Refugee law is the branch of international law which deals with the rights and duties States have vis-a-vis refugees. There are differences of opinion among international law scholars as to the relationship between refugee law and international human rights law or humanitarian law. The discussion forms part of a larger debate on the fragmentation of international law. While some scholars conceive each branch as a self-contained regime distinct from other branches, others regard the three branches as forming a larger normative system that seeks to protect the rights of all human beings at all time. The proponents of the latter conception view this holistic regime as including norms only applicable to certain situations such as armed conflict and military occupation (IHL) or to certain groups of people including refugees (refugee law), children (the Convention on the Rights of the Child), and prisoners of war (the 1949 Geneva Convention III).
Definition of refugee
According to the original 1951 Refugee Convention and 1967 Protocol, refugee children were legally indistinguishable from adult refugees. Although the Convention on the Rights of the Child was not specific to the rights of refugee minors, it was used as the legal blueprint for handling refugee minor cases, where a minor was defined as any person under the age of 18. In 1988, the UNHCR Guidelines on Refugee Children were published, specifically designed to address the needs of refugee children, officially granting them internationally recognized human rights.
In 1989, however, the UN signed an additional treaty, the Convention on the Rights of the Child (CRC), which defined the rights of children and bound its signatories to upholding those rights by international law. Although the treaty is not specific to the rights of refugee minors in particular, it was used as the legal blueprint for handling refugee minor cases, where a minor was defined as any person under the age of 18. In particular, it extends the protection of refugee children by allowing participating nations the capacity to recognize children who do not fall under the strict guidelines of the Convention definition, but still should not be sent back to their countries of origin. It also extends the principle of non-refoulement to prohibit the return of a child to their country "where there are grounds for believing that there is a real risk of irreparable harm to the child."
There is a variety of definitions as to who is regarded as a refugee, usually defined for the purpose of a particular instrument. The variation of definitions regarding refugees has made it difficult to create a concrete and single vision of what constitutes a refugee following the original refugee convention. Article 1 of the Convention as amended by the 1967 Protocol defines a refugee as:
"A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
The 1967 Protocol removed the temporal restrictions, which restricted refugee status to those whose circumstances had come about "as a result of events occurring before 1 January 1951", and the geographic restrictions which gave States party to the Convention the option of interpreting this as "events occurring in Europe" or "events occurring in Europe or elsewhere". However, it also gave those States which had previously ratified the 1951 Convention and chosen to use the geographically restricted definition the option to retain that restriction.
The Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa adopted a regional treaty based on the Convention, adding to the definition that a refugee is
Any person compelled to leave his/her country 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
In 1984, a group of Latin American governments adopted the Cartagena Declaration, which like the OAU Convention, added more objectivity based on significant consideration to the 1951 Convention. The Cartegena Declaration determine that a 'refugee' includes:
Persons who flee their countries because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.
Additionally, US Law draws an important distinction between "refugees" and "asylees". A refugee must meet the definition of a refugee, as outlined in the 1951 Convention and be of "special humanitarian concern to the United States." Refugee status can only be obtained from outside the US. If an individual who meets the definition of a refugee, and is seeking admission in a port of entry is already in the US, they are eligible to apply for asylum status.
The term displaced person has come to be synonymous with refugee due to a substantial amount of overlap in their legal definitions. However, they are legally distinct, and convey subtle differences. In general, displaced person refers to "one who has not crossed a national border and thus does not qualify for formal refugee status."
Refugee law encompasses both customary law, peremptory norms, and international legal instruments. The only international instruments directly applying to refugees are the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. Both the Convention and the Protocol are open to states, but each may be signed separately. 145 states have ratified the Convention, and 146 have ratified the Protocol. These instruments only apply in the countries that have ratified an instrument, and some countries have ratified these instruments subject to various reservations.
- The 1948 Universal Declaration of Human Rights
- The 1951 United Nations Convention Relating to the Status of Refugees
- The 1966 Bangkok Principles on Status and Treatment of Refugees adopted at the Asian-African Legal Consultative Committee in 1966.
