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The Social Protection of Refugees in Cameroon

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Tayimlong Robert Afuh
Tayimlong Robert Afuh
Law
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i UNIVERSITE DE YAOUNDE II THE UNIVERSITY OF YAOUNDE II INSTITUT DES RELATIONS INTERNATIONALES DU CAMEROUN B.P.: 1637 Yaoundé Tel: (237) 22 31 03 05 Télécopie: (237) 22 31 89 99 Courriel: contact@iricuy2.net Site web : www.iricuy2.net INTERNATIONAL RELATIONS INSTITUTE OF CAMEROON P.O Box: 1637 Yaoundé Tel: (237) 22 31 03 05 Fax: (237) 22 31 89 99 E-mail: contact@iricuy2.net Web site: www.iricuy2.net A Thesis presented and publicly defended in partial fulfilment of the Requirements for the Award of a Professional Master’s Degree in International Relations Option: Diplomacy Specialisation: International Disputes and Conflict Management By TAYIMLONG Robert AFUH The Social Protection of Refugees in Cameroon JULY 2013
ii DEDICATION To my aunt, Stella FEKA née NIBOH ANUMBUDEM, in appreciation for her extraordinary generosity.
iii ACKNOWLEDGEMENTS Although I am responsible for the arguments in this study, I received a great deal of assistance along the way from a couple of individuals and institutions. I owe a profound debt of gratitude to Pr. Laurent ZANG and Dr. Melvis NDILOSEH who were willing to spend their valuable time reading and commenting on the manuscript. I appreciate the entire staff of IRIC particularly Dr. WERIWOH O. MBANG who assisted me to secure an internship position at the Embassy of Cameroon in Berlin, Germany in September 2011. While in Berlin, I twice visited a refugee camp where I experienced and learnt about what I consider to be ideal social protection policies of the German government. It was then that I decided to investigate the social situation of refugees in Cameroon. My regards equally go to Sandrine TANTOH and Pisso NSEKE who provided me with logistical support in the course of data collection. I also remain grateful to Serge NTAMACK, ex-student of IRIC, now diplomat within the ranks of the Ministry of External Relations, for helping me adopt the outline for the study. As the final draft was being completed, my course mates, Rolande NGOUFACK and Aristide AMOUGOU AGBOR proofread to reduce the margin of error to the barest minimum. I am indebted to them for their pivotal recommendations. I likewise benefited from the assistance of another classmate of mine, senior translator at the Ministry of External Relations, Blaise TAPON, who converted the abstract of the work (English) into the résume (French). I am very pleased with the management of the United Nations Centre for Human Rights and Democracy in Central Africa for helping me realise this study by providing a rich intellectual environment and generous research support through their well equipped library. I as well thank the AFUH’s, FEKA’s, VUSWEEH’s, NIBOH’s and TAZOH’s families for their tremendous moral and financial support all through my years in school and during the period of this study. Lastly, the contribution of Wilson WALKIL SABIT is laudable. This South Sudanese refugee provided me with information concerning the association affairs of refugees in Cameroon. Having sought refuge in seven African countries in two decades, I can only wish him a safe return back home as he plans to. I will end by craving the indulgence of all those who contributed to the realisation of this work but whose names have not been mentioned.
iv LIST OF ABBREVIATIONS AND ACRONYMS ACHPR: African Commission on Human and Peoples’ Rights ADRA: Adventist Development and Relief Agency AHA: Africa Humanitarian Action ALVF: Association de la Lutte Contre les Violences faites aux Femmes AU: African Union AUC: African Union Commission CAT: Convention against Torture CAR: Central African Republic CCAPRRI: Coordinating Committee on Assistance and Protection to Refugees, Returnees and Internally Displaced Persons CCRC : Collectif des Communautés des Réfugiés au Cameroun CEMAC: Economic and Monetary Community of Central Africa CIAH: Collectif inter Africain des Habilitants CRDC: Communauté des Refugies et Demandeurs d’asile du Congo Démocratique au Cameroun CRS: Catholic Relief Services CPPJ: Centre de Perfectionnement à la Police Judicaire DAFI: Deutsche Akademische Flüchtlings Initiative Albert Einstein DGSN: General Delegation for National Security ECOSOC: Economic and Social Council ERUs: Emergency Response Units FAO: Food and Agricultural Organisation
v GBV: Gender-based Violence GCE: General Certificate of Education GESP: Growth and Employment Strategy Paper HARDP: Humanitarian Affairs, Refugees and Displaced Persons IAPSC: Inter African Phyto-Sanitary Council ICCPR: International Covenant on Civil and Political Rights ICESCR: International Covenant on Economic, Social and Cultural Rights ICJ: International Court of Justice ICRC: International Committee of the Red Cross ICTs: Information and Communication Technologies IDPs: Internally Displaced Persons IFRC: International Federation of the Red Cross and Red Crescent Societies IGAs: Income Generating Activities IGOs: International Governmental Organisations IMC: International Medical Corps IOM: International Organisation for Migration ILO: International Labour Organisation IPU: Inter-Parliamentary Union IRD: International Relief and Development IRIC: International Relations Institute of Cameroon MDGs: Millennium Development Goals MINAS: Ministry of Social Affairs
vi MINATD: Ministry of Territorial Administration and Decentralisation MINEDUC: Ministry of Basic Education MINJUSTICE: Ministry of Justice MINPROFF: Ministry of Women’s Empowerment and the Family MINREX: Ministry of External Relations MINSANTE: Ministry of Public Health MMUs: Mobile Medical Units MOU: Memorandum of Understanding NCHRF: National Commission on Human Rights and Freedoms NGOs: Non-Governmental Organisations OAU: Organisation of African Unity ODI: Overseas Development Institute OHCHR: Office of the High Commissioner for Human Rights RECs: Regional Economic Communities REWAC: Refugee Welfare Association RH: Reproductive Health SADC: Southern Africa Development Community UDHR: Universal Declaration of Human Rights UN: United Nations UNCRC: United Nations Convention on the Rights of the Child UNDP: United Nations Development Programme UNFPA: United Nations Population Fund
vii UNGA: United Nations General Assembly UNHCHR: United Nations High Commissioner for Human Rights UNHCR: United Nations High Commissioner for Refugees UNICEF: United Nations International Children’s Emergency Fund UNO: United Nations Organisation UNTC: United Nations Treaty Collection USA: United States of America WATSAN: Water and Sanitation WFP: World Food Programme WHO: World Health Organisation
viii LIST OF APPENDICES Appendix One: Interview Guide Appendix Two: Law N° 2005/006 of 27 July 2005 on the Status of Refugees in Cameroon Appendix Three: Decree N° 2011/389 of 28 November 2011 on the Organisation and Functioning of Organs of Management of Refugee Status Appendix Four: Ministerial Order N° 0013/DIPL/CAB of 6 August 2012 Appointing Members of the Commission of Eligibility for the Status of Refugee Appendix Five: Ministerial Order N° 0014/DIPL/CAB of 6 August 2012 Appointing Members of the Commission of Appeals of Refugees
ix ABSTRACT This study, titled “The Social Protection of Refugees in Cameroon” was conducted to examine the extent to which the social protection of refugees in Cameroon was in conformity with international standards. The study was therefore aimed at analysing the legal basis for the social protection of refugees in Cameroon and establishing the role of the various stakeholders at the universal, regional and national levels. It was also intended to unveil the challenges encountered and propose policies to ameliorate the social plight of refugees. The theory of “Implicit Burden-Sharing” developed by Torun DEWAN and Eiko THIELEMANN (2006) and that of “Human Motivation” by Abraham MASLOW (1943) are used in this study. The main hypothesis of the study centred on the fact that the social protection of refugees in Cameroon was in conformity with international standards. To test this hypothesis, the qualitative research method was applied. Refugee related legal instruments were analysed while data were also collected from interviews with major stakeholders in the field of refugee protection in Cameroon. Academic publications, organisational reports and internet sources were equally important for the study. The data analysed revealed that there has been enormous progress in meeting international standards in the areas of education, emergency relief and assistance, protection of women, children and the family, security of person, and freedom of association and assembly. This can be attributed to the minimal cost or burden incurred in responding to these aspects of social protection. The results also indicated that much remain to be desired in such areas as nutrition, shelter, health care, freedom of movement and very importantly, employment and social security due to the high costs. Recommendations include the amendment of the legal instruments that provide the normative framework for protection and improvement of protection policies to reflect the changing dynamics. The principal conclusion was that there is a glimmer of hope with the new structural modifications in Cameroon’s Ministry of External Relations, notably the creation of a sub- Department for Relations with the International Organisation for Migration and the United Nations High Commissioner for Refugees. Key words: Cameroon - UNHCR - social protection - refugees - norms - institutions - operational partners - implementing partners.
x RESUME Cette étude articulée autour de la protection sociale des réfugiés au Cameroun a été effectuée afin d’examiner le niveau de conformité aux standards internationaux de la protection sociale des réfugiés au Cameroun. Le but de l’étude était d’analyser la base juridique de la protection sociale des réfugiés au Cameroun et d’établir le rôle des différents intervenants aux niveaux universel, régional et national. Il était également question de dévoiler les défis rencontrés et de proposer des politiques pour améliorer la situation sociale des réfugiés. La théorie de « Partage implicite du fardeau » développée par Torun DEWAN et Eiko THIELEMANN (2006) et la « Théorie de la motivation humaine » d’Abraham MASLOW (1943) sont utilisées dans cette étude. La principale hypothèse était articulée autour du fait que la protection sociale des réfugiés au Cameroun était conforme aux standards internationaux. Pour la vérifier, la méthode de recherche qualitative a été appliquée. Les instruments juridiques relatifs aux réfugiés ont été analysés de même que des données ont été collectées à travers des entretiens avec les principaux intervenants dans le domaine de la protection des réfugiés au Cameroun. Les publications académiques, rapports institutionnels et ressources en ligne ont également constitué d’importantes ressources pour cette étude. Les données analysées ont révélé que des progrès considérables ont été réalisés vers l’atteinte des standards internationaux dans les domaines de l’éducation, du secours et de l’assistance d’urgence, de la protection des femmes, des enfants et de la famille, la sécurité des personnes, et de la liberté d’association et de réunion. Ceci peut être dû au coût ou fardeau minimal qui découle de la prise en compte des aspects de la protection sociale. Les résultats ont également indiqué que beaucoup reste à faire dans les domaines tels que la construction de centres d’accueil, les soins de santé, la liberté de mouvement et, plus important encore, l’emploi et la sécurité sociale du fait des coûts élevés. Entre autres recommandations, l’amendement des instruments juridiques qui constituent le cadre normatif de la protection et de l’amélioration des politiques de protection à l’effet de prendre en considération les nouvelles dynamiques. La principale conclusion à laquelle nous sommes parvenus est qu’il y a une lueur d’espoir avec la nouvelle configuration structurelle du ministère camerounais des Relations extérieures, notamment avec la création d’une sous-direction chargée des Relations avec l’Organisation Internationale des Migrations et le Haut Commissariat des Nations Unies pour les Réfugiés. Mots-clés : le Cameroun - les réfugiés - la protection sociale - les normes - les institutions - le HCR - les partenaires opérationnels - les partenaires de mise en œuvre.
xi SUMMARY GENERAL INTRODUCTION...................................................................................................1 PART ONE: THE NORMATIVE AND INSTITUTIONAL FRAMEWORKS FOR THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON..................................................20 CHAPTER ONE: THE NORMATIVE FRAMEWORK FOR THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON……………………………………………………….…..22 I: Universal Instruments………………………...................………………………………….22 II: Other Universal Instruments Reinforcing the Social Protection of Refugees……………....…………………....…………………………………………………33 III: Regional Instruments………..................…………………………………………………42 IV: National Instruments…………………………………………….................………..……46 CHAPTER TWO: THE INSTITUTIONAL FRAMEWORK FOR THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON………………………………………….52 I: Universal Institutional Framework for the Social Protection of Refugees in Cameroon………………………………………………………………………………….….52 II: Regional Institutional Framework for the Social Protection of Refugees in Cameroon……………………………………………………………………………………..57 III: National Institutional Framework for the Social Protection of Refugees in Cameroon……………………………………………………………………….…………….62 PART TWO: THE SOCIAL SITUATION OF REFUGEES IN CAMEROON: A REFLECTION OF THE PROTECTIVE ROLE OF STAKEHOLDERS................................73 CHAPTER THREE: MEASURES OF MAJOR STAKEHOLDERS IN THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON.................................................................75 I: The Complementary Role of the UNHCR and its Operational and Implementing Partners......................................................................................................................................75 II: The Role of Associate United Nations Agencies.................................................................93 CHAPTER FOUR: CHALLENGES ENCOUNTERED IN THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON AND POLICY CONSIDERATIONS....................................99 I: Challenges and Constraints...................................................................................................99 II: Policy Considerations.........................................................................................................109 GENERAL CONCLUSION………………………………………………………………...119
1 GENERAL INTRODUCTION
2 0.1 BACKGROUND It is irrefutable that since the end of the Second World War and the drafting of the United Nations Charter, the scourge of war is still bringing untold sorrow to mankind. In fact, in 2011, conflicts worldwide reportedly forced a record 800 thousand people to flee their homes. That same year, there were 42.5 million displaced persons around the globe, amongst whom were 15.2 million refugees1 including 4.8 million Palestinians2 . Pakistan was host to the highest number of refugees with approximately 1.7 million seeking international protection in the country. The leading countries of origin of refugees were Afghanistan (2.7 million) and Iraq (1.4 million)3 , most likely because of the U.S-led coalition interventions in these countries. Meantime, Africa’s leading country of refugee origin was Somalia with an estimated 1.1 million. While the Middle East remains one of the most volatile regions in the world, the protection of refugees in Africa and Cameroon in particular is increasingly becoming a cause for concern amidst the growing insecurity in the region. These range from civil wars, post-election violence, human rights abuses, food crises, terrorism, hostage-taking, religious extremism, etc. At the global level, a giant step towards refugee protection was first taken in 1951, enshrined in the Geneva Convention relating to the Status of Refugees and its 1967 Protocol which, as of 2011, had both entered into force in 142 States including Cameroon (23 October 1961 and 19 September 1967 respectively)4 . While 2011 marked the 60th anniversary of the Geneva Convention, other vital steps have been taken from regional perspectives. As far as Africa is concerned, the 1969 Organisation of African Unity Convention governing the Specific Aspects of Refugee Problems in Africa was a milestone for the setting of standards for the protection of refugees in Africa. By 2011, it had entered into force in 45 States, Cameroon inclusive (7 September 1985)5 . Over the years, these legal instruments have been consolidated by many other diplomatic and international forums that fall within the framework of the plight of refugees. Cameroon’s accession, succession and ratification of the 1 Cable News Network (CNN), “World Report,” World Refugee Day, 20 June 2012. 2 Refugees International, “Who is a Refugee?” Available at www.refintl.org [Accessed: 3 July 2012]. 3 ibid., CNN holds the same view. 4 UNHCR, “State Parties to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol”. Available at www.unhcr.org [Accessed: 3 February 2012]. It is important to note that as of 1 April 2011, not all State parties to the 1951 Convention were parties to its 1967 Protocol. There are 144 States parties to the 1951 Convention, 145 for its 1967 Protocol, 142 for both and 147 for one or both of the instruments. 5 Oxford Journals, “State Parties to the 1969 OAU Convention governing the Specific Aspects of Refugee Problems in Africa.” Available at oxfordjournals.org [Accessed: 3 February 2012].
3 major international instruments governing refugee issues constitute a strong indication of the government’s commitment to ameliorate the plight of these vulnerable persons. The adoption of Law N° 2005/006 of 27 July 2005 on refugee status in Cameroon depicts a reinforcement of this commitment. According to AÏDA HAILE Mariam6 , former Resident Representative of the United Nations High Commissioner for Refugees to Cameroon, the country has the reputation of being a host terrain par excellence for refugees. To the effect of being relatively stable, it has become a magnet for refugees from neighbouring countries, where violence, disease and hunger are widespread7 . However, it goes without saying that Cameroon is not exempted from the enormous challenges faced by every host State. One of such challenges is the overstretching of already limited resources, making it cumbersome to meet the demands for subsistence of additional refugee populations8 . This is especially so in situations of massive refugee influx. As a result, the willingness expressed by host States is hardly commensurate to expected action. As NGOLLE NGOLLE9 noted, a major reason for this contrast might be that “the share of assistance received by African refugees from the international community is disproportionate to their sheer numbers but also considerably lower than the share received by refugees in other regions of the world.” The commemoration of the 60th anniversary of the 1951 Convention was therefore an occasion to evaluate these challenges and rally renewed support and commitments to the fundamental treaties enabling the State parties and the UN Refugee Agency to provide protection and assistance to refugees worldwide. The forum was described as “a unique opportunity … to discuss and shape the evolution of the international protection system over the next decade10 .” The obligation of States to assume their fair duty therefore means 6 Jocelyne NDOUYOU-MOULIOM, “Refugiés, Le Cameroun invité à la réunion interministérielle,” Cameroon tribune, 17 November 2011, p. 3. AÏDA HAILE Mariam was then the resident representative of the UNHCR to Cameroon. She was replaced by Ndeye NDIOUGUE NDOUR in 2012. 7 International Medical Corps, “Our Work in Cameroon.” Available at https://internationalmedicalcorps.org/sslpage.aspx?pid=533 [Accessed: 15 April 2013]. 8 Hector Gros ESPIELL, Sonia PICADO and Leo Valladares LANZA, “Principles and Criteria for the Protection of and Assistance to Central American Refugees,” International Journal of Refugee Law, Vol. 2 (1), 1990, pp. 83-117. 9 Elvis NGOLLE NGOLLE Otto, “The African Refugee and the Distribution of International Refugee Assistance in Comparative Perspective: An Empirical Analysis of the Policies of the United Nations High Commissioner for Refugees (UNHCR) 1960-1980.” Unpublished PhD Dissertation, Denver: The Faculty of the Graduate School of International Studies, University of Denver, Colorado, 1985. 10 UNHCR, “UN Urges Better Protection for World’s forcibly Displaced, Stateless People.” Available at www.un.org [Accessed: 3 February 2012]. See the speech of the High Commissioner, António GUTERRES, to a landmark meeting on the displaced and stateless, 7 December 2011.
