Sayef Amin Student of Southeast University LLBH 01924122222

1. Dept. of Law & Justice
LLB(Hons)- Program
Course Title: International Refugee Law
Course Code: LLBH 4212
Assignment On –
“60 Years of the Refugee Protection under International Law”
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2. International law Protect Refugee:
International refugee law is a set of rules and procedures that aims to protect,
first, persons seeking asylum from persecution, and second those recognized as
refugees under the relevant instruments. Its legal framework provides a distinct set
of guarantees for these specific groups of persons, although, inevitably, this legal
protection overlaps to a certain extent with international human rights law as well
as the legal regime applicable to armed conflicts under international humanitarian
law.
The main sources of refugee law are treaty law, notably the 1951 Convention
relating to the status of refugees (1951 Refugee Convention) and its 1967 Protocol,
and customary international law. Customary international law applies to all states
irrespective of whether they are a party to relevant treaties or not. Regional
instruments represent a further set of protections, particularly the 1969
Organization of African Unity Convention (for Africa) and, although it is not
formally legally binding, the 1984 Cartagena Declaration (for Latin America).
The Definition of a Refugee:
International legal protection of refugees centres on a person meeting the criteria
for refugee status as laid down in the 1951 Refugee Convention. Under Article
1(A)2, the term “refugee” shall apply to 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; or who, not having a nationality and
being outside the country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to it.”
Thus, according to this provision, refugees are defined by three basic
characteristics:
 they are outside their country of origin or outside the country of their former
habitual residence;
 they are unable or unwilling to avail themselves of the protection of that
country owing to a well-founded fear of being persecuted; and
 the persecution feared is based on at least one of five grounds: race, religion,
nationality, membership of a particular social group, or political opinion.
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3. It is important to stress that the term “asylum seekers” refers to persons, who have
applied for asylum, but whose refugee status has not yet been
determined.
The principle of “non-refoulement”
The obligation exists under Article 33 of the 1951 Refugee Convention not to
return a refugee to a country of territory where he/she would be at risk of
persecution:
“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.”
This is known as the principle of non-refoulement, which is considered part of
customary international law and therefore binding on all states. The principle is
also incorporated in several international human rights treaties, for example the
1984 Convention against Torture, which prohibits the forcible removal of persons
to a country where there is a real risk of torture.
Internally displaced persons:
Internally displaced persons (IDPs) are defined in the 1998 Guiding Principles on
Internal Displacement as “persons or groups of persons who have been forced or
obliged to flee or to leave their homes or places of habitual residence, in particular
as a result of or in order to avoid the effects of armed conflict, situations of
generalized violence, violations of human rights or natural or human-made
disasters, and who have not crossed an internationally recognized State border”.
Internally displaced persons, who now constitute some 22 million persons, are
persons whose situation is similar to that of refugees. However, there are several
differences between IDPs and refugees. First, IDPs are not the subject of a treaty
adopted at the universal level, although the Guiding Principles are based on
binding international human rights and humanitarian law. Second, as opposed to
refugees, IDPs have not crossed an international border from their country of
origin. Third, the definition of IDPs in the Guiding Principles is significantly
broader than the refugee definition, including those displaced by armed conflict,
human rights violations and natural disasters, while the refugee definition is
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4. restricted to those with a well-founded fear of being persecuted on at least one of
five grounds.
Overview after 60 Years:
The 1951 Convention relating to the Status of Refugees is now over 50 years old.
What impact has this instrument had on resolving refugee problems and how
effective has it been as the principal standard for the international protection of
refugees? Although the total refugee and asylum-seeking population have dipped
since the early 1990s, over 30 million “persons of concern to the UN High
Commissioner for Refugees” can still be counted in the world today. Moreover,
debates continue regarding the nature of the protection that refugees should be
granted, the role of the international community, and the obligations of receiving
countries towards refugees.
This guide directs readers to some of the key texts and resources available on the
Web that can help shed light on, and provide a context for, many of the issues
currently being deliberated in the refugee law arena.
International Instruments:
Two principal conventions govern international refugee law matters: the 1951
Convention relating to the Status of Refugees, and its 1967 Protocol. The
Convention sets out the rights of refugees and the standards for their treatment in
the countries that receive them. It defines "refugee" in Article 1A(2) 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 [or her] nationality and is unable or, owing to
such fear, is unwilling to avail himself [or herself] of the protection of that
country… .
Because the definition requires that a person be outside his or her country, it
effectively excludes internally displaced persons from receiving international
protection. Moreover, because it focuses on individualized persecution, it does not
recognize situations of generalized violence (such as wars), natural disasters, and
large-scale development projects as legitimate causes of flight.
