SCOPE OF REFUGEE LAW IN INTERNATIONAL HUMAN RIGHTS
Updated: Nov 3
Author: Rahul Matharu III year of LL.B, from Law Centre-2, Delhi University.
Co-Author: Sahil Choudhary, III year of LL.B, from Law Centre-2, Delhi University.
The state holds the primary responsibility to protect their citizen. However, when government is unwilling or unable to protect their citizens, individual may suffer serious violation of their rights and they might be forced to leave their homes to seek safety elsewhere, as for instance another country.
This article seeks to provide readers with a comprehensive understanding of the refugee crisis. The relevant international legal framework. In particularly this article explore how the dual needs of securing security and the human right of refugee can be met.
According article 1A (2) 1951 Convention Relating to the status of Refugees, a refuge is someone who
Has a well-founded fear of persecution because of his/her: race, religion, nationality, membership in a particular social group, or political opinion
Is outside his/her country of origin; and
Is unable or unwilling to avail him/herself of the protection of that country, or to return there, for fear of prosecution
At the end of 2020, the United Nation High Commissioner for Refugees (UNHCR) recorded some 82.4million people displaced worldwide, as a result of armed conflict or persecution, the highest in more than more ten years.
Armed conflict and internal strife are widely considered to be major cause of population movement, within and outside borders.
The reason for internal, rather than external, displacement is numerous. According to Internal Displacement Monitoring Centre, 50.8 million people were living in internal displacement due to conflict, violence and disasters at the end of 2019. These figures show that internal displacement is a crisis of terrifying proportions.
Millions of people are forced to leave their homes or their habitual residence each year, also in the context of conflict, violence, development projects, disasters and climate change, and remain displaced within their countries of residence. Millions more live-in situations of protracted displacement or are at chronic risk of displacement.
International humanitarian law protects civilians from becoming internally displaced persons or refugees by expressly prohibiting forced displacement. The Guiding principles on Internal Displacement provide useful guidance on displacement- specific aspect. They have wide assist from the worldwide network and, and plenty of country have included them into home laws.
The Guiding Principles on Internal Displacement (UN, 1998) establish the rights of internally displaced persons (IDPs) and the obligations of governments towards them in accordance with international law.
The document emphasizes the primary responsibility of national authorities to protect and assist all internally displaced persons regardless of the reason for their displacement.
International humanitarian law and international refugee law share a similar goal: the protection of person in the hand of a state of which they are not national. While international humanitarian law is mainly concerned with the protection of enemy national in the hand of to an armed conflict, international refugee law seeks to protect individual who have refuge from prosecution on the territory of a third country.
The Fourth Geneva Convention lays down explicit rule concerning the relationship between refugee and their host state on the one hand, and between refugee and their country of origin on the other hand. The specific protection afforded to refugees was subsequently extended by Protocol
Article 4 of Fourth Geneva Convention second paragraph of article state that — Persons protected by the Convention are those who at a given moment and, in any manner, whatsoever, find themselves, in case of a conflict or occupation, in the hands of persons a Party to the conflict or Occupying Power of which they are not nationals.
National of a state which is not bound by the convention are not protected by it. National of a neutral state who find themselves in the territory of a belligerent state, and national of a co- belligerent state, shall not be regarded as protected person while the state of which they are national had diplomatic representation in the state in whose hands they are. Accordingly, refugee nationals of an enemy state on the territory of a belligerent are entitled as ‘protected person’, to full protection of the fourth Geneva convention.
Expansion of the protocol of refugee under Protocol I
Article 73 of Protocol I eliminate the restriction contained in article 4 of the of the fourth convention. Refugee are protected whether or not diplomatic representation exist between the country. The fact that they have been recognised as refugee outweighs any consideration based on their nationality or their country origin.
However, in order to benefit from protection afforded to protected person under Article 73 of Protocol I, two criteria must be fulfilled: -
First, they must have been considered as refugee under the relevant international or under national legislation of the state of refuge or state of residence.
Second, the extension of the protection offered by article 73 applies to refugee who have fled from prosecution or threat of prosecution
However, the refugee is in the hand of a power state not party to the First Protocol, article 73 will not apply. In this case, the scope of protection granted by international humanitarian law to the refugee depends on his nationality and on whether he can be a protected person within the meaning of Article 4 of the Fourth Geneva Convention.
