Home Sweet Home: A Review Of International Refugee Law
An exile from home, splendor dazzles in vain;
Oh, give me my lowly thatched cottage again!
The birds singing gaily, that come at my call --
Give me them -- and the peace of mind, dearer than all!
Home, home, sweet, sweet home!
There's no place like home, oh, there's no place like home! -John Howard Payne
It is human nature to strive to belong somewhere , somewhere which is close to heart , somewhere which is home and herein in this excerpt from magnificent piece of poetry which is titled “ Home Sweet Home” , the same sentiment is conveyed and emphasized upon, but for displaced people such as refugees such an desire is a distant dream. A refugee is a person who is outside their country of origin or habitual residence because they have suffered persecution on account of race, religion, nationality, political opinion, or because they are a member of a persecuted 'social group'.2 There is a difference between an asylum seeker and a refugee, an asylum-seeker is someone who says he or she is a refugee, but whose claim has not yet been ascertained by national asylum systems.
Various refugee conventions deal with the rights of refugees and their protection thereof the primary obligation of states under the refugee conventions is not to return (refoule) refugees to countries where they will be in danger of persecution. The grant of refugee status is thus often described as being an international substitute for the protection that should come from a person’s state of nationality or habitual residence.
To address the issues of refugees a new branch of international law evolved which is called international refugee law which is concerned with protection of rights of refugees. After world war II it was realized that there is a need to have a strong international organization which can govern nation states and prevent a Armageddon similar to world war II and shocking violation of human rights which took place during world war II , hence united nations organization better known as united nations officially came into existence on 24 October 1945 upon ratification of the Charter by the five then-permanent members of the Security Council which were France, the Republic of China, the Soviet Union, the United Kingdom and the United States and by a majority of the other 46 signatories.
Refugees have to move if they are to save their lives or preserve their freedom. They have no protection from their own state, indeed it is often their own government that is threatening to persecute them. If other countries do not let them in, and do not help them once they are in, then they may be condemning them to death or to an intolerable life in the shadows, without sustenance and without rights.
Position Of Refugees Under Universal Declaration Of Human Rights
Right to seek refuge has been incorporated in UDHR as it has included Article 14(1) which provides that everyone ‘has the right to seek and to enjoy in other countries asylum from persecution’ there is an exception which is Article 14(2) that excludes asylum for ‘prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations’. From a bare reading of article 14 it can be interpreted that every person has right to seek asylum from persecution but stress is not laid on the grant of such right by the State to asylum seeker who claims to be a refugee. From the right to seek and enjoy asylum in other countries , law relating to refugees has come a long way.3
Principle Of Non- Refoulement
The non- refoulement principle is an essential ingredient of international refugee law . It is also found in various instruments of international law such as in , Covenant on Civil and Political Rights (ICCPR)4 , and in the 4th Protocol to the European Convention on Human Rights (ECHR), and there is express procedural protection around detention for extradition or deportation in the ECHR. None of them amounts to substitute for a “non-refoulement” right. Protection against removal has arisen because of implied obligations found in human rights agreements by the bodies charged with their interpretations, notably protections for the right to life and against being ill-treated. Article 3 of ECHR states that “No one shall be subjected to torture or to inhuman or degrading treatment or punished.”5
Refoulement is a French term which literally means to ‘drive back’ or ‘return’ but in international refugee law it means returning a refugee or refugee claimant to the country of origin. The principle of non-refoulement is enshrined in regional as well as international refugee law instruments " was officially enshrined in article 33 of the 1951 Convention Relating to the Status of Refugees which states prohibition of expulsion or return (“refoulement”). No Contracting State shall expel or return (“refouler”) a refugee or a asylum seeker 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.6
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 . It is also an obligation under the 1967 Protocol by virtue of Article I (1) of that instrument. Unlike some provisions of the Convention, its application is not dependent on the lawful residence of a refugee in the territory of a Contracting State and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,19847 which states that “ No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. At the regional level the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969 gives expression in binding form to a number of important principles relating to asylum, including the principle of non-refoulement. According to Article II (3):
"No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2."