4 “guaranteeing … adequate integration policies that contribute to social harmony11 .” By this assertion, social protection can be considered a major pillar of the refugee protection regime. 0.2 DEFINITION AND CLARIFICATION OF KEY CONCEPTS 2.1 Refugee The definition of a refugee has registered many but, more or less, similar definitions among scholars and institutions involved in the protection of refugees. The 1951 Geneva Convention relating to the Status of Refugees provides a more universally accepted definition of the term. This Convention states that a refugee is any person “who owing to a well-founded fear of persecution 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 it12 .” The emphasis in this definition is on the protection of persons from political or other forms of persecution13 . War, ethnic, tribal and religious violence are equally leading reasons for which refugees flee their countries14 . The 1969 OAU Convention governing the Specific Aspects of Refugee Problems in Africa, expanded the definition found in the 1951 Convention to include a more contextual consideration, specifically of “every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality15 .” A colloquium of Latin American government representatives and distinguished jurists, in 1984 adopted the Cartagena Declaration which, like that of the OAU, added a new element to the refugee definition provided for by the 1951 Convention. The declaration added persons 11 ibid. 12 Article 1 (2) of the Convention. 13 Cited in UNHCR, “Convention and Protocol relating to the Status of Refugees.” Available at www.unhcr.org/3b666C2aa10.htmb56 [Accessed 9 August 2012]. 14 USA for UNHCR, “Who is a Refugee?” Available at www.unrefugees.org [Accessed: 3 February 2012]. USA for UNHCR is the acronym for the United States Association for Refugees. It supports the UNHCR’s work to protect and assist refugees around the world. 15 Article 1 (2) of the Convention.
5 who flee their countries “because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order16 .” Last, but not the least, according to SHACKNOVE, “the predominant, generation-old conception advanced by international instruments, municipal statutes and scholarly treatises identifies the refugee as in essence, a person who has crossed an international frontier because of a well-founded fear of persecution17 .” Although all the aforementioned definitions have elements of relevance to this study, that provided by the 1951 Convention relating to the Status of Refugees is retained given the universal acceptance of the definition. 2.2 Social Protection The International Labour Organisation (ILO) defines social protection as “the provision of benefits to households and individuals through public or collective arrangements to protect against low or declining living standards18 .” On its part, the Overseas Development Institute (ODI) defines it as “public actions taken in response to levels of vulnerability, risk and deprivation which are deemed socially unacceptable within a given polity or society19 .” Social protection is also defined as “all interventions from public, private and voluntary organisations and informal networks to support communities, households and individuals in their efforts to prevent, manage and overcome risks and vulnerabilities and enhance the social status and rights of the marginalised20 .” 16 Conclusion N° 3 of the Colloquium (cited in the Cartagena Declaration). 17 Andrew E. SHACKNOVE, “Who is a Refugee?” Ethics, Vol. 95, (2), 1985, p. 274. 18 Rachel SABATES-WHEELER and Myrtha WAITE, Migration and Social Protection: A Concept Paper, Sussex: Institute of Development Studies, December 2003, p. 5. 19 ibid., p. 5. 20 This definition, set out in the proposal for the research project on ‘Social Protection and Migration in Sub-Saharan Africa: Case Studies on Access, Portability and Inclusion,’ is cited in Mpho MAKHEMA, “Social Protection for Refugees and Asylum Seekers in the Southern Africa Development Community (SADC),” 2009, p. 4.
6 The United Nations Research Institute for Social Development considers social protection to be concerned with “preventing, managing, and overcoming situations that adversely affect people’s well being.” According to this definition, social protection consists of policies and programs designed to reduce poverty and vulnerability by promoting efficient labour markets, diminishing people’s exposure to risks, and enhancing their capacity to manage economic and social risks, such as unemployment, exclusion, sickness, disability and old age21 . By placing contextual emphases on living standards, human rights, vulnerability and well- being, the aforementioned definitions of social protection are consistent with the context of this study. 2.3 Distinction between Refugees and other related Concepts The concept of refugee is often mistaken for other categories of vulnerable persons that are equally of concern to the UNHCR. These include asylum-seekers, internally displaced persons, returnees and stateless persons. Defining these categories serves the purpose of distinguishing them from the refugee. 2.3.1 Asylum-seeker: “Asylum-seeker” is a general term for a person who has not yet received a decision on his or her claim for refugee status. It could refer to someone who has not yet submitted an application or someone who is waiting for an answer. Not every asylum- seeker ultimately gets recognised as a refugee. In 1992, the UNHCR Executive Committee stated that “the institution of asylum, which derives directly from the right to seek and enjoy asylum set out in Article 14 (1) of the Universal Declaration of Human Rights, is among the most basic mechanisms for the international protection of refugees22 ” (Conclusion N° 28 (c)). Asylum serves two purposes: it provides a framework for protection and ensures that solutions to the problems of refugees can be pursued23 . In 2011, a total of 895 thousand individual applications for asylum or refugee status were submitted to governments and UNHCR offices in 166 countries24 . 21 ibid. 22 Kate JASTRAM, Marilyn ACHIRON and UNHCR, Refugee Protection: A Guide to International Refugee Law. Geneva: Inter-Parliamentary Union (IPU), 2001, p. 44. 23 ibid. 24 Refugees International, “Who is an asylum seeker?” Available at www.refintl.org [Accessed: 3 July 2012].
7 2.3.2 Internally Displaced Persons (IDPs): Francis DENG25 defines internally displaced persons as individuals who have involuntarily left their homes and communities due to natural disasters, war and economic activities. This change of place of residences according to him, quite often takes place within the same country. To complement DENG, the United Nations Guiding Principles on Internal Displacement, considers internally displaced persons to be “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognised State border26 .” In general, unlike refugees, IDPs are neither protected by international law nor eligible to receive many types of aid but they have many protection needs as refugees and are of concern to the mandate of the UNHCR27 , given their large numbers. In 2011, there were an estimated 26.5 million people displaced internally with the largest population found in Sudan and South Sudan (2.2 to 4.8 million28 ). Although IDPs outnumber refugees by more than double, no single United Nations agency or other international organisation has the responsibility of responding to internal displacement29 . 2.3.3 Returnee: A returnee is a former refugee who has returned to his or her home country. The majority of refugees prefer to return home as soon as it is safe to do so, and the country undergoing post conflict reconstruction30 . 2.3.4 Stateless Person: A stateless person is someone who is not considered to be a national by any State under the operation of its law. He or she may, but not necessarily be a refugee31 . The 1954 Convention relating to the Status of Stateless Persons helps regulate and improve the status of stateless persons and helps ensure that they enjoy fundamental rights and 25 Cited in Lawrence EBOT AGBOR, “The International Protection of Refugees in Africa: The Case of the Great Lakes Region.” Unpublished DESS Dissertation, Yaoundé: International Relations Institute of Cameroon (IRIC), 2000. 26 United Nations Guiding Principles on Internal Displacement, “Introduction – Scope and Purpose, N° 1” p. 1. 27 USA for UNHCR, op. cit. 28 ibid. 29 Refugees International, “Who is an Internally Displaced Person?” Available at www.refintl.org [Accessed: 3 July 2012] 30 USA for UNHCR, op. cit. 31 JASTRAM et al, op. cit., p. 24.
8 freedoms without discrimination. Also, the 1961 Convention on the Reduction of Statelessness32 defines ways in which persons, who would otherwise be stateless, can acquire or retain nationality through an established link with a State by birth or descent. It is worthy to note that there are an estimated 12 million stateless people around the world33 . 0.3 LITERATURE REVIEW For the purpose of better analysis, the review of literature on this topic is divided into two sections: the protection of refugees in general and Cameroon in relation to the social protection of refugee. 3.1 The Protection of Refugees WEIS34 brings out the social and psychological factors that add to the precarious status of refugees. According to him, refugees are often destitute, living in difficult material and psychological conditions and subject to suspicion. Such conditions necessitate international protection. This study endeavoured to evaluate WEIS’ remarks with emphasis on the social status of refugees in Cameroon. In analysing the social, economic and industrial issues affecting refugees (and migrant workers) over the age of 45 in Australia, CAMACHO35 opines that because they come from different racial, social, economic and linguistic backgrounds, they therefore have diverse needs and aspirations. Focusing on social issues, CAMACHO supposes that these “newcomers” face language and cultural barriers, while refugees with torture and trauma backgrounds from war-ravaged countries have special needs which require the assistance of specialised health organisations and professionals. To this is added the problem of discrimination in accessing employment which usually exists on bases of ethnicity, cultural customs and unfamiliar language. This study strived to find out whether or not these issues are common with refugees in Cameroon. However, the difference between CAMACHO’s paper and this study is that while it focuses on the socio-economic and industrial plight of migrants and refugees above the age of 45, this study cuts across refugees of all age groups. 32 Cameroon is not party to both Conventions. 33 Refugees International, “Who is a Stateless Person?” Available at www.refintl.org [Accessed: 3 July 2012]. 34 Paul WEIS, “The International Protection of Refugees,” American Journal of International Law, Vol. 48, 1954, p. 193. 35 Dionisio CAMACHO, “The Social, Economic and Industrial Issues Specific to Migrant Workers over 45 Years of Age Seeking Employment, or Establishing a Business, following Unemployment (A Quantitative Approach).” Mt Gravatt QLD 4122, April 1999.
9 JASTRAM et al36 , while considering the role played by the UNHCR, contend that in addition to providing legal protection, the UNHCR also provides material relief in major emergencies, either directly or through partner agencies. They add that the UNHCR in its first fifty years protected and assisted more than 50 million people in its work which has earned two Nobel Peace Prizes. They credit the staff of the United Nations’ Refugee Agency who work to protect refugees through a wide variety of activities such as responding to emergencies; relocating refugee camps away from border areas to improve safety; ensuring that refugee women have a say in food distribution and social services; reuniting separated families; providing information to refugees on conditions in their home country so they can make informed decisions about return; and documenting refugees need for resettlement to a second country of asylum. This study aimed at evaluating the role played by the government of Cameroon and the country bureau of the UNHCR within the framework of social protection. On his part, NGOLLE NGOLLE37 offers a critical analysis of the African dimensions of the global refugee problem in terms of the numbers involved, the conditions of settlement and the distribution of international assistance notably by the UNHCR. He concludes by noting the growth in both refugee numbers and the corresponding UNHCR assistance38 . While his work solely focuses on the efforts of the United Nations Refugee Agency as the specific international institution that manages refugees, this study attempted an in-depth analysis of other actors classified by the UNHCR as operational and implementing partners. EBOT39 , in his study on the international protection of refugees in the Great Lakes region of Africa, considers ethnic conflicts, separatist violence, complexity of identity and political exclusion as the factors that make refugee flows more complex in the continent and worldwide. He proposes the confinement of refugees in safe zones within the country of origin, settlement and absorption of the wave of refugees in host States in return for development assistance from the international community. Like MOUELLE40 , EBOT begins with an x-ray of the global and regional legal instruments for refugee protection before establishing a relationship between them and the actual reality in the Great Lakes region at the 36 JASTRAM et al, op. cit. 37 op. cit. 38 op. cit., p. 155. 39 op. cit. 40 Jean Narcisse MOUELLE KOMBI, “Le Cameroun et les Réfugiés,” Unpublished Maitrise Dissertation, Yaoundé: University of Yaoundé, 1986.
10 time. The outline of the first part of his work is quite similar to that adopted in this study but differs in the second part in that the latter largely focuses on the actions of the various stakeholders in the social protection of refugees in Cameroon. In what he terms the “language of protection,” GOODWIN-GILL41 traces the emergence and development of the concept of international protection, from the time of the League of Nations, through the period of the International Refugee Organisation, and into the practice of States and the UNHCR. Apart from identifying an integral link between protection and human rights, he compares the protective role of the UNHCR to that of the International Committee of the Red Cross (ICRC). The latter is one of the UNHCR’s implementing partners assessed by this study. ESPIELL et al42 appraise the principles and criteria for the protection of and assistance to Central American refugees, returnees and displaced persons in Latin America. They endeavour to “assess the progress achieved in respect of the principles underlying the protection of and assistance to refugees and their voluntary repatriation with a view to encouraging their dissemination and application43 .” Their inquiry remains useful for the purposes of consultation and orientation as the underlying principles go beyond those evoked in the Cartagena Declaration to focus on other international legal instruments. They have further been complemented through the practice of the States concerned and of international organisations. In his search for sustainable solutions to refugee problems in Africa, DINGAOMAIRE- LAOUHINGAMAYE 44 adopts a historical and analytical approach to examine the profound and immediate causes that underlie population exodus in the continent. His findings blame colonialism45 for the upsurge of refugees in the pre-independence era by delimiting territories through arbitrary frontiers and bringing ethnic groups together which do not speak the same language; practices which were a source of conflict. He believes the difficult solidarity within 41 Guy GOODWIN-GILL, “The Language of Protection,” International Journal of Refugee Law, Vol. 1, Issue 1, 1989, pp. 6- 19. 42 op. cit. 43 ibid., p.1. 44 DINGAOMAIRE-LAOUHINGAMAYE, “Les Réfugiés en Afrique: La Problématique des Solutions Durables (1960 – 1990).” Unpublished Maitrise Professionnelle Dissertation, Yaoundé: International Relations Institute of Cameroon (IRIC), 1993. 45 op. cit., p. 20.
11 the OAU at the time was one of the road blocks in the search for sustainable solutions to refugee problems. DINGAOMAIRE-LAOUHINGAMAYE therefore proposes a redefinition46 of the term “refugee” as far as the 1969 Organisation of African Unity (OAU) Convention governing the Specific Aspects of Refugee Problems in Africa is concerned. Like most researchers on the issue, his study revisits the legal basis of the international protection system with special emphasis on Africa. MAKIADI47 takes special interest in the problem of refugees in Africa and its consequences for host countries, particularly the case of Angola. Like many other authors, his study examines the legal instruments related to the protection of refugees. However, he distinguishes himself by the classification he makes of refugees originating from independent States and States under domination by a colonial power or racist minority on the one hand and those from urban and rural origins on the other hand. His analysis of social related protection focuses on emergency relief; lodging and sanitary aid; education and lastly, services for social orientation. The analytical and descriptive approach he employs was quite useful for this study. MAKHEMA48 examined the social protection of refugees and asylum seekers in the Southern Africa Development Community (SADC). According to her, there are three principal concerns which impact on practice with regards to the access of refugees and asylum seekers to social protection. These include the basis for an individual’s right to social protection, institutions responsible for providing social protection and the ideal mechanisms through which social protection is provided. As a response to the first two concerns, she highlights the argument of some authors who claim that social protection should be based on the universal human right to life, dignity and basic physical welfare, and therefore that responsibility for social protection provision transcends national borders. MAKHEMA’s emphasis on the basis for social protection, institutions responsible, mechanisms through which it is provided, as well as challenges and policy considerations almost entirely reflects the approach of this study to the issue which unlike hers, was within the context of Cameroon. 46 op. cit., p. 106. 47 Nelves MAKIADI N’SALAMBI, “Le Problème des Réfugiés en Afrique et ses Conséquences pour les Pays Hôtes: Cas des Réfugiés Namibiens, Sud-Africains et Zaïrois en Angola.” Unpublished Maitrise Professionnelle Dissertation, Yaoundé: International Relations Institute of Cameroon (IRIC), 1989. 48 op. cit.
12 3.2 Cameroon and the Social Protection of Refugees It must be acknowledged that literature on this subject is still budding. NGOLLE NGOLLE notes that this deficiency of systematic research is due to the fact that the refugee problem itself seems to belong to a cross-section of academic disciplines49 . However, a few scholarly works were reviewed. In his remarkable study on refugees in Cameroon, MOUELLE50 focused on two main aspects, notably their status alongside government and international humanitarian assistance. His examination of the issue goes beyond the legal framework of their protection to dwell on factors of social protection such as shelter, health care51 , education and social orientation52 . Though he can be credited for dealing with the main issues at the time, two decades are enough to change the operational dynamics and hence render it almost impossible to reflect the present reality. This study was therefore an effort to consider the new dynamics. KOUROUMA53 , in her study of the protection and assistance of Chadian refugees in Cameroon begins by analysing what she refers to as “the norms of protection and assistance to African refugees,” notably the 1951 Geneva Convention, its 1967 Protocol and the 1969 OAU Convention. The distinctive part of her work is her portrayal of the role played by non- governmental organisations in the protection of refugees. She also examines the role of other specialised agencies54 of the United Nations (such as the UNDP, FAO, ILO, WHO, UNICEF) that work in collaboration with the UNHCR to protect refugees. From a social protection perspective, this study accords with hers that the most basic needs of refugees just like those of every human being are nutrition, health care, shelter and education. Her study equally reveals that African refugees face problems of language in cases where European languages have been adopted as official languages by African countries. To conclude, most of the texts reviewed have an element of the legal precepts governing the protection of refugees, notably the 1951 Convention, its 1967 Protocol and the 1969 OAU 49 NGOLLE NGOLLE, op. cit., p. 8. 50 MOUELLE, op. cit. 51 ibid., pp. 61-63. 52 op. cit., pp. 70-71. 53 Duevi Jeannette Caroline KOUROUMA, “Protection et Assistance Internationale aux Réfugiés Africains: de Kousseri à Poli / Faro, Le cas des Réfugiés Tchadiens au Cameroun.” Unpublished Master’s Dissertation, Yaoundé: International Relations Institute of Cameroon (IRIC), 1983. 54 ibid., pp. 37-38.
13 Convention. While the authors endeavour to portray the dynamics in their specific areas of interests, they acknowledge that the protection of refugees is largely governed by international law. 0.4 DELIMITATION OF STUDY The delimitation of this study is threefold: historical (ratione temporis), geographical (ratione loci) and in terms of subject matter (ratione materiae). Historically, the study runs from 2005 to 2012. 2005 can be best justified by the fact that it was the year Cameroon passed its first refugee law. Also, it is within this timeframe that Cameroon witnessed its highest massive influxes of refugees across its northern and eastern borders following instability in Chad and the Central African Republic respectively. Geographically, the study is limited to the territory of the Republic of Cameroon in line with the mandate of the UNHCR contained in the cooperation agreement signed between the latter and the Government of Cameroon in 1978. The choice of this spatial limitation is further justified by the key role played by the territory in question as a host-terrain par excellence for protecting refugees. At the level of the subject matter, the study covers the universal, regional and national normative and institutional frameworks for refugee protection. The study is also limited to social protection. In this respect, given the fact that refugee protection is an umbrella term which covers a wide range of issues, contextual emphasis of social protection is placed on nutrition; shelter; health care; education; emergency relief and assistance; employment and social security; protection of women, children and the family; security of person; freedom of movement; and freedom of association and assembly55 . These constitute the dependent variables of this research. Conversely, the independent variables constitute the institutions that guarantee protection including the UNHCR and its implementing and operational partners. 55 This study recognises the difficulty in distinguishing between economic, social, cultural, civil and political rights. Even the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights fail to make clear cut differences on these rights. There is therefore lack of consensus on what social protection should comprise of (Rachel SABATES-WHEELER and Myrtha WAITE, op. cit., p. 6). Against this backdrop, in delimiting social rights, this study builds on the European Community Charter of the Fundamental Social Rights of Workers. This Charter clearly considers freedom of movement, employment, freedom of association, vocational training (education), health care, protection of children, etc., as fundamental social rights. The Charter was declared on 8 and 9 December 1989 in Strasbourg, France.
