Every year the number of international refugees increases and the management of their migration becomes increasingly complex. These vulnerable individuals are often subjected to discrimination because of their ambiguous status. Furthermore, their deportation can result in torture and in some cases even death. Because the rights of these transnational people depend largely on international law and its’ application, this essay will attempt to analyse the efficiency of international refugee rights. Although, internally displaced refugees share common characteristics with international refugees in terms of their rights and needs this essay will not address the complexities of their particular situation.
To begin, there will be an analysis of the governing definition and doctrines of refugee provided by the Convention and Protocol Relating to the Status of Refugees. This will help us establish some of the shortcomings and potential loopholes that exist in these documents while keeping them in context with current affairs. Afterwards, there will be a brief examination of some of the future challenges states will have to face in protecting refugee rights.
Defining Refugee in International Law
In order to discuss the failures and successes of international law in protecting refugee rights, the loosely used term, refugee, must be defined. It is important to note that these documents “govern international refugee law” and for that reason, they will serve as a basis in understanding the role of international law with regards to refugee rights (Mason 2009). Here is an extract of the definition provided by the international Convention relating to the Status of Refugees (1951) and the Protocol relating to the Status of Refugees (1967):
“[Persons] owing to well founded fear of being persecuted 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 it. (Art.1 Sec.1 Clause 2)
The refugee must be “outside” his or her country of origin, and the fact of having fled, of having crossed an international frontier, is an intrinsic part of the quality of refugee, understood in its ordinary sense. However, it is not necessary to have fled by reason of fear of persecution, or even actually to have been persecuted. The fear of persecution looks to the future, and can also emerge during an individual’s absence from their home country, for example, as a result of intervening political change.”
Although this definition attempts to protect minorities whose lives are in danger, it fails to capture the realities of today. * It does not include people who migrate for economic and environmental or climate change reasons. Furthermore, it does not protect people who are in the same risky situations but who are unable to leave their country for they must have “fled” (HREA, 2011). This definitely narrows down the spectrum of people who are qualified as being refugees while at the same time discarding those who need to be treated as refugees such as internally displaced people in countries such as Ethiopia, the Philippines and Afghanistan (UNHCR, 2010, p.5). While it is impossible to protect everyone, these exclusions will eventually need to be addressed since the number of internally displaced people and international refugees are increasing due to extreme weather events or environmental changes. To better understand these changes the international community will need to study the consequences of events such as Hurricane Katrina (2010), the Haitian earthquake (2010), the Japanese Tsunami (2011) and to gradual changes such as the desertification of Africa.
International Refugee Doctrines
Now that the governing definition of refugee has been elaborated, there should be an analysis of specifically how the rest of the convention and others protect refugee rights. However due to the complex nature of international law and its conflicting relationship with national law, there will an examination of only two principles, that of non-refoulement and of asylum.
The term non-refoulement is explicit in article 33 of the 1951 Refugee Convention which asserts that “no Contracting State shall expel or return […] a refugee” and this is only under circumstances where a deportation could threaten the “life or freedom” of that individual (Goodwin-Gill 285; Refugee Convention, 1951). This principle is also expressed later in the Convention against Torture (1987) preventing states from expelling, returning or extraditing individuals who might be tortured upon their return (Goodwin-Gill 285; Convention against Torture, art 3).
Nevertheless, this has clearly not prevented states from repatriating refugees. In November 2011, the Iraqi government made a decision to close one of its main refugee camps by the end of the year to then expel its 3,400 residents who are mainly Iranians (FAC-NCR, 2011). Evidently, Iran is breaching art. 33, sec. 1 of the Refugee Convention. Unfortunately, it seems as if the international community views intervening in such affaires as an infringement on state sovereignty rather than the protection of inalienable human rights. For those who still argue that refugee rights do not hold such a status, it should be reminded that their rights are also entrenched in art 14 of the Universal Declaration of Human Rights (1948) which was actually the “the first international document that recognizes the right to seek and enjoy asylum from persecution” (Human Rights Education Associates 2011).
Section 2 of the Refugee Convention allows states more freedom in deciding who may or may not enter its territory. The principle of non-refoulement serves as restriction on states as to the kind of refugees they must protect. To be more specific, section 2 is for refugees that a state might have “reasonable grounds for regarding as a danger to the security of the country” or the “community of that country” or who have been “convicted by final judgement of a particular crime” (Convention relating to the Status of Refugees 1951, art 33). If the country still declines the asylum seekers refugee application in spite of the principle, the refugee may resort to art 16 which stipulates refugees’ right to have access to the courts of the country in which he or she is seeking asylum. However states tend to take advantage of the asymmetrical resources and sometimes, that right is also disregarded. Although refugees do not always have the opportunity to defend themselves, international law, is not necessarily at fault here since the convention has a defined provision in place allowing both parties to express themselves.
