Role of Law in Determining the Status and Protection for Refugees - Essay Example

DISCUSS HOW LAW PLAYS A SIGNIFICANT ROLE IN DETERMINING THE STATUS AND PROTECTION FOR REFUGEES College Introduction According to the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, “a refugee is an individual who has a well founded fear of being persecuted for reasons of race, nationality, religion and membership to a particular social group or political opinion” (UNHCR 2010). Such person should be outside his/her country of nationality and is unable or unwilling to avail himself/herself for the protection of the country of origin (Kneebone 2009). . The Organization of African Unity (OAU) in the OAU Convention of 1969 defined refugees as individuals who because of aggression, foreign domination, occupation or events that seriously disturb public peace are forced to leave their country and seek refuge in a place outside the country of origin (Chimni 2000). The 1951 Refugees Convention and consequent 1967 Protocol definition of refugee has found usage in the 21st century (Jerzy 1999). On the other hand, forced migrants are individuals who have been forced to move from their country of origin as a result of internal displacements (Kelley2000, p. 40). The displacement may be as a result of natural and environmental disasters, chemical or nuclear disasters, development projects and famine among other things (Noll 2007). Whereas refugees do not enjoy protection from their country of origin, forced migrants sometimes enjoy state protection from the country of origin (Monette 2002, p. 33). The 1951 Convention and Post Convention The convention entered into force in 1954 and is by far the most widely followed treaty (Hathaway and Neve, 1997). Its use and the application of the Protocol that was adopted in 1967 have been ratified in 144 states out of the 192 member states of the United Nations. It also remains the most recognised pillar in the protection activities of the United Nations High Commissioner for Refugees (UNHCR) (UNHCR 2010). After the convention, the United Nations formed the first post war response agency; the International Refugee Organization (Godwin- Gill & McAdam, 2007). Although the organization recorded high success in assistance and protection as well as the facilitation of solutions, it did not survive for a long time because it was expensive and was cut under by the cold war. This gave way for the revision of treaty provisions and an inward look into the status of the refugees (Foster 2009). In 1948, the General Assembly adopted the Universal Declaration of Human Rights article fourteen which recognised everyone as having the right to seek and enjoy asylum from persecution in other countries (Kneebone, 2009). The international law saw this as making the asylum seeker, a beneficiary of human rights in an uncouth manner. The 1951 Convention treaty that was supposed to be an agreement between states on how refugees were to be treated ended up becoming a reactive fete (Jerzy, 1999). The system neither protected nor prevented the refugees in the international regime and did not consider internally displaced persons as refugees. Although after the 1951 Refugee Convention and the 1967 Protocol the Organization of African Unity representing Africa and the Latin American 1984 Cartagena Declaration defined ‘refugee’ inclusively, the definitions have not been legally adopted (Foster 2009). The OAU defined a refugee presenting historical synopses of refugee and asylum in Africa applying such parameters as conformance to the tenets of humanitarianism and the dictates of pragmatism. The statutory definition of refugees from the Convention did not cover the aspects of flight from war in the countries of origin. The OAU hence expanded the definition of refugees to include individuals who are victims of persecution, external aggression, foreign domination, occupation and serious disturbance of public order. Consequently, if the above factors force an individual(s) to flee from the country of origin, he/she qualifies to be called a refugee. The Cartagena Laws Relating to Refugees Article 31 of the 1951 Convention on the Status of Refugees provides that; a contracting state should not impose penalties on refugees who enter/reside into those countries illegally and having come from a territory where their lives and/or freedom is endangered (UNHCR, 2010). This should be as long as they present themselves to the authorities without delay and show good cause for their illegal entry and/or presence. Article 31 further provides that the contracting country shall not restrict the movement of the refugees except where the status of the refugees in the country has not been regularized (Chimni 2000). Movement may also be restricted where the refugees have got admission to another country (Monette 2002 p. 34). The contracting states are expected to allow refugees a reasonable period and necessary facilities to allow for admission into another country (Kelley 2002, p. 41). The states also provide identity papers, travel documents, facilitate naturalization, and grant permission for transfer of assets (Godwin, Gill & McAdam, 2007). Additionally, non – refoulement principle concurs that states that are to the convention are obliged to adhere to the principle goal of achieving the protection of refugees (Barnes 2004, p. 55). It prescribes that no refugee may be returned to a country where he/she is at risk of persecution (Foster 2009). It applies also to a scenario where there are substantial grounds which prove that a person