14 0.5 STATEMENT OF PROBLEM In 2011, the UNHCR noted that more than three quarters of a million people became refugees following the upheavals in Africa and the Middle East. As instability continued in the Eastern and Western African sub-regions, the number was expected to increase. Meantime, Cameroon is situated in the midst of countries in the Central African sub-region which for decades have been faced with internal insecurity. Such has been the case with the Central African Republic stroke by rebellion and intermittent coups d’états in recent years, as well as Chad with environmental crisis and border disputes with Libya. The role of neighbouring countries like Nigeria affected by sporadic violence and terrorism in conjunction with religious, economic and political differences can also be mentioned. These phenomena have prompted the influx of refugees into Cameroon which unlike her neighbours, has enjoyed relative internal peace and stability since independence. In fact in 2011, more than one hundred thousand were believed to be seeking international protection in Cameroon56 . It goes without reiterating that the most basic needs of refugees are more of social than political and economic. The central question which is therefore posed is as follows: given the fact that Cameroon is considered a ‘host country par excellence’57 for refugees, what is the extent to which social protection conforms to international standards? To better respond to this question, this study also seeks to answer the following secondary questions: 1. What constitutes the legal basis for the social protection of refugees in Cameroon? 2. What are the actors involved in the process, how complementary are their actions, and which of them bear the greatest burden? 3. What measures have been put in place to ensure the social protection of refugees? 4. What challenges or constraints are encountered? 5. What is the way forward in terms of policy considerations for a lasting solution? 0.6 HYPOTHESES This study attempted to decipher whether a direct relationship exists between the social protection of refugees in Cameroon and the national and international legal instruments which provide the basic standards on which principled action is based. Within this framework, the 56 NDOUYOU-MOULIOM, op. cit. 57 AÏDA HAILE Mariam cited in NDOUYOU-MOULIOM, ibid.
15 main hypothesis revolved around the assertion that “the social protection of refugees in Cameroon is in conformity with international standards for protection.” It is also hypothesised that: 1. There are universal, regional and national norms which provide the framework for the protection of the social rights of refugees in Cameroon. 2. There are various stakeholders involved in the social protection of refugees at the universal, regional and national levels. 3. There have been a good number of measures put in place to ameliorate the social plight of refugees in Cameroon. 4. There are multiple challenges encountered at various levels of social protection. 5. There is the possibility for a way forward. Generally, the outcome of the study was to suggest three possible interpretations. If a direct relationship was to be established between the two major variables in question, that is social protection and international standards, it could be an indication that by the country’s adoption of a national law on refugee status and its accession, succession and ratification of the major international instruments regulating the protection of refugees, Cameroon is determined to be a host country par excellence. It could equally suggest that the work of the UNHCR in Cameroon alongside its implementation and operational partners has been fruitful. However, the reverse could be true if the assertion is proven wrong and a strong indication that much remains to be desired in the social protection of refugees in Cameroon. A last possible interpretation could be a constellation of the first two. In other words, it could be interpreted to mean that despite the remarkable progress made in the social protection of refugees in Cameroon, much remains to be desired. 0.7 OBJECTIVES AND SIGNIFICANCE The main aim of this study was to enable an understanding of the concept of social protection of refugees in the context of Cameroon, with a view of offering guidance on the way forward. The following objectives were therefore identified to be of paramount importance in helping to achieve the aforementioned aim: - Situate the legal framework for the social protection of refugees in Cameroon. - Identify stakeholders involved, review their level of collaboration and ascertain which of them bears the greatest burden.
16 - Evaluate measures towards the social protection of refugees in Cameroon. - Analyse the challenges or constraints faced. - Formulate recommendations or policy considerations towards a durable solution in line with the challenges or constraints encountered. This study is significant in analysing the conceptual underpinnings of the social protection of refugees in the context of Cameroon, the key issues that the concept throws up for policy making, the range of measures subsumed to implement the concept and the implications all these have for State and international involvement in the provision of social protection. It is also a vital opportunity to use a ‘refugee’ lens to build on existing frameworks for conceptualising social protection. The study is significant in disclosing the flaws of the current social protection regime; a modest contribution towards improving on the formulation and implementation of policies by stakeholders in the domain. 0.8 THEORETICAL FRAMEWORK AND RESEARCH METHODOLOGY 8.1 Theory The theory of Implicit Burden-Sharing58 is applicable to the social protection of refugees in Cameroon. THIELEMANN and DEWAN believe burden-sharing debates are becoming increasingly important in areas such as refugee protection59 . Burden-sharing refers to responsibility-sharing or the ‘equal balance of efforts’ between States in the area of refugee protection while refugee protection is considered an international collective or public good60 . It follows therefore that for collectively or publicly provided goods, countries receive benefits through the overall supply of the good which is a combination of their own contribution and that of others. A number of scholars, most prominently SUHRKE61 , have suggested that refugee protection has important ‘public good’ characteristics. SUHRKE argues that the reception of displaced persons can be regarded an international public good from which all States benefit. In this view, increased security can be regarded as the principal benefit, as an 58 According to Sadako OGATA, former United Nations High Commissioner for Refugees, one of the outstanding achievements in the humanitarian field has been the establishment of the principle that the refugee problem is a matter of concern to the international community and must be addressed in the context of international cooperation and burden-sharing. 59 Torun DEWAN and Eiko R. THIELEMANN, “The myth of free-riding: Refugee protection and implicit burden-sharing,” West European politics, Vol. 29 (2), 2006, pp. 351-369. 60 The goods and services that governments provide in the common interest of all individuals are often called collective or public goods. Such goods are assumed to have one or both of the following characteristics: (1) non-excludability: if the collective good is provided for, everyone automatically benefits, or, in others words, non-contributors cannot be kept from benefiting from that good, and (2) non-rivalry: if the good is available to any one person/State, it is available to others at little or no additional cost. 61 Cited in THIELEMANN and DEWAN, op. cit.
17 accommodation of displaced persons (refugees) can be expected to reduce the risk of them fuelling and spreading the conflicts they are fleeing from. BOYER62 proposed an alternative framework to explain international burden-sharing by focusing on trade in public goods, building on the Ricardian theory of comparative advantage. On basis of these ideas, THIELEMANN and DEWAN suggest that the provision of a collective good can be broken down into tradable components. In the context of refugee protection, one feasible component is the provision of protection opportunities for displaced persons. They refer to this as a reactive contribution since it deals with the problem once people have already been displaced. Other forms of contribution such as engagement in unilateral and multilateral peace-keeping/making operations are termed proactive contributions since they aim to prevent refugee flows before they occur. Peacekeeping/enforcement can be viewed as an alternative way to contribute to security by preventing or limiting uncontrolled population flows. Like the acceptance of displaced persons, peacekeeping also possesses key elements of an international public good. If intrastate and interstate conflicts have negative consequences on other countries in terms of unchecked migration flows, then peacekeeping efforts to end such wars represent a trans- national public good. The peace and security provided by keeping migration flows in check through peacekeeping/making operations thus give rise to non-excludable and non-rival benefits. At this juncture, it is important to note that for the purpose and context of this study, only the reactive contribution was evaluated since it deals with the social protection of refugees who are already in the territory of Cameroon and consequently, the unit of comparative analysis in terms of burden-sharing are not States but stakeholders in the area of refugee protection in Cameroon. It is equally worthy to note that the burden-sharing model is correlated to the liberal paradigm of international relations. Indeed, the aforementioned postulates of SUHRKE are in line with the liberal principle of “collective security” while those of BOYER on trade in public goods are related to “commercial pacifism;” a precept based on the widespread ideas of liberal economists like Adam SMITH, Richard COBDEN and Joseph SCHUMPETER that 62 ibid.
18 trade is not only a factor of prosperity and wellbeing but also a factor of peace63 . A major motivation to conduct this study was the need to find out the stakeholder disproportionately shouldering the greatest burden in the social protection of refugees in Cameroon; whether it is the government of Cameroon, the UNHCR, or its implementing and operational partners. Abraham MASLOW’s concept of hierarchy of needs can equally be used to support the choice of social protection rather than the other dimensions of protection. In his 1943 paper on the “Theory of Human Motivation,” the renowned psychologist suggests that people are motivated to fulfil basic needs before moving on to other, more advanced needs64 . This hierarchy is most often displayed as a pyramid, with the most basic needs at the lowest levels, while the more complex needs are located at the top. Physiological needs at the bottom of the pyramid are basic requirements including the need for food and water (nutrition) while safety and security needs include health care and shelter65 . His theory also mentions involvement in social, community and religious groups as vital needs. Though little mention is made of education, social orientation, emergency relief, etc., MASLOW’s concept of hierarchy of needs66 is related to the context of this study to a great extent. 8.2 Research Methodology The method of study employed was both analytical and descriptive. The hypothesis of the study was tested by content-analysing qualitative empirical data obtained from different sources. The study made use of both primary and secondary sources. Primary sources essentially included observation and interviews with refugees and stakeholders in the domain of their protection in Cameroon. These stakeholders range from the UNHCR, its operational and implementing partners as well as human rights promotion and protection organs such as the National Commission on Human Rights and Freedoms (NCHRF) and the United Nations Centre for Human Rights and Democracy in Central Africa. Content analyses of data from secondary sources entailed academic publications and organisational reports. From a legal perspective, the study analysed universal, regional and national instruments on the protection of refugees. Internet sources relating to the issue were equally useful. The descriptive method 63 Pierre MOUKOKO MBONJO, “Theories of International Relations,” First Semester Lecture Notes, 2010 / 2011 Academic Year. 64 Kendra CHERRY, “Hierarchy of Needs”. Available at http://psychology.about.com [Accessed 1 July 2012]. 65 ibid. 66 Criticisms for MASLOW’s theory indicate that there is little evidence for his ranking of needs and even less evidence that these needs are in a hierarchical order. However, regardless of these criticisms, his theory remains part of an important shift in human development.
19 permitted an empirical perspective of the actual situation on the ground as far as the social protection of refugees in Cameroon is concerned. These fall within the framework of the hypothetico-descriptive approach, a model of social science involving the formulation of hypotheses and theories from which particular occurrences can be deduced and thus predicted and explained. 0.9 STRUCTURAL ORGANISATION This work is presented in four chapters grouped into two major parts. The first part with two chapters analyses the normative and institutional frameworks for the social protection of refugees in Cameroon. The first chapter therefore examines the normative framework from a universal, regional and national perspective67 . Similarly, the second chapter presents the institutional framework from a universal, regional and national perspective. The second part comprising of the third and fourth chapters focuses on the measures taken by various stakeholders in the social protection of refugees in Cameroon, challenges encountered as well as policy considerations. The third chapter thus analyses the measures within the framework of the UNHCR and its partners while the fourth and last chapter unveils the challenges or constraints that stifle the process, and proposes the way forward in terms of policy considerations. 67 The logic behind this order lies in the fact that most of the universal instruments for the protection of refugees were adopted and even entered into force before the regional texts and the eventual passing of national laws in this respect.
20 PART ONE THE NORMATIVE AND INSTITUTIONAL FRAMEWORKS FOR THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON
21 INTRODUCTION TO PART ONE The social protection of refugees in Cameroon is governed by a normative and an institutional framework. The normative framework is significant as it provides principles and criteria for the social protection of refugees in Cameroon. Without legal standards, there will be no basis for social protection. On its part, institutional framework implies organs or bodies which oversee or control the implementation of norms regarding social protection. Without the existence of such institutions, the normative framework will be worthless. This part of the work dwells on the normative and institutional frameworks. Whereas chapter one is dedicated to the normative framework, chapter two examines the institutional framework.
22 CHAPTER ONE: THE NORMATIVE FRAMEWORK FOR THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON There are global, regional as well as national legal instruments representing the normative framework for the protection of refugees in general and from social outlook in particular. For the purposes of this study, only those directly relating to Cameroon are analysed68 . However, it is worth noting that there is no single instrument which provides all the elements of social protection. While they are similar in many respects, they differ in scope in some cases, and are seen in this context as complementary. This chapter strives to explore the normative framework for the protection of refugee rights in Cameroon. While section one examines the main universal instruments guaranteeing the social protection of refugees, section two focuses on other global instruments which have a similar vocation. The regional and national normative frameworks are the focus of sections three and four respectively. I: Universal Instruments Cameroon is signatory to all major international instruments on refugees without reservation, notably the Refugee Convention of 1951 and its 1967 Protocol. On a global scale, apart from the Universal Declaration of Human Rights, this Convention and Protocol have been supplemented by subsidiary protection regimes. I.1: The Universal Declaration of Human Rights (UDHR) The Universal Declaration of Human Rights was adopted and proclaimed by UN General Assembly Resolution 217 A (III) of 10 December 1948. Through this declaration, the United Nations proclaimed its commitment to uphold, promote and protect the human rights of every individual69 , including refugees. This commitment builds on the United Nations Charter, which reaffirms the faith of the peoples of the world in fundamental human rights and in the dignity and worth of the human person70 . Generally, Article 14 of the declaration defines the framework for refugee protection by recognising the fact that “everyone has the right to seek 68 This delimitation is vital since this study deals with the social protection of refugees in the context of Cameroon. The 1951 Convention is the only global legal instrument dealing with the status and rights of refugees. It therefore applies in Cameroon following its ratification. However, there are several other conventions and declarations of particular relevance in specific regions. An example is the Cartagena Declaration which applies only in Latin America. Such instruments cannot be analysed in this study since they do not apply in Cameroon. 69 United Nations, “The Universal Declaration of Human Rights at 60.” Available at www.un.org/events/humanrights/2007/hrphotos/declaration%_eng.pdf [Accessed 9 August 2012]. 70 Article 1 (3) of the United Nations Charter.
23 and to enjoy in other countries, asylum from persecution.” Attention here is nevertheless on articles relating to the social protection of these vulnerable persons. Article 3 affirms the right to life, liberty and security of person for everyone. This is a combination of Articles 6 and 9 respectively of the International Covenant on Civil and Political Rights. The United Nations Human Rights Committee refers to it as “the supreme right” and insists that “it is the basic of all human rights71 ” and “should not be interpreted narrowly 72 .” Article 13 (1) stipulates the right of everyone to freedom of movement and residence within the borders of each State. The right of everyone to leave any “country, including his own, and to return to his country” recorded in this is but a corollary of freedom of movement declared in paragraph one of the same article73 . Contrary to this, GIBNEY and HANSEN opine that refugees are usually prohibited from leaving the refugee camp to which they have been assigned, although there is no provision in international refugee law instruments that can justify the systematic and unfettered restriction to the refugees’ freedom of movement. In some countries, the police enforce restrictions to freedom of movement by resorting to arbitrary arrest and detention74 . Nonetheless, some restrictions on the freedom of movement of irregularly entering asylum-seekers are allowed pending regularisation of States75 . Article 20 (1) lays down the right of everyone to freedom of peaceful assembly and association. In the same vein, Article 20 (2) prohibits the act of compelling anyone to belong to an association. This right is considered an individual and a collective right76 . This means that it creates rights for individuals to be in association and to act in association, but also that it creates rights for the association which may have a collective interest beyond that of an individual member. Complementing this is the right not to be a member of an association77 . 71 UN Human Rights Committee, General Comment No. 14: Right to Life (1984), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 139, para. 1. 72 UN Human Rights Committee, General Comment No. 6: Right to Life (1982), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 128, para. 1. 73 Lars-Gunner ERIKSON, Goran MELANDER, and Peter NOBEL, An Analysing Account of the Conference on the African Refugee Problem: Arusha, May 7, 1979. Uppsala: Scandinavian Institute of African Studies, 1981, p. 122. 74 Matthew J. GIBNEY and Randall A. HANSEN, Immigration and Asylum: From 1900 to the Present. Santa Barbara, California: ABC CLIO, 2005, p. 499. 75 James C. HATHAWAY, The Rights of Refugees under International Law. New York: Cambridge University Press, 2005, p. 412. 76 K. D EWING, “Freedom of Association. Individual Rights and the Law in Britain,” Ind. Law J, Vol. 34, 1992, p. 240. Paul WEIS, “The International Protection of Refugees,” American Journal of International Law, Vol. 48, 1954, p. 193. 77 ibid., 240.
24 Article 22 guarantees that everyone, as a member of society, has the right to social security and is entitled to realisation, through national effort and international cooperation and in accordance with the organisation and resources of each State, of the economic, social and cultural rights indispensible for his dignity and the free development of his personality. Social security can therefore be understood in a broad sense as referring to both ‘earned benefits and need-based assistance78 .’ Pertaining to Article 23 (1), everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. With regard to Article 23 (2), everyone, without any discrimination, has the right to equal pay for equal work. A propos Article 23 (3), everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. With reference to Article 23 (4), everyone has the right to form and join trade unions for the protection of his interests. The right to work recognises a person’s productive-creative needs79 . The expression “right to work” is sometimes misunderstood as guaranteeing a job for everyone. The International Labour Conference and the United Nations have discussed this many times, and in fact what it means in international law is the right to have the opportunity to work80 . In other words, States have an obligation to provide for the conditions that allow everyone (including refugees) to support themselves and their families81 . Article 25 is multidimensional, focusing on the rights to nutrition, shelter and health care. As regards Article 25 (1), everyone has the right to the standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. The rights to food, clothing, housing and medical care as stated in this article are social acknowledgements of biological-material needs82 . Food is considered the basic need for 78 SHEININ in Rights (1995), p. 159, cited in CHOLEWINSKI, IGLJ 14 (2000) pp. 709, 723, cited in, Andreas ZIMMERMANN, Jonas DORSCHER, and Felix MACHTS, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford Commentaries on International Law, 2011, p. 1065. 79 Joseph WRONKA, Human Rights and Social Policy in the 21st Century. Revised Edition, University Press of America, 1998, p. 26. 80 Lee SWEPSTON, The Universal Declaration of Human Rights and ILO Standards: A Comparative Analysis on the Occasion of the 50th Anniversary of the Declaration’s Adoption. Geneva: International Labour Office, 1998, p. 23. 81 ibid., p. 23. 82 Joseph WRONKA, Human Rights and Social Policy in the 21st Century.