The Convention relating to the Status of Refugees (1951) establishes minimum standards for the treatment of persons granted refugee status and prevails over the main international human rights mechanisms.
The 1951 Refugee Convention and Optional Protocol 1967
Requires signatories to recognize those fleeing persecution as refugee
Signatories must undertake measure to naturalize and assimilate refugee
Signatories must provide refugee with basic service such as sustenance, shelter and medicine
In the provision of service and rights (such as education) refugees must at least as favorable treatment as foreign national
Signatories must make particular effort to help refugees participate in the workforce
Refoulment is completely forbidden under the refugee convention
Protection of Refugee under International Human Right
Article 14(1) of the Universal Declaration of Human Rights, considered the foundation of international human right law and a key determiner of customary international law establishes that everyone has the right to seek asylum in other countries. This means that all people who fear persecution in one country have the right to asylum in another country.
It is important to note that the type of asylum or legal status accorded to refugee is crucial to their future wellbeing, setting out the rights and obligation pertaining to people who have been forced to leave their country. Basically, it determines what kind of fundamental rights are guaranteed to them. It governs access to essential services such as health care and education; the right of movement within in a host country; right to residency; and right to legal employment.
The principle of non-refoulment is of international law relating to refugee: outline refugee protection under international law non-refoulement as a starting point. It is considered both an inviolable part of international customary law and a key provision of the 1951 convention relating to status of refugee. Non-refoulment means nom-return: states cannot return foreign national to territories where they might be subjected to torture, inhumane or degrading treatment, or where their lives and freedom might be at risk
The principle of nom-refoulment reflects the commitment of the international community to ensure the enjoyment of basic human right including right to life, freedom from torture or cruel, inhuman or degrading treatment or punishment and to liberty and security of person.
Article 33 of the Refugee Convention states that “No State Party shall expel or in any way return a refugee to the borders of a territory where his or her freedom of life would be threatened because of his race”.
Similarly, Article 3 of the Convention Against Torture state that “No State Party shall expel, return or extradite a person to another state where there are substantial grounds for believing that the person would be in danger of being subjected to torture.
The Refugee convention1951 preamble specifically require the international community to cooperate, share burdens and aim to achieve durable solution for refugee, who should be integrated in the economic system of the counties of asylum and will themselves provide for their own needs and for those of their families.
Also Burden sharing is foundation principle of the international refugee regime. The United Nations High Commissioner for Refugees has defined burden sharing as subset of international cooperation where state take on responsibility for refugee who would strictly fall under protection of other states.
Burden-sharing entails an approach toward refugee crisis that is underpinned by international solidarity and shared responsibility.
The concept has its root in the common understanding that refugee is essentially of concern to the entire international community, which has a common stake in issues of humanitarian need of security.
Case study: Israeli settlement, the Separation Wall and Displacement in the Occupied Palestinian Territory
Palestinian refugees and internally displaced persons (IDPs) are the largest and longest-standing case of displaced person in the world. At the end of 2008, there were an estimated 6.6 million Palestinian refugee and 427000 internally displaced Palestinian, representing 67 percent of the entire Palestinian population worldwide.
Israel has been pursuing a policy of implantation of settlement in the west bank, the Gaza Strip and occupied East Jerusalem. The settlement has disastrous consequences for the Palestinian people. Their freedom of movement has been seriously affected. In the first ten month of 2008, the UN office for the coordination of Humanitarian Affairs (OCHA) recorded 290 settler-related incident targeting Palestinian and their property which resulted in 131 Palestinian death or injuries.
The Geneva Convention of 1949 expressly prohibits the forced displacement of civilians and the subsequent displacement of the occupying power's own population into the occupied territory. The prohibition of population transfers may also be derived from a fundamental principle of the law of belligerent occupation, namely the prohibition of permanent change in occupied territory.
International law imposes a general ban on the acquisition of a territory by force. Practice of population transfer by settlement which clearly constitute breach of international human right law, including the right to freedom of movement, the practice of non-discrimination and the right of self-determination.
