A refugee is someone who has left his or her country of origin and is unable or unwilling to return there because of a serious threat to his or her life or freedom. The international legal definition of the term is contained in the 1951 Convention.[1] They are entitled to protection under the international law from being forcibly returned to their country of origin as they fear in returning to their home country owing to the conflict and persecution. Protection of such people who flee from their country in search of refuge is one of the most long standing traditions of humanity and a value that is shared in many cultural and religious traditions and which has now become a part of international law.
People become refugees when they face violence and persecution because of the break-down of rule of law in their own country. So they seek protection in neighboring country and stay there by seeking asylums till the situation in their home country is improved or till the restoration of rule of law. It is often seen that that these neighboring countries often face difficulty in managing the impact of nearby conflict and in addressing their own developmental challenges.
Laws Protecting Refugees:
The 1951 convention relating to the status of refugees and its 1967 protocol which though independent but is integrally related to 1951 convention constitute the core laws that protect refugees at international level. They are complemented by several refugee law and standards that are implemented at the regional level. Now since it cannot operate in isolation, therefore they are understood in conjunction with International Human Rights Law and International Humanitarian Law. The New York Declaration also contain emphasis on protection of refugees.
1951 Convention Relating to the Status of Refugees – This convention was drawn up shortly after the second world wars and its authors basically focused on problems existing at that time. It covers three main subjects that are-
- Definition of refugee along with provision for exclusion or cessation from refugee status,
- The rights and obligations of refugees in the country where they have taken asylum,
- Obligation of the state.
According to the 1951 Convention, a refugee is someone who has a well-founded fear of being persecuted because of his or her: Race; Religion; Nationality; Membership of a particular social group; or Political opinion, is outside his or her country of origin or habitual residence; is unable or unwilling to avail him- or herself of the protection of that country, or to return there, because of fear of persecution; and Is not explicitly excluded from refugee protection or whose refugee status has not ceased because of a change of circumstances.
The right of refugee as mentioned in the 1951 Convention includes that of protection from refoulement and their duties encompass respecting the laws and regulations of the country in which they are taking asylum. The obligation of State includes cooperating with UNHCR in application of its functions to facilitate the application of Convention.
1967 Protocol – It widened the definition of refugee mentioned in 1951 Convention. It has removed the geographical and temporal limits found in the 1951 Convention. The protocol makes it obligatory for all the acceding states to apply the core content of the aforementioned convention (Article 2-34) to all the person’s who are covered by the refugee’s definition mentioned in the protocol without limitation of time and place. Both the convention and protocol reflect the age old tradition of asylum.
Regional Refugee Law and Standards:
These are the various regional laws and standards that are developed by states from different parts of the world to complement the International Refugee Protection Regime.
1969 OAU Convention governing specific aspects of Refugee Protection in Africa-
- It confirms the basic and universal instrumentality of 1951 Convention in relation to the status of refugees
- It reaffirms that who flee as a result of widespread violence, wars and civil disturbances are entitled to refugee status in African Convention
- It affirms that asylum grant to refugees is a humanitarian as well as peaceful act
1984 Cartagena Declaration:
Many Central and South American Countries apply the definition of refugee mentioned under this act and have incorporated it in their country’s legislation. Some of its key points are-
- It affirms the centrality of 1951 convention along with 1967 protocol, importance of international cooperation to solve refugee problem and principle of non-refoulement
- It widens the definition of refugee to include those persons who have fled away from their country
International Bodies:
International Human Rights Law- It guarantees that prohibition of torture and slavery will not be restricted or suspended under any circumstance. According to it, refugees and asylum seekers are entitled to 2 rights. Firstly those rights which the state are obliged to protect, respect and fulfill under International Human Rights Law and secondly some specific rights of refugees. The Convention against torture and the convention on rights of child are some human rights instruments that provide the much needed protection to refugees and asylum seekers. ICCPR, ICESR, CEDAW are among some other instruments of Human Right that protect their interests.
International Humanitarian Law- It predates the Human Rights and refugee laws. According to it, persons who have not taken part in the war should be respected and protected and it is immaterial if they were displaced or not. It also seeks to provide impartial assistance against the effects of war. Now since many refugees and displaced persons are caught in such situation, therefore its principles also help to protect them in the midst of internal and international armed conflict.
New York Declaration for Refugees and Migrants:
Adopted on 19 September 2016 by the United Nations General Assembly, the declaration reaffirms the importance of refugee protection under the International Refugee regime and paves way for adoption of two new global compacts in 2018 i.e. a global compact for safe, orderly and regular migration and a global compact on refugees. It sets out key elements for a Comprehensive Refugee Response Framework (CRRF) that can be applied to protracted refugee situations and large-scale movement of refugees, obliges the member states to protect and support refugees and the countries in which they take shelter as part of shared responsibility, etc.
Issues and Challenges:
There are several issues and challenges that are involved in protection of refugees in spite of the several international legal frameworks. Some of them are as follows-
- Non Refoulement- Most of the European regions rely on territorial criteria that include (i) they have arrived inside or at the border and (ii) there s no other safe country where they can be sent. As a result they are left to die in International waters because no state is willing to take their responsibility. Here the legal issue which arises is one of the non-applications of obligations mentioned in International Human Rights.
- Access to asylums is restricted in many countries and regions with detention on the increase, procedural and legal impediments blocking access to protection.
- Some governments have pursued arrangements that ‘outsource’ refugee protection to some other place. They have closed their doors and allowed rhetoric of nationalism and xenophobia to go unchecked.
- Many States are imposing emphasis on border control by building walls and enforcing border securities to prevent refugees from entering their territory due to increasing security concerns stemming as a result of international terrorism.
- Host Countries face the issue of inadequate support and lack of prospects from other countries and communities.
- One of the major challenges involves denial of access to international protection. Many countries deny taking responsibility of those do not ‘arrive directly’ at the border and present themselves to relevant authorities ‘without delay’.
- Many refugees are forced to take long and expensive routes to their destination countries and as a result, many die on the route. And for those who stay alive, the conditions of reception in the destination country are often inadequate.
Hence these situations have given parliamentarian a major challenge to incorporate the principle of non-refoulement, encouraging the countries to accede to international treaties, reviewing reservations and restrictive interpretations, implementing international standards when establishing State asylum systems, broadening the refugee criteria, etc.
[1] Frances Nicholson and Judith Kumin, A guide to international refugee protection and building state asylum systems, UNHCR, (June 16, 2020, 5:00pm), https://www.unhcr.org/publications/legal/3d4aba564/refugee-protection-guide-international-refugee-law-handbook-parliamentarians.html.
This article is authored by Sheersha Saxena, Fourth-Year, BBA. LL.B (Hons.) student at ICFAI University Dehradun
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