25 all human beings83 . Everyone requires access to food which is sufficient, balanced and safe to satisfy nutritional requirements, culturally acceptable and accessible in a manner that does not destroy one’s dignity as human beings84 . According to Article 25 (2), motherhood and childhood are entitled to special care and assistance. It goes further to underscore that all children, whether born in or out of wedlock, shall enjoy the same social protection. This is one of the categories of rights contained in the UDHR and carried forward into other international instruments85 . Like others in this category, it does not impose absolute and immediately binding standards of attainment, but rather requires States to take steps to the maximum of their available resources, progressively, to realise rights in a non-discriminatory way86 . The significance of this article can be explained by the fact that there have been a couple of international conventions to protect the rights of these two categories. Cases in point include the 1979 Convention on the Elimination of all Forms of Violence against Women, the 1989 Convention on Rights of the Child and the 1990 African Charter on the Rights and Welfare of the Child. The African Charter on the Rights and Welfare of the Child is the first regional and comprehensive binding instrument proclaiming the human rights of children. The adoption of the Charter closely followed that of the United Nations Convention on the Rights of the Child (UNCRC). Some of the specific features of the Charter include a stronger definition of the child than in the UN Convention including the protection of internally displaced and refugee children, protection of imprisoned expectant mothers and mothers of infants and young children, and protection of girls who become pregnant before the end of their education87 . Article 26 (1) defines the right to education for everyone. It stresses that education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. Paragraph two of Article 26 elucidates that education shall be oriented to the full development of the human personality and the strengthening of respect for human rights and fundamental freedoms. It shall promote understandings, tolerance and friendship among all nations, racial or religious 83 EIDE, 1987, pg. 13. Cited in Joseph WRONKA, op. cit., p. 26. 84 ibid. 85 Erika FELLER, Volker TURK and Francis NICHOLSON, Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection. Cambridge: Cambridge University Press, 2003, p. 382. 86 ibid. 87 Hakina ABBAS, Africa’s Long Road to Rights: Reflections on the 20th Anniversary of the African Commission on Human and Peoples’ Rights. Nairobi: Fahamu-Networks for Social Justice, 2007, p. 51.
26 groups, and shall further the activities of the United Nations in the maintenance of peace. Meanwhile, the third and last paragraph of the article guarantees the prior right of parents to choose the kind of education that shall be given their children. The article recognises the right to self-actualisation88 . The drafting history of the first two paragraphs is in connection with the rights to the full development of one’s personality, which underlies the entire second half of the Declaration, but is specifically mentioned in Articles 22, 26 and 2989 . Paragraph 2 makes human rights education the new civics for the new world order the drafters envisioned while the last paragraph attaches special importance to parents who are members of a minority group90 . The use of the word “everyone” in most, if not in all articles analysed above demonstrates the universal coverage of the UDHR to include all human beings including refugees. The Universal Declaration of Human Rights is the first comprehensive human rights instrument to be proclaimed by a universal international organisation. Because of its moral status and the legal and political importance, it has acquired over the years, the Declaration ranks of the Magna Carta, the French Declaration of the Rights of Man and the American Declarations of Independence, as a milestone in mankind’s struggle for freedom and human dignity91 . It is also part of international customary law; it is the base from which all other instruments of human rights derive. There is hardly an instrument of human rights that does not, in its preamble, refer to the Universal Declaration of Human Rights. I.2: Convention and Protocol Relating to the Status of Refugees Grounded in Article 14 of the 1948 Universal Declaration of human rights which recognises the right of persons to seek asylum from persecution in other countries, the United Nations Geneva Convention relating to the Status of Refugees, adopted in 1951, is the centrepiece of international refugee protection92 . The Convention entered into force on 22 April 1954, and it has been subject to only one amendment in the form of a 1967 Protocol of New York, which 88 Joseph WRONKA, op. cit., p. 26. 89 Johannes MORSINK, The Universal Declaration of Human Rights: Origins, Drafting and Intent. Philadelphia: University of Pennsylvania Press, 1999, p. 335. 90 ibid. 91 Thomas BUERGENTHAL, International Human Rights in a Nutshell. West Publishing Co., 1988, p. 25. 92 United Nations General Assembly Resolution 429 (V) of 14 December 1950, available at http://www.unhcr.org/refworld/docid/3b00F08a27.html, cited in Convention and Protocol Relating to the Status of Refugees, available at www.unhcr.org/3b666C2aa10.htmb56 [Accessed 9 August 2012].
27 removed the geographic and temporal limits of the 1951 Convention93 . The 1951 Convention, a post-Second World War instrument, was originally limited in scope to persons fleeing events occurring before 1 January 1951 and within Europe. The 1967 Protocol removed these limitations and thus gave the Convention universal coverage. In Cameroon, the Convention and Protocol entered into force on 23 October 1961 and 19 September 1967 respectively. Emphasis here is laid on the provisions of the Convention related to social protection. Article 15 provides the right to association. It states that “as regards non-political and non- profit-making associations and trade unions, the Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances.” In the point of view of the Secretariat draft of the travaux préparatoires94 , the ordinary law of democratic countries includes freedom of association which, in principle, is enjoyed by foreigners as well as by nationals, and Article 20 of the Universal Declaration of Human Rights lays that down. In these circumstances, there can be no objection to stateless persons joining non-profit-making associations. It was therefore advisable to include a special provision relating to non-profit-making associations in the Convention. Profit-making associations are covered by the provisions dealing with the exercise of the professions95 . Article 17 requires States to accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards wage-earning employment. The article is a product of negotiations conducted during the serious economic conditions following the Second World War96 . It is therefore arguable that any restrictive measures on the enjoyment of this right by refugees today and drawn from the 1951 Convention could be justified, on an exceptional basis only, according to severe financial or economic conditions equivalent to the post-Second World War environment as an implied term of Article 17 of the 1951 Convention97 . However, this would only be permitted 93 The Convention enabled States to make a declaration when becoming party, according to which the words “events occurring before 1 January 1951” are understood to mean “events occurring in Europe” prior to that date. This geographical limitation has been maintained by a very limited number of States, and with the adoption of the 1967 Protocol, has lost much of its significance. The Protocol of 1967 is attached to United Nations General Assembly Resolution 2198 (XXI) of 16 December 1967, available at http://www.unhcr.org/refworld/docid/3b00flcc50.html. 94 Paul WEIS, The Refugee Convention, 1951: The Travaux Préparatoires Analysed, Cambridge: Grotius Publications, 1995, p. 90 of online version, available at www.unhcr.org/4ca34be29.pdf. 95 ibid. 96 ZIMMERMANN et al, p. 967. 97 ibid.
28 if it does not defeat the object and purpose of the 1951 Convention. The preamble to the Convention recalls that the UN had ‘manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of their fundamental rights and freedoms’98 ; or otherwise violate human rights obligations such as the obligation to treat individuals with dignity. Article 20 guarantees the right to rationing which can be linked to nutrition. With regards to this, “where a rationing system exists, which applies to the population at large and regulates the general distribution of products in short supply, refugees shall be accorded the same treatment as nationals.” This provision is considered an innovation and applies to all refugees in the territory, whether lawfully or unlawfully there99 . It follows from the debate during the preparatory work that it refers to consumer goods in short supply, not to commodities for commercial or industrial use. The provision does not apply to products available in sufficient quantities but which are allocated to certain groups, for example, indigent or old persons, or at more favourable prices or conditions. Housing is the main concern of Article 21. It states that “as regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible, and in any event, not less favourable than that accorded to aliens generally in the same circumstances.” In his commentary on the article, WEIS borrows from Article 6 of the Migration for Employment Convention of 1949 which provides that each Contracting party ‘undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to migrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of...accommodation...’ There may thus be a conflict when a refugee is also a migrant worker and the State concerned is a party to both Conventions. In such a case, the refugee would be accorded the better treatment. Commentators have noted that the term ‘housing’ is wider than ‘housing accommodation’ and that the concept of housing ‘implies not only the obtaining of dwelling place, but also participation in schemes for financing of the construction of dwelling places100 .’ 98 EDWARDS, International Journal of Refugee Law 17 (2005) pp. 293, 297 cited in ZIMMERMANN et al, op. cit., p. 967. 99 Paul WEIS, The Travaux Préparatoires Analysed, p. 115. 100 ZIMMERMANN et al, op. cit., p. 1014.
29 Article 22 focuses on public education. Article 22 (1) provides that “the Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.” The Secretariat draft of the article stated that elementary education is to be provided for refugees in the same manner as for nationals, because elementary education satisfies an urgent need, reason why most States have made it compulsory, and because schools are the most rapid and effective instrument of assimilation101 . Article 22 (2) goes further to precise that “the Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education, and in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.” In this case, the secretariat draft holds that refugees shall enjoy the most favourable treatment accorded to nationals of a foreign country, in particular as regards the remission of fees and the award of scholarships. It follows that since refugees are generally in precarious economic positions, it would be desirable to do more than merely accord them the ordinary treatment enjoyed by foreigners; otherwise in practice although secondary and higher education is open to them, they will be unable for want of money, to take advantage of it. This explains why it is proposed to grant refugees the most favourable treatment granted to nationals of a foreign country102 . Article 23 regulates the treatment of refugees with regards to public relief and assistance. It provides that “the Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.” WEIS’ argument here is that refugees are not required to meet any conditions of local affiliation or residence which may be required of nationals103 . In the case of nationals, the community of origin is frequently responsible for relief and assistance. Although not defined in the 1951 Convention, the term ‘public relief and assistance’ may be understood to cover a number of areas of public welfare, including food and other (non-social security related) social assistance, emergency relief and medical and hospital care104 . As such, while 101 Paul WEIS, op. cit., p. 117. 102 ibid., pp. 117-118. 103 ibid., p. 125. 104 Statement of MALFATTI (Italy), Ad Hoc Committee on Refugees and Stateless Person, UN Doc.E/AC.32/SR.38, p. 4.
30 the meaning of ‘public relief and assistance’ will depend to some extent on the meaning given to it in national law, it is a concept that should be interpreted widely105 . While Article 24 of the Convention essentially deals with labour and social security, the right to health is also incumbent. Article 24 (1) requires Contracting States to accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals with respect to remuneration and social security subject to limitations such as national laws or regulations of the country of residence. It therefore applies to labour law and social security in so far as such matters are governed by laws or regulations or are subject to the control of administrative authorities. It applies to the benefits for agreements between employees and employers only to this extent106 . Article 24 (2) further guarantees that the right of compensation for the death of a refugee resulting from employment injury or from occupational disease shall not be affected by the fact that the residence of the beneficiary is outside the territory of the Contracting State. This gives the dependents of victims of fatal industrial accidents resident abroad a right to compensation even if nationals have no such right. As to the actual transfer of the compensation, currency regulations are preserved but they should, as far as possible, be interpreted in such a way as to make transfer possible107 . Still in the light of social security, Article 24 (3) provides that the Contracting States shall extend to refugees the benefits of agreements concluded between them, or which may be concluded between them in the future, concerning the maintenance of acquired rights and rights in the process of acquisition with regard to social security, subject only to conditions which apply to nationals of States signatory to the agreements in question. This takes care of the reservation in paragraph 1 (b) (i) quoted above108 . Lastly, Article 24 (4) requires Contracting States to give sympathetic consideration to extending to refugees so far as possible the benefits of similar agreements which may at any time be in force between such Contracting States and non-Contracting States. This applies to similar agreements with non-Contracting States, in particular with the countries of origin of 105 ZIMMERMANN et al, op. cit., p. 1054. 106 Paul WEIS, op. cit., p. 137. 107 ibid. 108 ibid.
31 the refugees and is in the nature of a recommendation109 . Paul WEIS considers the principle of equality of treatment between nationals and aliens as regards labour law to be universally accepted. The same principle as regards social security is becoming more and more widely accepted. However, the question arises whether the term ‘lawfully staying’ extends also to refugees who were lawfully staying in the territory of a Contracting State and subsequently left it110 . The answer probably is that such refugees are entitled to social security benefits in as much as nationals are entitled to such benefits. Article 26 addresses the right to freedom of movement by obliging each Contracting State to accord to refugees lawfully in its territory the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances. WEIS supposes that Article 26 applies to refugees lawfully in the territory. It does not affect the conditions imposed on refugees for their admission. Special measures taken in time of war or other grave and exceptional circumstances are covered by Article 9111 . Subject to this, Contracting States may not discriminate between refugees in applying Article 26. Inasmuch as a refugee is restricted in his freedom to seek employment, this may also entail a restriction to choose his place of residence112 . Article 33 tackles the predicament of prohibition from expulsion or return also known as refoulement. Article 33 (1) clearly rules out Contracting States from expelling or returning (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. On this, WEIS opines that the words ‘to the frontiers of territories where his life or freedom would be threatened’ have the same meaning as in Article 31 (1)113 , that is, the same meaning as ‘well-founded fear of persecution’ in Article 1 A (2) of the Convention. It applies to the refugee’s country of origin and any other 109 ibid. 110 ibid. 111 Article 9 of the 1951 Convention states “Nothing in this Convention shall prevent a Contracting State, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security.” 112 Paul WEIS, op. cit., p. 149. 113 The article states that 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 in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
32 country where he also has a well-founded fear of persecution or risks being sent to this country of origin114 . The question arises whether the provision applies to non-admittance at the frontier and to extradition. The words ‘in any manner whatsoever’ would seem to indicate that this is the case. It was ruled by the President of the Conference115 that the article does not apply to mass migrations. In the course of drafting, other words such as ‘not to turn back’ were used. The argument that refoulement entails a right to asylum is not correct116 . The State admitting the refugee is not obliged to grant him asylum, and may even expel him to another country willing to admit him (Article 31). As to extradition, it would also seem to be covered by the words ‘in any manner whatsoever’. Most treaties of that kind specified that not only should the fact be established prima facie to the satisfaction of the country receiving the request for extradition, but also that the crime for which the criminal was to be returned was not of a political nature117 . Article 33 (2) nevertheless limits the extent to which paragraph one of the article applies by stating that 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 particular serious crime, constitutes a danger to the community or that country. WEIS118 argues that this second paragraph constitutes an exception to the general principle embodied in paragraph one and has, like all exceptions, to be interpreted restrictively. He further avers that not every reason of national security may be invoked; the refugee must constitute a danger to the national security of the country. As to criminal activities, the word ‘crimes’ is not to be understood in the technical sense of any criminal code but simply signifies a serious criminal offence. Two conditions must be fulfilled: the refugee must have been convicted by final judgment for a particularly serious crime, and he must constitute a danger to the community of the country. What crimes are meant is difficult to define since the principle that the criminal, not the crime, is to be punished applies. Certainly, capital crimes such as murder, rape, armed robbery and arson are included. However, even a particularly serious crime, if committed in a moment of passion, may not necessarily constitute the refugee as a danger to the community. On the 114 Paul WEIS, op. cit., p. 245. 115 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. 116 Paul WEIS, op. cit., p. 245. 117 ibid., p. 245. 118 ibid., pp. 245-246.
33 other hand, a refugee who has committed a particularly serious crime and many minor offences may well, as a habitual criminal, constitute a danger to the community119 . On his part, HATHAWAY120 notes that in some cases, depriving refugees the necessities of life may give rise to a breach of the duty of non- refoulement. Repatriation under coercion, including situations in which refugees are left with no real option but to live is breach to Article 33 of the refugee convention. At this point, it might be worthwhile considering the argument of HATHAWAY that the drafters of the refugee Convention, paid surprisingly little attention to the importance of meeting the basic needs of refugees who arrive to seek protection. While they gave detailed attention to a variety of relatively sophisticated socioeconomic rights, the Convention does not directly address the rights to food, water, or healthcare and only regulates access to public housing for refugees once they are lawfully staying in a given country121 . II: Other Universal Instruments Reinforcing the Social Protection of Refugees The 1951 refugee Convention and its 1967 Protocol as well as the Universal Declaration of Human Rights are not the only global legal precepts for the social protection of refugees. With the progressive development of international human rights law, there exist other international legal instruments reinforcing the social protection of refugees. In this perspective, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights can be noted. II.1: The International Covenant on Economic, Social and Cultural Rights (ICESCR) The International Covenant on Economic, Social and Cultural Rights was adopted and opened for signature, ratification and accession by the General Assembly Resolution 2200A (XXI) of 16 December 1966. The Covenant was ratified by Cameroon on June 27, 1984 and entered into force on September 27, 1984122 . By extrapolation, Article 2 (2) of the Covenant includes the respect of the rights of persons with refugee status recognised in the Covenant, by stating that “the States Parties to the present Covenant undertake to guarantee that the rights 119 ibid., p. 246. 120 James C. HATHAWAY, op. cit., p. 464. 121 ibid., p. 466. 122 See “United Nations Treaty Collection (UNTC).” Available at http://treaties.un.org [Accessed 6 March 2013].
34 enunciated in the present Covenant will be exercised without discrimination as to … national or social origin…” Article 6 has a direct relationship with Article 7 as they both deal with the right to work. This right includes fair wages and equal remuneration for work of equal value and safe and healthy working conditions. States are said to violate Articles 6 and 7 if they commit or permit workplace discrimination or violence against employees123 . They also violate these provisions if they do not pass or enforce statutes, regulations or laws to prohibit discriminatory and harmful employment practices for employees who work for any kind of employer, public or private. National laws or practices restricting women’s ability to work outside their homes constitute a violation of Articles 6 and 7. A government also violates its own obligation to protect human rights when it fails to prevent violations committed by others. For instance, a government’s failure to ensure that private employers comply with employment standards regarding safety work may violate the “right to work” or the “right to just and favourable conditions of work124 .” Article 9 recognises the right of everyone to social security, including social insurance. An example of violation of this right includes situations where legislation excludes foreign and migrant workers who do not have full-time jobs from social benefits and protection such as health care services, workers compensation, unemployment insurance benefits, financial support for other individuals and families in need125 . However, citing SCHEININ, CHOLEWINSKI succinctly summarised some important limitations of the article in shaping arguments for the protection of the rights of refugees and asylum seekers to social security that need to be kept in mind. According to him, the guarantee of Article 9 of the ICESCR is very general in nature referring merely to ‘social security, including social insurance,’ in deference to the far more detailed provisions in International Labour Organisation instruments126 . This article ‘primarily focuses on social security in the narrow sense: income- based and situation-based cash benefits for workers and their families127 . Article 10 warrants State parties to the Covenant to recognise that the widest possible protection and assistance should be accorded to the family, which is the natural and 123 Allan McCHESNEY, Promoting and Defending Economic, Social and Cultural Rights, A Handbook. Washington DC: American Association for the Advancement of Science, 2000, pp. 44-45. 124 ibid., p. 36. 125 ibid., p. 47. 126 ZIMMERMANN et al, op. cit., p. 1065. 127 SHEININ, pp. 159, 162 cited in ZIMMERMANN et al, ibid.
