Refugee law

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Refugee law is the branch of international law which deals with the rights and duties states have vis-a-vis refugees. There are differences of opinion among international law scholars as to the relationship between refugee law and international human rights law or humanitarian law.

Contents

The discussion forms part of a larger debate on the fragmentation of international law. [1] While some scholars conceive each branch as a self-contained regime distinct from other branches, others regard the three branches as forming a larger normative system that seeks to protect the rights of all human beings at all time. The proponents of the latter conception view this holistic regime as including norms only applicable to certain situations such as armed conflict and military occupation (IHL) or to certain groups of people including refugees (refugee law), children (the Convention on the Rights of the Child), and prisoners of war (the Geneva Convention (III) relative to the Treatment of Prisoners of War). [2]

Definition of 'refugee'

There is a variety of definitions as to who is regarded as a refugee, usually defined for the purpose of a particular instrument. The variation of definitions regarding refugees has made it difficult to create a concrete and single vision of what constitutes a refugee following the original refugee convention. Article 1 of the 1951 Refugee Convention, as amended by the 1967 Protocol, defines a refugee as:

A 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. [3]

The 1967 Protocol removed the temporal restrictions that restricted refugee status to those whose circumstances had come about "as a result of events occurring before 1 January 1951," and the geographic restrictions that gave participating states of the Convention the option of interpreting this as "events occurring in Europe" or "events occurring in Europe or elsewhere". However, it also gave those states that had previously ratified the 1951 Convention and chose to use the geographically-restricted definition the option to retain that restriction.

The Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa adopted a regional treaty based on the Convention, adding to the definition of refugee as:

Any person compelled to leave his/her country 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. [4]

In 1984, a group of Latin-American governments adopted the Cartagena Declaration on Refugees, which, like the OAU Convention, added more objectivity based on significant consideration to the 1951 Convention. The Cartagena Declaration determine that a refugee includes:

Persons who flee their countries because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order. [4]

Difference from 'asylee' and 'displaced person'

Additionally, U.S. Law draws an important distinction between refugees and asylees . A refugee must meet the definition of a refugee, as outlined in the 1951 Convention and be of "special humanitarian concern to the United States." [5] Refugee status can only be obtained from outside the United States. If an individual who meets the definition of a refugee, and is seeking admission in a port of entry is already in the United States, they are eligible to apply for asylum status. [5]

The term displaced person has come to be synonymous with refugees due to a substantial amount of overlap in their legal definitions. However, they are legally distinct, and convey subtle differences. In general, a displaced person refers to "one who has not crossed a national border and thus does not qualify for formal refugee status." [6]

Refugee children

According to the original 1951 Refugee Convention and 1967 Protocol, refugee children were legally indistinguishable from adult refugees. In 1988, the United Nations High Commissioner for Refugees (UNHCR) Guidelines on Refugee Children were published, specifically designed to address the needs of refugee children, officially granting them internationally recognized human rights. [7]

In 1989, however, the UN signed an additional treaty, the Convention on the Rights of the Child (CRC), which defined the rights of children and bound its signatories to upholding those rights by international law. [8] Although the CRC was not specific to the rights of refugee minors, it was used as the legal blueprint for handling refugee minor cases, where a minor was defined as any person under the age of 18. In particular, it extends the protection of refugee children by allowing participating nations the capacity to recognize children who do not fall under the strict guidelines of the Convention definition but still should not be sent back to their countries of origin. It also extends the principle of non-refoulement to prohibit the return of a child to their country "where there are grounds for believing that there is a real risk of irreparable harm to the child." [8]

International sources

Refugee law encompasses both customary law, peremptory norms, and international legal instruments. The only international instruments directly applying to refugees are the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. Both the Convention and the Protocol are open to states, but each may be signed separately. 145 states have ratified the Convention, and 146 have ratified the Protocol. These instruments only apply in the countries that have ratified an instrument, and some countries have ratified these instruments subject to various reservations.

