International Refugee Law | The Basics
Keywords – Refugee, international law, international refugee law, Asylum Seekers, Migrants
Written By – Sangamithra S
Introduction
The contemporary global refugee regime is the result of one hundred years of law, organisation, and practice. Without understanding the larger global context of its origin, evolution and application, it is impossible to comprehend the refugee law of the present times. The system was built on some fundamental and enduring principles, even though it is still in need of improvement and faces challenges that have never entirely been foreseen. These principles include:
- Refugees were an issue of international concern since they lacked national protection
- To respond to external displacement, international collaboration and coordination of effort were crucial
- A crucial partner in those responses was civic society
- Unless their security is guaranteed, no refugee should be required to go back to their country of origin.
The genesis of international refugee law can be found in ancient Greece, where it was possible to take shelter in specific temples that belonged to groups of people united by a sacred (almost contractual) bond to safeguard a shared sanctuary, the amphictyony. The two World Wars, however, have a strong connection to the most major changes in refugee legislation. The League of Nations asked the Norwegian explorer and humanitarian Fridtjof Nansen to help with the return of Russian and other POWs as well as Russian refugees following the October Revolution after World War I. The Nansen International Office for Refugees was created by the League not long after his passing in 1930.
The United Nations Relief and Rehabilitation Administration and the International Refugee Organisation, which were established during World War II and were responsible for providing aid to European refugees, respectively, came before the Office of the United Nations High Commissioner for Refugees (established in 1950).
Who is a Refugee?
The terms “refugees,” “migrants,” and “asylum seekers” are frequently used interchangeably and assumed to be synonymous. However, in contrast to migrants and asylum seekers, refugees are a unique class of people.
People who flee armed conflict or persecution are refugees. International law defines and protects them. An immigrant, on the other hand, is someone who consciously chooses to leave their nation and go to another one, not out of apprehension or dread of danger, but rather to emigrate and improve their living. A person who has not yet had their claim to be a refugee accepted is said to be an asylum seeker. They seek international protection from the dangers that exist in their native country, much like refugees do. To qualify as a refugee, individuals must demonstrate to the authorities that they meet the legal criteria and are eligible for the protection and assistance that are offered to refugees.
International Refugee Law
The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol constitute the key instruments of international refugee law.
1951 Convention Relating To The Status Of Refugees
The foundation of international refugee law is laid down by the 1951 convention. Article 1A(2) defines a refugee as a person who is outside of their country of nationality or usual residence, has a well-founded fear of persecution due to their race, religion, nationality, membership in a particular social group, or political opinion, and are unable or unwilling to seek refuge/protection in that country or to return there due to that fear.
The 1951 Convention outlines several rights for refugees as well as their responsibilities to their host nation.
• The right not to be expelled, except in certain, clearly defined circumstances (Article 32);
• The right not to be punished for illegal entry into the territory of a contracting State (Article31);
• The right to work (Articles 17 to 19);
• The right to housing (Article 21);
• The right to education (Article 22);
• The right to public relief and assistance (Article 23);
• The right to freedom of religion (Article 4);
• The right to access the courts (Article 16);
• The right to freedom of movement within the territory (Article 26); and
• The right to be issued identity and travel documents (Articles 27 and 28).
The longer a refugee stays in the host country, the more rights they are entitled to, which is based on the premise that the longer they stay as refugees, the more rights they require. The general obligation of refugees to follow the laws and regulations of their country of asylum and respect measures taken to maintain public order is stated in Article 2 of the 1951 Refugee Convention.
This Convention shall cease to apply to any person in the following situations:
1. They have voluntarily re-availed themselves of the protection of their country of nationality;
2. Having lost their nationality, they have voluntarily reacquired it; or
3. They have acquired a new nationality, and enjoy the protection of the country of their new nationality;
4. They have voluntarily re-established themselves in the country which they left or outside which they remained owing to fear of persecution;
5. They can no longer refuse to use the protection of their country of nationality because the circumstances that led to their recognition as a refugee have ceased to exist; however, this paragraph does not apply to a refugee who qualifies for protection under Section A(1) 5. They can no longer refuse to use the protection of their country of nationality because the circumstances that led to their recognition as a refugee have ceased to exist; however, this paragraph does not apply to a refugee who qualifies for protection under Section A(1) as they are able to cite compelling reasons stemming from prior persecution for their refusal to avail the protection of their country of nationality;
6. Because they have no nationality and the conditions that made them eligible for refugee status have passed, they are able to return to the country of their former habitual residence.
It is crucial to remember that the convention was drafted in the context of the events of World War II, and as a result, the definition of a refugee was geographically and temporally restricted to events occurring in Europe prior to 1 January 1951. But as time went on, it became clear that a global tool was required to ensure refugee protection. This prompted amendments and the 1967 Protocol’s adoption.
The 1967 Protocol
By eliminating its geographical and temporal restrictions, the 1967 Protocol expands the applicability of the 1951 Convention. Countries who ratify the Protocol, even if they are not parties to it, commit to also comply by the Refugee Convention, according to Article 1 of the Protocol. However, an overwhelming majority of States have chosen to accede to the Convention as well as the Protocol in order to reiterate their importance for the global system of refugee protection.
Non-Refoulement
Refoulement, a French word that literally translates as “driving back” or “return,” refers to sending a refugee or refugee claimant back to their country of origin under international refugee law. Article 33 of the 1951 Convention Relating to the Status of Refugees forbids the expulsion or return of a refugee to a region where his or her life or freedom is threatened due to race, religion, nationality, membership in a particular social group, or political opinion. This “principle of non-refoulement” is regarded as a rule of international customary law. Thus, it applies to all States, whether or not they have ratified the 1967 Protocol or the 1951 Convention.
Conclusion
Since India has not yet acceded to the 1951 Refugee Convention or its 1967 Protocol, it is primarily obligated under customary international law to protect refugees. Besides, the UNHCR performs refugee status determination (RSD) and registers asylum claimants in New Delhi owing to the absence of a national asylum legal framework. Furthermore, the Supreme Court of India has consistently concluded that the Fundamental Right to Life and Personal Liberty guaranteed in Article 21 of the Indian Constitution extends to all, regardless of whether they are citizens of India or outsiders.
The Foreigner’s Act, drafted as early as 1946, the Emigration Act, 1983 and the rules created thereunder, the Passport Act, 1967, and Article 21 of the Indian Constitution are frequently used in the absence of a specific act for refugees. However, given the growing refugee influx, it is crucial for India to ratify either the Convention or the Protocol or to have national refugee legislation that complies with international protection criteria.
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References
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Bhambri, S. (n.d.). Home Sweet Home: A Review of International Refugee Law, Legal Services India
Goodwin-Gill, Guy S. (March 21, 2020). A Short History of International Refugee Law: The Early Years. Oxford Handbook of International Refugee Law, Oxford
UNHCR. (2011, September). UNHCR- The 1951 Convention relating to the Status of Refugees and its 1967 Protocol. UNHCR; www.unhcr.org.
UNHCR. (2016,July). UNHCR- UNHCR viewpoint: “Refugee” or “migrant” – Which is right? UNHCR; www.unhcr.org.
von RJ anzeigen, A. B. (2017, November 4). A (very) Short History of International Refugee law. Ralph Janik; ralphjanik.com