The Social Protection of Refugees in Cameroon
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The Social Protection of Refugees in Cameroon

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The Social Protection of Refugees in Cameroon

  • 1. i UNIVERSITE DE YAOUNDE II THE UNIVERSITY OF YAOUNDE II INSTITUT DES RELATIONS INTERNATIONALES DU CAMEROUN B.P.: 1637 Yaoundé Tel: (237) 22 31 03 05 Télécopie: (237) 22 31 89 99 Courriel: contact@iricuy2.net Site web : www.iricuy2.net INTERNATIONAL RELATIONS INSTITUTE OF CAMEROON P.O Box: 1637 Yaoundé Tel: (237) 22 31 03 05 Fax: (237) 22 31 89 99 E-mail: contact@iricuy2.net Web site: www.iricuy2.net A Thesis presented and publicly defended in partial fulfilment of the Requirements for the Award of a Professional Master’s Degree in International Relations Option: Diplomacy Specialisation: International Disputes and Conflict Management By TAYIMLONG Robert AFUH The Social Protection of Refugees in Cameroon JULY 2013
  • 2. ii DEDICATION To my aunt, Stella FEKA née NIBOH ANUMBUDEM, in appreciation for her extraordinary generosity.
  • 3. iii ACKNOWLEDGEMENTS Although I am responsible for the arguments in this study, I received a great deal of assistance along the way from a couple of individuals and institutions. I owe a profound debt of gratitude to Pr. Laurent ZANG and Dr. Melvis NDILOSEH who were willing to spend their valuable time reading and commenting on the manuscript. I appreciate the entire staff of IRIC particularly Dr. WERIWOH O. MBANG who assisted me to secure an internship position at the Embassy of Cameroon in Berlin, Germany in September 2011. While in Berlin, I twice visited a refugee camp where I experienced and learnt about what I consider to be ideal social protection policies of the German government. It was then that I decided to investigate the social situation of refugees in Cameroon. My regards equally go to Sandrine TANTOH and Pisso NSEKE who provided me with logistical support in the course of data collection. I also remain grateful to Serge NTAMACK, ex-student of IRIC, now diplomat within the ranks of the Ministry of External Relations, for helping me adopt the outline for the study. As the final draft was being completed, my course mates, Rolande NGOUFACK and Aristide AMOUGOU AGBOR proofread to reduce the margin of error to the barest minimum. I am indebted to them for their pivotal recommendations. I likewise benefited from the assistance of another classmate of mine, senior translator at the Ministry of External Relations, Blaise TAPON, who converted the abstract of the work (English) into the résume (French). I am very pleased with the management of the United Nations Centre for Human Rights and Democracy in Central Africa for helping me realise this study by providing a rich intellectual environment and generous research support through their well equipped library. I as well thank the AFUH’s, FEKA’s, VUSWEEH’s, NIBOH’s and TAZOH’s families for their tremendous moral and financial support all through my years in school and during the period of this study. Lastly, the contribution of Wilson WALKIL SABIT is laudable. This South Sudanese refugee provided me with information concerning the association affairs of refugees in Cameroon. Having sought refuge in seven African countries in two decades, I can only wish him a safe return back home as he plans to. I will end by craving the indulgence of all those who contributed to the realisation of this work but whose names have not been mentioned.
  • 4. iv LIST OF ABBREVIATIONS AND ACRONYMS ACHPR: African Commission on Human and Peoples’ Rights ADRA: Adventist Development and Relief Agency AHA: Africa Humanitarian Action ALVF: Association de la Lutte Contre les Violences faites aux Femmes AU: African Union AUC: African Union Commission CAT: Convention against Torture CAR: Central African Republic CCAPRRI: Coordinating Committee on Assistance and Protection to Refugees, Returnees and Internally Displaced Persons CCRC : Collectif des Communautés des Réfugiés au Cameroun CEMAC: Economic and Monetary Community of Central Africa CIAH: Collectif inter Africain des Habilitants CRDC: Communauté des Refugies et Demandeurs d’asile du Congo Démocratique au Cameroun CRS: Catholic Relief Services CPPJ: Centre de Perfectionnement à la Police Judicaire DAFI: Deutsche Akademische Flüchtlings Initiative Albert Einstein DGSN: General Delegation for National Security ECOSOC: Economic and Social Council ERUs: Emergency Response Units FAO: Food and Agricultural Organisation
  • 5. v GBV: Gender-based Violence GCE: General Certificate of Education GESP: Growth and Employment Strategy Paper HARDP: Humanitarian Affairs, Refugees and Displaced Persons IAPSC: Inter African Phyto-Sanitary Council ICCPR: International Covenant on Civil and Political Rights ICESCR: International Covenant on Economic, Social and Cultural Rights ICJ: International Court of Justice ICRC: International Committee of the Red Cross ICTs: Information and Communication Technologies IDPs: Internally Displaced Persons IFRC: International Federation of the Red Cross and Red Crescent Societies IGAs: Income Generating Activities IGOs: International Governmental Organisations IMC: International Medical Corps IOM: International Organisation for Migration ILO: International Labour Organisation IPU: Inter-Parliamentary Union IRD: International Relief and Development IRIC: International Relations Institute of Cameroon MDGs: Millennium Development Goals MINAS: Ministry of Social Affairs
  • 6. vi MINATD: Ministry of Territorial Administration and Decentralisation MINEDUC: Ministry of Basic Education MINJUSTICE: Ministry of Justice MINPROFF: Ministry of Women’s Empowerment and the Family MINREX: Ministry of External Relations MINSANTE: Ministry of Public Health MMUs: Mobile Medical Units MOU: Memorandum of Understanding NCHRF: National Commission on Human Rights and Freedoms NGOs: Non-Governmental Organisations OAU: Organisation of African Unity ODI: Overseas Development Institute OHCHR: Office of the High Commissioner for Human Rights RECs: Regional Economic Communities REWAC: Refugee Welfare Association RH: Reproductive Health SADC: Southern Africa Development Community UDHR: Universal Declaration of Human Rights UN: United Nations UNCRC: United Nations Convention on the Rights of the Child UNDP: United Nations Development Programme UNFPA: United Nations Population Fund
  • 7. vii UNGA: United Nations General Assembly UNHCHR: United Nations High Commissioner for Human Rights UNHCR: United Nations High Commissioner for Refugees UNICEF: United Nations International Children’s Emergency Fund UNO: United Nations Organisation UNTC: United Nations Treaty Collection USA: United States of America WATSAN: Water and Sanitation WFP: World Food Programme WHO: World Health Organisation
  • 8. viii LIST OF APPENDICES Appendix One: Interview Guide Appendix Two: Law N° 2005/006 of 27 July 2005 on the Status of Refugees in Cameroon Appendix Three: Decree N° 2011/389 of 28 November 2011 on the Organisation and Functioning of Organs of Management of Refugee Status Appendix Four: Ministerial Order N° 0013/DIPL/CAB of 6 August 2012 Appointing Members of the Commission of Eligibility for the Status of Refugee Appendix Five: Ministerial Order N° 0014/DIPL/CAB of 6 August 2012 Appointing Members of the Commission of Appeals of Refugees
  • 9. ix ABSTRACT This study, titled “The Social Protection of Refugees in Cameroon” was conducted to examine the extent to which the social protection of refugees in Cameroon was in conformity with international standards. The study was therefore aimed at analysing the legal basis for the social protection of refugees in Cameroon and establishing the role of the various stakeholders at the universal, regional and national levels. It was also intended to unveil the challenges encountered and propose policies to ameliorate the social plight of refugees. The theory of “Implicit Burden-Sharing” developed by Torun DEWAN and Eiko THIELEMANN (2006) and that of “Human Motivation” by Abraham MASLOW (1943) are used in this study. The main hypothesis of the study centred on the fact that the social protection of refugees in Cameroon was in conformity with international standards. To test this hypothesis, the qualitative research method was applied. Refugee related legal instruments were analysed while data were also collected from interviews with major stakeholders in the field of refugee protection in Cameroon. Academic publications, organisational reports and internet sources were equally important for the study. The data analysed revealed that there has been enormous progress in meeting international standards in the areas of education, emergency relief and assistance, protection of women, children and the family, security of person, and freedom of association and assembly. This can be attributed to the minimal cost or burden incurred in responding to these aspects of social protection. The results also indicated that much remain to be desired in such areas as nutrition, shelter, health care, freedom of movement and very importantly, employment and social security due to the high costs. Recommendations include the amendment of the legal instruments that provide the normative framework for protection and improvement of protection policies to reflect the changing dynamics. The principal conclusion was that there is a glimmer of hope with the new structural modifications in Cameroon’s Ministry of External Relations, notably the creation of a sub- Department for Relations with the International Organisation for Migration and the United Nations High Commissioner for Refugees. Key words: Cameroon - UNHCR - social protection - refugees - norms - institutions - operational partners - implementing partners.
  • 10. x RESUME Cette étude articulée autour de la protection sociale des réfugiés au Cameroun a été effectuée afin d’examiner le niveau de conformité aux standards internationaux de la protection sociale des réfugiés au Cameroun. Le but de l’étude était d’analyser la base juridique de la protection sociale des réfugiés au Cameroun et d’établir le rôle des différents intervenants aux niveaux universel, régional et national. Il était également question de dévoiler les défis rencontrés et de proposer des politiques pour améliorer la situation sociale des réfugiés. La théorie de « Partage implicite du fardeau » développée par Torun DEWAN et Eiko THIELEMANN (2006) et la « Théorie de la motivation humaine » d’Abraham MASLOW (1943) sont utilisées dans cette étude. La principale hypothèse était articulée autour du fait que la protection sociale des réfugiés au Cameroun était conforme aux standards internationaux. Pour la vérifier, la méthode de recherche qualitative a été appliquée. Les instruments juridiques relatifs aux réfugiés ont été analysés de même que des données ont été collectées à travers des entretiens avec les principaux intervenants dans le domaine de la protection des réfugiés au Cameroun. Les publications académiques, rapports institutionnels et ressources en ligne ont également constitué d’importantes ressources pour cette étude. Les données analysées ont révélé que des progrès considérables ont été réalisés vers l’atteinte des standards internationaux dans les domaines de l’éducation, du secours et de l’assistance d’urgence, de la protection des femmes, des enfants et de la famille, la sécurité des personnes, et de la liberté d’association et de réunion. Ceci peut être dû au coût ou fardeau minimal qui découle de la prise en compte des aspects de la protection sociale. Les résultats ont également indiqué que beaucoup reste à faire dans les domaines tels que la construction de centres d’accueil, les soins de santé, la liberté de mouvement et, plus important encore, l’emploi et la sécurité sociale du fait des coûts élevés. Entre autres recommandations, l’amendement des instruments juridiques qui constituent le cadre normatif de la protection et de l’amélioration des politiques de protection à l’effet de prendre en considération les nouvelles dynamiques. La principale conclusion à laquelle nous sommes parvenus est qu’il y a une lueur d’espoir avec la nouvelle configuration structurelle du ministère camerounais des Relations extérieures, notamment avec la création d’une sous-direction chargée des Relations avec l’Organisation Internationale des Migrations et le Haut Commissariat des Nations Unies pour les Réfugiés. Mots-clés : le Cameroun - les réfugiés - la protection sociale - les normes - les institutions - le HCR - les partenaires opérationnels - les partenaires de mise en œuvre.
  • 11. xi SUMMARY GENERAL INTRODUCTION...................................................................................................1 PART ONE: THE NORMATIVE AND INSTITUTIONAL FRAMEWORKS FOR THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON..................................................20 CHAPTER ONE: THE NORMATIVE FRAMEWORK FOR THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON……………………………………………………….…..22 I: Universal Instruments………………………...................………………………………….22 II: Other Universal Instruments Reinforcing the Social Protection of Refugees……………....…………………....…………………………………………………33 III: Regional Instruments………..................…………………………………………………42 IV: National Instruments…………………………………………….................………..……46 CHAPTER TWO: THE INSTITUTIONAL FRAMEWORK FOR THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON………………………………………….52 I: Universal Institutional Framework for the Social Protection of Refugees in Cameroon………………………………………………………………………………….….52 II: Regional Institutional Framework for the Social Protection of Refugees in Cameroon……………………………………………………………………………………..57 III: National Institutional Framework for the Social Protection of Refugees in Cameroon……………………………………………………………………….…………….62 PART TWO: THE SOCIAL SITUATION OF REFUGEES IN CAMEROON: A REFLECTION OF THE PROTECTIVE ROLE OF STAKEHOLDERS................................73 CHAPTER THREE: MEASURES OF MAJOR STAKEHOLDERS IN THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON.................................................................75 I: The Complementary Role of the UNHCR and its Operational and Implementing Partners......................................................................................................................................75 II: The Role of Associate United Nations Agencies.................................................................93 CHAPTER FOUR: CHALLENGES ENCOUNTERED IN THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON AND POLICY CONSIDERATIONS....................................99 I: Challenges and Constraints...................................................................................................99 II: Policy Considerations.........................................................................................................109 GENERAL CONCLUSION………………………………………………………………...119
  • 13. 2 0.1 BACKGROUND It is irrefutable that since the end of the Second World War and the drafting of the United Nations Charter, the scourge of war is still bringing untold sorrow to mankind. In fact, in 2011, conflicts worldwide reportedly forced a record 800 thousand people to flee their homes. That same year, there were 42.5 million displaced persons around the globe, amongst whom were 15.2 million refugees1 including 4.8 million Palestinians2 . Pakistan was host to the highest number of refugees with approximately 1.7 million seeking international protection in the country. The leading countries of origin of refugees were Afghanistan (2.7 million) and Iraq (1.4 million)3 , most likely because of the U.S-led coalition interventions in these countries. Meantime, Africa’s leading country of refugee origin was Somalia with an estimated 1.1 million. While the Middle East remains one of the most volatile regions in the world, the protection of refugees in Africa and Cameroon in particular is increasingly becoming a cause for concern amidst the growing insecurity in the region. These range from civil wars, post-election violence, human rights abuses, food crises, terrorism, hostage-taking, religious extremism, etc. At the global level, a giant step towards refugee protection was first taken in 1951, enshrined in the Geneva Convention relating to the Status of Refugees and its 1967 Protocol which, as of 2011, had both entered into force in 142 States including Cameroon (23 October 1961 and 19 September 1967 respectively)4 . While 2011 marked the 60th anniversary of the Geneva Convention, other vital steps have been taken from regional perspectives. As far as Africa is concerned, the 1969 Organisation of African Unity Convention governing the Specific Aspects of Refugee Problems in Africa was a milestone for the setting of standards for the protection of refugees in Africa. By 2011, it had entered into force in 45 States, Cameroon inclusive (7 September 1985)5 . Over the years, these legal instruments have been consolidated by many other diplomatic and international forums that fall within the framework of the plight of refugees. Cameroon’s accession, succession and ratification of the 1 Cable News Network (CNN), “World Report,” World Refugee Day, 20 June 2012. 2 Refugees International, “Who is a Refugee?” Available at www.refintl.org [Accessed: 3 July 2012]. 3 ibid., CNN holds the same view. 4 UNHCR, “State Parties to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol”. Available at www.unhcr.org [Accessed: 3 February 2012]. It is important to note that as of 1 April 2011, not all State parties to the 1951 Convention were parties to its 1967 Protocol. There are 144 States parties to the 1951 Convention, 145 for its 1967 Protocol, 142 for both and 147 for one or both of the instruments. 5 Oxford Journals, “State Parties to the 1969 OAU Convention governing the Specific Aspects of Refugee Problems in Africa.” Available at oxfordjournals.org [Accessed: 3 February 2012].
  • 14. 3 major international instruments governing refugee issues constitute a strong indication of the government’s commitment to ameliorate the plight of these vulnerable persons. The adoption of Law N° 2005/006 of 27 July 2005 on refugee status in Cameroon depicts a reinforcement of this commitment. According to AÏDA HAILE Mariam6 , former Resident Representative of the United Nations High Commissioner for Refugees to Cameroon, the country has the reputation of being a host terrain par excellence for refugees. To the effect of being relatively stable, it has become a magnet for refugees from neighbouring countries, where violence, disease and hunger are widespread7 . However, it goes without saying that Cameroon is not exempted from the enormous challenges faced by every host State. One of such challenges is the overstretching of already limited resources, making it cumbersome to meet the demands for subsistence of additional refugee populations8 . This is especially so in situations of massive refugee influx. As a result, the willingness expressed by host States is hardly commensurate to expected action. As NGOLLE NGOLLE9 noted, a major reason for this contrast might be that “the share of assistance received by African refugees from the international community is disproportionate to their sheer numbers but also considerably lower than the share received by refugees in other regions of the world.” The commemoration of the 60th anniversary of the 1951 Convention was therefore an occasion to evaluate these challenges and rally renewed support and commitments to the fundamental treaties enabling the State parties and the UN Refugee Agency to provide protection and assistance to refugees worldwide. The forum was described as “a unique opportunity … to discuss and shape the evolution of the international protection system over the next decade10 .” The obligation of States to assume their fair duty therefore means 6 Jocelyne NDOUYOU-MOULIOM, “Refugiés, Le Cameroun invité à la réunion interministérielle,” Cameroon tribune, 17 November 2011, p. 3. AÏDA HAILE Mariam was then the resident representative of the UNHCR to Cameroon. She was replaced by Ndeye NDIOUGUE NDOUR in 2012. 7 International Medical Corps, “Our Work in Cameroon.” Available at https://internationalmedicalcorps.org/sslpage.aspx?pid=533 [Accessed: 15 April 2013]. 8 Hector Gros ESPIELL, Sonia PICADO and Leo Valladares LANZA, “Principles and Criteria for the Protection of and Assistance to Central American Refugees,” International Journal of Refugee Law, Vol. 2 (1), 1990, pp. 83-117. 9 Elvis NGOLLE NGOLLE Otto, “The African Refugee and the Distribution of International Refugee Assistance in Comparative Perspective: An Empirical Analysis of the Policies of the United Nations High Commissioner for Refugees (UNHCR) 1960-1980.” Unpublished PhD Dissertation, Denver: The Faculty of the Graduate School of International Studies, University of Denver, Colorado, 1985. 10 UNHCR, “UN Urges Better Protection for World’s forcibly Displaced, Stateless People.” Available at www.un.org [Accessed: 3 February 2012]. See the speech of the High Commissioner, António GUTERRES, to a landmark meeting on the displaced and stateless, 7 December 2011.