One of the problems here is a lack of enforcement mechanism. This seems to be a weakness with international law and human rights in general. Another problem worth noting is that of diplomatic tensions. While it might not be obvious, state cooperation, especially on a regional level, is actually quite important for the governance of refugee rights. For instance in the Republic of Korea and its neighbouring countries are known for their systematic discriminatory practice of forcibly returning refugees from the Democratic People’s Republic of Korea (UNHR, 2011). Hence, international law’s successful establishment of a concise list of restrictions on state’s obligation to not refoule refugees is not sufficient to protect refugee rights.
The other term that must be discussed is asylum. States have an obligation of non-refoulement but they do not have an obligation to accept asylum seekers. This also relates to the definition, described earlier, that treats refugees as those who have entered another country but in reality the processes of gaining those rights is far more complicated than fitting the description of a refugee. It would not be a stretch to suggest that most countries treat asylum seekers as individuals who have not yet been granted refugee status in the receiving country (Adesina and Adesina 2008, p.93). This difference is clearly defined by the UK Government Council which states that “a refugee is someone who has received a positive decision on their asylum application and who is recognised as a refugee under the UN 1951 Convention on Refugees and has been given leave to remain in the country where they applied for asylum”(2008). This clearly illustrates the method used by the UK government and other countries as well. Hence, in order to be protected not only do refugees need to fit the criteria of the Refugee Convention, but they also need to be approved by the receiving state. Without this, they are simply stateless individuals with little protection. To a certain extent, this exemplifies the state-centric nature of international law and relations in protecting human rights. States have a right to decline asylum-seeker applications, precisely because states are the only subjects able to provide the protection stipulated in the Refugee Convention.
The UK example also represents a larger problem with international law in general, which is that national and international law sometime interfere with one another. This can often reduce the effectiveness of one or the other or both. This happens to be a part of the privileges of state sovereignty. Despite the fact this seems morally wrong, accepting refugees can also be problematic. For instance, many states accept asylum seekers but refuse to grant them permanent residence (Von Glahn 2007, p.472). Thus, there are individuals who live in foreign countries for years without having the same rights and privileges as others who were able to obtain permanent residence and even citizenship. Interestingly, states tend to strategically choose which refugees they grant permanent residence to. For the most part, those who are considered the skilled-workers such as doctors, engineers and nurses are privileged (Schuster 2003). Countries such as Canada have been accused of such discriminatory practices through measures like the “Foreign Credential Recognition Program” (Kaduuli, 2011 p.2). Unfortunately, non discriminatory law or mechanisms have not yet been implemented to protect refugees under such circumstances (Hathaway 2005, p.238). This is merely one point at which international law and domestic politics conflict.
Matters get even more complicated if there are uncertainties with regards to the asylum seeker’s application. Article 32, section 2, of the Refugee Convention clearly states that “the expulsion of […] a refugee shall be only in pursuance of a decision reached in accordance with due process of law” and that “the refugee shall be allowed to submit evidence to clear him/herself, and to appeal to and be represented for the purpose before competent authority”. Putting this in perspective, if the asylum seeker has not yet been granted refugee status, that individual is not protected under this law. Nonetheless, there are still the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights which state:
- “All are entitled to equal protection by law without any discrimination (Article 7 UDHR).
- A person shall be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him (Article 14-3-a ICCPR).
- Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him” (Article 10 UDHR).
- A person shall have adequate time and facilities for the preparation of his defence and to communicate with counsel (Article 14-3-b ICCPR). (Detention Watch Network 2008)”
Seeing that there are so many provisions protecting refugees and asylum seekers, it is difficult to understand why there are asylum seekers that are being detained, sometimes for months “usually for an unspecified period of time, without charges being pressed, without trial, without a right to an automatic bail hearing, usually without adequate legal representation, without being informed of their rights or even of what is happening to them in a language they understand” (Schuster 2008). The number of detentions is also on the rise with states attempting to “isolate” refugees (Marfleet 2006, p.266). To make matters worse, there is no official list of any of these centers making it very easy for states to deny either their existence or the kind of treatments that exist within them (Marfleet 2006, p.265). Something else that is troublesome is the fact that 60% of countries that responded to the survey distributed by the International Detention Coalition (2008) stated that they had no “official statistics published on numbers or demographics of people detained” and that the identity of those detained are “unknown” (2008). Unfortunately, this kind of situation which is present in countries such as France, Italy, Germany and Britain is a breach of each law listed above that seeks to protect individuals’ civil and political rights (Schuster 2008).
