The problem of the world’s refugees and internally displaced persons is one of the most complex issues facing the world community today. Much discussion is taking place, both at the UN and in other fora, to improve protection for these particularly vulnerable groups.
Throughout history, people have fled their homes to escape persecution. In the aftermath of the Second World War, the international community included the right to seek and enjoy asylum in the Universal Declaration of Human Rights (Article 14). In 1950, the Office of the United Nations High Commissioner for Refugees (UNHCR) was created to protect and assist refugees, and, in 1951, the UN adopted the Convention Relating to the Status of Refugees (1951 Convention), which is the cornerstone document of refugee protection. In addition, the Protocol relating to the Status of Refugees (the 1967 Protocol) helped widen the definition of a refugee, as it lifted the time and geographic limits found in the 1951 Convention.
While the international community has generally responded swiftly and generously to refugee crises in the past 60 years, some worrying trends are emerging. Countries that once generously opened their doors to refugees have largely regressed in their commitment to protect refugees by adopting adversarial and restrictive policies. Real and perceived abuses of asylum systems, as well as irregular movements, have led to the refusal of entry to refugees and expulsion from asylum countries. Those who reach a potential country of asylum are often turned away or sent back without having been able to apply for asylum.
The majority of today’s refugees are from Africa and Asia. Current refugee movements frequently take the form of mass exoduses rather than individual flights. Eighty per cent of today’s refugees are women and children and the causes of flight now include natural or ecological disasters and extreme poverty. As a result, many of today’s refugees do not fit the definition contained in the 1951 Convention. In 2008, there were an estimated 14.9 million refugees in the world - people who had crossed an international border to seek safety - and at least 22 million internally displaced persons (IDPs) who had been uprooted within their own countries (see IV§4).
WHO IS A REFUGEE?
According to the 1951 Convention relating to the Status of Refugees, a refugee is someone who:
-Has a well-founded fear of persecution because of his/her
Membership in a particular group, or
- Is outside his/her country of origin; and
- Is unable or unwilling to avail him/herself of the protection of that country, or to return there, for fear of persecution.
The African Union Convention Governing the Specific Aspects of Refugee Problems in Africa, a regional treaty adopted in 1969, added to the definition found in the 1951 Convention to include a more objectively based consideration, namely:
Any person compelled to leave his/her country owing to external aggression, occupation, foreign domination or event seriously disturbing public order in either part or whole of his/her country of origin or nationality. (Article 1(2)).
In 1984, a colloquium of Latin American Government representatives and jurists adopted the Cartagena Declaration on Refugees. Like the AU Convention, the declaration adds a more objectively based consideration to the 1951 Convention refugee definition to include:
Persons who flee their countries ‘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’. (Conclusion 3).
The 1951 Refugee Convention, as amended by the 1967 Protocol, is the most important international instrument protecting the rights of refugees. According to Article 1(a) of the Convention, a refugee is:
[A]ny 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, is unable or, owing to such fear, is unwilling to return to it.
The 1951 Convention specifies who is a refugee (see textbox), and what rights a refugee has. In Article 33, the principle of non-refoulement is established. This principle forbids states to expel or return a refugee, in any manner whatsoever, to the frontiers of territories where his/her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. The non-refoulement principle also encompasses non-rejection at the border and can oblige a state to accept a person on its territory. It does not oblige a state to grant the person asylum. The refugee may be expelled to another state where his/her life and freedom will not be in danger, provided that state is prepared to admit him/ her. Granting of asylum may, however, be the result of non-refoulement, if no other state is prepared to admit the refugee.
The 1951 Convention also includes ‘exclusion clauses’, which stem from the understanding that the commission of some types of crimes justifies the exclusion of the perpetrators from the benefits of refugee status. Under Article 1(F), refugee status under the 1951 Convention does not apply to persons with regard to whom there are ‘serious reasons’ for considering they have committed the following crimes: a) Crimes against peace, war crimes and crimes against humanity; b) Serious non-political acts; and c) Acts contrary to the purposes and principles of the United Nations. Thus, if one of the exclusion clauses applies, the claimant cannot be a Convention refugee, whatever the other merits of his or her claim.
Often the recognition as refugee on the basis of Article 1(A) of the 1951 Convention will coincide with the granting of asylum, according to national law. In general, asylum will not be granted if the person concerned can enjoy protection elsewhere, or if there are compelling reasons of public order not to admit her/him. Although the definition of refugee in Article 1(A) of the 1951 Convention is formulated in a general way and can therefore be applied broadly, it is limited by the fact that the well-founded fear of persecution must be based on the five grounds mentioned in Article 1(A). However, there can be situations in which it would be inhumane to return someone who does not fulfil the criteria for refugee status under the Refugee Convention. This can be the result of general circumstances in the country of origin such as, for example, war and hunger. It can also be related to individual circumstances such as the risk of torture or cruel, inhuman or degrading treatment or punishment upon return. Granting of asylum may therefore imply both admission as refugee on the basis of the 1951 Convention and permission to stay on humanitarian grounds.
In addition to the 1951 Convention and the 1967 Protocol, two regional instruments have been adopted expanding the definition found in the 1951 Convention, the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) and the Cartagena Declaration on Refugees (1984).
In addition to international and regional refugee Conventions, international human rights law and international humanitarian law play a significant role in guaranteeing international protection of refugees.
