The article is written by Shreya Pandey from Banasthali University, Jaipur. The article analyzes the policies related to the protection of refugees.
Table of Contents
“All human beings are born free and equal in dignity and rights” is stated in the Universal Declaration of Human Rights, 1948 which means that every individual deserves freedom, respect, and peaceful life. The state must protect all the citizens of their country. The state has to protect the fundamental rights of all citizens without any discrimination. If they don’t do so, people may face serious protection threats at that level that they can even be compelled to leave the country and migrate to another to protect their rights and safeguard their lives. When a group of people move from one country to another to safeguard their lives and protect their rights and the other country gives them protection it is known as “international protection”. The term “refugee” is defined under Article 1 para 2 of the Refugee Convention, 1951.
The Refugee Convention, 1951 and its 1967 protocol are the international protection system that declares the rights of the refugees along with the regional treaties and declarations. These international documents can’t stand alone unless all the countries volunteer themselves to help and protect the refugees.
To protect the refugees, it is very important to know who are refugees and what their status is. The country helping the refugees and protecting them must understand the difference between a foreigner and a refugee. A foreigner is one who comes to another country for some purpose like trade, business, travelling, etc on his own without any compulsion. A refugee is one who has no other option than to leave his country to protect himself from the barbaric act of the people and government of that country. Once the status of the refugee is determined, the refugees must be given immediate protection for the long-term and the solution given to the refugees must be durable.
The United Nations High Commissioner for Refugees (UNHCR) provides for 3 durable solutions for the protection of the refugees:
- Voluntary repatriation means volunteer returning of refugees to their homes after checking the conditions of their own country. The returning is voluntary with the refugees’ free will. It is the most durable solution as the refugees are returned to their original country and they feel protected in their own homes.
- Local integration means residing permanently in the country of asylum. When there is no chance of refugees going back to their origin country then they settle permanently in that country which shelters them and protects their rights.
- Resettlement means the arrangement of the refugees is not only one country but to share the group of refugees in more than one country so that one country does not have to suffer the responsibility alone. Resettlement is a “burden-sharing” arrangement.
Conventions and Protocols related to refugees
1951 Convention and 1967 Protocol
The 1951 Convention relating to the status of refugees is one of the most important international refugee laws. It was enacted immediately after the second world war to protect the refugees of that time. The convention lays down a principle that refugees should not be forced to return to their original country where their rights and life are in threat. The convention also states the responsibility of states in protecting the refugees and duties of refugees in cooperating with the state. The 1967 Protocol removes the temporal and geographic limits found in the 1951 Convention. States that have ascended to both the convention and the protocol have agreed that both the treaties and conventions are the core for the protection of the refugee system.
The 1951 convention and 1967 protocol cover three main subjects:
- Definition of refugees, provisions of cessation of and exclusion from refugee status.
- The rights and obligations of refugees in the country giving shelter to them. It also includes the duties of the refugees to follow and respect the asylum country’s laws and regulations.
- The state is obliged to cooperate with UNHCR.
The following persons are considered as refugees under the 1951 Convention:
- Any person who has a well-founded fear of persecution based on his/her race, religion, nationality, membership of specific political opinion, or social group.
- Any person who is outside his/her origin country or his/her habitual residence.
- Any person who is not willing to return to his country of origin because of the fear of persecution activities against him/her.
- Any person who isn’t excluded explicitly from the refugee protection or a refugee’s status has not been varied by a change in circumstances.
When any person falls under any of the above-described categories, he/she is considered to be refugees.
OAU Convention, 1969
In the colonial-era, many refugee movements were started in Africa. Africa acceded the 1967 protocol and also drafted a 1969 Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa.
The 1969 Convention adds regional refugee definition in the definition specified in the 1951 Convention as:
- Any person is forced to leave his/her own country due to the “external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his or her country of origin or nationality”.
This convention states that the 1951 COnvention is “the basic and universal instrument relating to the status of refugees”. It states that giving shelter to the refugees is a humanitarian and peaceful act by the asylum country and the other Member States shall take such steps that the asylum State does not have to suffer the burden of responsibilities all alone.
1984 Cartagena Declaration
The 1984 Cartagena Declaration expands the definition of refugee defined under the 1951 Convention to include:
- Those people who left their countries of origin because their lives, safety, or freedom have been threatened through generalized violence, foreign aggression, internal conflicts, infringement of human rights, or other such circumstances which have gravely disturbed the public order.