In summary, states have the sovereign right to reject certain asylum seekers which is counterproductive in terms of the purpose of the Refugee Convention. There is also a lack of non-discriminatory law that could reduce the impact of state favouritism in whom they grant asylum. Also, there are many loopholes such as asylum-seekers not being protected under art.33 sec. 2 (judicial rights) due to of the conflict in the definition of refugee by national law and international law. Then there are virtually no mechanisms in place to help enforce these laws. Finally, there is a lack of humane attention put on refugees, to the extent that states are not even sure of how many enter their detention centers or how they are treated once they arrive there.
Current and Future Challenges
One very basic problem with states protecting refugee rights comes from the fact that it can be expensive to assist refugees and rather difficult to integrate them into society. This is particularly the case when they come in waves or when their arrival is mismanaged for extended periods of time. For instance, in the summer of 2011, the Italian Prime Minister Silvio Berlusconi was faced with a large influx of North African asylum seekers on the island of Lampedusa. Although this migration was considered illegal by the European community, Italian officials were expected to “live up to their human rights obligations [which] means tending to people’s immediate needs and halting any plans to carry out collective removals,”(Amnesty International, 30 March 2011; EuroNews, 2011). Furthermore, Italy along with the rest of Europe was facing some difficult economic times due to the global financial crisis. Hence, statesmen are often challenged to satisfy the costly international expectations of international refugee law while meeting the needs of their electorates, whom in this instance felt crowded by the new arrivals.
Unfortunately, this situation is far from exceptional. As the global economy recuperates most countries will need to redress their domestic and foreign policies, both of which will have an impact on refugees and asylum seekers alike. Europe is already in the midst of confronting issues of extreme xenophobia with the European court getting involved by preventing discriminatory legislation from being implemented by its member states (Bowcott, 2011; Council of Europe, 2006).
For the developing world, the failure to adequately address the mistreatment with refugees and asylum seekers will lead to significant social development issues since stateless people tend to be more vulnerable to discrimination, abuse and exploitation (Cohen, 2007). However for some developing countries, there is an economic advantage in not recognising the status of refugees. This is the case for North Korea and the Dominican Republic who have taken advantage of these people for cheap labour (Human Rights Watch, 2011; Martinez, 1999). Obviously there is something fundamentally wrong on a moral and legal level with this but it does demonstrate that it is sometimes in a state’s favour to hide behind the ‘sovereignty’ argument.
What is needed is not more substantive laws but rather more procedural laws and a standardization of the procedural laws that are already in place. This is an incredibly difficult process that requires strong global cooperation and commitment to the issue. All receiving states which are practically every country in the world would need to sign, ratify and fully respect all provisions embedded in the Refugee Conventions amongst others. Moreover, they would need to convince their electorates that in spite of the difficult economic times, foreigner have the right to seek asylum if they fit the definition.
Nevertheless, there is still hope. To some extent, political dialogue has attempted to make some progress in improving the “burden-sharing” between the states that are sources of asylum seekers and the receiving states (UNHCR 2006, p.3). Although these discussions have not produced more international law per se, it has been able to establish itself as being the “Convention Plus” initiative which is respected by states (UNHCR 2006, p.3). Initiatives as such should help states find a common ground on how to treat refugees. For the time being however, states may refuse to abide by the Refugee Convention.
In the end, international law is a very sophisticated tool in protecting refugees. While there are a few glitches, it is nothing extraordinarily different from national law. Some people are incorporated and others are neglected. Furthermore, there are always loopholes of which some might take advantage. Nonetheless, there is an obvious interference with international refugee rights which is state sovereignty – the ultimate excuse to protecting national interest.
In terms of the contents of the Refugee Convention, it seems to have the essential elements to prohibiting harsh and inhumane treatment of refugees or asylum-seekers but as for human rights in general, the mechanisms are not in place to force states to comply. Fortunately, there are numerous organizations such as the UNCHR, Human Rights Watch, World Organisation Against Torture, Amnesty International, to name a few, that monitor these rights and hold states accountable to the treatment of asylum-seekers while they are within their borders.
Given these points, international refugee law has been successful to a certain extent. The mere fact that we can identify the mistreatment of refugees through an analysis that considers legal and political expectations demonstrate the strength of international refugee law. Hundreds of thousands of asylum-seekers rely on this every year to escape life threatening situations in their home country. With more political international cooperation between states, these set of laws could be reinforced and the sovereignty barriers would then be lowered in favour of individual rights
Adesina, Taiwo & Kehinde Adesina. (2008). A Simple Guide to UK Immigration. Retrieved from <http://books.google.ca>.
Bowcott Owen. (23 Nov 2011). “European judge slams UK ‘xenophobia’ Sir Nicolas Bratza criticises hostility of senior government figures towards European Convention on Human Rights”. The Guardian. Retrieved from: <http://www.guardian.co.uk/law/2011/nov/23/nicholas-bratza-slams-uk-xenophobia>.
