SANDEEP CHAWDA

BA.LLB(HONS.) REGULAR

ABSTRACT

People become refugees when the rule of law in their home countries breaks down.
They depend on the rule of law to find protection in other countries. They hope for the restoration
of the rule of law in their own countries, to be able to return home one day. Parliamentarians are
central to the process of developing laws, policies and regulations to shelter and protect victims
of war and persecution, while ensuring that the legitimate interests of host States are respected.

This assignment sets out the international legal framework on which refugee protection is built,
and from which it draws continually. It explains the value for States of acceding to international
treaties concerned with refugee protection, in particular the 1951 Convention relating to the status
of refugees and its 1967 Protocol. The central elements of a refugee protection system are
outlined, from entry and reception to status determination, the rights and duties of refugees, and
durable solutions.

What is refugee law?

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States are responsible for protecting the rights of their citizens. When governments are unable or
unwilling to do this, people may face such serious threats that they are forced to leave their
country and seek safety elsewhere. If this happens, another country has to step in to ensure that
the refugees’ basic rights are respected. This is known as “international protection”.

The 1951 Convention relating to the Status of Refugees and its 1967 Protocol are the core of the
international protection system, complemented by regional treaties and declarations that also
address the rights of refugees. But international refugee law does not operate in isolation. It is
best understood in conjunction with international human rights law, starting with the 1948
Universal Declaration of Human Rights, and with international humanitarian law (the law of
war).

This broader international legal underpins the work of the Office of the United Nations
High Commissioner for Refugees (UNHCR). The UN General Assembly created UNHCR after
the Second World War to ensure the international protection of refugees, and to work with
governments to find lasting solutions to refugee problems.

• The core instruments of international refugee law: the 1951 Convention and its 1967
Protocol;

• Regional refugee laws and standards as they relate to Africa, Latin America and Europe;

• Other relevant standards contained in international human rights law, international

humanitarian law and international criminal law; and

• Further sources of law and guidance.

International refugee law and standards

1951 Convention relating to the Status of Refugees

The 1951 Convention relating to the Status of Refugees is the foundation of international
refugee law. It defines the term “refugee”, establishes the principle that refugees should not be
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forcibly returned to a territory where their lives or freedom would be threatened (see box
below: The principle of non‑refoulement), and sets out the duties of refugees and States’
responsibilities toward them.

The Convention was drawn up shortly after the Second World War, and its authors were focused
on refugee problems existing at that time. The definition of a refugee contained in the 1951
Convention refers to persons who became refugees as a result of events occurring before 1
January 1951, and States had to declare whether they would apply that definition only to events
that took place in Europe or also to events in other parts of the world. As new refugee crises
emerged around the globe during the 1950s and early 1960s, it became clear that the temporal
and geographical scope of the 1951 Convention needed to be widened. The 1967 Protocol to the
Convention was adopted to do this.

1967 Protocol

The 1967 Protocol is independent of, though integrally related to, the 1951 Convention. The
Protocol removes the temporal and geographic limits found in the Convention. By acceding to
the Protocol, States agree to apply the core content of the 1951 Convention (Articles 2–34) to all
persons covered by the Protocol’s refugee definition, without limitations of time or place.

Most States have preferred to accede to both the Convention and the Protocol. In doing so, they
reaffirm that both treaties are central to the international refugee protection system.

The 1951 Convention and 1967 Protocol are the modern embodiment of the age-old institution
of asylum, Their strength remains their universal and non-discriminatory character and the
fundamental values they reflect.

Regional refugee laws and standards

The 1951 Convention and 1967 Protocol were designed to assure refugees the widest possible
enjoyment of their rights. In order to respond to regional specificities, States in different parts of

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the world have developed regional laws and standards that complement the international refugee
protection regime.

1969 OAU Convention governing the Specific Aspects of Refugee Problems in Africa

The conflicts that accompanied the end of the colonial era in Africa produced a succession of
large-scale refugee movements. These population displacements prompted the drafting and
adoption not only of the 1967 Protocol, but also of the 1969 Organization of African Unity (OAU)
Convention Governing the Specific Aspects of Refugee Problems in Africa.

