International Refugee Law

Traditional refugee definition of the 1951 Convention on the Status of Refugees vs. regional definitions:

       Nowadays, we are witnessing the biggest refugee crisis after World War II. Therefore, the understanding of the definition of a refugee is primordial to face this crisis. There are some differences between the traditional refugee definition from the 1951 Convention and regional definitions from the 1969 OAU Convention and the 1984 Cartagena Declaration. The internationally accepted definition of a refugee comes with its flaws. It has been inefficient in dealing with externally displaced people in the Third World, especially in Africa and Central America. This is the main reason why broader definitions have been given to refugees.

          As a matter of fact, the 1969 OAU Convention is the first to have a refugee definition that steers away from persecutory conduct towards a more generalized and objective one. In a period where self-determination and national development was at its peak, a broader definition was adopted by African nations. It applies to all persons within the jurisdiction of a State Party and not limited to persons whose country of origin or nationality in Africa. Adding to this, it was acknowledged that not only state actors and non-state actors could be held responsible for a refugee being forced to flee his country, but also “government’s loss of authority or control due to external aggression, occupation, foreign domination or event seriously disturbing public order.”

           Following this, the 1984 Cartagena Declaration put an emphasis on a humanitarian and pragmatic aspect in response to the movements of people from conflict and other situations threatening people’s life, security, and freedom. It reaffirmed the humanitarian nature of asylum and the principle of non-refoulment. Therefore, it includes people who have fled their country because of threats posed by generalized violence such as “foreign aggression, internal conflicts, massive violation of human rights, or other circumstances which have seriously disturbed public order.”

       As a whole, both definitions have extended the scope of the refugee definition, making it broader. It includes more people and focuses more on the humanitarian aspect. It became more a protection instrument than was the traditional one.

Refugee status and protection of Human Rights:

         Refugee status is related to the protection of human rights as once an applicant is granted refugee status she/he enjoys basic human rights, according to UNHCR: “Governments normally guarantee the basic human rights and physical security of citizens.” Indeed, granting the refugee status guarantees higher protection of refugees’

human rights begin with “securing their admission to a safe country, the grant of asylum and ensuring respect for their fundamental human rights, including the right not to be forcibly returned to a country where their safety or survival are threatened.”

       In the 1951 Convention, the preamble reaffirms principles of International Human Rights law, therefore connecting it to refugee protection and status. As a matter of fact, International Human Rights law applies to all people in a State (citizens or not) and is central to the concept of international protection and asylum as refugees seek safety from Human Rights violations. It is not only part of Treaty Law but also Customary International Law (by state practice and opinio juris), which makes International Human Rights Law binding on all States. Refugee status and International Human Rights Law are therefore complementary since there is a strong connection between both.

Gender as a specific persecution ground in the traditional definition of a refugee:

           It is indeed necessary to incorporate gender as a specific persecution ground in the traditional definition of a refugee. According to the UNHCR, there has been a lot of progress in recent years regarding the recognition of gender-related status. However, the meaning of Article 1A(2) is subject to interpretations, depending on the State. There has been a focus on female migrants and an emphasis on their treatment as they are considered more vulnerable. Nowadays, there should also be a more inclusive definition towards members of the LGBTQ community. In many parts of the world, under Article 1A(2) of the 1951 Convention brought awareness regarding individuals fleeing their countries because of their sexual orientation. However, the application of the definition of a refugee is still inconsistent in this area.

         In many countries, especially under Shariah Law, but also in places such as Chechnya, homosexuals are punished by law and sentenced to prison for months, if not years. They are abused and tortured by authorities. Adding to this, they usually also receive mistreatments from their community and family because of negative social stigma in place. Therefore, there should be an emphasis on working towards a more inclusive definition of refugee, adding to it the gender aspect as in the case of homosexuals, they fall within the scope of the refugee definition. The existing and accepted definition is also excluding other extremely vulnerable groups such as children or indigenous people.

Global Compact on Refugees on the international protection regime:

         Back in 2016, all Member States of the United Nations agreed that it is an international obligation to protect all asylum seekers, refugees, and host countries, through the New York Declaration for Refugees and Migrants. It gave UNHCR additional responsibility built upon the Comprehensive Refugee Response Framework (CRRF). Since then, “UNHCR has been engaged in consultations with governments and other stakeholders to develop the compact, and the High Commissioner will propose the text of the global compact on refugees in his 2018 annual report to the General Assembly.”

           This initiative is without any doubt strengthening the international response to a global crisis we are witnessing today. We have observed large movements from every corner of the globe towards the most developed countries (Europe, U.S.A, Canada). The four objectives are as follows: ease the pressures on host countries; enhance refugee self-reliance; expand access to third-country solutions; Support conditions in countries of origin for return in safety and dignity. The Global Compact on Refugees is a first step towards the safest world for refugees and migrants, as it gives them additional protection. Focusing on host countries is also key to improving refugees’ situation. However, it feels like it is only a short-term solution.

             As a matter of fact, many countries are not working towards a long-term solution in welcoming refugees. For several countries, there is a focus on short-term solutions as refugees or migrants are only transiting. In my personal belief, the Global Compact is more theory than practice. There are also many stereotypes according to which refugees are dangerous people, that will steal jobs, become drug traffickers, or spread diseases. Refugees should first be accepted by societies and for this to happen, people should be documented on the topic. Also, each country’s sovereignty will always prevail. Therefore, not all UN Member States will apply the Global Compact to the word. We can see now in the US. that there are more restrictions on migration policies, which is putting many refugees and migrants at risk, especially those coming from the other side of the world (Asia, Africa) and crossing Latin America and Central America before heading towards the US, in the hope of a better life.

 

 


 

References

  • Arboleda, E. (1991). Refugee definition in Africa and Latin America: The lessons of pragmatism. International Journal of Refugee Law, 3(2), 185-207. Oxford, United Kingdom: Oxford University Press
  • Edward, A. UNHCR. Age and gender dimensions in international refugee law. UNHCR. (2008, November 21). UNHCR Guidance Note on Refugee Claims Relation to Sexual Orientation and Gender Identity.
  • UNHCR. (2007, May 22). UNHCR Guidelines on International Protection: Gender- Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees.
  • UNHCR. Chapter 2: The Legal Framework for International Protection and its Implementation. An Introduction to International Protection.
  • UNHCR. (2018). Towards a Global Compact on Refugees. Retrieved from UNHCR Official Website.

 

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