In 2022, there were 108.4 million forcibly displaced people (including refugees and internally displaced persons (IDPs) around the world; this is an increase of 19 million compared to the previous year and the highest number ever recorded in UNHCR’s statistics on forced displacement. These numbers reflect the constant increase since the mid-1990s. Of these, 35.3 million were refugees and 62.5 million were IDPs. In 2022, Türkiye was host to the largest number of refugees for the ninth year in a row, with 3.6 million, followed by Iran with 3.4 million, Colombia with 2.5 million, Germany with 2.1 million and Pakistan with 1.7 million. In 2022, 52% of refugees worldwide came from three countries: Syria, 6.5 million; Ukraine, 5.7 million and Afghanistan, 5.7 million. There were also 4.4 million stateless persons recorded. By the end of 2022, some 339,300 refugees had returned to their country of origin during the year. Of the 35.3 million refugees in 2022, about 41% were under the age of 18.
Since 1951, the International Convention relating to the Status of Refugees has provided a common definition of refugee, which has been complemented by other regional conventions (I). These refugee conventions grant minimum international rights in the aim of protecting those who can no longer rely on the legal protection of their State of origin. Refugees falling within the scope of the definition are entitled to the international protection of the individual’s rights listed in these conventions (II), which are implemented through special resources and bodies such as the United Nations High Commissioner for Refugees (UNHCR) (III). However, mass influxes of refugees crossing borders increase the need for protection and assistance beyond the usual capacity allocated by States. There is also a need to ensure respect for individual rights to protection while addressing national or international security concerns. For this reason, international and regional initiatives have been developed to reduce tensions and promote cooperation and burden-sharing among States in the management of refugees (IV). The concept of mixed migration has also emerged to describe the increasing numbers of people fleeing the same unsecure and irregular routes, situations of armed conflict and violence, as well as situations of disaster or extreme poverty. This concept, nonetheless, jeopardises the specific international protection designed for refugees (V). In this regard, the United Nations Global Compact on Refugees, adopted by States in 2018, is a non-binding international agreement that reaffirms the need to uphold and respect the specific protection of refugees in the context of mixed migration. It also proposes to all States a comprehensive refugee response framework that can improve the practical management of massive influxes, as well as international solidarity and burden-sharing among States and all stakeholders (VI).
However, States’ international obligations towards asylum seekers are too easily negated by various State practices that makes their borders impossible to reach. This is particularly evident and illustrated in the management of refugees at sea as well as in various international agreements regarding the externalisation of State borders in third countries for the management of refugees and asylum seekers.
1. Definition from 1951 Refugee Convention
The Convention Relating to the Status of Refugees (Refugee Convention) was adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under the General Assembly Resolution 429 (V) and entered into force on 22 April 1954. The Refugee Convention and its 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; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.” (art. 1 of the 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 October 2023, it has 146 States Parties and is the main text of reference on this issue.
Some States have interpreted this definition in a way that 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 may also lead to excluded people fleeing acts of persecution that are not committed by national authorities, such as those committed by terrorist, rebel, or other non-state armed groups, unless such persecution is tolerated or caused by national authorities.
In 1997, the European Court of Human Rights broadened the interpretation of the definition to include persecution inflicted by groups that do not depend on public authorities as a basis for granting refugee status.
The 1951 definition provides a list of five different grounds on which an individual may claim persecution: 1) race, 2) religion, 3) nationality, 4) membership of a particular group and 5) political opinion.
The UNHCR has officially included rape in the list of individual persecutions that can lead to the recognition of refugee status under the Refugee Convention, for individuals who fear or have been victims of rape and other forms of sexual and gender-based violence. Over the years, the UNHCR has also broaden the definition of the particular social groups listed as a basis for granting refugee status to include those based on sexual orientation and gender identity as well as victims of gender-based and sexual violence or of human trafficking as constituting a particular social group. In doing so, the UNHCR has recognised that rape and gender-based crimes such as female genital mutilation, domestic violence and trafficking may constitute a well-founded fear of persecution for the purposes of refugee status.