- The 1967 Protocol Relating to the Status of Refugees
- The 1967 UN General Assembly Declaration on Territorial Asylum
- The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa
- The 1974 United Nations Declaration on the Protection of Women and Children in Emergency and Armed Conflict;
- The 1976 Council of Europe's Recommendation 773 (1976) on the Situation of de facto Refugees
- The 1984 Cartagena Declaration on Refugees for Latin America and its three successors:
- The 1989 Convention on the Rights of the Child
- The 1998 Conclusion on International Protection by the Executive Committee of the High Commissioner's Programme
- The 2001 Declaration by States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees
- The 2003 Convention Plus, in which refugee resettlement was decided to be of central concern of UNHCR.
- The 2004 European Union's Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and content of the protection granted
- The 2016 New York Declaration for Refugees and Migrants
U.S. refugee law
Various regions and countries have different variations of refugee law. They all stem from the 1951 Convention and the 1967 Protocol which relates to refugee status. The United States became a party to this protocol in 1968.
Despite playing an active role in the drafting of the Convention on the Rights of the Child, the United States has yet to ratify the treaty, making it the only nation in the UN that is not party to it. See also: U.S. ratification of the Convention on the Rights of the Child
Although the aftermath of World War II brought forth a refugee crisis, the large influx and resettlement of Indochinese refugees led to the passage of the Refugee Act of 1980. This law incorporated the International Convention's definitions of a refugee into U.S. law. The law also created the legal basis for the admission of refugees into the U.S. An important aspect of this law is how an individual goes about applying for status. A person may meet the definition of refugee but may not be granted refugee status. If the individual is inside of the U.S. with a different status or no status, he or she is granted the status of asylee but not refugee.
In order to be considered a refugee in the U.S., an individual must:
- be located outside of the U.S.
- be of specific humanitarian apprehension for the U.S.[clarification needed]
- be able to validate previous persecution or feared approaching persecution based on the individual's race, religion, nationality, social class, or political outlook
- not be currently settled in another country
- be admissible to the U.S.
The first step of being granted this status is to receive a referral to the U.S. Refugee Admissions Program (USRAP). The person is allowed to include their spouse, child, or other family members (only in specific circumstances) when applying for refugee status. After the person is referred, a U.S. Citizenship and Immigration Services officer located abroad will conduct an interview to determine refugee resettlement eligibility inside the U.S. If the person is approved as a refugee, he or she will then be provided with many forms of assistance. These include a loan for travel, advice for travel, a medical exam, and a culture orientation. After the refugee is resettled, he or she is eligible for medical and cash assistance. The Office of Refugee Resettlement has a program called the Cash and Medical Assistance Program which completely reimburses the assistance in which states provide refugees. The refugee is eligible for this cash and medical assistance up to eight months after their arrival date.
Refugee status determination
The burden of refugee status determination (RSD) falls primarily on the state. However, in cases where states are either unwilling or unable, the UNHCR assumes responsibility. In 2013, the UNHCR managed RSD in over 50 countries and worked in parallel with national governments in 20 countries. In the period from 1997 to 2001, the number of RSD applications submitted to the UNHCR nearly doubled.
RSD provides protection for refugees through promoting non-refoulement, resettlement assistance, and direct assistance.
Human rights and refugee law
Human rights are rights a person is guaranteed on the basis only that they were born as a human being. The following are universal human rights that are most relevant to refugees:
- the right to freedom from torture or degrading treatment
- the right to freedom of opinion and expression
- the right to freedom of thought, conscience, and religion
- the right to life, liberty, and security
- freedom from discrimination
Refugee law and international human rights law are closely connected in content but differ in their function. The main difference of their function is the way in which international refugee law considers state sovereignty while international human rights law do not. One of the main aspects of international refugee law is non-refoulement which is the basic idea that a country cannot send back a person to their country of origin if they will face endangerment upon return. In this case, a certain level of sovereignty is taken away from a country. This basic right of non-refoulement conflicts with the basic right of sovereign state to expel any undocumented aliens.
- Refugee identity certificate
- Refugee roulette
- Refugee travel document
- Right of asylum
- Rule of Law in Armed Conflicts Project
- Koskenniemi, Marti (September 2002). "Fragmentation of International Law? Postmodern Anxieties". Leiden Journal of International Law. 15 (3): 553–579. doi:10.1017/S0922156502000262.
