At the end of 2011, there were 42.5 million forcibly displaced people (refugees and internally displaced persons [IDPs]) around the world; this is a bit less than in 2010 but still in constant increase since the mid-1990s. Of these, 15.2 million were refugees and 26.4 million were IDPs. Developing countries were host to four-fifths of the world’s refugees. Pakistan was host to the largest number of refugees with 1.7 million refugees, followed by the Islamic Republic of Iran and the Syrian Arab Republic. Afghan (2.7 million) and Iraqi refugees (1.4 million) accounted for almost half of all refugees under UNHCR’s responsibility. The major source countries of refugees are Afghanistan, Iraq, Somalia, Sudan, the Democratic Republic of Congo (DRC), Myanmar, Colombia, Vietnam, Eritrea, and China (in descending order). It is interesting to note that some 532,000 refugees were able to repatriate voluntarily during 2011 (the highest figure since 2008, while the tendency was in constant decrease since 2004), while in contrast, some 3.2 million internally displaced persons (IDPs) returned home (the highest figure in the decade). Today, women and girls constitute 49 percent of the world’s refugees and asylum seekers.
Definition from 1951 Refugee Convention
The Convention Relating to the Status of Refugees was adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly Resolution 429 (V); it entered into force on 22 April 1954. The Convention and the 1967 Protocol relating to the Status of Refugees serve as the basis for international refugee law. They define a refugee as:
any person who, . . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is 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. . . .
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
- he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
- he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
- he has been guilty of acts contrary to the purposes and principles of the United Nations. (Art. 1 of Refugee Convention)
The Refugee Convention was adopted at the same time as the UN High Commissioner for Refugees (UNHCR) was created to govern the legal status of refugees. It is dependent on States and UNHCR for its implementation. As of April 2013, it has 145 States Parties and is the main reference text on this issue.
The way States have interpreted this definition only includes individuals fleeing a serious risk of persecution that is committed or tolerated by national authorities. The strictest interpretation applied by certain States thus does not include people fleeing in small groups or en masse from a collective danger, such as insecurity or war. It also traditionally excluded people fleeing acts of persecution that are not committed by national authorities, such as those committed by terrorist, rebel, or other groups, unless such persecution is tolerated or caused by national authorities.
In 1997, the European Court of Human Rights broadened this interpretation to include persecution inflicted by groups that do not depend on public authorities as a basis for granting refugee status.
It is important to note that UNHCR has added rape to the list of crimes that can constitute an element of persecution and may hence result in the recognition of refugee status, as foreseen by the Refugee Convention, for individuals who fear or were victims of rape. UNHCR further recommends that, during the procedure to determine refugee status, asylum seekers who may have been victims of sexual violence be treated with special compassion.
The Statute of the permanent International Criminal Court reaffirms that gender may be a ground for fearing persecution. It includes “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law” as a crime against humanity (Art. 7.1.h of ICC Statute).
Other international and regional texts define refugees in a broader sense than the 1951 Convention and grant them protection. They try to adopt a more integrated approach on situations of refugees, migrants, and internally displaced persons (see below sections IV, V).
Definition from the African Union Convention on Refugees
The Convention Governing the Specific Aspects of Refugee Problems in Africa was adopted by the Organization of African Unity (OAU) on 10 September 1969 (1001 UNTS 45) and entered into force 20 June 1974. As of April 2013, it has forty-five States Parties.
Its definition of refugees extends to “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 nationality” (Art. 1.2 of the AU Convention).
This interpretation thus includes people fleeing war or collective persecutions en masse, whether the acts were committed by national authorities or not.
Definition Developed by Latin American States
Cartagena Declaration, 1984
In November 1984, the Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama adopted the Cartagena Declaration on Refugees. While it is not a treaty, its provisions are respected across Central America and have been incorporated in some national laws (El Salvador in 2002 and Mexico in 2011). The Declaration broadens the scope of the refugee definition in the 1951 Convention Relating to the Status of Refugees to include foreign aggression, internal conflicts, and those fleeing massive violations of human rights. The Inter-American Commission on Human Rights is the competent organization to enhance international protection of refugees in the region.