This is consistent with the expanded grounds for persecution provided by the International Criminal Court’s (ICC) definition since 1998. Indeed, the Rome Statute of the ICC confirms that gender can be a ground for fear of 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 Rome Statute).
The UNHCR also considers that violence can be perpetrated by State or non-State actors as long as the country is unable or unwilling to protect the population.
The provisions of the Refugee Convention exclude all persons who have committed an international crime (crime against peace, a war crime, or a crime against humanity) (art. 1(F)(a) of the Refugee Convention).
Other international and regional texts define and grant protection to refugees in a broader sense than the 1951 Convention. They include additional criteria of persecution such as colour and gender in their definition of refugee. They also go beyond individual persecution to cover situations of collective danger. They attempt to take a more integrated approach to the situations of refugees, migrants, and IDPs (see sections IV and V below).
2. Definition from the African Union Convention on Refugees
The Convention Governing the Specific Aspects of Refugee Problems in Africa (OUA Convention) 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 October 2023, it has 46 States Parties.
Its definition of refugee refers to the same criteria of persecution as the 1951 Refugee Convention. However, it extends the definition beyond the situation of individual persecution to include “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 OAU Convention).
This definition thus includes people fleeing war or collective persecutions en masse , whether the acts were committed by national authorities or not.
3. Definition from the AsianAfrican Legal Consultative Organisation (AALCO)
The final text of the AALCO 1966 Bangkok Principles on the Status and Treatment of Refugees adopted on 24 June 2001, contained the same expanded definition as the OAU Refugee Convention. It adds reference to colour and gender to the persecution criteria listed in the 1951 Refugee Convention. It also extends the concept of individual persecution to situations of collective danger listed in the African Union Convention on Refugees ( supra ).
4. Definition Developed by Latin American States
a. 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 notably the definition of refugee have been incorporated by the majority of Latin American countries in their domestic legislation (with the exceptions of Cuba, Panama, the Dominican Republic, Trinidad and Tobago and Venezuela), turning thus this ‘soft law’ definition into a binding concept. However, in practice, the definition is not consistently applied when determining refugee status, with some nationalities facing de facto exclusion from consideration as in the case of Venezuelans applying for asylum to Colombia. The Cartagena Declaration broadens the scope of the refugee definition in the 1951 Refugee Convention to include people fleeing situations of foreign aggression, non-international armed conflicts, and massive violations of human rights. The Declaration reminds that the Inter-American Commission on Human Rights is the competent organization to enhance international protection of refugees in the region. It should be noted that recent modifications in the immigration policy of the United States have introduced an extra aspect to the migratory trends in Latin America. The act of deportations and border pushbacks has led to the emergence of reverse migration flows, as individuals strive to go back to their places of origin or establish new lives in other parts of the continent. These opposing migration movements are giving rise to additional humanitarian needs in countries that lack the necessary resources to effectively tackle them.
b. San José Declaration, 1994
The San José Declaration on Refugees and Displaced Persons of 1994 is a landmark document that recognises the rights of refugees and displaced persons while reaffirming, ten years after its adoption, the importance of the Cartagena Declaration. The San José Declaration emphasises the importance of protecting their rights and providing them with durable solutions, including voluntary repatriation, local integration, or resettlement in a third country. The declaration also highlights the need for international cooperation and support to address the root causes of displacement and “urge governments to encourage, with the collaboration of UNHCR, a process of progressive harmonization of rules, criteria and procedures concerning refugees, based on the 1951 Convention and the 1967 Protocol relating to the status of refugees, the American Convention on Human Rights, and the Cartagena Declaration” (fifth paragraph).
c. 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 recognises the jus cogens nature of the principle of non-refoulement and includes provisions on non-rejection at the border and non-penalisation 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. Furthermore, this Plan of Action recognises the existence of mixed migratory movements, including persons who may be eligible for refugee status and who require special treatment, with appropriate legal safeguards to ensure their identification and access to refugee status determination procedures.