The UN Security Council has repeatedly condemned attempts to alter the demographic composition of an occupied territory and has consistently reaffirmed the applicability of the law of belligerent occupation, including the Fourth Convention.
Article 53 of the Fourth Geneva Convention prohibits the destruction, by the occupying power, of all property, real or personal, whether it is private property, state property or that of the public authorities. According to article 46 of the Hague Regulation, private property cannot be confiscated.
The International Court of Justice Advisory Opinion on Legal Consequences of the Construction wall in the Occupied Palestinian Territory
On October 9, 2003, the Permanent Representative of the Syrian Arab Republic, acting on behalf of the State Member of the League of Arab States, requested President of the Security Council requesting an immediate meeting of the Security Council to examine the serious violations of international law by Israel, including humanitarian law international law.
The Security Council meetings provided the parties concerned with a forum discussion on the construction of the Separation Wall and to discuss the root of the problem, namely the construction of Israeli settlement in the Occupied Palestinian Territory.
Israeli representative explained at length the reason why Israel felt compelled to build the security fence. Israel indicated that fence was a temporary security measure and that it was one of the most effective non-violent method of preventing the passage of terrorists from the Palestinian cities to civilian areas of Israel.
On 15 October 2003, the chairman of the Arab Group requested the resumption of the Tenth Emergency Special session of the General Assembly in in view of the inability of the Security Council to fulfil its responsibilities for the maintenance of international peace and security due to the exercise of veto by its permanent member and to address the serious problem of the Israeli expansion wall in the Palestinian occupied territories, including East Jerusalem.
The 10th Special Emergency Session of the General Assembly was then reconvened on 20 October 2003 and adopted Resolution ES10/13, calling on Israel to halt and reverse the construction of the wall in the occupied Palestinian territories, including in and around East Jerusalem.
On 24 November 2003, Secretary-General confirmed the non-compliance by Israel with the demands of resolution ES-10/14, requesting International Court of Justice, pursuant to Article 65 of the Statue of the court, to urgently render Advisory Opinion
On 9 July 2004, the ICJ rendered the advisory opinion, The court ruled, by fourteen votes to one that
The construction of the wall being built by Israel, the occupying power, in the occupied Palestinian territories, including in and around East Jerusalem, and its associated regimes is in contravention of international law.
The Court then determined the relevant rules and principles of international law to assess the legality of the actions taken by Israel and ruled that the Hague Rules and the Fourth Convention as well as some human rights instruments apply to the occupied Palestinian territories.
The Court noted that the route of the wall was drawn to include the Israeli settlements in the "closed zone" and that the settlements themselves had been established in violation of international law.
The court observe that the construction of the wall resulted in the destruction or claim of property under conditions contrary to the requirements of Articles 46 and 52 of the Hague Rules and of Article 53 of the Fourth Geneva Convention.
Accordingly, the court found that the wall, along the chosen route, and its associated regimes seriously violated many rights of Palestinians living in Israeli-occupied territories. Furthermore, the court rejected Israel's claim that the construction of the wall was consistent with the right of self-defence enshrined in Article 51 of the UN Charter, only concluding that Article 51 was irrelevant in this case.
Court then examined the consequences of those violation. Firstly, Israel has an obligation to put an end to the violation flowing from the construction of the Wall in occupied Palestinian Territory. Secondly to make reparation for the damage suffered, further Israel obligation to compliance with international humanitarian law.
Human right violation is major factor in causing flight of refugees as well as an obstacle to their safe and voluntary return home. International Human Right law constitute a comprehensive corpus of protection for refugee and other displaced persons. It adequately protects civilian from forced displaced person in situation of occupation and non-international armed conflict. The rules of humanitarian law govern the conduct of hostilities, including the fundamental principal civilian immunity, provide adequate safeguard against armed attack by belligerents.
The function of the international human right is to judge whether states are fulfilling their duties under internationally agreed human right norms. International human rights standard and norms derive their validity and binding nature from treaties, as a matter of international law, a State owes its legal obligation to other state parties to the treaty, Human rights instrument envisaged a broader range of rights than that found in international refugee law instrument. Moreover, even when certain right is protected under two branches of international law, those right protected under human right instrument are generally more widely applicable.