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5. The Protocol was drafted to remove the geographic and time limitations of the
earlier instrument, the incorporation of which reflected the post-World War 2
context in which the Convention was framed. Otherwise, it retains the same
language as that used in the Convention.
It is important to note that neither instrument makes any direct reference to the
concept of asylum; lawful admission, and the conditions under which it is granted,
remains the discretion of States. Instead, the Convention provides for the principle
of non-refoulement, found in Article 33, which stipulates that "No Contracting
State shall expel or return ('refouler') a refugee in any manner whatsoever to
territories where his (or her) life or freedom would be threatened.”
UNHCR is the principal UN agency mandated to provide assistance and
international protection to refugees and other persons of concern, and to find
solutions to their plight. Traditionally, these solutions have taken the form of
asylum, resettlement, and voluntary repatriation. UNHCR's Statute includes a very
similar definition of "refugee" as the 1951 Convention. However, over time,
UNHCR's mandate has been expanded by the UN General Assembly and
Economic and Social Council to cover other groups in "refugee-like" situations
that normally would not fall within the office's competence (including some
internally displaced persons). UNHCR's Department of International Protection
publishes a variety of materials that provides guidance on and analysis of legal
issues relating to refugees and asylum.
Overview of forced displacement by International Law:
The 1951 Convention relating to the Status of Refugees is the key legal document
in defining who is a refugee, their rights and the legal obligations of governments.
According to Article 1 of that Convention, a refugee is someone who has fled his
or her country “owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion.”
Millions Uprooted:
There are currently some 43 million uprooted victims of conflict and persecution
worldwide. More than 15 million of them are refugees who have fled their
countries, while another 27 million are people who remain displaced by conflict
inside their own homelands -- so-called “internally displaced people”.
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6. International law has long made a distinction between refugees, who have crossed
a state border and are protected by the 1951 Convention, and the internally
displaced, who are not. In terms of their needs and vulnerabilities, however, the
effects of their forced displacement may be similar: they face loss of their home,
their livelihood, their community. Regardless of whether they have crossed a
border or not, they deserve help. And with internally displaced people today
outnumbering refugees by nearly two to one, the needs are greater than ever.
For the past six decades, two United Nations agencies, the UN High Commissioner
for Refugees (UNHCR) and the UN Relief and Works Agency for Palestine
Refugees in the Near East (UNRWA), have been responsible for safeguarding the
rights and well-being of refugees. UNHCR currently cares for 10.4 million
refugees worldwide, while UNRWA helps some 4.8 million registered Palestine
refugees in Jordan, Lebanon, Syria and the occupied Palestinian territory.
But until recently, growing numbers of conflict-generated internally displaced
people often fell through the cracks. While primary responsibility for the internally
displaced has always rested with their governments, often those states are either
unable or unwilling to help. Recognizing this, the humanitarian community today
generally views the internally displaced as equally deserving of protection and
assistance.
For its part, the United Nations has been taking a more coordinated approach
toward easing the plight of the internally displaced (see “Making Progress”
below). Because of its 60 years of work with tens of millions of refugees
worldwide, UNHCR is taking a central role in these efforts. But, as festering
displacement situations such as Darfur, Somalia, Colombia and the Democratic
Republic of the Congo testify, there is still a very long way to
go.
Three immediate challenges:
UN High Commissioner for Refugees António Guterres, whose
agency works in more than 120 nations, cites three main
challenges today in finding solutions for the world‟s refugees. Those solutions
have traditionally focused on three possibilities: repatriation home once conditions
allow or, if return are not possible, either integration in the first country of asylum
or resettlement to a third country.
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7. The first major challenge cited by Guterres is the increasingly protracted nature
of many modern conflicts, some of which have dragged on for years or even
decades. And as they drag on, so too does the time spent in exile for millions of
refugees. In fact, more than half of the refugees for whom the UN High
Commissioner for Refugees (UNHCR) is responsible today have been in exile for
more than five years. There are currently 25 of these so-called „protracted
situations‟ in 21 countries worldwide. For many, there is still no end in sight.
One distressing sign of the intractability of today‟s conflicts is the fact that refugee
repatriation is at a 20-year low. In 2009, some 250,000 refugees went home. While
that may sound like a lot, it‟s actually only one-quarter of the average annual return
rate of the past decade.
Although agencies such as UNHCR can address some of the humanitarian needs of
refugees living in long-term limbo, the underlying causes of these ongoing
conflicts require a political solution. Without a resolution, the refugee numbers
grow and the duration of their exile lengthens. Hope fades and refugees become
desperate. At the same time, an increasingly disproportionate burden is placed on
the many developing countries that already host four-fifths of the world‟s refugees.