Again, Article 22 (8) of the American Human Rights Convention8 adopted in November 1969 provides that:
“In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinions."
In the Resolution on Asylum to Persons in Danger of Persecution, adopted by the Committee of Ministers of the Council of Europe on 29 June 1967, it is recommended that member governments should be guided by the following principles:9
1. They should act in a particularly liberal and humanitarian spirit in relation to persons who seek asylum on their territory.
2. They should, in the same spirit, ensure that no one shall be subjected to refusal of admission at the frontier, rejection, expulsion or any other measure which would have the result of compelling him to return to, or remain in, a territory where he would be in danger of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion."
Finally, Article III (3) of the Principles concerning the Treatment of Refugees adopted by the Asian-African Legal Consultative Committee at its Eighth Session in Bangkok in 1966, states that:
“No one seeking asylum in accordance with these Principles should, except for overriding reasons of national security or safeguarding the populations, be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or remain in a territory if there is a well-founded fear of persecution endangering his life, physical integrity or liberty in that territory."10
In addition to statements in the above international instruments, the principle of non-refoulement has also found expression in the constitutions and/or ordinary legislation of a number of States.
The aim of this principle is to provide protection to those who have fled persecution to other states not to hand over such persons to their persecutors by the state in which such people are refugees.
The principle of non-refoulement arised out of the failed effort of nations during World War II to provide a safe haven to refugees fleeing certain genocide at the hands of the Nazi regime. Today, the principle of non-refoulement ostensibly protects recognized refugees and asylum seekers from being expelled from countries that are signatories to the 1951 Convention or 1967 Protocol. This has however not prevented certain signatory countries from skirting the international law principle and repatriating or expelling bona fide refugees into the hands of potential persecutors.
The incorporation of the principle in treaties to which numerous States in different areas of the world are parties has given the principle the character of a rule of international customary law. This view is supported by the reaffirmation of the principle in the United Nations Declaration on Territorial Asylum, in Conclusions by the Executive Committee of the High Commissioner’s Programme, and in resolutions of the United Nations General Assembly.
Convention Relating To Status Of Refugees,1951
The Convention Relating to the Status of Refugees is the foundation of
international refugee law. The 1951 Convention consolidated previous international instruments relating to refugees and provided the most comprehensive codification of the rights of refugees at the international level. Earlier international
refugee instruments, had applied to specific groups of refugees, the 1951 Convention endorsed a single definition of the term “refugee” in Article 1. Hence refugee is a person who:
“has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization one of the exception is that Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfill the conditions of paragraph 2 of this section;
As a result of events occurring before 1 January 1951 and 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. In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”
Exception to this definition are as follows:
This Convention shall cease to apply to any person if:
1. He has voluntarily re-availed himself of the protection of the country of his nationality; or
2. Having lost his nationality, he has voluntarily reacquired it; or
3. He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
4. He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
5. He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;
(6) Being a person who has no nationality he is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence.11
Obligations Of Refugee
Under the Refugee Convention of 1951 , Article 2 states the general obligation of refugee that 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 the maintenance of public order.12
Juridical Status Of Refugees Under Refugee Convention Of 1951
Article 12 deals with Personal status and states that “ The personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.
Rights previously acquired by a refugee and dependent on personal status, more particularly rights attaching to marriage, shall be respected by a Contracting State, subject to compliance, if this be necessary, with the formalities required by the law of that State, provided that the right in question is one which would have been recognized by the law of that State had he not become a refugee.”13
Article 13 deals with Movable and immovable property and states that “The Contracting States shall accord to a refugee treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.”