Article 7 ICCPR has been interpreted to prohibit return to situations where the person might suffer torture or other cruel, inhuman and degrading treatment or punishment. Moreover, nearly all of ICCPR’s provisions apply to both citizens and non-citizens.
Article 3 CAT provides for protection from refoulement in situations where there is a substantial risk of torture. The non-refoulement provision under CAT is absolute. Unlike the non-refoulement provision of the 1951 Convention, it is not linked to cases where a person fears harm on account of race, religion, nationality, membership of a particular social group, or political opinion and it does not provide for exceptions based on national security. This means that the prohibition of return applies to all persons regardless of their past criminal conduct.
CRC applies to all children without discrimination, including child refugees and asylum seekers. CRC specifically stipulates that every child seeking refugee status has a right to protection and humanitarian assistance in the enjoyment of the rights set forth in the Convention, as well as other Conventions to which the state is party.
The Convention for the Protection of All Persons from Enforced Disappearance sets out non-refoulement where there are substantial grounds for believing that a person would be in danger of being subjected to enforced disappearance (Article 16; the Convention has not entered into force in March 2009).
Regional human rights Conventions also establish important safeguards for refugees. For example, Article 3 ECHR has been interpreted by the European Court to prohibit the return of persons where there is a risk of torture while Article 22(7) ACHR recognises ‘the right to seek and be granted asylum’ and Article 22(8) prohibits refoulement, a prohibition which is formulated in absolute terms.
In humanitarian law, Article 44 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War deals specifically with refugees and displaced persons. Moreover, the 1977 Additional Protocol provides that refugees and stateless persons are to be protected under the provisions of Parts I and III of the Fourth Geneva Convention.
In 1950 the General Assembly adopted the Statute of the UNHCR, which mandated the organisation to provide international protection to refugees and to find durable solutions to refugee problems. These functions include securing legal and practical protection to refugees with and through governments, overseeing the mobilisation and co-ordination of resources for the well-being and survival of refugees and Encouraging conditions in conflict zones that will allow refugees to return voluntarily to their countries of origin. Both the 1951 Convention (Article 35) and its 1967 Protocol (Article II) bestow upon UNHCR responsibility for supervising implementation by states. The Convention and Protocol specifically establish the obligation of states to provide UNHCR with information on the condition of refugees, implementation of the Convention and Protocol and relevant national law. These instruments do not, however, provide for individual complaints or a state reporting procedure. In addition to providing protection to refugees, UNHCR’s mandate has been expanded to include persons in refugee-like situations, internally displaced persons, stateless persons, and returnees (refugees who have returned to their own countries).
At the international level, UNHCR promotes accession by states to international agreements relating to refugees and monitors government compliance with international refugee law. To this end, the Global Consultations on International Protection were launched in 2001. The Consultations are aimed at promoting improved understanding of the 1951 Convention, its strengths, limitations and potential. The process was designed along three tracks: a) Ministerial Meetings of states parties to the Convention; b) Roundtable meetings with experts; and c) Policy formulation in the framework of the Executive Committee (ExCom). These consultations resulted in the establishment of the Agenda for Protection, a series of guidelines for UNHCR, governments and humanitarian organisations to strengthen worldwide refugee protection. The ExCom’s Standing Committee meets several times each year to advise on international protection and discuss a wide range of other issues with UNHCR and its intergovernmental and non-governmental partners.
In the field, UNHCR staff work to protect refugees through a wide range of activities, including emergency response; relocating refugee camps away from border areas to improve safety; ensuring that refugee women have access to food distribution and social services; reuniting separated families; providing information to refugees on conditions in their home country so that they can make decisions about return; documenting a refugee’s need for resettlement to a third country of asylum; visiting detention centres; and giving advice to governments on draft refugee laws, policies and practices.
UNHCR seeks long-term and durable solutions to refugee problems by helping refugees return voluntarily to their home countries if the situation allows it; monitoring the treatment and promoting the reintegration of returnees after repatriation has taken place; helping refugees integrate in their countries of asylum; and resettling refugees to third countries when needed.
Given the general nature of UNHCR’s supervisory role, international human rights supervisory mechanisms have also played a key role in protecting the rights of refugees and asylum seekers. Both the Committee Against Torture and the Human Rights Committee constitute crucial safeguards for refugees and asylum seekers in danger of being returned to face torture or cruel, inhuman or degrading treatment or punishment. Under its individual complaint procedure, the Committee Against Torture has developed a broad jurisprudence concerning the principle of non-refoulement under Article 3 CAT and has provided important protection to refugees and asylum seekers who risked being deported to countries where they would be exposed to torture.
The Committee on Economic, Social and Cultural Rights and the CEDAW, CRC and CERD Committees have all played an important role in refugee protection by raising issues relating to refugees when examining state reports.
The European Court has found obligations of parties to the European Convention relating to refugees and other non-nationals in a series of judgements on private and family life, the right to an effective remedy and, perhaps most importantly, the prohibition of return when there is a risk of torture.
Similarly, at the Inter-American level, the Court and, in particular, the Commission have played an important role in the protection of the human rights of refugees and other non-nationals through examination of individual cases, provisional and precautionary measures, and examination of refugee problems in the annual and country reports of the Commission. For examples of case-law related to the principle of non-refoulement see Part III§3.