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International Legal Framework

By definition, refugees are on the fringes of domestic and international legal systems. Over the past six decades, an international legal framework, anchored in the U.N.’s 1951 Convention Relating to the Status of Refugees, has developed to give them at least some protection

At a special United Nations conference on July 28, 1951, the world body approved the landmark Convention Relating to the Status of Refugees. The importance of that multilateral agreement, also known as the 1951 Refugee Convention, cannot be underestimated.

Spurred by the unheralded displacement of 60 million people during World War II, it laid out the underlying architecture for the international protection of refugees, including the rights of people granted asylum and the responsibilities of nations that grant asylum. It also notably stated which people would not qualify as refugees, such as war criminals.

It had been a long time coming.

There have, of course, been refugees as long as mankind has waged war. But, as former UNHCR assistant high commissioner for protection Erika Feller noted in an article on “The Evolution of the International Refugee Protection Regime” in the Journal of Law and Policy in 2001, the first real awareness that the international community needed to create a system to protect refugees emerged only in 1921, with the League of Nations and the election of Dr. Fridtjof Nansen as the first high commissioner for Russian refugees.

As Europe’s refugee problems continued to grow in tandem with the remnants of the Great War and smaller regional conflicts, the League of Nations and its successor the United Nations tried unsuccessfully over the next three decades to create a lasting institution to handle the issue, Feller noted.

When the last of these – the International Refugee Organization, which was mandated specifically to manage the refugee crisis in Europe after World War II – petered out after several years, a consensus emerged that the world needed more than a European-focused institution: It needed a multilateral legal system to, as Feller noted, “address every aspect of the refugee problem from registration and determination of status, to repatriation, resettlement and legal and political protection.”

An enduring institution – the Office of the United Nations High Commissioner for Refugees (UNHCR) ­– was created in 1950.

There was still the pressing question of a multilateral legal framework, however. The 1951 Refugee Convention and its subsequent 1967 Protocol, which have been signed by 142 states, were the answers. And to this day, they remain the main architecture for the protection of refugees globally.

The inspiration for the convention was drawn largely from the International Bill of Human Rights, which in turn comprised the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Over the years, other laws and conventions have been added to the legal framework surrounding the protection of refugees. Below we take a look at the basics of the current framework.

Definition

Who is a refugee? The 1951 Convention defines a refugee as any person who is outside his/her country of origin or habitual residence and is unable to return due to a well-founded fear of persecution on the basis of race, religion, nationality, political opinion or membership of a particular social group. The convention was originally restricted to people fleeing events in Europe before 1951. But the 1967 Protocol removed these temporal and geographical limitations and provided the convention with a global scope and an unlimited time frame.

Recognition

Under international law, any person who has crossed a border is technically considered an asylum seeker. When a country receives an asylum seeker, either the government – which has the primary responsibility of registering and recognizing refugees – or the UNCHR – in cases where the host country is unwilling or unable to conduct status determination – will decide the status of the applicant. This involves an interview to determine the reasons why a person has fled and is seeking international protection.

A person’s right to seek asylum stems from Article 14 of the Universal Declaration of Human Rights. It is common to think of refugees as victims of war and conflict, but the declaration states that they must be viewed through a wider lens – as members of the international community whose fundamental rights are at risk, often due to discrimination, and who are unable to seek the protection of their own government. For example, stateless individuals can also be recognized as refugees. The various legal instruments created as a response of the international community to uphold human rights globally are designed to protect the most vulnerable members of our societies.

Exclusion

The criteria of exclusion are set out in the 1951 Convention and include anyone who has committed a war crime or a serious non-political crime outside the country of asylum – for example, murder – and anyone who has committed acts contrary to the values and principles of the U.N. Such individuals may be judged to be “not deserving of international protection.”

Loss of Status

A refugee may lose status if he/she is found to have lied or misrepresented facts during initial assessments. Alternatively, the person may commit a criminal act in the country of asylum that results in revocation of status. This individual would then face the domestic criminal legal consequences.

Non-refoulement

One of the critical rules of international human rights law is that of non-refoulement. This means that no person should be forced to return to a place where he/she is at risk of persecution. Such a return constitutes a violation of their basic human rights. This is a rule of customary international law and cannot be breached under any circumstances. The International Court of Justice (ICJ) defines customary international law as “evidence of a general practice accepted as law.” Custom is considered by the ICJ, jurists, the United Nations and its member states to be among the primary sources of international law.

Reservations to Conventions

Countries can choose to sign and ratify the 1951 Convention and 1967 Protocol. State parties choosing to adhere to the convention and/or protocol are allowed to exercise reservations to some articles. Greece, for example, is a signatory of the 1951 Convention but exercises reservations to Article 26 outlining a refugee’s right to freedom of movement. As a rule of thumb, only reservations that do no conflict with fundamental rights – such as freedom of religion – are allowed.

Regional Instruments

At the regional level there are several legal instruments protecting refugees: the 1969 African Union Convention; the 1984 Cartagena Declaration; and the common asylum system in the European Union. The first two grew out of the principles of the 1951 Convention but customized specific laws related to the “exigencies of conflicts” emerging from the liberation movements in Africa and Central/South America. As such, the definition of refugees in these regional instruments espouses the 1951 Convention, while expanding to include all those fleeing generalized violence.

Durable Solutions

In principle, the most pressing goals of host governments and the UNHCR should be to find long-term, sustainable solutions for refugees. Currently, there are generally considered to be three solutions: voluntary repatriation, local integration and resettlement.

Most host countries require that refugees be recognized under the 1951 Convention to qualify for resettlement. The restrictive nature of the convention inevitably limits the numbers of those who are admitted. If the circumstances in the country of origin change significantly for the better, the possibility of safe return of refugees and asylum seekers may be assessed. In this case, the UNHCR would apply a principle of “cessation” and assist refugees to voluntarily return home, provided the agency is certain that such return can take place while fully upholding the “safety and dignity for the refugee.”

Where possible, if the conditions are conducive and host governments agree, refugees can be integrated locally into host communities and placed on a pathway to citizenship. As an example, in 2015 Tanzania naturalized around 162,000 Burundian refugees who had been in the country since the early 1970s. Naturalization, followed by social and economic integration, is the best-case scenario for asylum seekers from countries experiencing protracted refugee crises, who might otherwise remain stranded indefinitely and without guarantee of a safe return.

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