One way of easing that burden on less developed host countries is for more
developed nations to take some of the most vulnerable refugees for resettlement.
UNHCR has urged developed nations to help share the burden by increasing the
number of resettlement places they can offer. But the 25 developed countries that
now accept refugees for resettlement are still only able to provide places for about
10 per cent of the estimated 800,000 refugees who have been identified by
UNHCR as needing such protection. And keep in mind that those 84,000 refugees
resettled in 2009 still represent less than 1 percent of all refugees cared for by
UNHCR around the world.
The second challenge is the increasingly dangerous climate in which humanitarian
actors must work today, or what UNHCR calls the “shrinking of humanitarian
space”.
Today's conflicts can have many different actors, including some who have no
respect for humanitarian principles or the safety of those trying to help the victims.
These different armed groups can include national and possibly foreign armies,
ethnic- or religious-based militias, insurgent groups and bandits. All of these actors
have been responsible for serious human rights violations.
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8. Providing humanitarian help in such an environment is both difficult and
dangerous for aid workers, who are traditionally neutral and unarmed. In one six-
month period in 2009, three UNHCR staff members were killed and another
kidnapped. More recently, a UNHCR staff member was shot and killed in Sudan.
In all, more than 40 UNHCR staff and associates involved in UNHCR operations
have been killed in the line of duty, most of them in the past two
decades. Humanitarians, whose objective is to help the innocent
victims of conflict, are themselves increasingly becoming
targets.
The third challenge is the erosion of the institution of asylum.
This is particularly of concern in industrialized countries trying to cope with so-
called “mixed movements” in which migrants, asylum-seekers, refugees and
victims of trafficking travel alongside each other. These groups have different
profiles and motivations for moving, and may thus have a very different status
under international law. Migrants, especially economic migrants, choose to move
in order to improve their lives. Refugees are forced to flee to save their lives or
preserve their freedom.
Rwandan refugees who fled the country during the fighting are returning home.
UN Photo/John Isaac Although moving for different reasons, migrants, asylum-
seekers, refugees and other groups increasingly make use of the same routes and
means of transport to get to an overseas destination. If people composing these
mixed flows are unable to enter a particular state legally, they may employ the
services of human smugglers and embark on dangerous sea or land voyages, which
many do not survive.
UNHCR recognizes the sovereign right of governments to control their borders and
ensure their national security, and many states have adopted measures aimed at
preventing people without proper documents from entering their territory.
However, if applied indiscriminately, those same measures can also create
obstacles for refugees and asylum-seekers in genuine need of international
protection. While refugees and asylum-seekers account for only a small proportion
of the estimated 200 million people on the move in the world today, they are
finding it ever more difficult to gain access to countries where they can seek
protection.
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9. Everyone is entitled to exercise their fundamental human rights under international
law. Refugees, asylum-seekers and migrants in an irregular situation are no
exception to that rule. In reality, however, their rights are often violated. In places
throughout the world, they are subjected to arbitrary and discriminatory treatment.
In some of the world's most prosperous states, people, including women and
children, who have arrived without the required papers can be held in detention for
weeks or months on end even after they apply for asylum.
Even the fundamental human rights principle of non-refoulement – that people
should not be returned to a country where their lives or liberty are at risk – is being
tested. A recent rash of involuntary returns of people who may need international
protection in regions across the globe testifies to the vulnerability of even this
long-established legal norm.
Adding to the overall erosion of asylum are increasingly negative public attitudes
in some countries toward foreigners, including refugees and asylum-seekers,.
There has been a perceptible rise in racist and xenophobic acts in many nations,
sometimes fuelled by politicians and the media.
Evaluating the Effectiveness of International Refugee Law:
The legal instruments, on which refugees can rely to secure international
protection, are the 1951 Convention Relating to the Status of Refugees and its
1967 Protocol. Supported by soft laws which were developed by the international
community during the past decades, they form the "protection regime for refugees"
which is set to respond to all refugee situations. This book is an evaluation of the
international response to a major protracted humanitarian situation. As such, it is
the first comprehensive account and assessment of the effectiveness of
international law in dealing with Iraqi refugees during the regime of Saddam
Hussein. It contains detailed information and analysis of the history and behavior
of Iraq and its neighboring states as regards refugees, as well as of the operations
of international organizations, both inter-governmental and non-governmental, and
legal responses to humanitarian needs. The factual context in which the legal
analysis is presented grounds the legal theory.
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