13 Protection and problems under International Law

Rohini Sen

epgp books

 

 

Learning Outcomes

  1. The students can learn about the International Refugee Law and various legal mechanism that are brought in place to ensure safety and security of the asylum seekers.
  2. The students can also learn about the various legal provisions which facilitate asylum for the asylum seekers and also to elaborates on their rights and the consequent enforcement mechanism.

Introduction

Non-refoulement is a fundamental principle of the International Refugee Law that protects the interests of the refugees seeking protection from a state. This principle forbids the country receiving asylum seekers from returning them to their persecutors. The legal principle of non-refoulement has been defined at various regional as well international levels. The first reference to this can be made to 1951 United Nations Convention relating to the Status of Refugees by which Article 33 explicitly lays down that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

International refugee law is a set of rules and procedures that intrinsically aim to protect, at first the persons seeking asylum from persecution and also those recognized as refugees under relevant instruments. The main source of refugee law is notably treaty law i.e., 1951 Convention relating to the status of refugees and its 1967 Protocol and customary international law practices.

This module would scrutinize the protections granted the refugees by these instruments and it would also briefly comment upon some loopholes which the convention failed to address. It would also highlight some problems in the existing convention.

International refugee law is a set of rules and procedures that intrinsically aim to protect, at first the persons seeking asylum from persecution and also those recognised as refugees under relevant instruments. The main source of refugee law is notably treaty law, i.e., 1951 Convention relating to the status of refugees and its 1967 Protocol and customary international law practices.

This chapter would scrutinise the protections granted the refugees by these instruments and it would also briefly comment upon some loopholes which the convention failed to address. It would also highlight some problems in the existing convention.

Right of Non-Refoulement

Non-Refoulement is a principle in International refugee law that prohibits handing over a victim of persecution to his or her persecutor. To understand the principle of Non-Refoulement, one must be familiar with the concept of persecution. The literal meaning of persecution is the systematic mistreatment of an individual or group by another individual or group. This may include inflicting of suffering, harassment, isolation and continuous exposition to cruelty. The most common forms of persecution are on the grounds of religion, ethnicity, socio-economic backdrops, political backgrounds etc. Though in some cases they are distinctively visible but they usually intermingle. Principle VI under the Nuremberg Principles categorises “persecution on political, racial or religious grounds” has been characterised as a crime against humanity. Crimes against Humanity have been prohibited under the ambit of international law and there is no tolerance that exists against them. A persecutor is an individual or a group of individuals who inflicts such crimes.

Therefore, the principle of Non-Refoulement disallows the giving up of true victims of gross crimes against humanity to their persecutors and it largely makes an effort to safeguard them.

PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)

  1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
  2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

This article puts a restraint on the contracting state which has granted refuge to the refugees, such a state could not force the refugee to return to the state where the atrocities of crimes against humanity would be inflicted on him. Article 33(1) basically lays a general rule whose exception is granted in Article 33(2). A refugee would fail to fall under the general mandate if reasonable and diligent grounds have been provided that the refugee who has been convicted by final judgment for particularly a serious crime and there is a danger that he may threaten the security of the country he has been convicted in, he could be expelled by the country he is apparently residing in and he could not avail the benefit of the principle of Non-Refoulement.

In regard to the application of Article 33(1), it extends to any convention refugee who is physically present in the territory of a Contracting State, irrespective of whether his presence in that territory is lawful or unlawful. This article applies to persons who are prima facie refugees. In spite of the apparently all—comprising “return . . . in any manner whatsoever”, it is quite clear that the drafters did not intend Article to affect the question of Extradition. The word “refoulement” is used in Belgium and France to describe a more informal way of removing a person from the territory and also describe non-admittance in the state. This word may be applied to persons seeking admission, persons illegally present in a country, and persons admitted temporarily or conditionally.

Article 33 (2) does not really require a strict proof in regard to the refugees being a danger to the national security. This provision applies to ‘a refugee whom there are reasonable grounds for- such a danger.’ The decision whether the refugee is of ‘such a danger’ status, is subjective to each case and it must be left to the discretion of the state to decide. The word “danger” in clause 2 comprises of danger in the present or in the future. In interpreting the term “security of the country”, it is deduced clearly that if a person is engaged in activities aiming at facilitating the conquest of the country where he is staying or a part of the country, by another stare, he is threatening the security of the former country. This termed in rather invokes against the acts of grave kind which directly or indirectly the constitution or the government, the territorial integrity, the independence or external peace of the country concerned. It may not harm in any circumstance, the external sovereignty of the country.