d. Brasilia Declaration, 2010
On 11 November 2010, 18 Latin American countries adopted the Brasilia Declaration on the protection of refugees and stateless persons in the Americas following a meeting on refugee protection, statelessness, and mixed migratory movements in the Americas hosted by Brazil’s Ministry of Justice. These 18 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 United States 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-penalisation of ‘illegal’ entry, and extend the benefit of this principle beyond the strict definition of refugee to persons involved in mixed migratory movements. It also supports the further integration of gender, age, and diversity considerations into national refugees and IDPs legislations. With regard to mixed migration in particular, the Declaration recommends the adoption of the Mexico Plan of Action as a regional framework to address new challenges related to the identification and the protection of refugees in the context of mixed migratory movements. In addition, the Declaration urges Latin American States to fully comply with international standards and to adopt mechanisms to address new situations of displacement not covered by the 1951 UN Refugee Convention.
e. Brazil declaration, 2014
In December 2014, on the 30th anniversary of the Cartagena Declaration on Refugees, UNHCR and representatives of 28 countries and three territories in Latin America and the Caribbean adopted a roadmap to address new displacement trends and to end statelessness by 2024 during a ministerial meeting held in Brasilia. The Brazil declaration builds on previous regional frameworks (Cartagena Declaration, Mexico Plan of action, Brasilia Declaration) and the definitions they have established to set out a new regional framework for the coming years, recognising the new realities that are forcing people in Latin America and the Caribbean to flee their homes and seek protection. It also emphasizes on the convergence and complementarity of international human rights law, international refugee law and IHL, to provide a common legal framework to strengthen the protection of refugees and other persons in need of it, on account of their vulnerable situation. The text of the Declaration and the Plan of Action reflect the commitment of governments to address the needs of the most vulnerable. The Plan of Action includes 11 strategic programmes to be implemented by willing governments by 2024.
☞ 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 the Universal Declaration of Human Rights).
States are not under the obligation to grant 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. There is thus a gap between the rights of individuals and those of States, a gap that is filled 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 this Convention. For these non-statutory refugees, there are minimum standards of treatment that States must respect (see Section II.4, infra ).
Definitions are important because of the rights they confer on or open to individuals. However, during the transitional steps and stages that a refugee must go through to obtain formal refugee status, as defined in the Refugee Convention, every refugee is entitled to a minimum set of rights and guarantees granted to asylum seekers by human rights and humanitarian law conventions (see infra , Section II).
5. International Humanitarian Law (IHL) definition
Under IHL, refugees are primarily considered as civilians who have lost the protection of their government. IHL therefore interprets the concept of refugees more broadly to the protection of civilians and of population displacements caused by armed conflict. This definition does not mean that they must be granted the refugee status under national law, but it does establish their right to receive international protection and assistance under IHL for the duration of the armed conflict.
IHL also provide special protection designed to ensure that refugees shall not be considered as hostile or enemies because of their nationality, even if their nationality is that of an adverse party to the armed conflict (GCIV, art. 40). In case they find themselves in territory that is suddenly occupied by the State from which 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 accorded the same protection as the civilian population (API, art. 73 and APII, art. 4).
II. Rights of Individuals in Different Situations
1. Transitional Statuses
Before obtaining formal refugee status, individuals usually fall into other legal 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 of the examination of their file.
- De facto refugees : These individuals have entered the territory of another State as part of a mass influx of people from their country of origin due to an armed conflict or other disaster. However, they cannot justify their flight on the grounds of individual persecution and therefore do not fall within the strict definition of a refugee.
Although the people mentioned here do not have official refugee status, they are entitled to the minimum guarantees set out in the 1951 Refugee Convention. The purpose of these guarantees is to protect the minimum rights of individuals fleeing their own country to seek asylum in another country without encountering insurmountable administrative obstacles, or to obtain temporary refuge and subsidiary protection. These minimum rights include protection from detention, ill-treatment as well as forced return, collective expulsion or refoulement. The principle of non-refoulement (PNR) is binding upon all States towards all foreign nationals regardless of their status. It protects the right of persons not to be expelled or returned to a place of danger.
The legal status of IDPs differs from that of the various categories of refugees. IDPs are individuals who have fled their homes but have not crossed an international border. They therefore remain under the jurisdiction of their national authorities and cannot benefit from the international protection designed for refugees. They are protected by general human rights conventions and, in the case of armed conflict, by IHL.