The 1969 OAU Convention confirms that the 1951 Convention is “the basic and universal
instrument relating to the status of refugees”. It adopts the refugee definition found in the 1951
Convention, but also expands it to include any person compelled to leave his or her country
because of “external aggression, occupation, foreign domination or events seriously disturbing
public order in either part or the whole of his [or her] country of origin or nationality”.

This means that persons fleeing civil disturbances, widespread violence and war are entitled to
refugee status in States that are parties to the African Convention, even if they do not have a
well-founded fear of persecution for one of the reasons set out in the 1951 Convention. Of
course, many people may be refugees under the terms of both Conventions. (See box below:
Who is a refugee under the 1969 OAU Convention and under the Cartagena Declaration?)

The OAU Convention makes other important points. It affirms that “the grant of asylum to
refugees is a peaceful and humanitarian act” that is not to be considered as an “unfriendly act”
by any Member State of the OAU (now the African Union), and it requires States parties to take
appropriate measure to lighten the burden of a State granting asylum “in a spirit of African
solidarity and international cooperation”.

In 1984, a colloquium of government representatives and distinguished jurists was convened in

Cartagena, Colombia, to discuss refugee protection in Latin America. Inspired by the 1969 OAU
Convention, they adopted what is known as the Cartagena Declaration on Refugees.

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The Declaration reaffirms the centrality of the 1951 Convention and its 1967 Protocol, the
principle of non‑refoulement, as well the importance of international cooperation to solve refugee
problems. It recommends that the definition of a refugee used throughout the region be enlarged
beyond persons who fulfil the 1951 Convention definition to include those who have fled their
country “because their lives, safety or freedom have been threatened by generalized violence,
foreign aggression, internal conflicts, massive violation of human rights or other circumstances
which have seriously disturbed public order”. (See box above: Who is a refugee under the 1969
OAU Convention and under the Cartagena Declaration?)

Although the Declaration is not a legally binding instrument, most Central and South
American countries apply its definition and many have incorporated it into their legislation. The
Organization of American States (OAS), the UN General Assembly, and UNHCR’s Executive
Committee have all endorsed the Cartagena Declaration.

Since 1984, States in Central and Latin America have adopted three Declarations on the occasion
of important anniversaries of the Cartagena Declaration, including most recently, the 2014 Brazil
Declaration and Plan of Action.

Other international legal standards that protect asylum-

seekers and refugees

As explained above, international refugee law consists of the 1951 Convention and its 1967
Protocol, and related regional instruments. But, international refugee law does not operate in
isolation. It is complemented by other bodies of law, notably international human rights law,
international humanitarian law. There is no hierarchical relationship between these bodies of law,
but they are interconnected.

International human rights law

Like all people, asylum-seekers and refugees are protected by international human rights law.
This body of law extends to everyone within a State’s territory or under its authority or

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jurisdiction. As the 1948 Universal Declaration of Human Rights affirms: “All human beings are
born free and equal in dignity and rights.”

Refugees and asylum-seekers are thus entitled to two partially overlapping sets of rights: those
which States are obliged to respect, protect and fulfil under international human rights law, and
the specific rights of refugees

Under international human rights law, some guarantees, such as the prohibitions of torture and
slavery, cannot be restricted or suspended for any reason. Others may be derogated from under
specific conditions, such as to uphold public order or health or protect the rights of others.
Derogations must not be applied in a discriminatory manner, must be officially proclaimed and
in accordance with the law.

The Convention against Torture and the Convention on the Rights of the Child are human rights
instruments that provide important protections to asylum-seekers and refugees. Other human
rights treaties also complement international refugee law in important ways, as described below.

UNHCR’s Executive Committee recommends that States …

“Within the framework of the respective child protection systems of States, utilize

appropriate procedures for the determination of the child’s best interests, which
facilitate adequate child participation without discrimination, where the views of the
child are given due weight in accordance with age and maturity, where decision makers
with relevant areas of expertise are involved, and where there is a balancing of all

relevant factors in order to assess the best option.”

UNHCR Executive Committee, Conclusion No. 107 (LVIII), Children at Risk, 2007

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Regional human rights instruments relevant to refugee protection

Numerous regional instruments are relevant to refugee protection. Some of the most important
are listed below.