Mexico Plan of Action, 2004
The Mexico Declaration and Plan of Action to Strengthen the International Protection of Refugees in Latin America was adopted in 2004 by Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela. The Declaration recognizes the jus cogens nature of the principle of non-refoulement and entails provisions regarding non-rejection at the border and non-penalization of illegal entry. It also reaffirms the obligation of States to respect the principle of non-discrimination and to take measures to prevent, combat, and eliminate all forms of discrimination and xenophobia in the context of the protection of refugees and asylum seekers. Moreover, this Plan of Action recognizes the existence of mixed migratory movements, including persons who can qualify for refugee status and who require specific treatment, with due legal safeguards to guarantee their identification and access to refugee status determination procedures.
Brasilia Declaration, 2010
On 11 November 2010, as a result of a meeting hosted by Brazil’s Justice Ministry on refugee protection, statelessness, and mixed migratory movements in the Americas, eighteen Latin American countries adopted the Brasilia Declaration on the protection of refugees and stateless persons in the Americas. The eighteen countries are Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, and Venezuela. The U.S. and Canada participated as observers.
The Declaration takes the definitions and provisions as to the protection of refugees and stateless persons from the 2004 Mexico Plan of Action; it includes provisions for the principle of non-refoulement, including non-rejection at borders and non-penalization of illegal entry, and enlarges the benefice of this principle across the strict definition of refugee to persons involved in mixed migratory movement. It also supports the continued incorporation of gender, age, and diversity considerations into national laws on refugees and IDPs. With regard to mixed migration in particular, the Declaration recommends that the Mexico Plan of Action be adopted as the regional framework to address new challenges related to the identification and the protection of refugees in the context of mixed migratory movements. Moreover, the Declaration urges Latin American States to fully comply with international standards and adopt mechanisms to address new situations of displacement not foreseen by the 1951 UN Refugee Convention.
International human rights law establishes that “everyone has the right [to flee his own country,] to seek and to enjoy in other countries asylum from persecution” (Art. 14 of Universal Declaration of Human Rights).
States are not under the obligation to accord asylum to all individuals who request it, but all individuals who are threatened in their own country have the right to flee and seek asylum elsewhere. Thus, there is a gap between the rights of individuals and those of States, a gap populated by individuals seeking asylum.
Many refugees do not meet the requirements to qualify as a refugee under the 1951 Refugee Convention and therefore do not receive the guarantees provided by the refugee status established by the Convention. For these non-statutory refugees, there are minimum standards of treatment that States must respect (see Section II.4, later).
Definitions are important because of the rights they confer on or open up for individuals. During the transitional steps and stages that a refugee must take to obtain formal refugee status, as defined by the Refugee Convention, each refugee nevertheless is entitled to a set of minimum rights and guarantees.
Humanitarian Law Definition
Above all, refugees are civilians who no longer receive protection from their government. Thus, international humanitarian law interprets the notion of refugees more widely, also taking into consideration population displacements caused by conflicts. This definition does not mean that refugees must automatically be granted that status under national laws, but it does establish their right to receive international protection and assistance while the conflict lasts.
These guarantees include provisions, for instance, that individuals may not be considered enemies simply because of their nationality, even if their nationality is that of an adverse party to the conflict (GCIV Art. 40). If they find themselves in territory that is suddenly occupied by the State they originally fled, the occupying power may not arrest, prosecute, convict, or deport them for acts committed before the outbreak of hostilities (GCIV Art. 70). They must be granted the same protection as civilians (API Art. 73, APII Art. 4).
Rights of Individuals in Different Situations
Before obtaining formal refugee status, individuals usually fall into other juridical categories:
- Persons in search of asylum: These individuals have fled their country but have not yet made a formal request for refugee status to the relevant authorities of the country where they are located.