  • 15. 4 “guaranteeing … adequate integration policies that contribute to social harmony11 .” By this assertion, social protection can be considered a major pillar of the refugee protection regime. 0.2 DEFINITION AND CLARIFICATION OF KEY CONCEPTS 2.1 Refugee The definition of a refugee has registered many but, more or less, similar definitions among scholars and institutions involved in the protection of refugees. The 1951 Geneva Convention relating to the Status of Refugees provides a more universally accepted definition of the term. This Convention states that a refugee is any person “who owing to a well-founded fear of persecution 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 it12 .” The emphasis in this definition is on the protection of persons from political or other forms of persecution13 . War, ethnic, tribal and religious violence are equally leading reasons for which refugees flee their countries14 . The 1969 OAU Convention governing the Specific Aspects of Refugee Problems in Africa, expanded the definition found in the 1951 Convention to include a more contextual consideration, specifically of “every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality15 .” A colloquium of Latin American government representatives and distinguished jurists, in 1984 adopted the Cartagena Declaration which, like that of the OAU, added a new element to the refugee definition provided for by the 1951 Convention. The declaration added persons 11 ibid. 12 Article 1 (2) of the Convention. 13 Cited in UNHCR, “Convention and Protocol relating to the Status of Refugees.” Available at www.unhcr.org/3b666C2aa10.htmb56 [Accessed 9 August 2012]. 14 USA for UNHCR, “Who is a Refugee?” Available at www.unrefugees.org [Accessed: 3 February 2012]. USA for UNHCR is the acronym for the United States Association for Refugees. It supports the UNHCR’s work to protect and assist refugees around the world. 15 Article 1 (2) of the Convention.
  • 16. 5 who flee their countries “because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order16 .” Last, but not the least, according to SHACKNOVE, “the predominant, generation-old conception advanced by international instruments, municipal statutes and scholarly treatises identifies the refugee as in essence, a person who has crossed an international frontier because of a well-founded fear of persecution17 .” Although all the aforementioned definitions have elements of relevance to this study, that provided by the 1951 Convention relating to the Status of Refugees is retained given the universal acceptance of the definition. 2.2 Social Protection The International Labour Organisation (ILO) defines social protection as “the provision of benefits to households and individuals through public or collective arrangements to protect against low or declining living standards18 .” On its part, the Overseas Development Institute (ODI) defines it as “public actions taken in response to levels of vulnerability, risk and deprivation which are deemed socially unacceptable within a given polity or society19 .” Social protection is also defined as “all interventions from public, private and voluntary organisations and informal networks to support communities, households and individuals in their efforts to prevent, manage and overcome risks and vulnerabilities and enhance the social status and rights of the marginalised20 .” 16 Conclusion N° 3 of the Colloquium (cited in the Cartagena Declaration). 17 Andrew E. SHACKNOVE, “Who is a Refugee?” Ethics, Vol. 95, (2), 1985, p. 274. 18 Rachel SABATES-WHEELER and Myrtha WAITE, Migration and Social Protection: A Concept Paper, Sussex: Institute of Development Studies, December 2003, p. 5. 19 ibid., p. 5. 20 This definition, set out in the proposal for the research project on ‘Social Protection and Migration in Sub-Saharan Africa: Case Studies on Access, Portability and Inclusion,’ is cited in Mpho MAKHEMA, “Social Protection for Refugees and Asylum Seekers in the Southern Africa Development Community (SADC),” 2009, p. 4.
  • 17. 6 The United Nations Research Institute for Social Development considers social protection to be concerned with “preventing, managing, and overcoming situations that adversely affect people’s well being.” According to this definition, social protection consists of policies and programs designed to reduce poverty and vulnerability by promoting efficient labour markets, diminishing people’s exposure to risks, and enhancing their capacity to manage economic and social risks, such as unemployment, exclusion, sickness, disability and old age21 . By placing contextual emphases on living standards, human rights, vulnerability and well- being, the aforementioned definitions of social protection are consistent with the context of this study. 2.3 Distinction between Refugees and other related Concepts The concept of refugee is often mistaken for other categories of vulnerable persons that are equally of concern to the UNHCR. These include asylum-seekers, internally displaced persons, returnees and stateless persons. Defining these categories serves the purpose of distinguishing them from the refugee. 2.3.1 Asylum-seeker: “Asylum-seeker” is a general term for a person who has not yet received a decision on his or her claim for refugee status. It could refer to someone who has not yet submitted an application or someone who is waiting for an answer. Not every asylum- seeker ultimately gets recognised as a refugee. In 1992, the UNHCR Executive Committee stated that “the institution of asylum, which derives directly from the right to seek and enjoy asylum set out in Article 14 (1) of the Universal Declaration of Human Rights, is among the most basic mechanisms for the international protection of refugees22 ” (Conclusion N° 28 (c)). Asylum serves two purposes: it provides a framework for protection and ensures that solutions to the problems of refugees can be pursued23 . In 2011, a total of 895 thousand individual applications for asylum or refugee status were submitted to governments and UNHCR offices in 166 countries24 . 21 ibid. 22 Kate JASTRAM, Marilyn ACHIRON and UNHCR, Refugee Protection: A Guide to International Refugee Law. Geneva: Inter-Parliamentary Union (IPU), 2001, p. 44. 23 ibid. 24 Refugees International, “Who is an asylum seeker?” Available at www.refintl.org [Accessed: 3 July 2012].
  • 18. 7 2.3.2 Internally Displaced Persons (IDPs): Francis DENG25 defines internally displaced persons as individuals who have involuntarily left their homes and communities due to natural disasters, war and economic activities. This change of place of residences according to him, quite often takes place within the same country. To complement DENG, the United Nations Guiding Principles on Internal Displacement, considers internally displaced persons to be “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognised State border26 .” In general, unlike refugees, IDPs are neither protected by international law nor eligible to receive many types of aid but they have many protection needs as refugees and are of concern to the mandate of the UNHCR27 , given their large numbers. In 2011, there were an estimated 26.5 million people displaced internally with the largest population found in Sudan and South Sudan (2.2 to 4.8 million28 ). Although IDPs outnumber refugees by more than double, no single United Nations agency or other international organisation has the responsibility of responding to internal displacement29 . 2.3.3 Returnee: A returnee is a former refugee who has returned to his or her home country. The majority of refugees prefer to return home as soon as it is safe to do so, and the country undergoing post conflict reconstruction30 . 2.3.4 Stateless Person: A stateless person is someone who is not considered to be a national by any State under the operation of its law. He or she may, but not necessarily be a refugee31 . The 1954 Convention relating to the Status of Stateless Persons helps regulate and improve the status of stateless persons and helps ensure that they enjoy fundamental rights and 25 Cited in Lawrence EBOT AGBOR, “The International Protection of Refugees in Africa: The Case of the Great Lakes Region.” Unpublished DESS Dissertation, Yaoundé: International Relations Institute of Cameroon (IRIC), 2000. 26 United Nations Guiding Principles on Internal Displacement, “Introduction – Scope and Purpose, N° 1” p. 1. 27 USA for UNHCR, op. cit. 28 ibid. 29 Refugees International, “Who is an Internally Displaced Person?” Available at www.refintl.org [Accessed: 3 July 2012] 30 USA for UNHCR, op. cit. 31 JASTRAM et al, op. cit., p. 24.
  • 19. 8 freedoms without discrimination. Also, the 1961 Convention on the Reduction of Statelessness32 defines ways in which persons, who would otherwise be stateless, can acquire or retain nationality through an established link with a State by birth or descent. It is worthy to note that there are an estimated 12 million stateless people around the world33 . 0.3 LITERATURE REVIEW For the purpose of better analysis, the review of literature on this topic is divided into two sections: the protection of refugees in general and Cameroon in relation to the social protection of refugee. 3.1 The Protection of Refugees WEIS34 brings out the social and psychological factors that add to the precarious status of refugees. According to him, refugees are often destitute, living in difficult material and psychological conditions and subject to suspicion. Such conditions necessitate international protection. This study endeavoured to evaluate WEIS’ remarks with emphasis on the social status of refugees in Cameroon. In analysing the social, economic and industrial issues affecting refugees (and migrant workers) over the age of 45 in Australia, CAMACHO35 opines that because they come from different racial, social, economic and linguistic backgrounds, they therefore have diverse needs and aspirations. Focusing on social issues, CAMACHO supposes that these “newcomers” face language and cultural barriers, while refugees with torture and trauma backgrounds from war-ravaged countries have special needs which require the assistance of specialised health organisations and professionals. To this is added the problem of discrimination in accessing employment which usually exists on bases of ethnicity, cultural customs and unfamiliar language. This study strived to find out whether or not these issues are common with refugees in Cameroon. However, the difference between CAMACHO’s paper and this study is that while it focuses on the socio-economic and industrial plight of migrants and refugees above the age of 45, this study cuts across refugees of all age groups. 32 Cameroon is not party to both Conventions. 33 Refugees International, “Who is a Stateless Person?” Available at www.refintl.org [Accessed: 3 July 2012]. 34 Paul WEIS, “The International Protection of Refugees,” American Journal of International Law, Vol. 48, 1954, p. 193. 35 Dionisio CAMACHO, “The Social, Economic and Industrial Issues Specific to Migrant Workers over 45 Years of Age Seeking Employment, or Establishing a Business, following Unemployment (A Quantitative Approach).” Mt Gravatt QLD 4122, April 1999.
  • 20. 9 JASTRAM et al36 , while considering the role played by the UNHCR, contend that in addition to providing legal protection, the UNHCR also provides material relief in major emergencies, either directly or through partner agencies. They add that the UNHCR in its first fifty years protected and assisted more than 50 million people in its work which has earned two Nobel Peace Prizes. They credit the staff of the United Nations’ Refugee Agency who work to protect refugees through a wide variety of activities such as responding to emergencies; relocating refugee camps away from border areas to improve safety; ensuring that refugee women have a say in food distribution and social services; reuniting separated families; providing information to refugees on conditions in their home country so they can make informed decisions about return; and documenting refugees need for resettlement to a second country of asylum. This study aimed at evaluating the role played by the government of Cameroon and the country bureau of the UNHCR within the framework of social protection. On his part, NGOLLE NGOLLE37 offers a critical analysis of the African dimensions of the global refugee problem in terms of the numbers involved, the conditions of settlement and the distribution of international assistance notably by the UNHCR. He concludes by noting the growth in both refugee numbers and the corresponding UNHCR assistance38 . While his work solely focuses on the efforts of the United Nations Refugee Agency as the specific international institution that manages refugees, this study attempted an in-depth analysis of other actors classified by the UNHCR as operational and implementing partners. EBOT39 , in his study on the international protection of refugees in the Great Lakes region of Africa, considers ethnic conflicts, separatist violence, complexity of identity and political exclusion as the factors that make refugee flows more complex in the continent and worldwide. He proposes the confinement of refugees in safe zones within the country of origin, settlement and absorption of the wave of refugees in host States in return for development assistance from the international community. Like MOUELLE40 , EBOT begins with an x-ray of the global and regional legal instruments for refugee protection before establishing a relationship between them and the actual reality in the Great Lakes region at the 36 JASTRAM et al, op. cit. 37 op. cit. 38 op. cit., p. 155. 39 op. cit. 40 Jean Narcisse MOUELLE KOMBI, “Le Cameroun et les Réfugiés,” Unpublished Maitrise Dissertation, Yaoundé: University of Yaoundé, 1986.
  • 21. 10 time. The outline of the first part of his work is quite similar to that adopted in this study but differs in the second part in that the latter largely focuses on the actions of the various stakeholders in the social protection of refugees in Cameroon. In what he terms the “language of protection,” GOODWIN-GILL41 traces the emergence and development of the concept of international protection, from the time of the League of Nations, through the period of the International Refugee Organisation, and into the practice of States and the UNHCR. Apart from identifying an integral link between protection and human rights, he compares the protective role of the UNHCR to that of the International Committee of the Red Cross (ICRC). The latter is one of the UNHCR’s implementing partners assessed by this study. ESPIELL et al42 appraise the principles and criteria for the protection of and assistance to Central American refugees, returnees and displaced persons in Latin America. They endeavour to “assess the progress achieved in respect of the principles underlying the protection of and assistance to refugees and their voluntary repatriation with a view to encouraging their dissemination and application43 .” Their inquiry remains useful for the purposes of consultation and orientation as the underlying principles go beyond those evoked in the Cartagena Declaration to focus on other international legal instruments. They have further been complemented through the practice of the States concerned and of international organisations. In his search for sustainable solutions to refugee problems in Africa, DINGAOMAIRE- LAOUHINGAMAYE 44 adopts a historical and analytical approach to examine the profound and immediate causes that underlie population exodus in the continent. His findings blame colonialism45 for the upsurge of refugees in the pre-independence era by delimiting territories through arbitrary frontiers and bringing ethnic groups together which do not speak the same language; practices which were a source of conflict. He believes the difficult solidarity within 41 Guy GOODWIN-GILL, “The Language of Protection,” International Journal of Refugee Law, Vol. 1, Issue 1, 1989, pp. 6- 19. 42 op. cit. 43 ibid., p.1. 44 DINGAOMAIRE-LAOUHINGAMAYE, “Les Réfugiés en Afrique: La Problématique des Solutions Durables (1960 – 1990).” Unpublished Maitrise Professionnelle Dissertation, Yaoundé: International Relations Institute of Cameroon (IRIC), 1993. 45 op. cit., p. 20.
  • 22. 11 the OAU at the time was one of the road blocks in the search for sustainable solutions to refugee problems. DINGAOMAIRE-LAOUHINGAMAYE therefore proposes a redefinition46 of the term “refugee” as far as the 1969 Organisation of African Unity (OAU) Convention governing the Specific Aspects of Refugee Problems in Africa is concerned. Like most researchers on the issue, his study revisits the legal basis of the international protection system with special emphasis on Africa. MAKIADI47 takes special interest in the problem of refugees in Africa and its consequences for host countries, particularly the case of Angola. Like many other authors, his study examines the legal instruments related to the protection of refugees. However, he distinguishes himself by the classification he makes of refugees originating from independent States and States under domination by a colonial power or racist minority on the one hand and those from urban and rural origins on the other hand. His analysis of social related protection focuses on emergency relief; lodging and sanitary aid; education and lastly, services for social orientation. The analytical and descriptive approach he employs was quite useful for this study. MAKHEMA48 examined the social protection of refugees and asylum seekers in the Southern Africa Development Community (SADC). According to her, there are three principal concerns which impact on practice with regards to the access of refugees and asylum seekers to social protection. These include the basis for an individual’s right to social protection, institutions responsible for providing social protection and the ideal mechanisms through which social protection is provided. As a response to the first two concerns, she highlights the argument of some authors who claim that social protection should be based on the universal human right to life, dignity and basic physical welfare, and therefore that responsibility for social protection provision transcends national borders. MAKHEMA’s emphasis on the basis for social protection, institutions responsible, mechanisms through which it is provided, as well as challenges and policy considerations almost entirely reflects the approach of this study to the issue which unlike hers, was within the context of Cameroon. 46 op. cit., p. 106. 47 Nelves MAKIADI N’SALAMBI, “Le Problème des Réfugiés en Afrique et ses Conséquences pour les Pays Hôtes: Cas des Réfugiés Namibiens, Sud-Africains et Zaïrois en Angola.” Unpublished Maitrise Professionnelle Dissertation, Yaoundé: International Relations Institute of Cameroon (IRIC), 1989. 48 op. cit.
  • 23. 12 3.2 Cameroon and the Social Protection of Refugees It must be acknowledged that literature on this subject is still budding. NGOLLE NGOLLE notes that this deficiency of systematic research is due to the fact that the refugee problem itself seems to belong to a cross-section of academic disciplines49 . However, a few scholarly works were reviewed. In his remarkable study on refugees in Cameroon, MOUELLE50 focused on two main aspects, notably their status alongside government and international humanitarian assistance. His examination of the issue goes beyond the legal framework of their protection to dwell on factors of social protection such as shelter, health care51 , education and social orientation52 . Though he can be credited for dealing with the main issues at the time, two decades are enough to change the operational dynamics and hence render it almost impossible to reflect the present reality. This study was therefore an effort to consider the new dynamics. KOUROUMA53 , in her study of the protection and assistance of Chadian refugees in Cameroon begins by analysing what she refers to as “the norms of protection and assistance to African refugees,” notably the 1951 Geneva Convention, its 1967 Protocol and the 1969 OAU Convention. The distinctive part of her work is her portrayal of the role played by non- governmental organisations in the protection of refugees. She also examines the role of other specialised agencies54 of the United Nations (such as the UNDP, FAO, ILO, WHO, UNICEF) that work in collaboration with the UNHCR to protect refugees. From a social protection perspective, this study accords with hers that the most basic needs of refugees just like those of every human being are nutrition, health care, shelter and education. Her study equally reveals that African refugees face problems of language in cases where European languages have been adopted as official languages by African countries. To conclude, most of the texts reviewed have an element of the legal precepts governing the protection of refugees, notably the 1951 Convention, its 1967 Protocol and the 1969 OAU 49 NGOLLE NGOLLE, op. cit., p. 8. 50 MOUELLE, op. cit. 51 ibid., pp. 61-63. 52 op. cit., pp. 70-71. 53 Duevi Jeannette Caroline KOUROUMA, “Protection et Assistance Internationale aux Réfugiés Africains: de Kousseri à Poli / Faro, Le cas des Réfugiés Tchadiens au Cameroun.” Unpublished Master’s Dissertation, Yaoundé: International Relations Institute of Cameroon (IRIC), 1983. 54 ibid., pp. 37-38.
  • 24. 13 Convention. While the authors endeavour to portray the dynamics in their specific areas of interests, they acknowledge that the protection of refugees is largely governed by international law. 0.4 DELIMITATION OF STUDY The delimitation of this study is threefold: historical (ratione temporis), geographical (ratione loci) and in terms of subject matter (ratione materiae). Historically, the study runs from 2005 to 2012. 2005 can be best justified by the fact that it was the year Cameroon passed its first refugee law. Also, it is within this timeframe that Cameroon witnessed its highest massive influxes of refugees across its northern and eastern borders following instability in Chad and the Central African Republic respectively. Geographically, the study is limited to the territory of the Republic of Cameroon in line with the mandate of the UNHCR contained in the cooperation agreement signed between the latter and the Government of Cameroon in 1978. The choice of this spatial limitation is further justified by the key role played by the territory in question as a host-terrain par excellence for protecting refugees. At the level of the subject matter, the study covers the universal, regional and national normative and institutional frameworks for refugee protection. The study is also limited to social protection. In this respect, given the fact that refugee protection is an umbrella term which covers a wide range of issues, contextual emphasis of social protection is placed on nutrition; shelter; health care; education; emergency relief and assistance; employment and social security; protection of women, children and the family; security of person; freedom of movement; and freedom of association and assembly55 . These constitute the dependent variables of this research. Conversely, the independent variables constitute the institutions that guarantee protection including the UNHCR and its implementing and operational partners. 55 This study recognises the difficulty in distinguishing between economic, social, cultural, civil and political rights. Even the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights fail to make clear cut differences on these rights. There is therefore lack of consensus on what social protection should comprise of (Rachel SABATES-WHEELER and Myrtha WAITE, op. cit., p. 6). Against this backdrop, in delimiting social rights, this study builds on the European Community Charter of the Fundamental Social Rights of Workers. This Charter clearly considers freedom of movement, employment, freedom of association, vocational training (education), health care, protection of children, etc., as fundamental social rights. The Charter was declared on 8 and 9 December 1989 in Strasbourg, France.
