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International  law protect refugee
International  law protect refugee
International  law protect refugee
International  law protect refugee
International  law protect refugee
International  law protect refugee
International  law protect refugee
International  law protect refugee
International  law protect refugee
International  law protect refugee
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International law protect refugee


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Sayef Amin …

Sayef Amin
Student of Southeast University

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  • 1. Dept. of Law & Justice LLB(Hons)- Program Course Title: International Refugee Law Course Code: LLBH 4212 Assignment On –“60 Years of the Refugee Protection under International Law” 1
  • 2. International law Protect Refugee:International refugee law is a set of rules and procedures that aims to protect,first, persons seeking asylum from persecution, and second those recognized asrefugees under the relevant instruments. Its legal framework provides a distinct setof guarantees for these specific groups of persons, although, inevitably, this legalprotection overlaps to a certain extent with international human rights law as wellas the legal regime applicable to armed conflicts under international humanitarianlaw.The main sources of refugee law are treaty law, notably the 1951 Conventionrelating to the status of refugees (1951 Refugee Convention) and its 1967 Protocol,and customary international law. Customary international law applies to all statesirrespective of whether they are a party to relevant treaties or not. Regionalinstruments represent a further set of protections, particularly the 1969Organization of African Unity Convention (for Africa) and, although it is notformally legally binding, the 1984 Cartagena Declaration (for Latin America).The Definition of a Refugee:International legal protection of refugees centres on a person meeting the criteriafor refugee status as laid down in the 1951 Refugee Convention. Under Article1(A)2, 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 outsidethe country of his nationality and is unable or, owing to such fear, is unwilling toavail himself of the protection of that country; or who, not having a nationality andbeing outside the country of his former habitual residence as a result of suchevents, is unable or, owing to such fear, is unwilling to return to it.”Thus, according to this provision, refugees are defined by three basiccharacteristics:  they are outside their country of origin or outside the country of their former habitual residence;  they are unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of being persecuted; and  the persecution feared is based on at least one of five grounds: race, religion, nationality, membership of a particular social group, or political opinion. 2
  • 3. It is important to stress that the term “asylum seekers” refers to persons, who haveapplied for asylum, but whose refugee status has not yet beendetermined.The principle of “non-refoulement”The obligation exists under Article 33 of the 1951 Refugee Convention not toreturn a refugee to a country of territory where he/she would be at risk ofpersecution:“No Contracting State shall expel or return (“refouler”) a refugee in any mannerwhatsoever to the frontiers of territories where his life or freedom would bethreatened on account of his race, religion, nationality, membership of a particularsocial group or political opinion.”This is known as the principle of non-refoulement, which is considered part ofcustomary international law and therefore binding on all states. The principle isalso incorporated in several international human rights treaties, for example the1984 Convention against Torture, which prohibits the forcible removal of personsto a country where there is a real risk of torture.Internally displaced persons:Internally displaced persons (IDPs) are defined in the 1998 Guiding Principles onInternal Displacement as “persons or groups of persons who have been forced orobliged to flee or to leave their homes or places of habitual residence, in particularas a result of or in order to avoid the effects of armed conflict, situations ofgeneralized violence, violations of human rights or natural or human-madedisasters, and who have not crossed an internationally recognized State border”.Internally displaced persons, who now constitute some 22 million persons, arepersons whose situation is similar to that of refugees. However, there are severaldifferences between IDPs and refugees. First, IDPs are not the subject of a treatyadopted at the universal level, although the Guiding Principles are based onbinding international human rights and humanitarian law. Second, as opposed torefugees, IDPs have not crossed an international border from their country oforigin. Third, the definition of IDPs in the Guiding Principles is significantlybroader than the refugee definition, including those displaced by armed conflict,human rights violations and natural disasters, while the refugee definition is 3
  • 4. restricted to those with a well-founded fear of being persecuted on at least one offive grounds.Overview after 60 Years:The 1951 Convention relating to the Status of Refugees is now over 50 years old.What impact has this instrument had on resolving refugee problems and howeffective has it been as the principal standard for the international protection ofrefugees? Although the total refugee and asylum-seeking population have dippedsince the early 1990s, over 30 million “persons of concern to the UN HighCommissioner for Refugees” can still be counted in the world today. Moreover,debates continue regarding the nature of the protection that refugees should begranted, the role of the international community, and the obligations of receivingcountries towards refugees.This guide directs readers to some of the key texts and resources available on theWeb that can help shed light on, and provide a context for, many of the issuescurrently being deliberated in the refugee law arena.International Instruments:Two principal conventions govern international refugee law matters: the 1951Convention relating to the Status of Refugees, and its 1967 Protocol. TheConvention sets out the rights of refugees and the standards for their treatment inthe countries that receive them. It defines "refugee" in Article 1A(2) as,Any person who…owing to well-founded fear of being persecuted for reasons ofrace, religion, nationality, membership of a particular social group or politicalopinion, is outside the country of his [or her] nationality and is unable or, owing tosuch fear, is unwilling to avail himself [or herself] of the protection of thatcountry… .Because the definition requires that a person be outside his or her country, iteffectively excludes internally displaced persons from receiving internationalprotection. Moreover, because it focuses on individualized persecution, it does notrecognize situations of generalized violence (such as wars), natural disasters, andlarge-scale development projects as legitimate causes of flight. 4