- Asylum seekers: These individuals have submitted a formal request for refugee status with the competent national authorities and are awaiting the results from the examination of their file.
- De facto refugees: These individuals have entered the territory of another State in the course of a large-scale influx of people from their State of origin because of a conflict or other disaster. They cannot, however, justify their flight for reasons of individual persecution and therefore do not come under the strict definition of a refugee.
Although the individuals mentioned here do not enjoy official refugee status, they are entitled to the minimum guarantees set forth by the Refugee Convention. The aim of these guarantees is to protect the right—and enable the possibility—of individuals to flee their own country and request asylum in another without encountering insurmountable administrative obstacles.
They also protect the individuals’ right not to be expelled or sent back to a source of danger. Internally displaced persons (IDPs) are individuals who have fled their home but have not crossed any international border. They therefore remain under the jurisdiction of their national authorities and thus are not refugees. They are protected by general human rights conventions and, in case of conflict, by humanitarian law.
Basic Rights Granted to Individuals Fleeing Their Country
To ensure that a person fleeing his or her country can submit a request for asylum to the authorities of a foreign State, the 1951 Refugee Convention reaffirms certain fundamental rights of individuals whose life or freedom is threatened.
The Right to Seek Asylum in Another Country
This reflects the fact that individuals have the right to flee their country by any means, and to enter the territory of another State, even illegally. States party to the Convention may not impose penalties on refugees on account of their illegal entry or presence, if, having come directly from a territory where their life or freedom was threatened, they enter or are present in that State’s territory without authorization. This provision applies as long as the refugees present themselves without delay to the authorities and show good cause for their illegal entry or presence (Art. 31 of Refugee Convention).
The right to flee one’s own country does not mean that a refugee has the right to choose his or her country of asylum. Current laws favor the jurisdiction of the country of first asylum, which is the country through which the refugee first passed, in which he or she could have made a request for asylum.
The Right Not to Be Expelled or Returned to Their State of Origin as Long as There Is a Threat to Their Safety (Nonrefoulement)
No State is permitted to expel or return ( refouler ) a refugee, in any manner whatsoever, toward the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership in a particular social group, or political opinion (Art. 33 of Refugee Convention). Hence, individuals whose requests have been dismissed may nevertheless benefit from temporary asylum since they cannot be sent back to their State of origin because of the dangers they would incur. They must also benefit from the minimum standards of protection attached to this temporary asylum.
The Rights of Individuals Who Have Obtained Official Refugee Status
Once their case has been examined, the individuals who come under the definition of the 1951 Refugee Convention obtain a juridical status that usually gives them rights similar to those of the citizens of the State in question. The legal status thus obtained—recognition of the person’s refugee status in a territory of asylum—is defined by the national laws of the country in question.
Nevertheless, the Refugee Convention enumerates the main rights that must be granted to refugees by the national laws of each country (Arts. 12–34):
- Article 12: The personal status of a refugee shall be recognized and governed by the law of the country of asylum.
- Article 13: Refugees shall have the right to movable and immovable property.
- Article 14: They shall enjoy the right to the protection of industrial and intellectual (artistic) property.
- Article 15: They shall enjoy the right of association.
- Article 16: They shall have free access to, and rights before, courts.
- Articles 17 to 19: States shall grant refugees the most favorable treatment granted to nationals of a foreign country, with regard to the right to engage in wage-earning employment, self-employment, or liberal professions.
- Article 20: Where a rationing system exists, refugees shall receive the same treatment as nationals.
- Article 21: With regard to housing, States shall treat refugees as favorably as possible.
- Articles 22 and 23: With regard to public education and public assistance, States shall treat refugees in the same way as nationals.
- Article 24: In terms of labor laws and social security, refugees shall enjoy the same treatment as nationals.