2. Basic Rights Granted to Individuals Fleeing Their Country
To ensure that a person fleeing his or her country can effectively file 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.
a. The Right to Seek Asylum in Another CountryThe Right to Seek Asylum in Another CountryThe 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 Parties to the Convention may not impose penalties on refugees on account of their ‘illegal’ entry or presence in the territory, if, having come directly from a territory where their life or freedom was threatened, they enter or are present in the territory of that State without authorisation. This provision applies as long as the refugees present themselves immediately to the authorities and show good cause for their ‘illegal’ entry or presence (art. 31 of the 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 favour the jurisdiction of the country of first asylum, i.e., the country through which the refugee first passed and where he or she could have applied for asylum.
d. The Right not to be Expelled or Returned to their Country of Origin if their safety is at risk (Nonrefoulement)
No State is allowed to expel or return ( refouler ) a refugee, in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group, or political opinion (art. 33 of the Refugee Convention). This mandatory principle of non-refoulement (PNR) applies to various form of forced return and expulsion. Therefore, persons whose applications have been rejected should still benefit from temporary asylum when they cannot be returned to their country of origin because of the dangers they would face. They must also benefit from the minimum standards of protection associated with this temporary asylum ( infra ). ➔ Refoulement (forced return) and expulsion ▸ Repatriation
3. The Rights of Individuals who have obtained Official Refugee Status
Once their case has been examined, the individuals who fall within the definition of the 1951 Refugee Convention are granted a legal status that normally confers 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 country of asylum— is defined by the national laws of that country.
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 favourable 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 favourably 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 labour 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.
4. Minimum Standards of Protection Established by the UNHCR for Individuals who have not Received the Formal Status of Refugees
Only States can grant refugee status. However, the UNHCR can use its good offices to assist States in finding durable solutions to refugee problems. The UNHCR’s Executive Committee has set out the minimum rights that all States must grant to refugees who do not fall within the definition of the 1951 Refugee Convention and therefore cannot benefit from the Refugee’s status it provides, until a durable solution can be found.
☞ **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;
-favourable conditions for voluntary repatriation;
-obligation of states to search for a durable solution.
**➔ Camps </content/article/3/camps/>__ ▸ Children </content/article/3/children/>__ ▸ Discrimination </content/article/3/discrimination-1/>__ ▸ Fundamental guarantees </content/article/3/fundamental-guarantees/>__ ▸ Internment </content/article/3/internment/>__ ▸ Migrant-Migration </content/article/3/migrant-migration/>__ ▸ Judicial guarantees </content/article/3/judicial-guarantees/>__ ▸ Refoulement (forced return) and expulsion </content/article/3/refoulement-forced-return-and-expulsion/>__ ▸ Repatriation </content/article/3/repatriation/>__ ▸ Women </content/article/3/women/>__**
**III. RESOURCES TO PROTECT REFUGEES
**1. From the UNHCR
**The UNHCR is the treaty body in charge of the implementation of the 1951 Refugee Convention. As such, it is responsible for monitoring and coordinating the content of legislation, the due process and other measures taken by different States with regard to the right to asylum and the protection of refugees and asylum seekers.**
**It is responsible for harmonising national laws in this area and ensuring that they effectively protect the right to asylum. It is also in charge of implementing the principle of shared responsibility and solidarity between States by coordinating the burden-sharing and the efforts of States to meet the financial costs of the obligation to receive refugees.**
In addition to these legal protection activities, the UNHCR is also mandated to directly manage humanitarian assistance and protection activities in situations of massive refugee arrivals with the consent of the State concerned. The UNHCR carries out humanitarian assistance activities for refugees in camps or other open settings in coordination with non-governmental organisations (NGOs). In fact, the UNHCR can enter into formal operational partnership agreements with NGOs for assistance and protection activities (arts. 8 and 10 of the UNHCR Statute).