Right to Asylum

 

Right to Asylum under the purview of International Law under which a person is persecuted by his or her own country may be protected by another sovereign authority. Like international human rights law, modern refugee law has its origins in the aftermath of World War II as well as the refugee crises of the interwar years that preceded it. Article 14(1) of the Universal Declaration of Human Rights (UDHR), which was adopted in 1948, guarantees the right to seek and enjoy asylum in other countries. Subsequent regional human rights instruments have elaborated on this right, guaranteeing the “right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions.” The adjudication of asylum claims is reserved to individual States. Although some States, namely those that comprise the Council of Europe, have made an effort to adopt a uniform asylum system, international and regional bodies lack the jurisdiction to adjudicate individual asylum claims. Though there is different enforcement mechanism to grant refuge to the citizens of other states and they vary from one country to another, but there are certain common features that exist in the domestic legal systems of a particular state and are defined as follows.

  • “Refugee- State parties to the 1951 convention or the 1967 optional protocol have incorporated the definition of refugees as stated in Article 1 of the convention, into their domestic legal system.
  • Asylum Seeker- Person within a state party who has applied for recognition as a refuge. If an asylum seeker is determined to meet the definition of refugee, they are granted asylum by the state they have applied in.
  • Race, religion, nationality – the asylum applicant need not actually possess the racial, religious, or national characteristic in question provided that characteristic was attributed to the asylum seeker by the persecutor and is the reason for the persecution.
  • Membership in a particular social group – there is still a lack of consensus as to what constitutes a particular social group and whether classes of persons not included in the 1951 Convention who nonetheless face persecution, such as women and homosexuals, fall into this category.
  • War crimes, Crimes against Humanity – States apply the definition provided in international humanitarian law, as articulated in Articles 7 and 8 of the Rome Statute of the International Criminal Court.”

UNHCR and Refugee Protection

 

The Office of the United Nations High Commissioner for Refugees (UNHCR), also known, as the UN Refugee Agency is a United Nations Agency mandated to protect and support refugees at the request of the government whose citizens are suffering are suffering the atrocities of persecution or the UN itself. The UN would assist in their voluntary reparation, local integration or resettlement to a third country. Its headquarters are situated in Geneva, Switzerland. This organisation has worked extensively in relation to refugee protection over the years. It was established on 14th December 1950. UNCHR won Noble Prize for Peace twice. Its primary purpose is to safeguard the rights and well being of refugees. It strives to ensure that everyone can exercise the right to seek asylum and find safe refuge in another state, with the option to return home voluntarily, integrate locally or to resettle in a third country.

UNHCR’s activities to promote refugee protection include:

  • Promoting accession to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, to the 1954 Convention relating to the Status of Stateless Persons and to the 1961 Convention on the Reduction of Statelessness. In 1999, UNHCR launched a campaign to promote accession to the 1951 Convention that culminated on its 50th anniversary in July 2001 and the Ministerial Meeting of States Parties to the 1951 Convention on 12 and 13 December 2001.
  • Assisting States to enact or revise national refugee legislation, including administrative instructions and operational guidelines, and to implement national refugee status determination procedures.
  • Strengthening relevant administrative and judicial institutions, training staff of government and non-governmental agencies, and liaising with relevant human rights bodies.

Introduction to Refugee Convention 1951

The 1951 Convention Relating to Status of Refugees (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. 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, on 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.

General obligations of a Refugee under Article 2

The Article 2 of the convention is stated as follows:

General Obligations– Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for maintenance of public order.

Non-discrimination under Article 3

Non-Discrimination- The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.

Discrimination may be treated under this article as-

 

(a) discrimination between refugees and nationals;

(b) between various classes of refugees and other aliens; or

(c) between various classes of refugees themselves

 

Summary

This article basically means to say that refugees (and stateless persons) authorised to reside in a country must conform to the laws in force. Every refugee benefitting from the terms of the convention must be subject to provisions of Article 2. This article only lays down an imperfect obligation. It does not provide any sanctions in case of a refugee who does not fulfill his duties. Article 2 only speaks of the “country in which [the refugee] finds himself”. Underlying this phrase is apparently the old notion of “territorial allegiance”. However, the phrase should not be interpreted too narrowly. A refugee may certainly also have duties towards other countries than that where he is physically present; e.g. towards the country where he is “lawfully staying”, even if he is temporarily absent from that country. In view of the fact that refugees, being without effective nationality and without diplomatic protection, Article 2 may be read to imply that the State in whose territory a refugee finds himself may also subject him to such laws and regulations which normally would not apply to aliens, e.g. rules relating to military service and discriminatory measures which are not prohibited by express provisions of the Refugee Convention.

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Reference

  1. http://www.ijrcenter.org/refugee-law/
  2. http://www.unhcr.org/pages/49f075786.html
  3. http://www.unhcr.org/3d4ab5fb9.pdf