- Article 25: As explained earlier (section 2.b), refugees have the right to submit a request for asylum to the competent national authorities that, under the supervision of UNHCR, must deliver or ensure the delivery of “such documents or certifications as would normally be delivered to aliens by or through their national authorities.” Such documents replace the official instruments delivered by the national authorities and shall be given credence in the absence of proof to the contrary.
- Article 26: Refugees shall have the right to choose their place of residence and to move freely within the territory where they have obtained refugee status.
- Article 27: States must issue identity papers to any refugee in their territory who does not possess a valid travel document.
- Article 28: States must issue travel documents for the purpose of travel outside the territory to refugees who are lawfully staying in their territory. States may also issue such travel documents to any other refugee who finds him- or herself in their territory, who is unable to obtain a travel document from the country of his or her lawful residence.
- Article 29: Refugees must not be subject to higher taxes than nationals.
- Article 30: States must allow refugees to transfer assets that they have brought into their territory to another country where they have been admitted for the purposes of resettlement.
- Article 31: States shall not impose penalties on refugees who entered or are present illegally on their territory if they arrive directly from a territory where their life or freedom was threatened.
- Articles 32 and 33: States shall not expel or return ( refouler ) a refugee toward territories where his or her life or freedom would be threatened. The only derogation that is allowed concerns individuals who represent a danger to the national security of the State in question, or who, “having been convicted by a final judgment of a particularly serious crime, constitute a danger to the community of that country.”
The expulsion of such a refugee shall be carried out only following a decision reached in accordance with due process of law. The refugee shall have the right to submit evidence to clear him- or herself, to appeal the decision, and to be represented before the competent authority. If the decision to expel the person is maintained, he or she shall be accorded a reasonable period within which to seek legal admission into another country.
- Article 34: States must facilitate the assimilation and naturalization of refugees.
Minimum Standards of Protection Established by UNHCR for Individuals Who Have Not Received the Formal Status of Refugees
Only States can grant refugee status. However, UNHCR can use its good offices to help States find durable solutions to refugee problems. UNHCR’s Executive Committee has set forth the minimum rights that must be granted by all States, until a durable solution can be found, to refugees who do not come under the definition of the 1951 Refugee Convention and therefore cannot benefit from the status it provides.
Protection of Asylum Seekers in Situations of Large-Scale Influx
Conclusion 22 (Session XXXII) of 24 April 1981, adopted by the UNHCR Executive Committee on International Protection of Refugees
Individuals who cannot benefit from formal refugee status nonetheless must be treated in conformity with certain minimum standards of protection:
- The right to flee persecution does not automatically entail the right to receive asylum. In case of a mass exodus of people, states’ priority must be to provide temporary refuge for them.
- States shall not expel or return ( refouler ) such people toward a territory where they risk persecution.
- Until durable solutions are found, states must respect the following minimum rights:
—no penal sanctions because of illegal entry or presence in a state;
—respect for their fundamental rights and guarantees;
—material assistance (food, shelter, medical assistance, etc.);
—prohibition on cruel, inhuman, or degrading treatment;
—no discrimination on the grounds of race, religion, political opinion, nationality, country of origin, or physical incapacity;
—access to courts and other due process rights;
—the settlement must be located in a safe area; in other words, it must not be too near the border of the country of origin;
—respect for family unity;
—assistance in searching for family members;
—protection of minors and unaccompanied children;
—possibility of sending and receiving correspondence;
—registration of any births, deaths, or marriages;
—permission to transfer assets;
—favorable conditions for voluntary repatriation;
—obligation of states to search for a durable solution.
Means for the Protection of Refugees
UNHCR was created as the international organ responsible for coordinating the regulations and actions taken by different States with regard to the right of asylum and protection of refugees.
It has taken on the responsibility of trying to harmonize national laws concerning this issue and makes sure that the laws defend the right of asylum efficiently. It also helps ensure joint responsibility and solidarity by coordinating States’ efforts to meet the financial burden that must be borne to welcome refugees.
It also provides material assistance and protection, in coordination with NGOs. In fact, UNHCR can sign official operational partnership contracts with NGOs for assistance and protection actions (Arts. 8 and 10 of UNHCR Statute).