Inspired by the OAU Convention, 1969 a collegium of government representatives and distinguished jurists adopted the Cartagena Declaration in Cartagena, Colombia. This declaration reaffirms the centrality of the 1951 Convention and the 1967 protocol and the international cooperation requirement for solving the refugee problems. This Declaration is not a legally binding instrument then also many many Central and South American countries have applied and incorporated its definition in their legislation. It is also endorsed by The Organization of American States (OAS), the UN General Assembly, and the Executive Committee of UNHCR.
Convention against torture
The Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment,1984 is a human rights instrument to safeguard refugees and asylum-seekers. It has an important place in international laws for refugees as it provides:
- Definition of torture and other forms of ill-treatment done on people and prohibits such activities because of which the application for protection is given by the refugees.
- It prohibits the forceful return of persons where there are chances that the refugees will be subjected to torture and danger.
- It does not restrict protection only to the refugees who have submitted their application on time but to those as well who have not been recognized as refugees formally due to missing the deadline or due to any other error.
- It does not allow for any derogation from the provisions for the protection of the refugees.
- A committee is established by the Convention to which people can file complaints relating to refugees protection from torture.
Convention on Right of Child
The Convention on Rights of Child, 1989 is ratified by almost all countries of the world because it includes within its ambit including asylum-seekers and refugees. This Convention is based on the following 4 principles:
- Article 2- Principle of non-discrimination
- Article 3- Principle of the best interest of a child
- Article 6- Right to life and survival and development
- Article 12- Right to be heard (Audi alteram partem)
The Convention includes provisions relating to:
- Protection against abuse, exploitation, neglection; physical and intellectual development
- Right to adequate food, education, the highest attainable standard of health.
- Right not to be separated from his/her parents against their will expect in such situations for the best interest of the child, family reunification, and if the child is separated from his or her parents then the State must provide special protection and assistance to the child.
- If the child is a refugee then he or she must be given appropriate protection and assistance.
Roles and Responsibilities in protecting refugees
Every State and UNHCR has an important role to play in the protection of the refugees. States should collectively and individually work upon helping and protecting refugees by providing shelter to the refugees and assisting the asylum states. Each State shall also respect the human rights of all individuals and work based on humanitarian principles. It is the mandate of UNHCR to give international protection to the refugees and provide solutions for the problems of the refugees.
- The State must find out the main reason for the forced displacement of people from their own country.
- It must strengthen its laws for providing security, peace, and equal opportunities to all its people to prevent violence, abuse, and discrimination.
- It must protect the refugees on their territory according to the instructions given under the 1951 Convention and 1967 Protocol if they have acceded to them.
- It has to undertake some additional responsibilities toward the refugees based on their sex, age, disability, or any other factor.
- Special assistance and protection shall be given to children, women, girls, persons with disabilities, and other persons with special needs.
- It must establish and strengthen a secure environment for the refugees especially for women, children, and girls to settle in the asylum country.
It is the subsidiary organ of the UN General Assembly which was established on 1 January 1951. It provides for international protection to the refugees and thrives to find solutions for the problems of the refugees. The Statute of the Office of the United Nations High Commissioner for Refugees was adopted by the UN General Assembly in 1950 provides that the work of UNHCR is non-political, humanitarian, and social. It encourages States to provide shelter to the refugees, to bring out the information of the refugees from the government, and state laws and regulations relating to refugees to be strengthened. The UNHCR also looks upon those refugees’ conditions who have voluntarily returned to their State of origin, stateless people, and internally displaced persons. The UNHCR has developed from a small, specialized agency to an organization. Its offices are established in more than 120 countries. The mandate of the UNHCR was to be renewed every three years by the UN General Assembly until 2003, but in 2003, the General Assembly extended its mandate that UNHCR shall function until the refugee problem is solved.
A refugee’s condition is very vulnerable. He needs urgent care and protection for safeguarding his life. Each State must establish such an environment that no person feels discriminated against or threatened for life so that he is forced to leave his native State. Any person becomes refugee only if the circumstances were so worse that they can not survive in such circumstances. Therefore, to reduce refugee rates the States plays the key role. In two ways the refugee rates can be reduced:
- Provide a safe and secure environment for people in their country without any discrimination.
- To extend helping hands for the stateless people and refugees or asylum-seekers.
Refugees must be treated with care and attention with humanitarian principles so that they do not feel inferior or worthless. Each individual deserves respect and a secure and safe environment to grow, prosper, and develop. UNHCR along with the Member States shall help the refugees with all possible measures and provide special assistance to the women, girls, children, persons with disabilities, and persons who have certain other needs.
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