International Refugee Laws
YearLaw / Treaty / DeclarationOrganization / Depositary / AdopteesNotes
1948 Universal Declaration of Human Rights United Nations General Assembly
1951 United Nations Convention Relating to the Status of Refugees Secretary-General of the United Nations
1954 Treaty on Political Asylum and Refuge 6 Latin-American countries: Peru, Argentina, Uruguay, Bolivia, Paraguay, and Chile Signed on 4 August 1939 and entered into force on 29 December 1954.
1966Bangkok Principles on Status and Treatment of Refugees [9] Asian-African Legal Consultative Committee
1967 Protocol Relating to the Status of Refugees Secretary-General of the United Nations
1967Declaration on Territorial Asylum [10] United Nations General Assembly
1969 Convention Governing the Specific Aspects of Refugee Problems in Africa [11] Organisation of African Unity (OAU)
1974 Declaration on the Protection of Women and Children in Emergency and Armed Conflict United Nations General Assembly
1976Recommendation 773 (1976) on the Situation of de facto Refugees [12] Council of Europe (CoE)
1984 Cartagena Declaration on Refugees
  • The 1994 Declaration of San José [13]
  • The 2004 Mexico Declaration [14]
  • The 2014 Brazil Declaration [15]
10 Latin-American countries: Belize, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, and Venezuela
1989 Convention on the Rights of the Child Secretary-General of the United Nations
1998Conclusion on International Protection by the Executive Committee of the High Commissioner's Programme [16] United Nations Human Rights Council (UNHRC)
2001Declaration by States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees [17]
2003Convention Plus United Nations High Commissioner for Refugees (UNHCR) Refugee resettlement was decided to be of central concern of UNHCR. [18]
2004 Restriction of Hazardous Substances Directive 2002/95/EC European Union (EU)A Council Directive on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection and content of the protection granted. [19]
2016New York Declaration for Refugees and Migrants [20] United Nations General Assembly

U.S. refugee law

Various regions and countries have different variations of refugee law. They all stem from the 1951 Convention and the 1967 Protocol which relates to refugee status. The United States became a party to this protocol in 1968.

Despite playing an active role in the drafting of the Convention on the Rights of the Child, the United States has yet to ratify the treaty, making it the only nation in the United Nations that is not party to it. [21]

Refugee status first emerged as a legal category in the United States in the 1940s, responding to an influx of Eastern Europeans fleeing Communism. In response to this influx, Congress established refugee migration as "distinct and separate from general immigration admissions" upon the recommendation from the House Committee on Postwar Immigration. [22] The Committee argued that the right to seek asylum be made "an explicit part of United States immigration policy." [22]

Although the aftermath of World War II brought forth a refugee crisis, the large influx and resettlement of Indochinese refugees led to the passage of the Refugee Act of 1980. This law incorporated the International Convention's definitions of a refugee into U.S. law. [23] In doing so, it codified into U.S. law that a refugee was an individual with a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion." [22] Furthermore, ratifying this Convention meant the elimination of previous "ideological and geographical discriminations" against refugee and asylum seekers. [22] These discriminations were a result of previous U.S. refugee law, which had served mainly as a tool for foreign policy agendas. The law also created the legal basis for the admission of refugees into the U.S. The Refugee Act of 1980 was the first time the United States created an objective decision-making process for asylum and refugee status. This included a joint system between Congress and the Presidency, in which both branches would collaborate to establish annual quotas and determine which national groups would receive prioritized consideration for refugee status. In doing so, the U.S. shifted away from a relatively reactionary system, in which refugee laws were only passed in response to political changes in the international community, primarily the spread of Communism. Instead, under the Refugee Act of 1980, the U.S. established a comprehensive framework for addressing refugee crises preemptively. This framework was built on emerging ideals of "humanitarianism". [22] An important aspect of this law is how an individual goes about applying for status. A person may meet the definition of refugee but may not be granted refugee status. If the individual is inside of the U.S. with a different status or no status, they are granted the status of asylee but not refugee.

In order to be considered a refugee in the United States, an individual must:

The first step of being granted this status is to receive a referral to the U.S. Refugee Admissions Program (USRAP). The person is allowed to include their spouse, child, or other family members (only in specific circumstances) when applying for refugee status. After the person is referred, a U.S. Citizenship and Immigration Services officer located abroad will conduct an interview to determine refugee resettlement eligibility inside the United States. [24] If the person is approved as a refugee, they will then be provided with many forms of assistance. These include a loan for travel, advice for travel, a medical exam, and a culture orientation. [24] After the refugee is resettled, they are eligible for medical and cash assistance. The Office of Refugee Resettlement (ORR) has a program called the Cash and Medical Assistance Program which completely reimburses the assistance in which states provide refugees. [25] The refugee is eligible for this cash and medical assistance up to eight months after their arrival date. [25]

