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.

Various regional bodies have also agreed to regional instruments, which applying only to member states. These instruments include:

Definition of refugee[edit]

There are a variety of definitions as to who is regarded as a refugee, usually defined for the purpose of a particular instrument. The 1967 Protocol on Refugee refined the definition of a refugee found in the 1951 Convention as a person who:

  • is outside his/her country of nationality or habitual residence,
  • has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion, and
  • is unable or unwilling to avail him/herself of the protection of that country, or to return there, for fear of persecution.

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.."[3]

This definition of a refugee is contrary to common sense: "a well-founded fear of being persecuted for reasons of [. . .]" excludes people seeking refuge simply because of war. The definition also excludes those who having fled their country then refuse to remain in under-resourced or overly-restricted circumstances and set off to find sanctuary in a third country (e.g. Europe's new refugees from Africa and Asia, 2011 to the present).[citation needed]

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[4]

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.[4]

See also[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. Retrieved 30 January 2015. 
  3. ^ United Nations High Commission for Refugees. (2012). Text of Convention. Retrieved 5 May 2012.
  4. ^ a b UNHCR: Refugee protection: A Guide to International Refugee Law, 2001, ISBN 92-9142-101-4, retrieved 15 July 2010

External links[edit]