Rights Of Refugees
Rights of refugees are enshrined in following provisions of the Refugee Convention of 1951:
· Article 14 deals with artistic rights and industrial property and states that “In respect of the protection of industrial property, such as inventions, designs or models, trade marks, trade names, and of rights in literary, artistic and scientific works, a refugee shall be accorded in the country in which he has his habitual residence the same protection as is accorded to nationals of that country. In the territory of any other Contracting States, he shall be accorded the same protection as is accorded in that territory to nationals of the country in which he has his habitual residence.”
· Article 15 deals with Right of association and states that “As regards non- political and non-profit-making associations and trade unions the Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country, in the same circumstances.”
· Article 16 deals with Access to courts and states the following:
1. A refugee shall have free access to the courts of law on the territory of all Contracting States.
2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts, including legal assistance and exemption from “ cautio judicatum solvi”
3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence. the Convention lays down basic minimum standards for the treatment of refugees, without prejudice to States granting more favourable treatment.14
Such rights include access to the courts, to primary education, to work, and the provision for documentation, including a refugee travel document in passport form. Because the Convention was drafted in the wake of World War II, its definition of a refugee focuses on persons who are outside their country of origin and are refugees as a result of events occurring in Europe or elsewhere before 1 January 1951. As new refugee crises emerged during the late 1950s and early 1960s, it Became necessary to widen both the temporal and geographical scope of the Refugee Convention. Thus, a Protocol to the Convention was drafted and adopted.
Protocol Relating To Status Of Refugees, 1967
The 1967 Refugee Protocol is independent of, though integrally related to, the 1951 Convention. The Protocol lifts the time and geographic limits found in the Convention’s refugee definition. Together, the Refugee Convention and Protocol emphasize on three tenets which are as follows:
· The basic refugee definition, along with terms for cessation of, and exclusion from, refugee status
· The legal status of refugees in their country of asylum, their rights and obligations, including the right to be protected against forcible return, or refoulement , to a territory where their lives or freedom would be threatened
· State’s obligations, including cooperating with UNHCR in the exercise of its functions and facilitating its duty of supervising the application of the Convention By acceding to the Protocol, States agree to apply most of the articles of the Refugee Convention (Articles 2 through 34) to all persons covered by the Protocol’s refugee definition. Yet the vast majority of States have preferred to accede to both the Convention and the Protocol. In doing so, States reaffirm that both treaties are central to the international refugee protection system.15
Regional Refugee Laws
Oau Convention Governing The Specific Aspects Of Refugee Problems In Africa ,1969
Regional refugee laws were framed to deal with region specific problems of refugees in countries such as Africa , as the conflicts which led to the demise of colonial era in Africa resulted in massive refugee movement ,such an event of large scale displacement of people led to prompt drafting of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. Asserting that the 1951 Refugee Convention is “the basic and universal instrument relating to the status of refugees”, the OAU Convention is, to date, the only legally binding regional refugee treaty.16
The most important aspect of this convention is the definition of term refugee which is enshrined in article 1 states that “refugee” shall mean every person who, owing to a 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.”
Hence persons who are fleeing their country can claim refuge in states which is party to the convention , herein it is not necessary for a person claiming refugee status to have a well founded fear of persecution.
Cartagena Declaration, 1984
For the purpose of treatment of refugees in Latin America , On 19-22nd November , 1984 a colloquium of government representatives and distinguished Latin American jurists was convened in Cartagena, Colombia to discuss the international protection of refugees in the region. This gathering adopted what became known as the Cartagena Declaration. The Declaration recemmended that the definition of a refugee used throughout the Latin American region should include the 1951 Refugee Convention definition and also include persons who have fled their country “because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”.17
Although the Declaration is not legally binding on States, most Latin American States apply the definition as a matter of practice; some have incorporated the definition into their own national legislation. The Declaration has been endorsed by the Organization of American States (OAS), the UN General Assembly, and UNHCR’s advisory Executive Committee.