Council for Europe Commission for Human Rights. (18 Dec 2006). Xenophobia: a shameful face of Europe. Retrieved from: <http://www.coe.int/t/commissioner/Viewpoints/061218_en.asp>.
Cohen, Roberta. (19 Oct, 2007). “Refugee Issues Relating to China”. The Brookings Institution. <http://www.brookings.edu/speeches/2007/1019_china_cohen.aspx>.
Detention Watch Network. (2008). International Law Guarantees the Right to Due Process Law. Detention Watch Network. Retrieved from: <http://www.detentionwatchnetwork.org/dueprocess>.
EuroNews. (2011). Illegal immigration – Libya. Retrieved from: <http://www.euronews.net/2011/05/13/refugees-land-on-italian-island-of-lampedusa/>.
Foreign Affairs Committee of the National Council of Resistance of Iran (FAC- NCR). (11 Nov 2011). Iraq: Need to ensure the protection of the residents of Camp Ashraf. Retrieved from: <http://www.ncr-iran.org/en/news/ashraf/11433-iraq-need-to-ensure-the-protection-of-the-residents-of-camp-ashraf >.
Goodwin-Gill, Guy S. & Jane McAdam. (2007). The Refugee in International Law. 3rd Ed. New York: Oxford University Press.
Hathaway, James C. (2005). The Rights of Refugees Under International Law. United Kingdom: Cambridge University Press.
Human Rights Education Associates (HREA). (2011). Refugees and Displaced Persons. HREA.org. Retrieved from: <http://www.hrea.org/index.php?doc_id=418>.
Human Rights Watch. (22 Nov 2011). North Korea Conference on Rights Abuses. Retried from: <http://www.hrw.org/news/2011/11/22/north-korea-conference-rights-abuses>.
International Detention Coalition. (2008). Global Detention Survey: Summary of Findings 2008. Retrieved from: <http://idcoalition.org/wp-content/uploads/2008/12/idcglobalsurveyfindings1.pdf>.
Kaduuli, Stephen. (2011). “Pointers to Discriminatory Canadian Immigration Policies”. Transnational Social Review. Vol. 1, No. 1. Retrieved from: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1949981>.
Marfleet, Philip. (2006). Refugees in a Global Era. China: Palgrave Macmillan.
Martinez, Samuel. (1999). “From Hidden Hand to Heavy Hand: Sugar, the State, and Migrant Labor in Haiti and the Dominican Republic”.
Mason, Alisa. (March 5, 2009). Guide to International Refugee Law on the Web. LLXR.com. from web site <http://www.llrx.com/features/refugee.htm>.
Schuster, Liza. (15 October 2003). Asylum Seekers and State Racism in Europe. Open Democracy. Retrieved from: <http://www.opendemocracy.net/people-migrationeurope/article_1547.jsp>.
Office of the United Nations High Commissioner for Refugees (UNHCR). (2006).The State of The World’s Refugees: Human Displacement in The New Millennium. United States: Oxford.
Office of the United Nations High Commissioner for Refugees (UNHCR). (2010). UNHCR Global Report 2010 – Working with the internally displaced. Retrieved from: <http://www.unhcr.org/4dfdbf380.html>.
Office of the United Nations High Commissioner for Refugees (UNHCR). (2010). Convention and Protocol Relating to the Status of Refugees. Retrieved from: <http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf>.
Office of the United Nations High Commissioner for Refugees (UNHCR). (25 Nov 2011). Statement by the UN Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea at the end of his visit to the Republic of Korea. Retrieved from: <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=11645&LangID=E>.
UK Government Council. (2008). What is the difference between a refugee and an asylum-seeker? Retrieved from: <http://www.islington.gov.uk/directories/page.aspx?dir=faq_details&docid=0901336c804491e3&title=FAQs>.
Von Glahn, Gerhard & James Larry Taulbee. (2007). Law Among Nations : An Introduction to Public International Law. United States: Pearson.
Convention against Torture, 1987. Retrieved from <http://www1.umn.edu/humanrts/instree/h2catoc.htm>.
Conventions and Protocols Relating to the Status of Refugees, 1951. UNHCR. Retrieved from: <http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf>.
 The UNHCR has also recognised these countries as dealing with internally displaced people: Afghanistan Benin Burundi Central African Republic (CAR) Chad Colombia Côte d’Ivoire Democratic Republic of Congo (DRC) Dominican Republic Ethiopia Guinea Iraq Kenya Kyrgyzstan Liberia Myanmar Pakistan2 Philippines Somalia Sudan Uganda Yemen Zimbabwe (p.5).