The UNHCR plays a central role in the follow-up and review of the Global Compact on Refugees adopted by States under the auspices of the United Nations in 2018 ( infra , Section VI). This role includes UNHCR’s annual reporting to the United Nations General Assembly (UNGA), as well as its leadership role in the Global Refugee forum.
**2. From NGOs
**The Statute of the UNHCR acknowledges and promotes the role of NGOs as operational partners in the implementation of the UNHCR mandate (arts. 8 and 10). Through such agreements with the UNHCR, NGOs are formally associated with the UNHCR’s mandate to assist and protect for refugees in various situations.**
**By virtue of their operational presence at the refugees’ side, NGOs are in a privileged position to assess and report back to the UNHCR on issues such as the physical safety of refugees, the quality of assistance they receive, and the various pressures they face in making certain decisions —particularly, in cases of repatriation.**
3. From States
In addition to their legal obligations to manage refugees present on their own territory, States are bound by an international duty of solidarity to managerefugee flows. This is particularly important in the case of large influxes of refugees who must be granted temporary asylum. All States must provide immediate assistance to host countries, in accordance with the “principle of equitable burden-sharing” (Preamble to the Refugee Convention, para. 4; UNHCR Executive Committee Conclusion 1, on Refugees without an Asylum Country, Session XXX, 1979).
The cost of hosting refugees cannot be borne solely by the State to which people flee because of its geographical proximity. If this were the case, potential host States would soon close their borders to any person seeking refuge, thereby denying the right of persecuted persons to flee their country. Therefore, all States have an obligation to contribute to the assistance of refugees. One of the main ways they do this is by funding the UNHCR, which protects and assists refugees.
This international solidarity responsibility is not based on altruism alone. It stems from the desire of States Parties to the Convention to “do everything within their power to prevent this problem from becoming a cause of tension between States” (Preamble to the Refugee Convention, para. 5).
**4. The Global Refugee Forum
**The Global Refugee Forum was established as part of the Global Compact on Refugees, adopted by States under the auspices of the United Nations in 2018. It brings together all United Nations Member States, and other relevant stakeholders such as the UNHCR, at ministerial level every four years to announce concrete contributions and to discuss opportunities, challenges and ways to improve the burden and responsibility-sharing with regards to refugees’ situations. The Forum is co-convened and co-hosted by one or more State(s) and the UNHCR with support of the United Nations Secretary-General. In addition, a high-level meeting may be convened every two years between Global forums. The outcome of the first Forum convened in 2019, came at a time when the international legal framework for cooperation and solidarity is under extreme pressure. It initiated a new model of voluntary cooperation and practical arrangements, bringing together diverse segments of society, including States, the private sector, civil society, faith-based organisations, sports bodies, impartial humanitarian organisations, development actors and academia as well as refugees themselves.**
The second Global Refugee Forum, to be held in Geneva from 13-15 December 2023, aims to build on the achievement, shortfalls and innovative approaches made possible by this non-binding approach.
- REGIONAL INITIATIVES FOR THE PROTECTION OF REFUGEES
The rise of regional initiatives in refugee law can be traced back to the impetus provided by the UNHCR and the UNGA in the 1990s. Indeed, at its 44th session in October 1993, the UNHCR Executive Committee emphasized the importance of a global regional approach to refugee prevention and protection. The UNGA expressed its agreement in its resolution 48/116 of November 1993. The main objectives of this regional approach are to promote the overall 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 Refugee Convention and its 1967 Protocol. Until the late 1990s, South Asia was a region where refugee flows were treated primarily as issues of State security and political processes. Over the years, however, there has been a growing acceptance of the need for regional cooperation on refugee protection. The Informal Consultations on Refugee and Migratory Movements in South Asia, a forum initiated in 1994, resulted in the adoption by consensus in November 1997 of a Model National Refugee Law, which includes provisions for the protection of people in situations of mass influx, special consideration for women and child refugees, voluntary repatriation, and non-refoulement.