would be in danger of being tortured if returned to the country of origin or any other of such state (Hathaway & Neve, 1997). Although 1951 convention concept of refugee status focuses on issues such as social security, liberal professions, and access to employments, there are a number of reservations in the contracting states especially among the developing nations (Monette 2002, p. 32). This has raised discussion on legal protection issues, humanitarian aid provisions, handling of combatants and mass flights which affect refugees. Qualifications of being a Refugee Convention on Refugees of 1953 and the Protocol of 1967 legally define a refugee. People moving enmasse across international boundaries as a result of war or civil conflict are generally considered as refugees in Africa and the Latin America (Jerzy 1999). In particular, poor countries do not have the administrative capacity to determine which individuals meet the criteria for refugee status (Kneebone 2009). However, industrialized states recognize refugee based on an individual’s status determination which must meet the statutory definition of a refugee (Noll 2007). Based on the Convention’s definition of a refugee, one qualifies to be a refugee when; He/she is outside the country of residence or outside the country of former habitual residence (Barnes 2004, p. 43). The individual is unwilling to avail himself/herself is the protection of the country he/she is fleeing. The individual has at least one of the five grounds i.e. race, nationality, religion, membership of a particular political party or social group for fearing persecution (Foster 2009). Stateless individuals may be considered as refugees where “the country of origin is classified as country of former habitual residence” (Kelley 2002, p. 36). However, individuals of dual citizenship are only considered as refugees within the convention if other nationalities are ineffective. Disqualifications from Being a Refugee People in refugee like situations, such as those denied state protection in their countries of habitual residence or citizenship are not refugees. Secondly, internally displaced persons who may have moved for reasons similar to those of refugees, but have not crossed international borders are also not considered as refugees (Hathaway & Neve, 1997). The legal definition of refugees also excludes people who cross international borders as a result of natural disasters, famines, and environmental factors (forced migrants); economic migrants and asylum seekers (Monette 2002, p. 34). Asylum seekers however may obtain refugees depending on the grounds on which they are running away from their countries of origin. Conclusion Although the Convention of 1951 outlines the basic rules on how refugees ought to be treated, the Contracting States have a choice on whether to accept a refugee or not. The Contracting States have also had their own individual state rules which may not be in line with the convention rules and regulations. In the case of employment and religion, vvery country has its own criteria for formal employment and clear cut explanations on the relationships between the state and religion. Chimni exerts that much as the Convention proposed the freedom of refugees to practice their religion and culture, this does not cut across all countries in the United Nations (2000). There are countries that support freedom of worship in theory and not in practice. The definition of a refugee should be revised (Noll, 2007). In the past, people who have fled their countries for other reasons other than religion, political and social belief as per the convention criteria have not been treated as refugees. There are physical destructions that have resulted in far reaching implications than civil strife for example the Haiti earthquake. Victims of other calamities with far reaching impacts may be helped if the definition of refugees is revised. The UNHCR has not treated post election victims as refugees much as their countries of origin have not been willing to support them or were not able to do so forcing the people to flee into the neighbouring countries for refugee. References Barnes, R 2004, ‘Refugee Law at Sea’, International and Comparative Law Quarterly, Vol. 53, pp. 47–77. Chimni, BS 2000, International refugee law: a reader, Sage, London. Foster, M 2009, International refugee law and socio-economic rights: refuge from deprivation, Cambridge University Press,Cambridge. Goodwin-Gill, G & McAdam, J 2007, The refugee in international law, Clarendon, Oxford. Hathaway, J & Neve, RA 1997, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’, Harvard Human Rights Journal, vol. 155, p. 10. Jerzy, S 1999, “Who is a refugee? The Convention definition: Universal or obsolete?” in Nicholson, F. and Twomey, P. (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes. Cambridge: Cambridge University. Kelley, N 2002, ‘Internal Flight/Relocation/Protection Alternative: Is It Reasonable?’ International Journal of Refugee Law, vol. 14 p 44. Kneebone, S 2009, Refugees, Asylum seekers and the rule of law: comparative perspectives, Cambridge University Press, Cambridge. Monette, Z2002 “Exclusion, Terrorism and the Refugee Convention”, Forced Migration Review 13 pp 32-34. http://www.migrationpolicy.org/files/FMR_13_zard.pdf Noll, G 2007, ‘Why Refugees Still Matter: A Response to James Hathaway’, Melbourne Journal of International Law, vol. 8, no. 2. http://www.austlii.edu.au/au/journals/MelbJIL/2007/29.html UNHCR 2010 Global Report (Geneva: UNHCR). http://www.unhcr.org/4dfdbf35b.html Read More