Asian African Legal Consultative Committee Principles, 1996
In Asia, principles concerning the treatment of refugees were adopted in Bangkok in 1966 by the Asian-African Legal Consultative Committee (AALCC). These principles, known as "the Bangkok Principles", deal, inter alia, with the definition of the term "refugee", expulsion and deportation and the right of return, and have taken their place among the basic documents of international refugee law.18 The problems of refugees continue to be considered by the AALCC in close co-operation with UNHCR. In 1980, the Round Table of Asian experts on current problems in the international protection of refugees and displaced persons adopted important declarations on pirate attacks on refugees and displaced persons and on the international protection of refugees and displaced persons in Asia.
The following year, a Working Group established by the Round Table to follow up on its recommendations and conclusions met under the auspices of the International Institute of Humanitarian Law and UNHCR and adopted a report dealing, inter alia, with the refugee definition, non-refoulement, durable solutions, the activities of refugees and international solidarity and burden-sharing. The declarations of the Round Table and the Working Group's report both represent valuable contributions to standard-setting efforts in the region.
Implementation And Monitoring of Rights of Refugee
The Office of the United Nations High Commissioner for Refugees was established on December 14, 1950 by the United Nations General Assembly through adoption of UNHCR statute. The agency is mandated to lead and co-ordinate international action to protect refugees and resolve refugee problems worldwide. 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.19
UNHCR's core mandate is to ensure the international protection of 31.7 million uprooted people worldwide. Its primary purpose is to safeguard the rights and well-being of refugees. UNHCR also has a mandate to prevent and reduce statelessness and protect stateless persons. In support of its core activities on behalf of refugees, UNHCR's Executive Committee and the UN General Assembly have authorized involvement with other groups. These include former refugees who have returned home and internally displaced people. UNHCR seeks to reduce situations of forced displacement by encouraging states and other institutions to create conditions which are conducive to the protection of human rights and the peaceful resolution of disputes. In all of its activities, the refugee agency pays particular attention to the needs of children and seeks to promote the equal rights of women and girls.
UNHCR strives to provide safety net for refugees, governments normally guarantee the basic human rights and physical security of their citizens. But when people become refugees this safety net disappears. Refugees fleeing war or persecution are often in a very vulnerable situation. They have no protection from their own state - indeed it is often their own government that is threatening to persecute them. If other countries do not let them in, and do not protect and help them once they are in, then they may be condemning them to an intolerable situation where their basic rights, security and, in some cases their lives, are in danger. In the field, UNHCR's core work is managed from a series of regional offices, branch offices, sub-offices and field offices. The High Commissioner's representatives head operations in the countries where the agency works, while there are also a number of regional representatives.
According to the UNHCR global report, 2011 through the Global Strategic Priorities (GSPs) for 2010-2011, UNHCR encouraged States not yet party to the 1951 Refugee Convention to accede, while States Parties to the instrument were asked to consider reviewing the need for the reservations they had lodged at the time of accession.20 Nauru acceded to the Convention and its 1967 Protocol during the year, and at the ministerial-level conference held in December a number of States pledged to enact or amend legislation implementing the Convention.
The year also saw a number of improvements with regard to implementing national legislation.
For example, Georgia, Mexico and Ukraine introduced complementary forms of protection. In other countries, particularly those that have pledged to revise and amend national refugee legislation or adopt new laws, UNHCR supported legislative processes by providing expert advice, analysis and comment on draft laws. This was done in Afghanistan, Argentina, the Plurinational State of Bolivia, Papua New Guinea, the Russian Federation, South Sudan and Yemen, among other countries.