In the United States, refugees are subject to annual quotas, which are determined by a joint collaboration between the incumbent Presidential administration and Congress. In addition to establishing the annual quota, Congress and the President determine which national groups are of special humanitarian concern to the United States. [22] Since ratifying the 1980 Refugee Act, the United States has admitted over 3.1 million refugees from around the world, many of who were permanently resettled in the United States. [26] Prior to the Trump Administration, the United States was the global leader in admitting refugees and offered refugee status to more individuals than the rest of the world altogether. [27] Under the Trump administration, refugee immigration laws faced many challenges and setbacks, as administration officials sought to rollback immigration laws and decrease the annual number of refugees admitted. Challenges to refugee law included contesting practices of non-refoulement, which has been a long-standing principle of the U.S. immigration system. [28] Attempts to reverse Trump-era policies have been a focus of the subsequent Biden presidential administration. In 2021, it was announced that Biden administration would raise the refugee cap from 15,000 individuals to 62,500 individuals. [29]

Refugee status determination

The burden of refugee status determination (RSD) falls primarily on the state. However, in cases where states are either unwilling or unable, the UNHCR assumes responsibility. In 2013, the UNHCR managed RSD in over 50 countries and worked in parallel with national governments in 20 countries. [30] In the period from 1997 to 2001, the number of RSD applications submitted to the UNHCR nearly doubled.

RSD provides protection for refugees through promoting non-refoulement, resettlement assistance, and direct assistance.

Human rights and refugee law

Human rights are the rights that a person is guaranteed by way of birth. The following are universal human rights that are most relevant to refugees: [31]

Refugee law and international human rights law are closely connected in content but differ in their function. The main difference of their function is the way in which international refugee law considers state sovereignty while international human rights law do not. [32] One of the core principles of international refugee law is the prohibition on refoulement (or the expulsion or return of a refugee), which is the basic idea that a country cannot send back a person to their country of origin if they will face endangerment upon return. [23] In this case, a certain level of sovereignty is taken away from a country. This basic right of non-refoulement conflicts with the basic right of sovereign state to expel any undocumented aliens. [32]

See also

Related Research Articles

The Office of the United Nations High Commissioner for Refugees (UNHCR) is a United Nations agency mandated to aid and protect refugees, forcibly displaced communities, and stateless people, and to assist in their voluntary repatriation, local integration or resettlement to a third country. It is headquartered in Geneva, Switzerland, with over 18,879 staff working in 138 countries as of 2020.

<span class="mw-page-title-main">Refugee</span> Displaced person

A refugee, conventionally speaking, is a person who has lost the protection of their country of origin and who cannot or is unwilling to return there due to well-founded fear of persecution. Such a person may be called an asylum seeker until granted refugee status by the contracting state or the United Nations High Commissioner for Refugees (UNHCR) if they formally make a claim for asylum.

An asylum seeker is a person who leaves their country of residence, enters another country, and makes in that other country a formal application for the right of asylum according to the Universal Declaration of Human Rights Article 14. A person keeps the status of asylum seeker until the right of asylum application has concluded.

The right of asylum, sometimes called right of political asylum, is an ancient juridical concept, under which people persecuted by their own rulers might be protected by another sovereign authority, such as a second country or another entity which in medieval times could offer sanctuary. This right was recognized by the Ancient Egyptians, the Greeks, and the Hebrews, from whom it was adopted into Western tradition. René Descartes fled to the Netherlands, Voltaire to England, and Thomas Hobbes to France, because each state offered protection to persecuted foreigners. Contemporary right of asylum is founded on the Universal Declaration of Human Rights.

<span class="mw-page-title-main">Convention Relating to the Status of Refugees</span> United Nations multilateral treaty

The Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention or the Geneva Convention of 28 July 1951 is a United Nations multilateral treaty that defines who a refugee is and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The Convention also sets out which people do not qualify as refugees, such as war criminals. The Convention also provides for some visa-free travel for holders of refugee travel documents issued under the convention.

Non-refoulement is a fundamental principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in probable danger of persecution based on "race, religion, nationality, membership of a particular social group or political opinion". Unlike political asylum, which applies to those who can prove a well-grounded fear of political persecution, non-refoulement refers to the generic repatriation of people, including refugees into war zones and other disaster locales.

The Vienna Declaration and Programme of Action (VDPA) is a human rights declaration adopted by consensus at the World Conference on Human Rights on 25 June 1993 in Vienna, Austria. The position of United Nations High Commissioner for Human Rights was recommended by this Declaration and subsequently created by General Assembly Resolution 48/141.

World Refugee Day is an international day organised every year on 20 June by the United Nations. It is designed to celebrate and honour refugees from around the world. The day was first established on 20 June 2001, in recognition of the 50th anniversary of the 1951 Convention Relating to the Status of Refugees.

<span class="mw-page-title-main">Asylum in the United States</span> Overview of the situation of the right for asylum in the United States of America

The United States recognizes the right of asylum for individuals seeking protections from persecution, as specified by international and federal law. People who seek protection while outside the U.S. are termed refugees, while people who seek protection from inside the U.S. are termed asylum seekers. Those who are granted asylum are termed asylees.