  • 25. 14 0.5 STATEMENT OF PROBLEM In 2011, the UNHCR noted that more than three quarters of a million people became refugees following the upheavals in Africa and the Middle East. As instability continued in the Eastern and Western African sub-regions, the number was expected to increase. Meantime, Cameroon is situated in the midst of countries in the Central African sub-region which for decades have been faced with internal insecurity. Such has been the case with the Central African Republic stroke by rebellion and intermittent coups d’états in recent years, as well as Chad with environmental crisis and border disputes with Libya. The role of neighbouring countries like Nigeria affected by sporadic violence and terrorism in conjunction with religious, economic and political differences can also be mentioned. These phenomena have prompted the influx of refugees into Cameroon which unlike her neighbours, has enjoyed relative internal peace and stability since independence. In fact in 2011, more than one hundred thousand were believed to be seeking international protection in Cameroon56 . It goes without reiterating that the most basic needs of refugees are more of social than political and economic. The central question which is therefore posed is as follows: given the fact that Cameroon is considered a ‘host country par excellence’57 for refugees, what is the extent to which social protection conforms to international standards? To better respond to this question, this study also seeks to answer the following secondary questions: 1. What constitutes the legal basis for the social protection of refugees in Cameroon? 2. What are the actors involved in the process, how complementary are their actions, and which of them bear the greatest burden? 3. What measures have been put in place to ensure the social protection of refugees? 4. What challenges or constraints are encountered? 5. What is the way forward in terms of policy considerations for a lasting solution? 0.6 HYPOTHESES This study attempted to decipher whether a direct relationship exists between the social protection of refugees in Cameroon and the national and international legal instruments which provide the basic standards on which principled action is based. Within this framework, the 56 NDOUYOU-MOULIOM, op. cit. 57 AÏDA HAILE Mariam cited in NDOUYOU-MOULIOM, ibid.
  • 26. 15 main hypothesis revolved around the assertion that “the social protection of refugees in Cameroon is in conformity with international standards for protection.” It is also hypothesised that: 1. There are universal, regional and national norms which provide the framework for the protection of the social rights of refugees in Cameroon. 2. There are various stakeholders involved in the social protection of refugees at the universal, regional and national levels. 3. There have been a good number of measures put in place to ameliorate the social plight of refugees in Cameroon. 4. There are multiple challenges encountered at various levels of social protection. 5. There is the possibility for a way forward. Generally, the outcome of the study was to suggest three possible interpretations. If a direct relationship was to be established between the two major variables in question, that is social protection and international standards, it could be an indication that by the country’s adoption of a national law on refugee status and its accession, succession and ratification of the major international instruments regulating the protection of refugees, Cameroon is determined to be a host country par excellence. It could equally suggest that the work of the UNHCR in Cameroon alongside its implementation and operational partners has been fruitful. However, the reverse could be true if the assertion is proven wrong and a strong indication that much remains to be desired in the social protection of refugees in Cameroon. A last possible interpretation could be a constellation of the first two. In other words, it could be interpreted to mean that despite the remarkable progress made in the social protection of refugees in Cameroon, much remains to be desired. 0.7 OBJECTIVES AND SIGNIFICANCE The main aim of this study was to enable an understanding of the concept of social protection of refugees in the context of Cameroon, with a view of offering guidance on the way forward. The following objectives were therefore identified to be of paramount importance in helping to achieve the aforementioned aim: - Situate the legal framework for the social protection of refugees in Cameroon. - Identify stakeholders involved, review their level of collaboration and ascertain which of them bears the greatest burden.
  • 27. 16 - Evaluate measures towards the social protection of refugees in Cameroon. - Analyse the challenges or constraints faced. - Formulate recommendations or policy considerations towards a durable solution in line with the challenges or constraints encountered. This study is significant in analysing the conceptual underpinnings of the social protection of refugees in the context of Cameroon, the key issues that the concept throws up for policy making, the range of measures subsumed to implement the concept and the implications all these have for State and international involvement in the provision of social protection. It is also a vital opportunity to use a ‘refugee’ lens to build on existing frameworks for conceptualising social protection. The study is significant in disclosing the flaws of the current social protection regime; a modest contribution towards improving on the formulation and implementation of policies by stakeholders in the domain. 0.8 THEORETICAL FRAMEWORK AND RESEARCH METHODOLOGY 8.1 Theory The theory of Implicit Burden-Sharing58 is applicable to the social protection of refugees in Cameroon. THIELEMANN and DEWAN believe burden-sharing debates are becoming increasingly important in areas such as refugee protection59 . Burden-sharing refers to responsibility-sharing or the ‘equal balance of efforts’ between States in the area of refugee protection while refugee protection is considered an international collective or public good60 . It follows therefore that for collectively or publicly provided goods, countries receive benefits through the overall supply of the good which is a combination of their own contribution and that of others. A number of scholars, most prominently SUHRKE61 , have suggested that refugee protection has important ‘public good’ characteristics. SUHRKE argues that the reception of displaced persons can be regarded an international public good from which all States benefit. In this view, increased security can be regarded as the principal benefit, as an 58 According to Sadako OGATA, former United Nations High Commissioner for Refugees, one of the outstanding achievements in the humanitarian field has been the establishment of the principle that the refugee problem is a matter of concern to the international community and must be addressed in the context of international cooperation and burden-sharing. 59 Torun DEWAN and Eiko R. THIELEMANN, “The myth of free-riding: Refugee protection and implicit burden-sharing,” West European politics, Vol. 29 (2), 2006, pp. 351-369. 60 The goods and services that governments provide in the common interest of all individuals are often called collective or public goods. Such goods are assumed to have one or both of the following characteristics: (1) non-excludability: if the collective good is provided for, everyone automatically benefits, or, in others words, non-contributors cannot be kept from benefiting from that good, and (2) non-rivalry: if the good is available to any one person/State, it is available to others at little or no additional cost. 61 Cited in THIELEMANN and DEWAN, op. cit.
  • 28. 17 accommodation of displaced persons (refugees) can be expected to reduce the risk of them fuelling and spreading the conflicts they are fleeing from. BOYER62 proposed an alternative framework to explain international burden-sharing by focusing on trade in public goods, building on the Ricardian theory of comparative advantage. On basis of these ideas, THIELEMANN and DEWAN suggest that the provision of a collective good can be broken down into tradable components. In the context of refugee protection, one feasible component is the provision of protection opportunities for displaced persons. They refer to this as a reactive contribution since it deals with the problem once people have already been displaced. Other forms of contribution such as engagement in unilateral and multilateral peace-keeping/making operations are termed proactive contributions since they aim to prevent refugee flows before they occur. Peacekeeping/enforcement can be viewed as an alternative way to contribute to security by preventing or limiting uncontrolled population flows. Like the acceptance of displaced persons, peacekeeping also possesses key elements of an international public good. If intrastate and interstate conflicts have negative consequences on other countries in terms of unchecked migration flows, then peacekeeping efforts to end such wars represent a trans- national public good. The peace and security provided by keeping migration flows in check through peacekeeping/making operations thus give rise to non-excludable and non-rival benefits. At this juncture, it is important to note that for the purpose and context of this study, only the reactive contribution was evaluated since it deals with the social protection of refugees who are already in the territory of Cameroon and consequently, the unit of comparative analysis in terms of burden-sharing are not States but stakeholders in the area of refugee protection in Cameroon. It is equally worthy to note that the burden-sharing model is correlated to the liberal paradigm of international relations. Indeed, the aforementioned postulates of SUHRKE are in line with the liberal principle of “collective security” while those of BOYER on trade in public goods are related to “commercial pacifism;” a precept based on the widespread ideas of liberal economists like Adam SMITH, Richard COBDEN and Joseph SCHUMPETER that 62 ibid.
  • 29. 18 trade is not only a factor of prosperity and wellbeing but also a factor of peace63 . A major motivation to conduct this study was the need to find out the stakeholder disproportionately shouldering the greatest burden in the social protection of refugees in Cameroon; whether it is the government of Cameroon, the UNHCR, or its implementing and operational partners. Abraham MASLOW’s concept of hierarchy of needs can equally be used to support the choice of social protection rather than the other dimensions of protection. In his 1943 paper on the “Theory of Human Motivation,” the renowned psychologist suggests that people are motivated to fulfil basic needs before moving on to other, more advanced needs64 . This hierarchy is most often displayed as a pyramid, with the most basic needs at the lowest levels, while the more complex needs are located at the top. Physiological needs at the bottom of the pyramid are basic requirements including the need for food and water (nutrition) while safety and security needs include health care and shelter65 . His theory also mentions involvement in social, community and religious groups as vital needs. Though little mention is made of education, social orientation, emergency relief, etc., MASLOW’s concept of hierarchy of needs66 is related to the context of this study to a great extent. 8.2 Research Methodology The method of study employed was both analytical and descriptive. The hypothesis of the study was tested by content-analysing qualitative empirical data obtained from different sources. The study made use of both primary and secondary sources. Primary sources essentially included observation and interviews with refugees and stakeholders in the domain of their protection in Cameroon. These stakeholders range from the UNHCR, its operational and implementing partners as well as human rights promotion and protection organs such as the National Commission on Human Rights and Freedoms (NCHRF) and the United Nations Centre for Human Rights and Democracy in Central Africa. Content analyses of data from secondary sources entailed academic publications and organisational reports. From a legal perspective, the study analysed universal, regional and national instruments on the protection of refugees. Internet sources relating to the issue were equally useful. The descriptive method 63 Pierre MOUKOKO MBONJO, “Theories of International Relations,” First Semester Lecture Notes, 2010 / 2011 Academic Year. 64 Kendra CHERRY, “Hierarchy of Needs”. Available at http://psychology.about.com [Accessed 1 July 2012]. 65 ibid. 66 Criticisms for MASLOW’s theory indicate that there is little evidence for his ranking of needs and even less evidence that these needs are in a hierarchical order. However, regardless of these criticisms, his theory remains part of an important shift in human development.
  • 30. 19 permitted an empirical perspective of the actual situation on the ground as far as the social protection of refugees in Cameroon is concerned. These fall within the framework of the hypothetico-descriptive approach, a model of social science involving the formulation of hypotheses and theories from which particular occurrences can be deduced and thus predicted and explained. 0.9 STRUCTURAL ORGANISATION This work is presented in four chapters grouped into two major parts. The first part with two chapters analyses the normative and institutional frameworks for the social protection of refugees in Cameroon. The first chapter therefore examines the normative framework from a universal, regional and national perspective67 . Similarly, the second chapter presents the institutional framework from a universal, regional and national perspective. The second part comprising of the third and fourth chapters focuses on the measures taken by various stakeholders in the social protection of refugees in Cameroon, challenges encountered as well as policy considerations. The third chapter thus analyses the measures within the framework of the UNHCR and its partners while the fourth and last chapter unveils the challenges or constraints that stifle the process, and proposes the way forward in terms of policy considerations. 67 The logic behind this order lies in the fact that most of the universal instruments for the protection of refugees were adopted and even entered into force before the regional texts and the eventual passing of national laws in this respect.
  • 31. 20 PART ONE THE NORMATIVE AND INSTITUTIONAL FRAMEWORKS FOR THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON
  • 32. 21 INTRODUCTION TO PART ONE The social protection of refugees in Cameroon is governed by a normative and an institutional framework. The normative framework is significant as it provides principles and criteria for the social protection of refugees in Cameroon. Without legal standards, there will be no basis for social protection. On its part, institutional framework implies organs or bodies which oversee or control the implementation of norms regarding social protection. Without the existence of such institutions, the normative framework will be worthless. This part of the work dwells on the normative and institutional frameworks. Whereas chapter one is dedicated to the normative framework, chapter two examines the institutional framework.
  • 33. 22 CHAPTER ONE: THE NORMATIVE FRAMEWORK FOR THE SOCIAL PROTECTION OF REFUGEES IN CAMEROON There are global, regional as well as national legal instruments representing the normative framework for the protection of refugees in general and from social outlook in particular. For the purposes of this study, only those directly relating to Cameroon are analysed68 . However, it is worth noting that there is no single instrument which provides all the elements of social protection. While they are similar in many respects, they differ in scope in some cases, and are seen in this context as complementary. This chapter strives to explore the normative framework for the protection of refugee rights in Cameroon. While section one examines the main universal instruments guaranteeing the social protection of refugees, section two focuses on other global instruments which have a similar vocation. The regional and national normative frameworks are the focus of sections three and four respectively. I: Universal Instruments Cameroon is signatory to all major international instruments on refugees without reservation, notably the Refugee Convention of 1951 and its 1967 Protocol. On a global scale, apart from the Universal Declaration of Human Rights, this Convention and Protocol have been supplemented by subsidiary protection regimes. I.1: The Universal Declaration of Human Rights (UDHR) The Universal Declaration of Human Rights was adopted and proclaimed by UN General Assembly Resolution 217 A (III) of 10 December 1948. Through this declaration, the United Nations proclaimed its commitment to uphold, promote and protect the human rights of every individual69 , including refugees. This commitment builds on the United Nations Charter, which reaffirms the faith of the peoples of the world in fundamental human rights and in the dignity and worth of the human person70 . Generally, Article 14 of the declaration defines the framework for refugee protection by recognising the fact that “everyone has the right to seek 68 This delimitation is vital since this study deals with the social protection of refugees in the context of Cameroon. The 1951 Convention is the only global legal instrument dealing with the status and rights of refugees. It therefore applies in Cameroon following its ratification. However, there are several other conventions and declarations of particular relevance in specific regions. An example is the Cartagena Declaration which applies only in Latin America. Such instruments cannot be analysed in this study since they do not apply in Cameroon. 69 United Nations, “The Universal Declaration of Human Rights at 60.” Available at www.un.org/events/humanrights/2007/hrphotos/declaration%_eng.pdf [Accessed 9 August 2012]. 70 Article 1 (3) of the United Nations Charter.
  • 34. 23 and to enjoy in other countries, asylum from persecution.” Attention here is nevertheless on articles relating to the social protection of these vulnerable persons. Article 3 affirms the right to life, liberty and security of person for everyone. This is a combination of Articles 6 and 9 respectively of the International Covenant on Civil and Political Rights. The United Nations Human Rights Committee refers to it as “the supreme right” and insists that “it is the basic of all human rights71 ” and “should not be interpreted narrowly 72 .” Article 13 (1) stipulates the right of everyone to freedom of movement and residence within the borders of each State. The right of everyone to leave any “country, including his own, and to return to his country” recorded in this is but a corollary of freedom of movement declared in paragraph one of the same article73 . Contrary to this, GIBNEY and HANSEN opine that refugees are usually prohibited from leaving the refugee camp to which they have been assigned, although there is no provision in international refugee law instruments that can justify the systematic and unfettered restriction to the refugees’ freedom of movement. In some countries, the police enforce restrictions to freedom of movement by resorting to arbitrary arrest and detention74 . Nonetheless, some restrictions on the freedom of movement of irregularly entering asylum-seekers are allowed pending regularisation of States75 . Article 20 (1) lays down the right of everyone to freedom of peaceful assembly and association. In the same vein, Article 20 (2) prohibits the act of compelling anyone to belong to an association. This right is considered an individual and a collective right76 . This means that it creates rights for individuals to be in association and to act in association, but also that it creates rights for the association which may have a collective interest beyond that of an individual member. Complementing this is the right not to be a member of an association77 . 71 UN Human Rights Committee, General Comment No. 14: Right to Life (1984), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 139, para. 1. 72 UN Human Rights Committee, General Comment No. 6: Right to Life (1982), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 128, para. 1. 73 Lars-Gunner ERIKSON, Goran MELANDER, and Peter NOBEL, An Analysing Account of the Conference on the African Refugee Problem: Arusha, May 7, 1979. Uppsala: Scandinavian Institute of African Studies, 1981, p. 122. 74 Matthew J. GIBNEY and Randall A. HANSEN, Immigration and Asylum: From 1900 to the Present. Santa Barbara, California: ABC CLIO, 2005, p. 499. 75 James C. HATHAWAY, The Rights of Refugees under International Law. New York: Cambridge University Press, 2005, p. 412. 76 K. D EWING, “Freedom of Association. Individual Rights and the Law in Britain,” Ind. Law J, Vol. 34, 1992, p. 240. Paul WEIS, “The International Protection of Refugees,” American Journal of International Law, Vol. 48, 1954, p. 193. 77 ibid., 240.
  • 35. 24 Article 22 guarantees that everyone, as a member of society, has the right to social security and is entitled to realisation, through national effort and international cooperation and in accordance with the organisation and resources of each State, of the economic, social and cultural rights indispensible for his dignity and the free development of his personality. Social security can therefore be understood in a broad sense as referring to both ‘earned benefits and need-based assistance78 .’ Pertaining to Article 23 (1), everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. With regard to Article 23 (2), everyone, without any discrimination, has the right to equal pay for equal work. A propos Article 23 (3), everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. With reference to Article 23 (4), everyone has the right to form and join trade unions for the protection of his interests. The right to work recognises a person’s productive-creative needs79 . The expression “right to work” is sometimes misunderstood as guaranteeing a job for everyone. The International Labour Conference and the United Nations have discussed this many times, and in fact what it means in international law is the right to have the opportunity to work80 . In other words, States have an obligation to provide for the conditions that allow everyone (including refugees) to support themselves and their families81 . Article 25 is multidimensional, focusing on the rights to nutrition, shelter and health care. As regards Article 25 (1), everyone has the right to the standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. The rights to food, clothing, housing and medical care as stated in this article are social acknowledgements of biological-material needs82 . Food is considered the basic need for 78 SHEININ in Rights (1995), p. 159, cited in CHOLEWINSKI, IGLJ 14 (2000) pp. 709, 723, cited in, Andreas ZIMMERMANN, Jonas DORSCHER, and Felix MACHTS, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary. Oxford Commentaries on International Law, 2011, p. 1065. 79 Joseph WRONKA, Human Rights and Social Policy in the 21st Century. Revised Edition, University Press of America, 1998, p. 26. 80 Lee SWEPSTON, The Universal Declaration of Human Rights and ILO Standards: A Comparative Analysis on the Occasion of the 50th Anniversary of the Declaration’s Adoption. Geneva: International Labour Office, 1998, p. 23. 81 ibid., p. 23. 82 Joseph WRONKA, Human Rights and Social Policy in the 21st Century.
