Towards an Understanding of Refugee Law

Section I. Introduction to international refugee law: Background and context

Contemporary refugee law cannot be understood without knowledge of the broader global context from which it has emerged, and within which it is developed and implemented. The aim of Section I is to provide this essential context as a basis for the study of refugee law. This section introduces the major concepts of regular and irregular migration, provides a historical look at the phenomenon of migration, and surveys the magnitude of migration at the beginning of the twenty-first century. It then identifies the universal and regional standards that apply in refugee status determinations around the world, thereby illuminating the overall framework for refugee protection. It concludes by noting the major actors involved in refugee protection, particularly the UNHCR and other international and national entities. The section also looks at the broader context of refugee movements. It sheds light on the position of internally displaced persons, on bad credit persons, and also touches upon the widely debated problem of environment-induced migration.

Apart from setting the context, Section I is truly introductory. It lays the foundation for what will come in other sections of The Refugee Law Reader. Accordingly, Section I refers only to fundamental concepts and principles, leaving the in-depth examination of case law to subsequent sections.

Section II. International framework for refugee protection

Section II of The Refugee Law Reader presents the international framework for refugee protection. This section focuses exclusively on universal norms. Although both universal and regional laws and practices may be important in any single case, the legal norms developed at the regional level differ significantly from one area of the globe to another. Therefore, The Refugee Law Reader has elected to address world-wide legal obligations in Section II and to examine regional norms in the separate sections concerning Africa, Asia, Europe, and the Americas.

The international legal norms concerning refugee protection derive from the well-known sources of international law: international conventions, international custom, and generalized principles found in major legal systems around the world. In addition to identifying these bases of international legal protection of refugees, Section II highlights soft law as well as subsidiary sources such as judicial decisions and the writings of scholars and other experts.

The organization of Section II proceeds according to the following logic. The first portion of Section II surveys the overarching principles and concepts of refugee protection. The focus is on customary international legal norms, which apply to all states whether or not they are Contracting Parties to any pertinent treaties, on soft law, and on certain provisions from international human rights conventions. The second, and by far the most extensive, portion of Section II focuses on the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol. Today there are more than 140 State Parties, making these treaty obligations applicable in many parts of the world and a wellspring of jurisprudential development.

The third portion of Section II turns to other universal protection that pertains to refugees and asylum seekers. In particular, it examines the concepts of temporary protection and complementary or humanitarian protection, which many states employ in their responses to the displacement of people. It also examines universal instruments of human rights and humanitarian protection, which are relevant to everyone, including the displaced. Lastly, Section II turns to the topic of internally displaced persons. Although they generally do not fall within the legal framework of refugee protection, and should enjoy rights as nationals in their own countries, many individuals displaced within their own country fear the same persecution as those who have crossed borders. The similarities between their situation and that of many refugees make it imperative to address their plight.

Section III. African framework for refugee protection

The OAU Convention was prepared, in part, to take into account the unique aspects of the refugee situation on the African continent, in light of the fact that the 1951 Convention definition of a refugee, as a “person fleeing a well-founded fear of persecution”, had not considered several problems encountered by African refugees and was therefore seen as too narrow within the African context. One of the fundamental innovations of the OAU Convention is its expansion of the refugee definition, and the materials contained in this section highlight several elements of the definition that have had far-reaching effect. Further, this part highlights other significant contributions of the OAU Convention, for example that it expanded the principle of non-refoulement and that it is the only legal instrument that has codified a principle on the safe and humane voluntary repatriation of refugees.

The focus of the section will then turn to address various obstacles pertaining to refugee protection in Africa. It explores the interaction between the exclusion clause and the international criminal justice regime, a high profile issue at present. It also examines many facets of the relationship between refugees and the territories to which they flee. For example, it addresses the interface between refugee law and immigration law, the different situations of urban refugees and those who live in camps, the relations between refugees and their host populations, and the impact of resettlement and the problems that arise when it is not an available durable solution. This portion of the section also devotes attention to two especially vulnerable populations, foreign unaccompanied children and those who are internally displaced.

Section IV Framework for refugee and IDP protection in the Americas

This section of The Refugee Law Reader examines the legal norms regarding refugee protection that have developed in the Americas. In particular, it highlights concepts and instruments that are unique to Latin America, where most of the regional developments have occurred. Some developments involving Canada and the United States of America are addressed at the end of the section.

The first portion of this section addresses the regional instruments dealing with ‘diplomatic/political asylum’, ‘refugio (refuge)/territorial asylum’, and asylum provided to refugees. These concepts have a specific meaning in the Latin American context, and efforts to interpret and apply them have given rise to a substantial body of law. Materials in this section attempt to clarify ‘political/diplomatic asylum’ and ‘refugio (refuge)/territorial asylum’ in the light of the overarching international law framework protecting refugees and the recent developments of the Inter-American Court of Human Rights; the scarcity of literature in a language other than Spanish makes this a difficult task.