Refugee Laws In India :Need For National Refugee Legislation
States which have acceded to the refugee convention of 1951 are obliged to frame national refugee laws and policies for their protection thereto . In India, growing concerns about national security threaten to further squeeze the protection space. India is not party to the 1951 Refugee Convention or its 1967 Protocol, nor does it have a national refugee protection framework. Nonetheless, the country hosts a large number of refugees and respects the principle of non-refoulement for holders of UNHCR documentation. India continues to grant asylum to a large number of refugees from neighbouring States, protecting and assisting some 200,000 Tibetans and Sri Lankans. In the absence of a national legal framework for asylum, UNHCR registers asylum-seekers and conducts refugee status determination (RSD) in New Delhi, mostly for arrivals from Afghanistan and Myanmar. It also works to protect and ensure the well-being of more than 24,000 urban refugees and asylum-seekers.
As India has not yet ratified or acceded to the Refugee Convention of 1951 nor to its protocol of 1967 its legal obligation to protect refugees can be traced mainly in customary international law.
India became a member of the Executive Committee of the High Commissioner’s Programme (EXCOM) in 1995. The EXCOM is the organisation of the UN, which approves and supervises the material assistance programme of UNHCR. Membership of the EXCOM indicates particular interest and greater commitment to refugee matters. India voted affirmatively to adopt the Universal Declaration of Human Rights which affirms rights for all persons, citizens and non- citizens alike. India voted affirmatively to adopt the UN Declaration of Territorial Asylum in 1967. India ratified the International Covenant on Civil and Political Rights (ICCPR) as well as the International Convention on Economic, Social and Cultural Rights (ICESCR). India accepted the principle of non-refoulement as envisaged in the Bangkok Principles, 1966, which were formulated for the guidance of member states in respect of matters concerning the status and treatment of refugees. These Principles also contain provisions relating to repatriation, right to compensation, granting asylum and the minimum standard of treatment in the state of asylum.
The Supreme Court of India has consistently held that the Fundamental Right enshrined under Article 21 of the Indian Constitution regarding the Right to life and personal liberty, applies to all irrespective of the fact whether they are citizens of India or aliens. The various High Courts in India have liberally adopted the rules of natural justice to refugee issues, along with recognition of the United Nations High Commissioner for Refugees (UNHCR) as playing an important role in the protection of refugees such as in Gurunathan and others vs. Government of India and others22 and in the matter of A.C.Mohd.Siddique v. Government of India and others23, the High Court of Madras expressed its unwillingness to let any Sri Lankan refugees to be forced to return to Sri Lanka against their will. In the case of P.Nedumaran v.Union Of India24 before the Madras High Court, Sri Lankan refugees had prayed for a writ of mandamus directing the Union of India and the State of Tamil Nadu to permit UNHCR officials to check the voluntariness of the refugees in going back to Sri Lanka, and to permit those refugees who did not want to return to continue to stay in the camps in India. The Hon’ble Court was pleased to hold that ”since the UNHCR was involved in ascertaining the voluntariness of the refugees’ return to Sri Lanka, hence being a World Agency, it is not for the Court to consider whether the consent is voluntary or not.” Further, the Court acknowledged the competence and impartiality of the representatives of UNHCR. The Bombay High Court in the matter of Syed Ata Mohammadi v. Union of India25, was pleased to direct that “there is no question of deporting the Iranian refugee to Iran, since he has been recognised as a refugee by the UNHCR.” The Hon’ble Court further permitted the refugee to travel to whichever country he desired. Such an order is in line with the internationally accepted principles of ‘non-refoulement’ of refugees to their country of origin.
In the absence of a specific statute often the plight of the refugees are decided based on the Foreigner’s Act drafted as early in 194626, the Emigration Act, 198327 and the rules framed there under, the Passport Act 196728 and under Article 21 of Indian constitution. According to latest statistics, the refugee population in the country is about 1,85,118 , this figure is another valid reason for legislators to frame a national refugee legislation in line with international protection standards. India should consider follow the suit of countries in Latin America, with the exception of Cuba , Baltic states such as Lithuania and Estonia which are parties to the 1951 Convention or the 1967 Protocol and have also adopted national legislation for protection and also 134 countries which have ratified either or both the Convention and the Protocol.
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