  • 5. The Protocol was drafted to remove the geographic and time limitations of theearlier instrument, the incorporation of which reflected the post-World War 2context in which the Convention was framed. Otherwise, it retains the samelanguage as that used in the Convention.It is important to note that neither instrument makes any direct reference to theconcept of asylum; lawful admission, and the conditions under which it is granted,remains the discretion of States. Instead, the Convention provides for the principleof non-refoulement, found in Article 33, which stipulates that "No ContractingState shall expel or return (refouler) a refugee in any manner whatsoever toterritories where his (or her) life or freedom would be threatened.”UNHCR is the principal UN agency mandated to provide assistance andinternational protection to refugees and other persons of concern, and to findsolutions to their plight. Traditionally, these solutions have taken the form ofasylum, resettlement, and voluntary repatriation. UNHCRs Statute includes a verysimilar definition of "refugee" as the 1951 Convention. However, over time,UNHCRs mandate has been expanded by the UN General Assembly andEconomic and Social Council to cover other groups in "refugee-like" situationsthat normally would not fall within the offices competence (including someinternally displaced persons). UNHCRs Department of International Protectionpublishes a variety of materials that provides guidance on and analysis of legalissues relating to refugees and asylum.Overview of forced displacement by International Law: The 1951 Convention relating to the Status of Refugees is the key legal documentin defining who is a refugee, their rights and the legal obligations of governments.According to Article 1 of that Convention, a refugee is someone who has fled hisor her country “owing to well-founded fear of being persecuted for reasons of race,religion, nationality, membership of a particular social group or political opinion.”Millions Uprooted:There are currently some 43 million uprooted victims of conflict and persecutionworldwide. More than 15 million of them are refugees who have fled theircountries, while another 27 million are people who remain displaced by conflictinside their own homelands -- so-called “internally displaced people”. 5
  • 6. International law has long made a distinction between refugees, who have crosseda state border and are protected by the 1951 Convention, and the internallydisplaced, who are not. In terms of their needs and vulnerabilities, however, theeffects of their forced displacement may be similar: they face loss of their home,their livelihood, their community. Regardless of whether they have crossed aborder or not, they deserve help. And with internally displaced people todayoutnumbering refugees by nearly two to one, the needs are greater than ever.For the past six decades, two United Nations agencies, the UN High Commissionerfor Refugees (UNHCR) and the UN Relief and Works Agency for PalestineRefugees in the Near East (UNRWA), have been responsible for safeguarding therights and well-being of refugees. UNHCR currently cares for 10.4 millionrefugees worldwide, while UNRWA helps some 4.8 million registered Palestinerefugees in Jordan, Lebanon, Syria and the occupied Palestinian territory.But until recently, growing numbers of conflict-generated internally displacedpeople often fell through the cracks. While primary responsibility for the internallydisplaced has always rested with their governments, often those states are eitherunable or unwilling to help. Recognizing this, the humanitarian community todaygenerally views the internally displaced as equally deserving of protection andassistance.For its part, the United Nations has been taking a more coordinated approachtoward easing the plight of the internally displaced (see “Making Progress”below). Because of its 60 years of work with tens of millions of refugeesworldwide, UNHCR is taking a central role in these efforts. But, as festeringdisplacement situations such as Darfur, Somalia, Colombia and the DemocraticRepublic of the Congo testify, there is still a very long way togo.Three immediate challenges:UN High Commissioner for Refugees António Guterres, whoseagency works in more than 120 nations, cites three mainchallenges today in finding solutions for the world‟s refugees. Those solutionshave traditionally focused on three possibilities: repatriation home once conditionsallow or, if return are not possible, either integration in the first country of asylumor resettlement to a third country. 6
