Seventh Annual Human Rights Law & Policy Conference

Refugee Protection around the World: Durable Solutions or Durable Suffering?

June 22, 2009Dorsey & Whitney, LLP

Session: International Refugee Law: An Overview

Presenter: Colleen Beebe, Esq., Director of Education, The Advocates for

Human Rights

Topics Covered

A. Legal foundations of refugee protection

B. Fundamental concepts of refugee protection

C. Refugee rights protectedD. History of refugee protectionE. Specific international instruments

and bodies established to protect refugees

F. Refugee protection definitions

“The refugee problem is in many respects an issue of human rights – of rights which have been violated, for which respect must be reinstated. Ultimately, the entire refugee experience, from forcible displacement, through the search for asylum, to the securing of a durable solution, is an important indication of the respect accorded to basic human rights principles worldwide. The by now extensive array of international human rights instruments, together with their monitoring mechanisms, offer important complementary tools for enhancing refugee protection.”

Executive Committee United Nations High Commissioner for Refugees

July 2003

Legal FoundationsA. Has origins in general principles of

human rightsB. Founded on treaty and customary

law obligationsC. Draws on principles and standards in

other international instruments or court processes in different jurisdictions

D. Guided by “soft law”1. Pronouncements and directives of

regional bodies such as the UNHCRMain source: International refugee protection 50 years on: The protection challenges of the past, present and future, by Erika Feller

Legal Foundations• 1948 - Universal Declaration of Human Rights• 1949 - Four Geneva Conventions on international

humanitarian law• 1951 - The Convention Relating to the Status of

Refugees• 1967 – United Nations Declarations on Territorial

Asylum• 1968 - Inter-American Convention on Human Rights• 1969 - Organization for African Unity Convention

Governing the Specific Aspects of Refugee Problems in Africa

• 1969 - International Convention on the Elimination of All Forms of Racial Discrimination

Legal Foundations• 1976 - International Covenant on Civil and Political Rights• 1976 - International Covenant on Economic, Social and

Cultural Rights• 1984 - Cartagena Declaration on Refugees• 1985 - Declaration on the Human Rights of Individuals

Who Are Not Nationals of the Country in Which They Live• 1987 - Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment of Punishment• 1990 - International Convention on the Protection of the

Rights of All Migrant Workers and Members of Their Families

• International Labor Organization conventions

Fundamental ConceptsA. Non-refoulementB. Non-discriminationC. International cooperationD. Expulsion is the exceptionE. Basic human rights must be

protected

Main source: International refugee protection 50 years on: The protection challenges of the past, present and future, by Erika Feller

Refugee Rights Protected

Under International Law• Religion• Access to courts

and legal assistance

• Rationing measures• Education• Public relief and

assistance• Labor legislation

and social security• Taxes and charges

• Property ownership• Protection of

intellectual property• Non-political and

non-profit association and trade unions

• Employment• Professions• Housing• Freedom of

movement

Under most circumstances, refugees must be treated equally or the same as citizens regarding:

History

A. 1920’s*1. 1921 – League of Nations appointed

Fridtjob Nansen as Refugee High Commissioner to help Russian refugees

2. 1924 – Mandate extended to Armenian refugees

3. 1928 – Mandate extended to Assyrian, Assyro-Chaldean and Turkish refugees. *no official definition for “refugee”

History

A. 1930’s*1. 1933 – League of Nations’

Convention relating to the International Status of Refugees

2. 1938 – Convention concerning the Status of Refugees coming from Germany

*no official definition for “refugee”

HistoryA. 1940’s

1. Pre and Post WWII – UN Relief and Rehabilitation Agency helped 7 million people

2. 1947 – International Refugee Organization (IRO) created to handle refugees in Europe in the aftermath of WWII

a. Resettled 1 million displaced Europeansb. Helped 73,000 repatriate

3. 1948 – Universal Declaration of Human Rights, Art. 14.1, “Everyone has the right to seek and to enjoy in other countries asylum from persecution”

HistoryA. 1950’s

1. 1950 – The UN adopted the United National High Commissioner for Refugees (UNHCR) statute (created by UN General Assembly in 1949)

2. 1951 – The UNHCR began working on Jan. 1, 1951

3. 1951 – The Convention Relating to the Status of Refugees (Refugee Convention) takes effect

UNHCRA. UNHCR Mandate:

1. To protect and find durable solutions for refugees and to facilitate the cooperation between States to protect refugees

2. The U.N. body that administers compliance with the Convention relating to the Status of Refugees.

The Refugee Convention

A. U.N. 1951 Convention relating to the Status of Refugees

1. Defines who is a refugee2. Sets out rights of refugees (i.e. refugee’s

right to be protected against forcible return or non-refoulement)

3. Establishes standards of treatment by receiving countries Limited to pre-1951 European refugees

4. States are obligated to cooperate with UNHCR under Article 35 of the 1951 Convention

Non-refoulement

A. Article 33(1) of the Refugee Convention states:

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.”

Definition of “Refugee”A. Under the Refugee Convention a

refugee is a person who 1. “[O]wing to a well-founded fear of being

persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,

2. [I]s outside the country of his or her nationality, and

3. [I]s unable to or, owing to such fear, is unwilling to avail himself or herself of the protection of that country or return there because there is fear of persecution.”

History

A. 1960’s1. The UNHCR started assisting refugees

who did not fit the Refugee Convention definition

a. Refugee issues that arose in Africa as a result of decolonization

2. 1967 – the 1967 Refugee Convention Protocol amended the convention

a. Removed time and geographic limitations3. 1967 – UN Declaration on Territorial

Asylum

History

A. 1969 -- Organization for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa

a. Broadened definition of “refugee” beyond victims of persecution to include victims of generalized conflict and violence

b. Recognized security implications of refugee flows

c. Promoted burden-sharing approach to refugee assistance and protection

History

A. OAU Convention Governing the Specific Aspects of Refugee Problems in Africa

“[t]he term refugee shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part of the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refugee in another place outside his country of origin or nationality.”

History A. 1970’s

1. Concepts of international solidarity and burden-sharing evolve

2. 1979 – International Conference on Refugees and Displaced Persons in Southeast Asia

a. SE Asian countries promise temporary asylumb. Vietnam promotes “orderly departure” vs.

illegal exitsc. 3rd countries agree to accelerate rate of

resettlementd. Countries agree to share burden to ensure the

continuing rescue of people at sea (i.e. “boat people”)

History A. 1980’s

1. 1984 - Cartagena Declaration on Refugees suggests expanding definition of “refugee” for use in the region (Central America, Mexico and Panama)

a. Includes definition of 1951 Convention and 1967 Protocol and adds

b. “Among refugees persons who have fled their country 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.” Para. III.3

Emerging and Immediate International Issues

A. 1980’s to present1. Number of refugees and types of conflict growing2. More restrictive asylum systems 3. Detention of asylum-seekers4. Increase of risks for refugee workers/humanitarian

workers 5. Growing hostility toward refugees and migrants

a. Reduced benefitsb. Reduced self-sufficiency possibilitiesc. Restricted family reunificationd. Increased risk

6. HIV/AIDS7. Human trafficking and smuggling is increasing8. Local integration and repatriation not viable solutions9. Protracted refugee situations

Main Sources

A. Erika Feller, International refugee protection 50 years on: The protection challenges of the past, present and future, IRRC September 2001, Vol. 83, No. 843.

B. Jastram, K. & Achiron, M. (2201), Chapter 1: The legal framework of the international refugee protection system, Refugee protection: A guide to international refugee law, 8-20. Retrieved from http://www.unhcr.org/refworld/docid/3cd6a8444.html