Refugee law

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Refugee law is the branch of international law which deals with the rights and protection of 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 discussion on fragmentation of international law.[1] 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).[2]

Sources of refugee law[edit]

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.

Definition of refugee[edit]

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."[11]

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[12]

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.[12]

U.S. Refugee Law[edit]

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 the following year in 1968. 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.[13] The law also created legal basis for the admission of refugees into the U.S. A 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.
  • is able to validate previous persecution or feared approaching persecution based on their race, religion, nationality, social class, or political outlook
  • is not currently settled in another country
  • is 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.[14] 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.[15] 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.[16] The refugee is eligible for this cash and medical assistance up to eight months after their arrival date.[16]

Human Rights and Refugee Law[edit]

Human rights are rights a person is guaranteed on the basis only that he or she was 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[17]

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.[18] 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.[18]

See also[edit]

References[edit]

  1. ^ Koskenniemi, Marti (September 2002). "Fragmentation of International Law? Postmodern Anxieties". Leiden Journal of International Law. 15 (3): 553–579. doi:10.1017/S0922156502000262. Retrieved 30 January 2015. 
  2. ^ 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. SSRN 2556825Freely accessible. 
  3. ^ Refugees, United Nations High Commissioner for. "Refworld - Declaration on Territorial Asylum". 
  4. ^ The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa
  5. ^ Refugees, United Nations High Commissioner for. "Refworld - San José Declaration on Refugees and Displaced Persons". 
  6. ^ https://www.oas.org/dil/mexico_declaration_plan_of_action_16nov2004.pdf
  7. ^ http://www.acnur.org/t3/fileadmin/Documentos/BDL/2014/9865.pdf
  8. ^ Refugees, United Nations High Commissioner for. "Conclusion on International Protection". 
  9. ^ http://www.unhcr.org/419c74d64.pdf
  10. ^ "United Nations Official Document". 
  11. ^ United Nations High Commission for Refugees. (2012). Text of Convention. Retrieved 5 May 2012.
  12. ^ a b UNHCR: Refugee protection: A Guide to International Refugee Law, 2001, ISBN 92-9142-101-4, retrieved 15 July 2010
  13. ^ "An Overview of U.S. Refugee Law and Policy". American Immigration Council. Retrieved 23 February 2017. 
  14. ^ "Refugees". U.S. Citizenship and Immigration Services. Retrieved 24 February 2017. 
  15. ^ "Coming to the United States". U.S. Citizenship and Immigration Services. Retrieved 2 April 2017. 
  16. ^ a b "About Cash & Medical Assistance". Office of Refugee Resettlement. U.S. Department of Health & Human Services. Retrieved 2 April 2017. 
  17. ^ "What Are Refugee Rights Under International Law?" (PDF). Lutheran Immigration and Refugee Service. Retrieved 2 April 2017. 
  18. ^ a b Goldenziel, Jill (September 1, 2016). "THE CURSE OF THE NATION-STATE: Refugees, Migration, and Security in International Law". Arizona State Law Journal: 8. 

External links[edit]