In the European Union (EU), the Dublin Regulation, adopted in 2003, governs the treatment of asylum seekers and refugees in the region. It determines which EU Member State is responsible for examining the claims of asylum seekers seeking international protection within the European Union under the 1951 Geneva Convention and the 2004 EU Qualification Directive. It is the cornerstone of the Dublin system, which consists of the Dublin Regulation and the EURODAC Regulation. The latter establishes a Europe-wide fingerprint database for unauthorised entrants to the EU. The European Union’s migration policy has been criticised for being too restrictive. On 1 December 2005, the European Council adopted Directive 2005/85/EC, which sets 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 new EU pact on Migration and Asylum of 23 September 2020 (still to be approved by the 27 EU States) aims to provide answers to the European migration crisis of 2015-2016, particularly in terms of solidarity mechanisms between member States. It has not reached the necessary consensus to adopt the new legislative package prepared by the Commission, in particular the Dublin IV proposal intended to replace the Dublin Regulations which require people to apply for asylum in the first EU country they enter. The aim is to relieve the burden of the countries of first entry. It spells out the binding nature of the solidarity principle and mechanisms among EU countries, while agreeing on flexibility. According to this new pact, all necessary guarantees will be put in place to ensure that each person receives an individual assessment, taking into account the vulnerability of certain applicants, in full respect of their fundamental rights, including the principle of non-refoulement. As of October 2023, the new EU pact has already delivered some outcomes such as: yielding enhanced migration crisis management through early warning systems, improved search and rescue (SAR) cooperation among EU member States with a guidance that prevents the criminalisation of SAR humanitarian operations, the establishment of a unified European return Coordinator that will establish an effective and common EU return system, and since June 2022, a Voluntary Solidarity Mechanism supporting stressed member States in relocating asylum seekers to which 23 EU member States have agreed along with associated countries. On 4 October 2023, EU member States agreed on the Crisis Regulation, as part of this new EU pact. This regulation addresses mass influxes of migrants by allowing member States to extend border procedures, detention periods and to simplify the decision-making process. This reduces protections for migrants and stateless persons, potentially leading to higher risks of confinement, compromised asylum request reviews, automatic rejection of low probability applications, increased possibilities of refoulement, and the removal of “immediate protection” for refugees facing exceptional danger. Finally, the European Union Agency for Asylum (EUAA) was replaced by the European Asylum Support Office (EASO) which is equipped with additional resources to assist member States in achieving higher alignment with the EU’s rigorous asylum and reception standards. In September 2022, the European Parliament and the five rotating Presidencies of the Council have signed a joint declaration on the timetable for organising, coordinating, and adopting proposals under the Common European Asylum System (CEAS) and the new EU pact by the end of this legislature, with a view to concluding negotiations by February 2024.
The Middle East is one of the regions with the highest number of refugees (in Iran and the Syrian Arab Republic) that “produces” the highest number of refugees (coming from Iraq and the Syrian Arab Republic). The 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 neither signed the United Nations instruments, nor adopted national refugee legislation. As the UNHCR notes, asylum issues in the region are mostly governed by national aliens laws and driven by security concerns. However, in 2001, the Asian-African Legal Consultative Organisation adopted the text of the 1966 Bangkok Principles on the Status and Treatment of Refugees. This text upholds the fundamental guarantees of the 1951 Refugee Convention and the broader definition of the OAU Convention on Refugees. The Bangkok Principles apply to Asian and African member States, including Arab Gulf States.
- THE CONCEPT OF MIXED MIGRATION AND THE INTERNATIONAL GLOBAL COMPACT ON REFUGEES
The International Organisation for Migration (IOM) defines the phenomenon of “mixed migration” as a combination of migration flows including economic migrants, refugees, victims of trafficking, smuggled migrants, unaccompanied minors, stranded migrants and environmental migrants. This is a consequence of the increasing complexity of migration dynamics.
As a result of restrictive government policies towards asylum seekers and foreign workers, migration is becoming more and more irregular and controlled by criminal networks. Migrants and refugees are increasingly using the same routes and means of transport to reach an overseas destination. This raises conflicting protection issues as States perceive these movements as a threat to their national sovereignty and security. The issue of mixed migration should then be considered in the broader context of the fight against international crime (i.e. trafficking in human beings) and the protection of the right to asylum.*
Mixed migratory flows pose a challenge in terms of both protection and assistance. Indeed, the vast majority of migrants in mixed flows do not fit p*rima facie refugee status nor any particular label or established legal category. As a result, they run the risk of being deprived of any status of protection under international law, or of being categorised by governments as “criminals” because of their irregular entry or stay.