NGOs are thus formally associated with UNHCR’s actions of assistance, which defend the rights of refugees.
Through their very presence at the refugees’ side, NGOs are in a privileged position to evaluate, for instance, the refugees’ physical safety, the quality of assistance they receive, and the different pressures they face in making certain decisions—namely, in cases of repatriation—and to report this to UNHCR.
States are held to international solidarity and accountability to manage refugee flows, especially in the case of large-scale influxes of refugees who must be granted temporary asylum. All States must provide host States with immediate assistance, in conformity with the “principle of equitable burden-sharing” (preamble of Refugee Convention, para. 4; UNHCR Executive Committee Conclusion 15, on Refugees without an Asylum State, Session XXX, 1979).
The cost of hosting refugees cannot be borne solely by the State to which people flee because of its geographic proximity. If this were the case, potential host States would soon shut down their borders to any person seeking refuge, thereby denying the right of persecuted persons to flee their country. Hence, all States have the duty to contribute to assisting refugees. One of the principal ways they do this is by financing UNHCR, which protects and assists refugees.
This international solidarity is not founded only on altruism. It comes from a desire of States party to the Convention to “do everything within their power to prevent this problem from becoming a cause of tension between States” (preamble of Refugee Convention, para. 5).
Regional Initiatives for the Protection of Refugees
The rise of regional initiatives in the matter of refugee law is due to the incentives created by the UNHCR and the UNGA in the 1990s. Indeed, at its forty-fourth session in October 1993, the Executive Committee of UNHCR underlined the importance of a global regional approach when dealing with the issues of prevention and protection of refugees. The UNGA expressed its agreement in its resolution 48/116 in November 1993. The main objectives of this regional approach are to promote the global stability of societies and the respect for the rights of their citizens, including refugees and returnees.
In South Asia, only Cambodia and the Philippines are parties to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. Until the late 1990s, South Asia was a region where refugee flows were dealt with primarily as issues of State security and political processes. But recently, there has been a growing acceptance of the necessity of a regional cooperation when dealing with the protection of refugees. The Informal Consultations on Refugee and Migratory Movements in South Asia, a forum initiated in 1994, resulted in November 1997 with the adoption by consensus of a Model National Refugee Law, which contains provisions for protecting people in situation of mass influx, special consideration for women and children refugees, voluntary repatriation, and non-refoulement.
In the European Union (EU), the Dublin Regulation, adopted in 2003, regulates the treatment of asylum seekers and refugees in the region. This law determines the EU Member State responsible for examining the applications of asylum seekers seeking international protection under the 1951 Geneva Convention and the EU Qualification Directive of 2004, within the European Union. It is the cornerstone of the Dublin System, which consists of the Dublin Regulation and the EURODAC Regulation. The latter establishes a Europe-wide fingerprinting database for unauthorised entrants to the EU. The European Union migration policy has been criticized for being too restrictive. On 1 December 2005, the European Council adopted Directive 2005/85/EC, which establishes minimum standards on procedures in Member States for granting and withdrawing refugee status. It clearly limits the freedom of movement of asylum seekers and the conditions for granting them refugee status.
The Middle East is the region with the highest number of refugees (in Iran and the Syrian Arab Republic) and the region “producing” the highest number of refugees (coming from Iraq and the Syrian Arab Republic). UNHCR remains the main provider of protection in the Middle East and the Arab Gulf region, but only Egypt, Israel, and Yemen have signed the 1951 Refugee Convention. Other countries have not signed the UN instruments, nor have they endorsed national legislation on refugee law. As UNHCR asserts, issues related to asylum in the region are mostly governed by national laws on foreigners and driven by security concerns. However, in this region, refugees have largely been welcomed on the basis of traditions of hospitality and religious solidarity.