In Africa, regional human rights instruments that are relevant to the protection of refugees include
the African Charter on Human and Peoples’ Rights; its Protocol on the Rights of Women in
Africa; the African Charter on the Rights and Welfare of the Child; and the Great Lakes Protocol
on Property Rights of Returning Persons.

In the Americas, relevant human rights instruments include the American Declaration on the
Rights and Duties of Man; American Convention on Human Rights; its Additional Protocol in
the Area of Economic, Social and Cultural Rights; the Inter-American Conventions on the
Forced Disappearance of Persons; to Prevent and Punish Torture; on the Prevention,
Punishment and Eradication of Violence against Women; and on the Elimination of All Forms
of Discrimination against Persons with Disabilities.

In Asia, the South-Asian Association for Regional Cooperation (SAARC) has agreed a Social
Charter, as well as a Convention on Regional Arrangements for the Promotion of Child Welfare
in South Asia. The Association of Southeast Asian Nations (ASEAN) issued the ASEAN Human
Rights Declaration in 2012.

In Europe, relevant Council of Europe instruments include the European Convention for the
Protection of Human Rights and Fundamental Freedoms and its Protocols, notably Nos. 1, 4, 7,
and 12; the European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment; the Convention on the Protection of Children against
Sexual Exploitation and Sexual Abuse; the Convention on Preventing and Combating
Violence against Women and Domestic Violence; and the European Social Charter (revised). In
the EU, there are the various Directives and Regulations that underpin the common European
asylum system, as well as the Charter of Fundamental Rights and Freedoms. (See Chapter 1.3
Regional refugee laws and standards above.)

In the Middle East and North Africa, regional human rights instruments relevant to refugee
protection include the Arab Charter on Human Rights, as well as the Organization of the Islamic

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Conference (OIC) Rabat Declaration on Child’s Issues in OIC Member States; the OIC Covenant
on the Rights of the Child in Islam; and the OIC Cairo Declaration on Human Rights in Islam.

International humanitarian law

International humanitarian law, also known as the laws of war or of armed conflict, is a complex
field that predates human rights and refugee law. It seeks to limit the means and methods of
warfare and the effects of armed conflict on persons who are not or who are no longer
participating in it. A major part of international humanitarian law is contained in the four Geneva
Conventions of 1949 and two Additional Protocols agreed in 1977.

According to international humanitarian law, persons who do not take part in the fighting,
whether they have been displaced or not, should be respected, protected against the effects of
war, and provided with impartial assistance. Since many refugees and displaced persons find
themselves in the midst of international or internal armed conflict, its principles can also help
protect them.

International humanitarian law is binding on all parties to a conflict, both government forces and
non-state armed groups. The most serious violations of international humanitarian law are
regarded as war crimes. Under Article 1F of the 1951 Convention, persons with respect to whom
there are serious reasons for considering that they have committed “war crimes” must be excluded
from refugee status. Both international humanitarian law and international criminal law are
relevant to this determination.

Elements of a State asylum system

Developing a State asylum system involves establishing a legislative framework and related
policies, strategies and action plans to enable the government to fulfil its international
obligations to asylum-seekers and refugees.

This framework establishes mechanisms to allow access to the territory of the State without
discrimination for persons seeking protection, and for the fair and efficient assessment of their
asylum claims. It sets out what needs to be in place so that asylum seekers and refugees can

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exercise their rights and receive appropriate treatment, including attention to individuals with
specific needs. Domestic laws and policies on asylum need to be framed fairly, taking into
account the diversity of asylum-seeking populations.

The concept of the rule of law is central to a fair and efficient State asylum system. Protection
systems grounded in the rule of law offer legal certainty in the application of rules, as well as
accountability, equity and transparency. They are built on legal and policy frameworks that meet
international standards and are administered by impartial and properly trained officials, supported
by a functioning judiciary and other accountability structures. Such systems are especially
important in times of crisis.

Conclusion

Depending on the context, the most appropriate approach may be to accede to the 1951
Convention and/or the 1967 Protocol, and then to enact relevant national legislation and build the
necessary institutions. In other circumstances, it may be better first to establish national
legislation and accompanying institutions for the protection of refugees, grounded in the principle
of non‑refoulement and other obligations under international human rights law, with accession to
the 1951 Convention and/or 1967 Protocol coming later as the final step in the process.

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