Mixed migration is of particular concern in the Mediterranean basin and the Balkans, the Gulf of Aden (Eritreans and Ethiopians moving to Yemen), Central America and the Caribbean, and Southeast Asia.
To assist States in managing mixed migratory movements in a protection-sensitive manner, the UNHCR launched in 2006 a “10-Point action plan” on refugee protection and mixed migration. It identified 10 points for attention and action in situations where refugees, mixed with other populations, are at risk of refoulement, human rights violations, and dangerous onward movements, such as:
- Cooperation among key partners , namely affected States, governmental bodies, and regional and international organisations;
- 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 good offices. 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.
Simultaneously, in 2007, the IOM was given a leading role in the cross-cutting issue of migration and climate change.
In 2016, the UNGA adopted the New York Declaration for Refugees and Migrants which includes two annexes addressing the situation of large movements of refugees (Annex 1) and migrants (Annex 2). It set the stage for the adoption of the Global Compact on Refugees in 2018, complemented in the same year by the Global Compact for Safe, Orderly and Regular Migration. In this process, it was decided that, while refugees and migrants face similar challenges and vulnerabilities and benefit from the same universal human rights and fundamental freedoms, which must be respected, protected and fulfilled at all times, only refugees are entitled to the specific international protection provided by international refugee law. It was therefore necessary to distinguish the specific situation of refugees from that of migrants and to address it in a separate global compact.
In the Gulf of Aden, a Mixed Migration Task Force (MMTF), co-chaired by the UNCHR and the IOM was established in early 2017 under the auspices of the Inter-Agency Standing Protection Cluster. Members of the MMTF included the OCHA, the OHCHR, the UNDP, the UNICEF, the Danish Refugee Council, and the Norwegian Refugee Council. The objective of the Task Force was to develop a rights-based strategy to ensure a comprehensive and coordinated response to the protection and humanitarian needs of migrants and asylum-seekers in transit through Somalia. A similar task force was established in Yemen in 2008.
In the Brasilia Declaration, Latin American countries recognised the growth and complexity of mixed migratory movements and the importance of recognising the different profiles of persons within migratory movements in order to respond to the specific and differentiated protection needs of refugees, victims of trafficking, unaccompanied children, and migrants who have been subjected to violence.
In Europe, the perspective on mixed migration is predominantly focused on national security, with European countries giving utmost priority to securing their borders. In October 2004, the European Union introduced Council Regulation (EC) 2007/2004 which led to the establishment of the European Agency for the Management of Operational Cooperation at the External Borders commonly known as Frontex. This agency is headquartered in Warsaw, Poland, and in 2023, it operates with a budget of €845.4 million. It is not designed to be a humanitarian and independent agency. Frontex’s main objective is to coordinate border management efforts across Europe, aiming to regulate migration. It serves both the EU member States and the Schengen area (including Switzerland, Liechtenstein, and Norway), and its activities are guided by States representatives on the Management Board.
Over recent years, Frontex has encountered a series of accusation related to its contribution to illegal pushback of refugees at sea. This included notably accusations of collaboration with the Greek coast guards in breaching the Geneva Convention by turning back migrants over the course of several years. These accusations also relate to Frontex’s involvement in intercepting and transferring numerous migrants to Libya by reporting directly to the Libyan coastguard rather than to other relevant search and rescue units.
These accusations triggered investigations from the European Anti-Fraud Office (OLAF). Although the report, issued on 15 February 2022, was not made public, its conclusions confirmed that Frontex staff had covered up human rights abuses within EU member states and were implicated in forcible return of asylum seekers in the Aegean Sea between March 2020 and September 2021. As a result, the agency’s former director, Fabrice Leggeri, and two other senior officials, resigned on 29 April 2022. Following the subsequent tragic incident of 14 June 2023, in which hundreds of people drowned off the coast of Greece, the European Ombudsman, Emily O’Reilly, also initiated on 24 July 2023 an inquiry into Frontex’s role in search and rescue operations within the Mediterranean Sea.