  • 7. The first major challenge cited by Guterres is the increasingly protracted natureof many modern conflicts, some of which have dragged on for years or evendecades. And as they drag on, so too does the time spent in exile for millions ofrefugees. In fact, more than half of the refugees for whom the UN HighCommissioner for Refugees (UNHCR) is responsible today have been in exile formore than five years. There are currently 25 of these so-called „protractedsituations‟ in 21 countries worldwide. For many, there is still no end in sight.One distressing sign of the intractability of today‟s conflicts is the fact that refugeerepatriation is at a 20-year low. In 2009, some 250,000 refugees went home. Whilethat may sound like a lot, it‟s actually only one-quarter of the average annual returnrate of the past decade.Although agencies such as UNHCR can address some of the humanitarian needs ofrefugees living in long-term limbo, the underlying causes of these ongoingconflicts require a political solution. Without a resolution, the refugee numbersgrow and the duration of their exile lengthens. Hope fades and refugees becomedesperate. At the same time, an increasingly disproportionate burden is placed onthe many developing countries that already host four-fifths of the world‟s refugees.One way of easing that burden on less developed host countries is for moredeveloped nations to take some of the most vulnerable refugees for resettlement.UNHCR has urged developed nations to help share the burden by increasing thenumber of resettlement places they can offer. But the 25 developed countries thatnow accept refugees for resettlement are still only able to provide places for about10 per cent of the estimated 800,000 refugees who have been identified byUNHCR as needing such protection. And keep in mind that those 84,000 refugeesresettled in 2009 still represent less than 1 percent of all refugees cared for byUNHCR around the world.The second challenge is the increasingly dangerous climate in which humanitarianactors must work today, or what UNHCR calls the “shrinking of humanitarianspace”.Todays conflicts can have many different actors, including some who have norespect for humanitarian principles or the safety of those trying to help the victims.These different armed groups can include national and possibly foreign armies,ethnic- or religious-based militias, insurgent groups and bandits. All of these actorshave been responsible for serious human rights violations. 7
  • 8. Providing humanitarian help in such an environment is both difficult anddangerous for aid workers, who are traditionally neutral and unarmed. In one six-month period in 2009, three UNHCR staff members were killed and anotherkidnapped. More recently, a UNHCR staff member was shot and killed in Sudan.In all, more than 40 UNHCR staff and associates involved in UNHCR operationshave been killed in the line of duty, most of them in the past twodecades. Humanitarians, whose objective is to help the innocentvictims of conflict, are themselves increasingly becomingtargets.The third challenge is the erosion of the institution of asylum.This is particularly of concern in industrialized countries trying to cope with so-called “mixed movements” in which migrants, asylum-seekers, refugees andvictims of trafficking travel alongside each other. These groups have differentprofiles and motivations for moving, and may thus have a very different statusunder international law. Migrants, especially economic migrants, choose to movein order to improve their lives. Refugees are forced to flee to save their lives orpreserve their freedom.Rwandan refugees who fled the country during the fighting are returning home.UN Photo/John Isaac Although moving for different reasons, migrants, asylum-seekers, refugees and other groups increasingly make use of the same routes andmeans of transport to get to an overseas destination. If people composing thesemixed flows are unable to enter a particular state legally, they may employ theservices of human smugglers and embark on dangerous sea or land voyages, whichmany do not survive.UNHCR recognizes the sovereign right of governments to control their borders andensure their national security, and many states have adopted measures aimed atpreventing people without proper documents from entering their territory.However, if applied indiscriminately, those same measures can also createobstacles for refugees and asylum-seekers in genuine need of internationalprotection. While refugees and asylum-seekers account for only a small proportionof the estimated 200 million people on the move in the world today, they arefinding it ever more difficult to gain access to countries where they can seekprotection. 8
  • 9. Everyone is entitled to exercise their fundamental human rights under internationallaw. Refugees, asylum-seekers and migrants in an irregular situation are noexception to that rule. In reality, however, their rights are often violated. In placesthroughout the world, they are subjected to arbitrary and discriminatory treatment.In some of the worlds most prosperous states, people, including women andchildren, who have arrived without the required papers can be held in detention forweeks or months on end even after they apply for asylum.Even the fundamental human rights principle of non-refoulement – that peopleshould not be returned to a country where their lives or liberty are at risk – is beingtested. A recent rash of involuntary returns of people who may need internationalprotection in regions across the globe testifies to the vulnerability of even thislong-established legal norm.Adding to the overall erosion of asylum are increasingly negative public attitudesin some countries toward foreigners, including refugees and asylum-seekers,.There has been a perceptible rise in racist and xenophobic acts in many nations,sometimes fuelled by politicians and the media.Evaluating the Effectiveness of International Refugee Law:The legal instruments, on which refugees can rely to secure internationalprotection, are the 1951 Convention Relating to the Status of Refugees and its1967 Protocol. Supported by soft laws which were developed by the internationalcommunity during the past decades, they form the "protection regime for refugees"which is set to respond to all refugee situations. This book is an evaluation of theinternational response to a major protracted humanitarian situation. As such, it isthe first comprehensive account and assessment of the effectiveness ofinternational law in dealing with Iraqi refugees during the regime of SaddamHussein. It contains detailed information and analysis of the history and behaviorof Iraq and its neighboring states as regards refugees, as well as of the operationsof international organizations, both inter-governmental and non-governmental, andlegal responses to humanitarian needs. The factual context in which the legalanalysis is presented grounds the legal theory. 9
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