<span class="mw-page-title-main">Convention Relating to the Status of Stateless Persons</span> 1954 United Nations treaty

The Convention Relating to the Status of Stateless Persons is a 1954 United Nations multilateral treaty that aims to protect stateless individuals.

Refugees in Hong Kong have formed historic waves arriving in the city due to wars in the region and Hong Kong's historical role as a trading and transit entrepôt. More recently those seeking asylum or protection based on torture claims are a fast growing part of the city's population, increasing since 2004 due to changes in the legal system for considering asylum and torture claims mandated by local courts.

The Russian Federation's Law on Refugees defines who is a refugee for purposes of obtaining asylum in the country. The Law defines a refugee as a "person who is outside their country of nationality or habitual residence; has a well-founded fear of persecution because of their race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail themself of the protection of that country, or to return there, for fear of persecution". Upon receiving an asylum seeker's application, the Russian Migration Service determines whether the asylum seeker meets the legislative definition of a "refugee" and should be granted asylum.

The United Nations High Commissioner for Refugees Representation in Cyprus is an office of the United Nations High Commissioner for Refugees (UNHCR) opened in August 1974 upon the request of the Government of Cyprus and the Secretary-General of the United Nations. UNHCR Representation in Cyprus was designated as Coordinator of the United Nations Humanitarian Assistance for Cyprus. UNHCR was also responsible upon the request of the Cyprus Government to examine applications for refugee status.

<i>Plaintiff M70 v Minister for Immigration</i> Judgement of the High Court of Australia

Plaintiff M70 is a decision by the High Court of Australia. The lawsuit concerned an injunction sought by multiple Afghan asylum seekers against immigration minister Chris Bowen. The injunction was to prevent Bowen from deporting the plaintiffs to Malaysia, pursuant to s198A of the Migration Act. The purpose of the deportation was to avoid their asylum application from being assessed by Australia.

Particular social group (PSG) is one of five categories that may be used to claim refugee status according to two key United Nations documents: the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees. The other four categories are race, religion, nationality, and political opinion. As the most ambiguous and open-ended of the categories, the PSG category has been the subject of considerable debate and controversy in refugee law. Note that just as with the other four categories, membership in a PSG is not sufficient grounds for being granted refugee status. Rather, to be granted refugee status, one must both demonstrate membership in one of the five categories and a nexus between that membership and persecution one is facing or risks facing.

The Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, also called the OAU Refugee Convention, or the 1969 Refugee Convention, is regional legal instrument governing refugee protection in Africa. It comprises 15 articles and was enacted in Addis Ababa on September 10, 1969, and entered into forced on June 20, 1974. It builds on the 1951 Refugee Convention and the 1967 Protocol and it has influenced the 1984 Cartagena Declaration and the 2009 Kampala Convention. The 1969 Refugee Convention's historical context is the era of decolonization, Apartheid, as well as internal political and military uprisings.

The Cartagena Declaration on Refugees, or just Cartagena Declaration, is a non-binding regional, i.e. Latin-American, instrument for the protection of refugees and was adopted in 1984 by delegates from 10 Latin-American countries: Belize, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama and Venezuela. The Declaration has since been incorporated into the national laws and state practices of 14 countries.

Immigration detention of refugee and asylum seeking children in Thailand violates the rights of children under international law. The undocumented migrant children are detained for indefinite and prolonged periods without proper access to legal support. Thailand is key transit route, host and final destination for refugees seeking asylum in southeast Asia and Australia. During the Universal Periodic Review (UPR) session in May 2016, various human rights issues including detention of refugee and asylum seeking children were reported. Currently, there are no effective alternatives to immigration detention and all sectors of population including children are subject to detention.

<span class="mw-page-title-main">Human rights in Portugal</span>

Portugal is generally considered as successful in upholding the civil liberties and protecting the human rights of its citizens. Portugal has proved to be determined in promoting and respecting human rights at an international and national level. The country's minister of Justice as of September 2018, Francisca Van Dunem, said that Portugal has had "a good track record" on human rights but violations still do persist.