The Concept of Mixed Migration
The International Organization for Migration (IOM) defines the phenomenon of “mixed migration” as a combination of migration flows composed of, among others, economic migrants, refugees, victims of trafficking, smuggled migrants, unaccompanied minors, stranded migrants, and migrants moving for environmental reasons. This is the result of the increasing complexity of migration dynamics. Migration is becoming more and more irregular and controlled by criminal networks as a result of restrictive governmental policies regarding asylum seekers as well as foreign workers. Mixed migration is of concern mainly in the Mediterranean basin, the Gulf of Aden (Eritreans and Ethiopians moving to Yemen), Central America and the Caribbean, Southeast Asia, and the Balkans.
Mixed migratory movements represent a challenge in terms of both protection and assistance. Indeed, a large majority of migrants in mixed flows do not fit prima facie refugee status nor any particular label or established legal category. Therefore, they risk being deprived of any protective status under international law or put by governments into the category of criminals.
To help States address mixed migration movements in a protection-sensitive way, UNHCR launched in 2006 a “10-Point Plan of Action” on Refugee Protection and Mixed Migration. Migrants and refugees increasingly make use of the same routes and means of transport to get to an overseas destination. This raises conflicting issues of protection since States perceive those movements as a threat to their national sovereignty and security. The issue of mixed migration should then be considered within the broader context of the fight against international crime (i.e., trafficking in persons) and the preservation of the right of asylum.
This Plan of Action identifies ten points of attention and action for situations where refugees mixed with other populations are at risk of refoulement, human rights violations, and hazardous onward movements:
- Cooperation among key partners , namely affected States, governmental bodies, and regional and international organizations.
- Data collection and analysis about the characteristics of the movement of those groups. Information relating to conditions in countries of origin, motivations for movement, modes of transport transit routes, and entry points shall be recorded.
- Protection-sensitive entry systems , ensuring that States maintain practical safeguards to identify and care for people in need of protection while strengthening control of borders against security threats or criminal activities such as human trafficking.
- Reception arrangements. To ensure that the basic human needs of people involved in mixed movements are met, whatever their status, to leave appropriate time for the determination process.
- Mechanisms for profiling and referral. New arrivals should be registered and provided with temporary registration before starting an initial determination of their potential status.
- Differentiated processes and procedures should be established for asylum cases and for other people with specific needs, including those seeking to migrate.
- Solutions for refugees. A protection-based response including durable answers shall be agreed upon.
- Addressing secondary movements. The situation of refugees and asylum seekers who have moved on from countries where they had already found adequate protection shall be addressed.
- Return of non-refugees and alternative migration options. “Expeditious” return in safety and dignity decided by States would benefit from the expertise of UNHCR under its mandate of bons-office . Strengthening of regular migration options would also limit the appeal of illegal systems.
- Information strategy. Campaigns of information on the dangers of irregular movements in countries of origin, transit, and destination.
In the Gulf of Aden, a Mixed Migration Task Force (MMTF) was established in early 2007 with UNCHR and IOM acting as cochairs under the auspices of the Inter-Agency Standing Committee’s Protection Cluster. MMTF membership included OCHA, OHCHR, UNDP, UNICEF, the Danish Refugee Council, and the Norwegian Refugee Council. The purpose of the Task Force was to develop a rights-based strategy to ensure a comprehensive coordinated response to protection and humanitarian needs of migrants and asylum seekers transiting through Somalia. A similar task force was established in Yemen in 2008.
In the Brasilia Declaration, Latin American States recognized the growth and complexity of mixed migratory movements as well as the importance of acknowledging the different profiles of persons within migratory movements so as to respond to the specific, differentiated protection needs of refugees, victims of trafficking, unaccompanied children, and migrants who have been subjected to violence.
In Europe, mixed migration is seen through the lens of national security, the priority for European States being to secure their borders. In October 2004, the European Union adopted Council Regulation (EC) 2007/2004, which created the European Agency for the Management of Operational Cooperation at the External Borders (known as FRONTEX), which aims at coordinating European border management in order to regulate migration.
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