- Yun, Seira (2014). "Breaking Imaginary Barriers: Obligations of Armed Non-State Actors Under General Human Rights Law – The Case of the Optional Protocol to the Convention on the Rights of the Child". Journal of International Humanitarian Legal Studies. 5 (1–2): 213–257. doi:10.1163/18781527-00501008. SSRN 2556825.
- Refugee Children: Guidelines on Protection and Care
- UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3
- UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: http://www.refworld.org/docid/3ae6b38f0.html [accessed 10 May 2018]
- "Convention relating to the Status of Refugees". United Nations High Commission for Refugees. 28 July 1951. Retrieved 26 April 2018.
- Jastram, Kate; Achiron, Marilyn (2001). Refugee Protection: A Guide to International Refugee Law (PDF). UNHCR. ISBN 92-9142-101-4. Retrieved 15 July 2010.
- "Learn About the Refugee Application Process". USCIS. Retrieved 2018-03-15.
- Malkki, Liisa H. (1995). "Refugees and Exile: From "Refugee Studies" to the National Order of Things". Annual Review of Anthropology. 24 (1): 495–523. doi:10.1146/annurev.an.24.100195.002431.
- "Bangkok Principles on the Status and Treatment of Refugees" (PDF). Asian-African Legal Consultative Committee. 31 December 1966.
- United Nations General Assembly Session 22 Resolution Declaration on Territorial Asylum A/RES/2312(XXII) 14 December 1967.
- The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa
- Recommendation 773 (1976) on the Situation of de facto Refugee
- International Colloquium in Commemoration of the Tenth Anniversary of the Cartagena Declaration on Refugees. "San José Declaration on Refugees and Displaced Persons".
- "Mexico Declaration and Plan of Action to Strengthen the International Protection of Refugees in Latin America" (PDF). Mexico City: Organization of American States. 16 November 2004.
- "Brazil Declaration: A Framework for Cooperation and Regional Solidarity to Strengthen the International Protection of Refugees, Displaced and Stateless Persons in Latin America and the Caribbean" (PDF). Brasilia. 3 December 2014.
- Human Rights Council Session 53 Resolution Conclusion on International Protection A/53/12/Add.1
- 2001 Declaration by States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees
- "Directive 2011/95/EU". 13 December 2011.
On standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted
- "United Nations Official Document".
- "United Nations Treaty Collection". Retrieved 2018-05-10.
- "An Overview of U.S. Refugee Law and Policy". American Immigration Council. Retrieved 23 February 2017.
- "Refugees". U.S. Citizenship and Immigration Services. Retrieved 2 April 2017.
- "About Cash & Medical Assistance". Office of Refugee Resettlement. U.S. Department of Health & Human Services. Retrieved 2 April 2017.
- United Nations High Commissioner for Refugees. "Refugee Status Determination". UNHCR. Retrieved 2018-03-16.
- "What Are Refugee Rights Under International Law?" (PDF). Lutheran Immigration and Refugee Service. Archived from the original (PDF) on 4 April 2017. Retrieved 2 April 2017.
- Goldenziel, Jill (September 1, 2016). "The Curse of the Nation-State: Refugees, Migration, and Security in International Law" (PDF). Arizona State Law Journal. 48: 8. SSRN 2684903.
- Program in Refugee and Asylum Law Comprehensive program for the study of international and comparative refugee law at the University of Michigan Law School.
- Refugee Caselaw Site Searchable electronic repository of case law documents relating to the legal definition of refugee status under the 1951 Convention.
- Refugee Law Reader.
- Refugee Law Project (RLP) A leading Ugandan organisation producing research and analysis on refugee issues
- Rule of Law in Armed Conflicts Project
- U.S. settles lawsuit by rejected refugee claimant CBC news.
- Refugees and International Law Forum: Papers Documents and other resources related to refugee and human rights law.
- Refugee Protection: A Guide to International Refugee Law.
- Agnès G. Hurwitz. The Collective Responsibility of States to Protect Refugees at Google Books