A report adopted by the European Parliament on 13 April 2023 underlines the need to balance Frontex’s role in border management with respect for fundamental rights and the principle of non-refoulement and calls for the strengthening of controls and permanent protocols for the management of funds, taking into account potential fundamental rights-related risks. The report also regrets the delay in the appointment of fundamental rights officer who plays an important role in monitoring Frontex’s compliance with its fundamental rights obligations under European and international law and in advising the Executive Director on fundamental rights issues.**
VI. THE 2018 INTERNATIONAL GLOBAL COMPACT ON REFUGEES
The Global Compact for Refugees is an international agreement, prepared by the UNHCR under the auspices of the United Nations, that provides a framework for improving the global response to the needs of refugees. It was developed in parallel with the Global Compact for Safe, Orderly and Regular migration to address all aspects of refugee protection in the context of mixed migration.
The Global Compact on Refugees was adopted by the UNGA (resolution A/RES/73/151) on 17 December 2018. 181 nations voted in favour of the Compact, the United States and Hungary voted against. Eritrea, Libya, and the Dominican Republic abstained from the vote.
The adoption of the Global Compact on Refugees is not intended to replace the 1951 Refugee Convention but rather to preserve its basic protection framework from the current risk of collapse.**
This Global Compact is not legally binding. However, it is based on fundamental principles of humanity and international solidarity. It recalls that it is based on the international refugee protection regime, centred on the cardinal principle of non-refoulement, of which the 1951 Refugee Convention and its 1967 Protocol form the core. It also urges States to respect not only the letter but also the spirit of their obligation under the 1951 Refugee Convention.
Although not legally binding, the Global Compact represents the political will and ambition of the international community as a whole to strengthen cooperation and solidarity with refugees and affected host countries. It agrees on the need to restore the centrality of international cooperation in the refugee protection regime and to enhance the burden and responsibility sharing and possible complementary mechanisms to ensure predictable, equitable, efficient and effective burden and responsibility sharing among Member States.**
-Voluntary contributions to achieve collective outcomes and progress towards four main objectives: (i) relieving pressure on host countries; (ii) enhancing the self-reliance of refugees; (iii) expanding access to third country solutions; and (iv) supporting conditions in countries of origin for return in safety and dignity.*
-Creation of the Global Refugee Forum which promotes and frames an expanded dialogue between all actors involved in the management of refugee situations as well as in the prevention of their root causes and the search for durable solutions. (*Supra ).
-Creation of the Comprehensive Refugee response framework (CRRF) contained in Part II of the Global Compact adopted by the UNGA (A/RES/71/1, Annex I). It reaffirms that the scale and nature of refugee displacement today requires a comprehensive and predictable response to large-scale refugee movements. It therefore provides an agreed framework necessary to address various needs and obligations in the practical management of refugee situations. It includes standard requirements for managing: (1) the reception and admission of refugees; (2) support for the immediate and ongoing needs of refugees; (3) support for host countries and communities, (4) durable solutions and (5) the way forward.
➔ Asylum </content/article/3/asylum/>__ ▸ Boat people </content/article/3/boat-people/>__ ▸ Camps </content/article/3/camps/>__ ▸ Internally displaced persons </content/article/3/internally-displaced-persons/>__ ▸ IOM </content/article/3/international-organization-for-migration/>__ ▸ Migrant-Migration </content/article/3/migrant-migration/>__ ▸ Protection </content/article/3/protection-1/>__ ▸ Refoulement (forced return) and expulsion </content/article/3/refoulement-forced-return-and-expulsion/>__ ▸ Relief </content/article/3/relief/>__ ▸ Repatriation </content/article/3/repatriation/>__ ▸ Stateless persons </content/article/3/stateless-persons/>__ ▸ UNHCR </content/article/3/united-nations-high-commissioner-for-refugees-unhcr/>__
➔ List of States Party to International Humanitarian Law and Human Rights Conventions (nos. 17, 18, and 19)
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