JAMR41-2018 Refugee Rights (A charitable wish list in times of crisis?)
Outline The concept of refugeehood 1951 Refugee Convention International Refugee Law and Human Rights Law Refugee Rights in times of crisis
Refugeehood Elements: - Crossing international borders; - Bond of trust, loyalty, protection, and assistance between the person and the country of nationality, has been severed; - Manifestation of this severed bond: persecution Various definitions in different jurisdictions: 1951 UN Convention on the Status of Refugees (CSR) 1969 Organization of African Unity Convention (OAU) 1984 Cartagena Declaration on Refugees
Convention relating to the Status of Refugees (CSR)
The 1951 Refugee Convention Definition of a refugee, refugee rights, exclusion from protection Designed to solve the post-wwii refugee crisis in Europe by creating a refugee status and attaching rights to it Limitations in Art. 1.A.2 eliminated in the 1967 Protocol on the Status of Refugees 148 states are parties either to the Convention or both the Convention and the Protocol UNHCR is accorded supervisory functions according to Art. 35 CSR
CSR and Protocol Article 1 DEFINITION OF THE TERM REFUGEE A. For the purposes of the present Convention, 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
Causal link (nexus) Persecution Grounds i.e. Arrest Detention Torture Rape Execution Race Religion Nationality Membership Political Opinion
Principle of non-refoulement Non-refoulement Article 33 CSR 1. 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. 2. 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
Non-penalization principle Article 31 CSR (refugees unlawfully in the country of refuge) 1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened ( ), enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary ( ) until their status in the country is regularized or they obtain admission into another country ( )
Refugee rights under the CSR Non discrimination (Article 3) The right not to be expelled (Article 32); The right not to be punished for illegal entry (Article 31); The right to work (Arts 17 to 19); The right to housing (Article 21); The right to education (Article 22); Freedom of religion (Article 4); Access the courts (Article 16); Freedom of movement within the territory (Article 26); The right to be issued identity and travel documents (Arts 27 and 28)
Progressive acquisition of refugee rights Levels of attachment: Subject to state s jurisdiction Physical presence Lawful precence Lawful stay Durable residence Jurisdiction In Lawfully in Lawful stay Durable stay
What s missing? No right to asylum as such No definition of persecution (IHRL) No reference to admission (procedures) and sharing of responsibilities No reference to internally displaced persons (IDPs) No individual complaints
Relevance of Human Rights Law Non refoulement (prohibition of torture): Art. 3 CAT / Art 3 ECHR / Art. 7 ICCPR Art. 5, 22 ACHR / Art. 12 ACHPR / 1969 OAU Convention 1984 Cartagena declaration / 2001 Bangkok Principles Right to asylum (regional level): Art. 2 1969 OAU Convention, Art. 22 American Convention on Human Rights, Art. 12(3) African Charter, Art. 18 EU Charter, 1984 Cartagena declaration, 2001 Bangkok Principles Lund University / Faculty of Law / PhD candidate Eleni Karageorgiou 2015/11/25
The refugee regime in times of crisis
Migration control v. refugee rights States have a sovereign right to control the entry and continued presence of non-nationals in their territory States have a right to grant asylum without this being interpreted as an unfriendly act by other states Refugees and asylum seekers have a right not to be returned to where they risk being subjected to persecution (non-refoulement) There is no binding individual right to asylum in international law, but a non-binding right to seek and enjoy asylum (Article 14 UDHR) Everyone has the right to leave any country, including his own, and to return to his country (UDHR, ICCPR etc.) Right to enter?
Refugee rights and the 2015/2016 crisis Current practices: Focus on border management and control rather than protection Protracted refugee situations Externalizing refugee protection to third countries Which essentially means that In theory: right to seek asylum in practice: deterrence In theory: right to live an independent life in practice: limbo In theory: collective duty to protect refugees in practice: responsibility shifting instead of responsibility sharing
Questions for discussion Is the 1951 Refugee Convention still relevant today? In what ways do recent migrant and refugee movements challenge the conception of a refugee under the Convention? Where does the problem lie according to the Migration Emergencies article? Do you find the argument convincing? Possible ways forward?
Thank you for your attention!