  • 36. 25 all human beings83 . Everyone requires access to food which is sufficient, balanced and safe to satisfy nutritional requirements, culturally acceptable and accessible in a manner that does not destroy one’s dignity as human beings84 . According to Article 25 (2), motherhood and childhood are entitled to special care and assistance. It goes further to underscore that all children, whether born in or out of wedlock, shall enjoy the same social protection. This is one of the categories of rights contained in the UDHR and carried forward into other international instruments85 . Like others in this category, it does not impose absolute and immediately binding standards of attainment, but rather requires States to take steps to the maximum of their available resources, progressively, to realise rights in a non-discriminatory way86 . The significance of this article can be explained by the fact that there have been a couple of international conventions to protect the rights of these two categories. Cases in point include the 1979 Convention on the Elimination of all Forms of Violence against Women, the 1989 Convention on Rights of the Child and the 1990 African Charter on the Rights and Welfare of the Child. The African Charter on the Rights and Welfare of the Child is the first regional and comprehensive binding instrument proclaiming the human rights of children. The adoption of the Charter closely followed that of the United Nations Convention on the Rights of the Child (UNCRC). Some of the specific features of the Charter include a stronger definition of the child than in the UN Convention including the protection of internally displaced and refugee children, protection of imprisoned expectant mothers and mothers of infants and young children, and protection of girls who become pregnant before the end of their education87 . Article 26 (1) defines the right to education for everyone. It stresses that education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. Paragraph two of Article 26 elucidates that education shall be oriented to the full development of the human personality and the strengthening of respect for human rights and fundamental freedoms. It shall promote understandings, tolerance and friendship among all nations, racial or religious 83 EIDE, 1987, pg. 13. Cited in Joseph WRONKA, op. cit., p. 26. 84 ibid. 85 Erika FELLER, Volker TURK and Francis NICHOLSON, Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection. Cambridge: Cambridge University Press, 2003, p. 382. 86 ibid. 87 Hakina ABBAS, Africa’s Long Road to Rights: Reflections on the 20th Anniversary of the African Commission on Human and Peoples’ Rights. Nairobi: Fahamu-Networks for Social Justice, 2007, p. 51.
  • 37. 26 groups, and shall further the activities of the United Nations in the maintenance of peace. Meanwhile, the third and last paragraph of the article guarantees the prior right of parents to choose the kind of education that shall be given their children. The article recognises the right to self-actualisation88 . The drafting history of the first two paragraphs is in connection with the rights to the full development of one’s personality, which underlies the entire second half of the Declaration, but is specifically mentioned in Articles 22, 26 and 2989 . Paragraph 2 makes human rights education the new civics for the new world order the drafters envisioned while the last paragraph attaches special importance to parents who are members of a minority group90 . The use of the word “everyone” in most, if not in all articles analysed above demonstrates the universal coverage of the UDHR to include all human beings including refugees. The Universal Declaration of Human Rights is the first comprehensive human rights instrument to be proclaimed by a universal international organisation. Because of its moral status and the legal and political importance, it has acquired over the years, the Declaration ranks of the Magna Carta, the French Declaration of the Rights of Man and the American Declarations of Independence, as a milestone in mankind’s struggle for freedom and human dignity91 . It is also part of international customary law; it is the base from which all other instruments of human rights derive. There is hardly an instrument of human rights that does not, in its preamble, refer to the Universal Declaration of Human Rights. I.2: Convention and Protocol Relating to the Status of Refugees Grounded in Article 14 of the 1948 Universal Declaration of human rights which recognises the right of persons to seek asylum from persecution in other countries, the United Nations Geneva Convention relating to the Status of Refugees, adopted in 1951, is the centrepiece of international refugee protection92 . The Convention entered into force on 22 April 1954, and it has been subject to only one amendment in the form of a 1967 Protocol of New York, which 88 Joseph WRONKA, op. cit., p. 26. 89 Johannes MORSINK, The Universal Declaration of Human Rights: Origins, Drafting and Intent. Philadelphia: University of Pennsylvania Press, 1999, p. 335. 90 ibid. 91 Thomas BUERGENTHAL, International Human Rights in a Nutshell. West Publishing Co., 1988, p. 25. 92 United Nations General Assembly Resolution 429 (V) of 14 December 1950, available at http://www.unhcr.org/refworld/docid/3b00F08a27.html, cited in Convention and Protocol Relating to the Status of Refugees, available at www.unhcr.org/3b666C2aa10.htmb56 [Accessed 9 August 2012].
  • 38. 27 removed the geographic and temporal limits of the 1951 Convention93 . The 1951 Convention, a post-Second World War instrument, was originally limited in scope to persons fleeing events occurring before 1 January 1951 and within Europe. The 1967 Protocol removed these limitations and thus gave the Convention universal coverage. In Cameroon, the Convention and Protocol entered into force on 23 October 1961 and 19 September 1967 respectively. Emphasis here is laid on the provisions of the Convention related to social protection. Article 15 provides the right to association. It states that “as regards non-political and non- profit-making associations and trade unions, the Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances.” In the point of view of the Secretariat draft of the travaux préparatoires94 , the ordinary law of democratic countries includes freedom of association which, in principle, is enjoyed by foreigners as well as by nationals, and Article 20 of the Universal Declaration of Human Rights lays that down. In these circumstances, there can be no objection to stateless persons joining non-profit-making associations. It was therefore advisable to include a special provision relating to non-profit-making associations in the Convention. Profit-making associations are covered by the provisions dealing with the exercise of the professions95 . Article 17 requires States to accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards wage-earning employment. The article is a product of negotiations conducted during the serious economic conditions following the Second World War96 . It is therefore arguable that any restrictive measures on the enjoyment of this right by refugees today and drawn from the 1951 Convention could be justified, on an exceptional basis only, according to severe financial or economic conditions equivalent to the post-Second World War environment as an implied term of Article 17 of the 1951 Convention97 . However, this would only be permitted 93 The Convention enabled States to make a declaration when becoming party, according to which the words “events occurring before 1 January 1951” are understood to mean “events occurring in Europe” prior to that date. This geographical limitation has been maintained by a very limited number of States, and with the adoption of the 1967 Protocol, has lost much of its significance. The Protocol of 1967 is attached to United Nations General Assembly Resolution 2198 (XXI) of 16 December 1967, available at http://www.unhcr.org/refworld/docid/3b00flcc50.html. 94 Paul WEIS, The Refugee Convention, 1951: The Travaux Préparatoires Analysed, Cambridge: Grotius Publications, 1995, p. 90 of online version, available at www.unhcr.org/4ca34be29.pdf. 95 ibid. 96 ZIMMERMANN et al, p. 967. 97 ibid.
  • 39. 28 if it does not defeat the object and purpose of the 1951 Convention. The preamble to the Convention recalls that the UN had ‘manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of their fundamental rights and freedoms’98 ; or otherwise violate human rights obligations such as the obligation to treat individuals with dignity. Article 20 guarantees the right to rationing which can be linked to nutrition. With regards to this, “where a rationing system exists, which applies to the population at large and regulates the general distribution of products in short supply, refugees shall be accorded the same treatment as nationals.” This provision is considered an innovation and applies to all refugees in the territory, whether lawfully or unlawfully there99 . It follows from the debate during the preparatory work that it refers to consumer goods in short supply, not to commodities for commercial or industrial use. The provision does not apply to products available in sufficient quantities but which are allocated to certain groups, for example, indigent or old persons, or at more favourable prices or conditions. Housing is the main concern of Article 21. It states that “as regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible, and in any event, not less favourable than that accorded to aliens generally in the same circumstances.” In his commentary on the article, WEIS borrows from Article 6 of the Migration for Employment Convention of 1949 which provides that each Contracting party ‘undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to migrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of...accommodation...’ There may thus be a conflict when a refugee is also a migrant worker and the State concerned is a party to both Conventions. In such a case, the refugee would be accorded the better treatment. Commentators have noted that the term ‘housing’ is wider than ‘housing accommodation’ and that the concept of housing ‘implies not only the obtaining of dwelling place, but also participation in schemes for financing of the construction of dwelling places100 .’ 98 EDWARDS, International Journal of Refugee Law 17 (2005) pp. 293, 297 cited in ZIMMERMANN et al, op. cit., p. 967. 99 Paul WEIS, The Travaux Préparatoires Analysed, p. 115. 100 ZIMMERMANN et al, op. cit., p. 1014.
  • 40. 29 Article 22 focuses on public education. Article 22 (1) provides that “the Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.” The Secretariat draft of the article stated that elementary education is to be provided for refugees in the same manner as for nationals, because elementary education satisfies an urgent need, reason why most States have made it compulsory, and because schools are the most rapid and effective instrument of assimilation101 . Article 22 (2) goes further to precise that “the Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education, and in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.” In this case, the secretariat draft holds that refugees shall enjoy the most favourable treatment accorded to nationals of a foreign country, in particular as regards the remission of fees and the award of scholarships. It follows that since refugees are generally in precarious economic positions, it would be desirable to do more than merely accord them the ordinary treatment enjoyed by foreigners; otherwise in practice although secondary and higher education is open to them, they will be unable for want of money, to take advantage of it. This explains why it is proposed to grant refugees the most favourable treatment granted to nationals of a foreign country102 . Article 23 regulates the treatment of refugees with regards to public relief and assistance. It provides that “the Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.” WEIS’ argument here is that refugees are not required to meet any conditions of local affiliation or residence which may be required of nationals103 . In the case of nationals, the community of origin is frequently responsible for relief and assistance. Although not defined in the 1951 Convention, the term ‘public relief and assistance’ may be understood to cover a number of areas of public welfare, including food and other (non-social security related) social assistance, emergency relief and medical and hospital care104 . As such, while 101 Paul WEIS, op. cit., p. 117. 102 ibid., pp. 117-118. 103 ibid., p. 125. 104 Statement of MALFATTI (Italy), Ad Hoc Committee on Refugees and Stateless Person, UN Doc.E/AC.32/SR.38, p. 4.
  • 41. 30 the meaning of ‘public relief and assistance’ will depend to some extent on the meaning given to it in national law, it is a concept that should be interpreted widely105 . While Article 24 of the Convention essentially deals with labour and social security, the right to health is also incumbent. Article 24 (1) requires Contracting States to accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals with respect to remuneration and social security subject to limitations such as national laws or regulations of the country of residence. It therefore applies to labour law and social security in so far as such matters are governed by laws or regulations or are subject to the control of administrative authorities. It applies to the benefits for agreements between employees and employers only to this extent106 . Article 24 (2) further guarantees that the right of compensation for the death of a refugee resulting from employment injury or from occupational disease shall not be affected by the fact that the residence of the beneficiary is outside the territory of the Contracting State. This gives the dependents of victims of fatal industrial accidents resident abroad a right to compensation even if nationals have no such right. As to the actual transfer of the compensation, currency regulations are preserved but they should, as far as possible, be interpreted in such a way as to make transfer possible107 . Still in the light of social security, Article 24 (3) provides that the Contracting States shall extend to refugees the benefits of agreements concluded between them, or which may be concluded between them in the future, concerning the maintenance of acquired rights and rights in the process of acquisition with regard to social security, subject only to conditions which apply to nationals of States signatory to the agreements in question. This takes care of the reservation in paragraph 1 (b) (i) quoted above108 . Lastly, Article 24 (4) requires Contracting States to give sympathetic consideration to extending to refugees so far as possible the benefits of similar agreements which may at any time be in force between such Contracting States and non-Contracting States. This applies to similar agreements with non-Contracting States, in particular with the countries of origin of 105 ZIMMERMANN et al, op. cit., p. 1054. 106 Paul WEIS, op. cit., p. 137. 107 ibid. 108 ibid.
  • 42. 31 the refugees and is in the nature of a recommendation109 . Paul WEIS considers the principle of equality of treatment between nationals and aliens as regards labour law to be universally accepted. The same principle as regards social security is becoming more and more widely accepted. However, the question arises whether the term ‘lawfully staying’ extends also to refugees who were lawfully staying in the territory of a Contracting State and subsequently left it110 . The answer probably is that such refugees are entitled to social security benefits in as much as nationals are entitled to such benefits. Article 26 addresses the right to freedom of movement by obliging each Contracting State to accord to refugees lawfully in its territory the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances. WEIS supposes that Article 26 applies to refugees lawfully in the territory. It does not affect the conditions imposed on refugees for their admission. Special measures taken in time of war or other grave and exceptional circumstances are covered by Article 9111 . Subject to this, Contracting States may not discriminate between refugees in applying Article 26. Inasmuch as a refugee is restricted in his freedom to seek employment, this may also entail a restriction to choose his place of residence112 . Article 33 tackles the predicament of prohibition from expulsion or return also known as refoulement. Article 33 (1) clearly rules out Contracting States from expelling or returning (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. On this, WEIS opines that the words ‘to the frontiers of territories where his life or freedom would be threatened’ have the same meaning as in Article 31 (1)113 , that is, the same meaning as ‘well-founded fear of persecution’ in Article 1 A (2) of the Convention. It applies to the refugee’s country of origin and any other 109 ibid. 110 ibid. 111 Article 9 of the 1951 Convention states “Nothing in this Convention shall prevent a Contracting State, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security.” 112 Paul WEIS, op. cit., p. 149. 113 The article states that 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 in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
  • 43. 32 country where he also has a well-founded fear of persecution or risks being sent to this country of origin114 . The question arises whether the provision applies to non-admittance at the frontier and to extradition. The words ‘in any manner whatsoever’ would seem to indicate that this is the case. It was ruled by the President of the Conference115 that the article does not apply to mass migrations. In the course of drafting, other words such as ‘not to turn back’ were used. The argument that refoulement entails a right to asylum is not correct116 . The State admitting the refugee is not obliged to grant him asylum, and may even expel him to another country willing to admit him (Article 31). As to extradition, it would also seem to be covered by the words ‘in any manner whatsoever’. Most treaties of that kind specified that not only should the fact be established prima facie to the satisfaction of the country receiving the request for extradition, but also that the crime for which the criminal was to be returned was not of a political nature117 . Article 33 (2) nevertheless limits the extent to which paragraph one of the article applies by stating that 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 particular serious crime, constitutes a danger to the community or that country. WEIS118 argues that this second paragraph constitutes an exception to the general principle embodied in paragraph one and has, like all exceptions, to be interpreted restrictively. He further avers that not every reason of national security may be invoked; the refugee must constitute a danger to the national security of the country. As to criminal activities, the word ‘crimes’ is not to be understood in the technical sense of any criminal code but simply signifies a serious criminal offence. Two conditions must be fulfilled: the refugee must have been convicted by final judgment for a particularly serious crime, and he must constitute a danger to the community of the country. What crimes are meant is difficult to define since the principle that the criminal, not the crime, is to be punished applies. Certainly, capital crimes such as murder, rape, armed robbery and arson are included. However, even a particularly serious crime, if committed in a moment of passion, may not necessarily constitute the refugee as a danger to the community. On the 114 Paul WEIS, op. cit., p. 245. 115 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. 116 Paul WEIS, op. cit., p. 245. 117 ibid., p. 245. 118 ibid., pp. 245-246.
  • 44. 33 other hand, a refugee who has committed a particularly serious crime and many minor offences may well, as a habitual criminal, constitute a danger to the community119 . On his part, HATHAWAY120 notes that in some cases, depriving refugees the necessities of life may give rise to a breach of the duty of non- refoulement. Repatriation under coercion, including situations in which refugees are left with no real option but to live is breach to Article 33 of the refugee convention. At this point, it might be worthwhile considering the argument of HATHAWAY that the drafters of the refugee Convention, paid surprisingly little attention to the importance of meeting the basic needs of refugees who arrive to seek protection. While they gave detailed attention to a variety of relatively sophisticated socioeconomic rights, the Convention does not directly address the rights to food, water, or healthcare and only regulates access to public housing for refugees once they are lawfully staying in a given country121 . II: Other Universal Instruments Reinforcing the Social Protection of Refugees The 1951 refugee Convention and its 1967 Protocol as well as the Universal Declaration of Human Rights are not the only global legal precepts for the social protection of refugees. With the progressive development of international human rights law, there exist other international legal instruments reinforcing the social protection of refugees. In this perspective, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights can be noted. II.1: The International Covenant on Economic, Social and Cultural Rights (ICESCR) The International Covenant on Economic, Social and Cultural Rights was adopted and opened for signature, ratification and accession by the General Assembly Resolution 2200A (XXI) of 16 December 1966. The Covenant was ratified by Cameroon on June 27, 1984 and entered into force on September 27, 1984122 . By extrapolation, Article 2 (2) of the Covenant includes the respect of the rights of persons with refugee status recognised in the Covenant, by stating that “the States Parties to the present Covenant undertake to guarantee that the rights 119 ibid., p. 246. 120 James C. HATHAWAY, op. cit., p. 464. 121 ibid., p. 466. 122 See “United Nations Treaty Collection (UNTC).” Available at http://treaties.un.org [Accessed 6 March 2013].
  • 45. 34 enunciated in the present Covenant will be exercised without discrimination as to … national or social origin…” Article 6 has a direct relationship with Article 7 as they both deal with the right to work. This right includes fair wages and equal remuneration for work of equal value and safe and healthy working conditions. States are said to violate Articles 6 and 7 if they commit or permit workplace discrimination or violence against employees123 . They also violate these provisions if they do not pass or enforce statutes, regulations or laws to prohibit discriminatory and harmful employment practices for employees who work for any kind of employer, public or private. National laws or practices restricting women’s ability to work outside their homes constitute a violation of Articles 6 and 7. A government also violates its own obligation to protect human rights when it fails to prevent violations committed by others. For instance, a government’s failure to ensure that private employers comply with employment standards regarding safety work may violate the “right to work” or the “right to just and favourable conditions of work124 .” Article 9 recognises the right of everyone to social security, including social insurance. An example of violation of this right includes situations where legislation excludes foreign and migrant workers who do not have full-time jobs from social benefits and protection such as health care services, workers compensation, unemployment insurance benefits, financial support for other individuals and families in need125 . However, citing SCHEININ, CHOLEWINSKI succinctly summarised some important limitations of the article in shaping arguments for the protection of the rights of refugees and asylum seekers to social security that need to be kept in mind. According to him, the guarantee of Article 9 of the ICESCR is very general in nature referring merely to ‘social security, including social insurance,’ in deference to the far more detailed provisions in International Labour Organisation instruments126 . This article ‘primarily focuses on social security in the narrow sense: income- based and situation-based cash benefits for workers and their families127 . Article 10 warrants State parties to the Covenant to recognise that the widest possible protection and assistance should be accorded to the family, which is the natural and 123 Allan McCHESNEY, Promoting and Defending Economic, Social and Cultural Rights, A Handbook. Washington DC: American Association for the Advancement of Science, 2000, pp. 44-45. 124 ibid., p. 36. 125 ibid., p. 47. 126 ZIMMERMANN et al, op. cit., p. 1065. 127 SHEININ, pp. 159, 162 cited in ZIMMERMANN et al, ibid.