over 200,000 fled their homes over the next 20 years. And resettled in England, Netherlands, Germany, Prussia, Switzerland, Scandinavia and Russia.

  • –Muhacirs, Ottoman Empire (1783): In the space of 150 years, 5 to 7 million Muslims arrived from other countries in what is today Turkey. From the 750,000 Bulgarians who left during the Russo-Turkish war (about a quarter of whom died on the way) to the 15,000 Turkish-Cypriots who left the island after it was leased to Great Britain – Turkey experienced a radical transformation as Muslims from Caucasus, Crimea, Crete, Greece, Romania and Yugoslavia arrived. Their descendants remain there, accounting for one in three people in Turkey today.
  • – Pogroms, Russia (1881): A wave of anti-Jewish sentiment arose in Russia when Tsar Alexander II was assassinated in 1881. There were widespread brutal attacks on Jews and rioting their homes. As a result of these brutal attacks, about 2 million Jews moved to the UK, USA and other parts of Europe.
  • – World War I, Europe (1914): Around this time, the world saw its so-called “first genocide of 20th century”. After the systemic impact of the war, hundreds of thousands of people were left homeless and stateless refugees. Refugees from Belgium were given an asylum in the UK where the British government offered “victims of war the hospitality of the British Nation.” After Austria-Hungary declared war on, and gradually invaded Serbia, tones of Serbians were forced to leave their homes.
  • – World war II, Europe (1945): Even before the war’s end, thousands of Germans began to flee Eastern Europe. Most of those that remained were forcibly removed. In Czechoslovakia, more than 2 million were dumped over the country’s border. In Poland, Germans were rounded up before being removed by authorities. In Romania, around 400,000 Germans left their homes while Yugoslavia was virtually emptied of its 500,000-strong German community.

International Refugee law is empirically a set of rules and procedures that intrinsically aim to protect, firstly the persons who are seeking asylum from persecution and then those people recognised as refugees under the relevant instruments under international law. The very basic framework of international refugee law provides for legal foundations that set distinct guarantees for specific groups which have been forced to leave their homes. Though these set of rules have many distinctive principles and rules but their utmost motive conforms to the norms laid in international human rights law and the legal regime applicable to armed conflicts under international humanitarian law.

Before jumping into the nitty-gritties of what International Refugee Law is, its imperative to understand who refugees are under the provisions of the said law.

Who are Refugees?

After the World War II, the United Nations General Assembly created an office of the United Nations High Commissioner for Refugees (UNHCR). The UNHCR delegated and authorised to protect and find long-lasting solutions for the refugees. The skeleton includes activities based on the standards set by Universal Declaration of Human Rights (1948) and following that the four Geneva Conventions (1949). It also comprises of international and regional treaties and declarations, both binding and non-binding that basically address the needs of the refugees.

In regard with the 1951 Convention relating to the Status of Refugees (amended in 1961), a refugee is someone who:

  • Has a well-founded fear of persecution because of his/her o Race,
    • Religion,
    • Nationality,
    • Membership in a particular social group, or o Political opinions;
  • Is outside his/her country of origin; and

Is unable or unwilling to avail him/herself of the protection of that country, or to return there, for the fear of persecution. For an instance, in the year 1947 when India and Pakistan got partitioned,    an    estimate    of    14    million    people    got    displaced    from    their     home.

Another example could that be of Syria, in the year 2011, a conflict broke between the Syrian government and opposition groups demanding reforms. Around 6 million people were displaced inside the parts of the country and most of them sought shelter under the Lebanon-Syrian border.

1951 Convention relating to Status of Refugees (CRSR)

CRSR is a United Nations multilateral treaty that defines who a refugee is, and it even sets of the duties and rights of the individuals who granted asylum and the responsibilities of nations which grant asylum to the displaced people. This convention also sets forth the people who could not qualify as refugees, like war criminals. This means that a country could not under any circumstance grant an asylum to a war criminal. War criminals can be defined as those individuals or groups who have committed war crimes, that are seen as completely inexcusable under the ambit of international law. Under this Convention, a brilliant provision is set out for the refugees for visa-free travel for the holder who have a travel document under this convention.

After the adverse repercussions of World War II, this convention was approved at a special UN conference on July 28, 1951. Before January 1, 1951, it was just limited to protect European Refugees. It came into force on April 22, 1954, with provisions which were applicable universally. The 1967 protocol removed all the “geographic and time limitations” in relation to this convention. He geographical scope with respect to this amendment was increased. Denmark, in December 1952 became the first state to ratify the treaty. Till 2014, there were 145 parties to the convention and 146 to the protocol. Surprisingly, the United States of America is only the party to the protocol and not the convention.

The convention defines the general obligations of refugees in the other country in regard with its Article 2, the refugees must conform themselves to the laws and regulations and measures taken for the maintenance of public order. Article 3 of the convention enshrines the principle of non-discrimination and states that the contracting states shall apply the provisions of this convention to refugees without any discrimination as to race, religion or country of origin. Article 5 of the convention says that any contracting state cannot deem any rights granted to the refugees under this convention. Article 9 to 11 of the convention provide the refugees basic citizenship rights in relation to the convention.