The second part of this section focuses on the regional system of human rights and its impact on refugee protection in the Americas. It canvasses the instruments and the related jurisprudence, as well as the soft law developments that are an important complement to refugee protection in the region. The section then turns to an examination of the Cartagena Declaration of 1984, the principal regional instrument specific to refugee protection. The Cartagena Declaration, the written expression of regional customary law, is notable for its situational approach, and its emphasis on protection and durable solutions. Other non-binding instruments that play an important role in the region are also examined.

The section next reviews the application of the 1951 Geneva Convention in the context of regional norms and national legislation adopted in Latin America. With the sole exception of Cuba, all the states in the region have ratified the 1951 Geneva Convention and/or its 1967 Protocol. The development of national jurisprudence concerning refugee protection still needs to be further developed, however.

This section also examines the internal displacement in Colombia and the situation of internally displaced persons more generally in Latin America. It highlights the all too frequent interaction of collective displacement, persecution and violence, refugees, and the internally displaced.

The section concludes by noting the regional developments in North America between Canada and the United States of America concerning the adoption and implementation of the safe third country agreement.

Section V. Asian framework for refugee protection

This section of the Refugee Law Reader examines the legal norms developed in Asia regarding refugee protection. The challenges in framing this section arose from several overlapping reasons. Only a few countries are State Parties to the 1951 Convention relating to the Status of Refugees. Furthermore, there is no regiaonal convention on human rights and the non-binding AALCO (Asian African Legal Consultative Organization) principles have not had any serious influence on the law and practice in the region. Moreover, most countries in Asia have not passed national legislation on the status of refugees, with the result that there is little case law and the status of refugees frequently is not distinguished from that of non-citizens in general. While there is literature on the origin and condition of refugees, this rarely includes legal analyses of the relevant issues. Even the legal texts that exist, for example the Memorandum of Understanding between UNHCR and Pakistan, are not readily accessible.

Nonetheless, there are important materials available and the Section on Asia has organized them in three parts. The first presents general materials on the challenges to refugee protection in Asia. It includes readings that explain Asian exceptionalism, and thus provide a setting in which to appreciate the selected references. The second portion of this Section focuses on the State Parties to the 1951 Convention: Cambodia, China, Japan, Philippines, and South Korea. It examines national legislation, case law, and literature exploring the protection afforded to refugees. The concluding part of the Section on Asia addresses the protection concerns that arise in states that are not party to the 1951 Convention. Bangladesh, India, Pakistan, and Thailand were selected for this examination, based on the large numbers of refugees they host or the existence of a corpus of reasonably evolved practices and laws. It should be noted that three of these states are in South Asia; this contrasts to the State Parties to the 1951 Convention, all of which are located in Southeast Asia or East Asia. As materials on countries in Central Asia and West Asia have not been included, in this context the Section on Asia refers to South Asia and Southeast Asia.


Section VI. European framework for refugee protection

In this section The Refugee Law Reader turns to the legal norms developed in Europe regarding refugee protection. This is a complex area, as two quite separate actors both have significant impact on asylum and related protection issues. First, the Council of Europe, comprising 47 countries, addresses general human rights protection, and its activities have significant implications for the legal position of asylum applicants and refugees. Second, the European Union (EU) – an organization that is entirely separate from the Council of Europe, although the EU’s 28 Member States are simultaneously members of the Council of Europe – has embarked on an active programme to develop new legal norms affecting immigration, borders, and asylum.

The first part of Section VI focuses on the soft law that the Council of Europe has developed in its inter-governmental cooperation efforts. The backbone of these materials are the Recommendations and Resolutions of the Committee of Ministers and the Parliamentary Assembly relating to international protection. Although these documents are politically binding, they do not have immediate legal consequences. Nonetheless, they are useful as aids to interpretation of the undertakings of Council of Europe member states with regard to international protection. Next, Sub-Section VI.1.2 examines the European Convention on Human Rights, a core treaty of the Council of Europe. Although the Convention itself makes no reference to international protection of refugees, the judgments issued by the European Court of Human Rights impose important obligations regarding asylum on state parties. Furthermore, all members of the Council of Europe must adhere to the Convention, as interpreted by the Court, and must accept the jurisdiction of the European Court of Human Rights.

The second half of Section VI highlights the key EU legislation, both Regulations and Directives, concerning international protection of asylum seekers, refugees and persons in need of subsidiary protection. Although the central concern of the EU is the successful functioning of the internal market (a market for the free movement of goods, persons, services, and capital across the internal frontiers), the EU expanded its scope in 1999 to include immigration and asylum. Indeed, the EU has adopted three five-year programmes (the most recent Stockholm Programme lasting until 2014) in order to create a Common European Asylum System intended to be based on a harmonized interpretation and application of the 1951 Geneva Convention. Sub-Section VI.2 also includes important decisions of the Court of Justice of the European Union, which is competent to issue binding interpretations of EU law, though it normally cannot receive complaints directly from individual asylum seekers.