References

  1. ↑ Koskenniemi, Martti (September 2002). "Fragmentation of International Law? Postmodern Anxieties". Leiden Journal of International Law. 15 (3): 553–579. doi:10.1017/S0922156502000262. S2CID   146783448.
  2. ↑ Yun, Seira (2014). "Breaking Imaginary Barriers: Obligations of Armed Non-State Actors Under General Human Rights Law – The Case of the Optional Protocol to the Convention on the Rights of the Child". Journal of International Humanitarian Legal Studies. 5 (1–2): 213–257. doi:10.1163/18781527-00501008. SSRN   2556825.
  3. ↑ "Convention relating to the Status of Refugees". United Nations High Commission for Refugees. 28 July 1951. Retrieved 26 April 2018.
  4. 1 2 Jastram, Kate; Achiron, Marilyn (2001). Refugee Protection: A Guide to International Refugee Law (PDF). UNHCR. ISBN   92-9142-101-4 . Retrieved 15 July 2010.
  5. 1 2 "Learn About the Refugee Application Process". USCIS. Retrieved 2018-03-15.
  6. ↑ Malkki, Liisa H. (1995). "Refugees and Exile: From "Refugee Studies" to the National Order of Things". Annual Review of Anthropology. 24 (1): 495–523. doi:10.1146/annurev.an.24.100195.002431. S2CID   146314135.
  7. ↑ "Refugee Children: Guidelines on Protection and Care" (PDF). Archived from the original (PDF) on 2018-04-28. Retrieved 2018-04-27.
  8. 1 2 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: https://www.refworld.org/docid/3ae6b38f0.html [accessed 10 May 2018].
  9. ↑ "Bangkok Principles on the Status and Treatment of Refugees" (PDF). Asian-African Legal Consultative Committee. 31 December 1966.
  10. ↑ United Nations General Assembly Session 22 Declaration on Territorial Asylum A/RES/2312(XXII) 14 December 1967.
  11. ↑ The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.
  12. ↑ Recommendation 773 (1976) on the Situation of de facto Refugee (PDF).
  13. ↑ International Colloquium in Commemoration of the Tenth Anniversary of the Cartagena Declaration on Refugees. "San José Declaration on Refugees and Displaced Persons".
  14. ↑ "Mexico Declaration and Plan of Action to Strengthen the International Protection of Refugees in Latin America" (PDF). Mexico City: Organization of American States. 16 November 2004.
  15. ↑ "Brazil Declaration: A Framework for Cooperation and Regional Solidarity to Strengthen the International Protection of Refugees, Displaced and Stateless Persons in Latin America and the Caribbean" (PDF). Brasilia. 3 December 2014.
  16. ↑ Human Rights Council Session 53 Resolution Conclusion on International Protection A/53/12/Add.1.
  17. ↑ 2001 Declaration by States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees )PDF).
  18. ↑ "Convention Plus". UNCHR .
  19. ↑ Directive 2011/95/EU of 13 December 2011 of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.
  20. ↑ "United Nations Official Document".
  21. ↑ "United Nations Treaty Collection". Archived from the original on 2014-02-11. Retrieved 2018-05-10.
  22. 1 2 3 4 5 6 ANKER, DEBORAH (1983). "The Development of U.S. Refugee Legislation". In Defense of the Alien. 6: 159–166. ISSN   0275-634X. JSTOR   23141064.
  23. 1 2 Jean Allain, The jus cogens Nature of non‐refoulement, International Journal of Refugee Law, Volume 13, Issue 4, October 2001, pp. 533–558, https://doi.org/10.1093/ijrl/13.4.533.
  24. 1 2 "Refugees". U.S. Citizenship and Immigration Services. Retrieved 2 April 2017.
  25. 1 2 "About Cash & Medical Assistance". Office of Refugee Resettlement. U.S. Department of Health & Human Services. Archived from the original on 3 April 2017. Retrieved 2 April 2017.
  26. ↑ "Refugee Admissions". United States Department of State. Retrieved 2021-12-18.
  27. ↑ "An Overview of U.S. Refugee Law and Policy". American Immigration Council. 2015-11-18. Retrieved 2021-12-18.
  28. ↑ "Non-Refoulement under the Trump Administration | ASIL". www.asil.org. Retrieved 2021-12-18.
  29. ↑ "Biden raises US refugee admissions cap to 62,500 after delay sparks anger". The Guardian. 2021-05-03. Retrieved 2021-12-18.
  30. ↑ United Nations High Commissioner for Refugees. "Refugee Status Determination". UNHCR. Retrieved 2018-03-16.
  31. ↑ "What Are Refugee Rights Under International Law?" (PDF). Lutheran Immigration and Refugee Service. Archived from the original (PDF) on 4 April 2017. Retrieved 2 April 2017.
  32. 1 2 Goldenziel, Jill (September 1, 2016). "The Curse of the Nation-State: Refugees, Migration, and Security in International Law" (PDF). Arizona State Law Journal. 48: 8. SSRN   2684903.
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