The chapter II of this convention manifests the judicial status of the refuges. Article 12 says that the law of the country of their domicile would govern the personal status of the refugees and if there is no domicile then the law of the country of their residence. The second part of the same statue lays that the rights provided to refugees based on the personal status more particularly, the rights like marriage, would be respected by the contracting state. Article 13 provides that the refugees treatment must be as favourable as possible in regard with rights pertain to the moveable and the immovable property. In relation with the protection of Artistic rights and industrial property, like inventions, designs, trademarks, models, trade names. And of the rights in literary, artistic and scientific works, a refugee shall be accorded with the country in which he has his habitual residence the same protection as is accorded in the national country. This is laid in Article 14. And Article 16 of this convention talks about the free and feasible access of the refugees to the court.

Chapter III of this conventional tells about the provisions of employment and various articles lay the requirements for wage-earning employment, self-employment, liberal professions.

Chapter IV entails the welfare aspects like rationing, housing, public education, public relief and even labour legislation and social security. Chapter V of the convention tells about administrative measures. It comprises of administrative assistance, freedom of movement, identity papers, travel documents, etc. it also scrutinises the actions which could work adversely in favour of the refugees. It tells about the refugees who are unlawfully taking a refuge in the country and in furtherance of that, their expulsion and in certain instances prohibition of their expulsion or their return. This is also termed as refoulment. The last two chapters basically talk about the procedural precision.

The expansion of International Refugee Protection Regime during 1960-70

The 1951 convention was just the foundation and it basically contained fundamentals to the International Refugee Law only. UNHCR’S activities extended beyond Europe and entered the African Sub-continent, which was under the impact of decolonisation. In regard with the foundations laid in 1951 Convention, UNHCR began to process which led to conventions protocol in 1967. In the year 1969, OAU Convention on the Specific Aspects of Refugee Problems in Africa emerged. While the OAU Convention specifically incorporated the definition of refugee, it added that “[t]he 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”. In other words, the notion of refugee was broadened beyond victims of persecution to include the increasingly prevalent “new” category of victims of generalized conflict and violence. The end of the 1960s used 2/3rd of the UNHCR’S budget used in operation existing just in Africa.

In the 1970s, millions of refugees returned home to countries like Angola, Mozambique, Guinea-Bissau, and Bangladesh. In the year 1979, Geneva witnessed a conference called International Conference on Refugees and Displaced Persons in Southeast Asia. This conference was indefinitely a landmark in the development of the Refugee Law. This conference came concurrently to the time when the Vietnamese were fleeing from their country, tackling the risks of the sea and pirates only to be pushed back as they reached the shores of neighbouring countries. The term “Vietnamese Boat People” is often used generically to refer to all the Vietnamese (about 2 million) who left their country by any means or method between 1975 and 1995. A three-way agreement emerged from the Conference: ASEAN countries promised to provide temporary asylum; Vietnam undertook to promote orderly departures in place of illegal exists, and third countries agreed to accelerate the rate of resettlement. Important burden-sharing schemes subsequently were put in place to ensure the continuing rescue at sea of the Vietnamese “boat people.” The Comprehensive Plan of Action (CPA) for Indo-Chinese refugees was the first attempt to implicate all concerned parties–countries of asylum, of origin, and of resettlement–as well as the donor community in a coordinated, solutions-oriented set of arrangements for the sharing of responsibilities for the refugee population. UNHCR refugee operations continued to spread around the globe, with the mass exodus of East Pakistanis to India shortly before the birth of Bangladesh. Adding to the woes in Asia was the Vietnam war, with millions fleeing the war-torn country.

Conclusion

War has displaced Afghans from their homes and their country for over three decades. An estimate of 1,023,000 fled to Iran, 1,800,000 fled to Pakistan and 90,000 to other countries. But on record, over 5.7 million of refugees have returned to Afghanistan since 2002. UNHCR said that in the year 2011, the count of the refugees fleeing the country is relatively low.

Refugees from Iraq are Iraqi nationals who have fled Iraq due to war or persecution. The Iraqi nationals who fled from Iraq due to war or persecution are called refugees of Iraq. In the past three decades, there have been innumerable Iraqi nationals fleeing from Iraq due to various wars or in those matter war-like situations. These series of conflicts range from Iran-Iraq War (1980-1988), Iraq’s invasion of Kuwait (1990) to the Gulf War (1991). Even 2002, the American invasion of Iraq, led many people to leave their homes. In April 2007, there was an estimate of over 4 million Iraqi refugees around the world, including 1.9 million in Iraq, 2 million in neighbouring Middle East countries, and around 200,000 in countries outside the Middle East.

Therefore, to combact the hereinabove stated situtions, where the citizens own country’s could not provide them with shelter, International Refugee Law plays a pivotal role. The regulation mechanism stated in 1951 CRSR, not only provides the displaced populations with a new home but also tries to ensure that the laws of the state, granting populations such asylum, are always respected. Though with this topic in consideration, there is truly a long way to go, but by far it has exponentially progressed and saved lives of trillions of people.

Reference

  • http://www.ipu.org/pdf/publications/refugee_en.pdf
  • http://www.theguardian.com/news/datablog/interactive/2013/jul/25/what-happened-history refugees#Muhacir
  • http://www.geneva-academy.ch/RULAC/international_refugee_law.php
  • https://www.icrc.org/eng/assets/files/other/581-606_feller.pdf
  • http://law.wustl.edu/harris/documents/p129_Feller.pdf