1. Refugee Protection The Legal and Institutional Framework

2. Introduction Focus for the section: Evolution of the system to protect refugees UNHCR: United Nations High Commissioner for Refugees History Mandate Objectives International and Regional Treaties Definition of Refugee

3. Origins Early 20 th Century Responses to Refugee Problems

4. 1921 – Post-WWI Rose out of World War I, the Russian Revolution, and the collapse of the Ottoman Empire. League of Nations Creates the position of High Commissioner for Russian Refugees (1921) Refugee: Specific groups that were deemed to be at risk if returned to their countries of nationality. Over time, categories were added for: Assyrians Turks Greeks Armenians German Jews Comprehensive protections developed standardization of refugee travel documents regularization of legal status access to employment protection against expulsion

5. 1945 - Post-WWII (United Nations) UN created as successor to League of Nations 1947 – UN initiates International Refugee Organization (IRO) Meant for refugees of WWII, roots for modern organization and definitions Took two original options and added third Repatriation Local Integration Resettlement Due to valid objections by refugees such as persecution, now or in the future

6. 1949 – Creation of UNHCR Replaces IRO. December 14, 1950 – The Statute of UNHCR is adopted Essentially a constitution Dual mandate Provide protection to refugees Seek permanent solutions to refugee problems UNHCR begins operating January 1, 1951 UNHCR was initially authorized to operate for 3 years because member states expected refugee problems to be resolved by then UNHCR is still in operation as the problem has continued

7. UN Refugee Agency, as of 2015 Offices in 125 countries At the beginning of 2015, over 9,300 members of staff members (6,854 national, 2,476 international) Annual budget reached US $ 7 billion in 2015 Funded by donor governments, European Union, private sector donors As of June 2015, budget at US $ 7 billion Top 10 government donors (2015): USA, Japan, Kuwait, EU, Sweden, Norway, Denmark, Canada, Netherlands, UK. Also private sector Advisory Body: Executive Committee of the High Co mmissioner’s Programme (EXCOM) 98 Member States in 2015 (up from 94 in 2014)

8. 1951 Convention Relating to the Status of Refugees (“1951 Convention”) Convention – A legally binding treaty that outlines the basic standard of refugee protection that all contracting parties agree to provide as well as rights and obligations of those recognized as refugees. Key elements Universal definition (not specific to national groups) A refugee is someone who is outside his or her former home country owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion, and who is unable or unwilling to avail himself or herself of the protection of that country, or return there for reasons of fear of persecution. Limited to persons who fled due to events before January 1, 1951 and able to be limited to persons who fled from events in Europe. Principle of non-refoulement Article 33: No contracting party shall expel a refugee to a country in which his or her life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. Article 35 assigns the duty of supervising the application of the convention to the UNHCR.

9. 1967 Protocol Relating to the Status of Refugees Refugee movements not unique to World War II. Mechanisms for problem must be flexible and universally applied. “1967 Protocol” removed 1951 Conventions limitations As of January 26, 2015 145 States are party to 1951 Convention 146 States are party to 1967 Protocol 148 States party to either or both treaties

10. Regional Expansions of Refugee Definition Created due to unique migration patterns that threatened political stability Broadened scope of protection for persons covered by the agreement Applies only to nations that signed in specific region concerned.

11. 1969 Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa As of 13 July 2012, 45 African countries (out of 53) have signed and/or ratified Convention. Response to large scale refugee movements Timing associated with dismantling of colonial establishments (“wars of independence/liberation”) and attendant civil unrest & population displacements. Distinguishes aspects of 1960’s African refugee situations from those covered by 1951 Convention definition Geneva Convention: "persons fleeing a well-founded fear of persecution" too narrow for African context. OAU Refugee Convention restates the Geneva Convention refugee definition Plus 2 nd paragraph to extend 1951 definition of term "refugee“ to include external aggression, occupation, foreign domination or events seriously disturbing public order” as causes of migration and flight of refugees. Situations viewed from objective, readily apparent circumstances vs. Individual circumstances. Covers persons fleeing from civil disturbances, widespread violence and war, without requiring fear of persecution

12. 1984 Cartagena Declaration on Refugees Central America and Mexico Response to refugees fleeing multiple civil wars across the region Built on OAU Convention definition with “massive violation[s] of human rights” Not legally binding, but principles and definition “endorsed” by all but one country in the region; incorporated into several national laws Sets out recommendations for providing humanitarian treatment and durable solutions Importance recognized by UN General Assembly and Organization of American States

13. Bangkok Principles on the Status and Treatment of Refugees (1966, updated 2001) Adopted by some Asian, Middle Eastern, and African States Principles reflect views of States that have extensive experience in providing asylum Includes some states not party to 1951 Convention or 1967 Protocol 1951 Definition expanded again

14. National Special Classifications In Europe and North America For persons who don’t meet 1951 definition but can’t go home Allowance for employment Protection from deportation for prescribed time period In many European countries, safe haven is offered to permit individual to remain for a specific period and provides social welfare benefits, food, and lodging

15. EU- Common European Asylum System (CEAS) Since mid-1980s, EU Members seeking to harmonize policies and practices Was non-legally binding initially CEAS established starting in 1999 Phase 1: By May 2004: agreement reached on major building blocks Temporary protection Minimum standards for reception of asylum-seekers Regulation determining the member state responsible for examining asylum requests System for comparing asylum-seekers’ fingerprints (Eurodac) Qualification directive: Defines concept of refugee and subsidiary, or complementary protection Determines minimum standard for those who qualify for international protection Procedures directive: Defines common minimum standards for status determination procedures Phase 2 will involve translating these principles into national legislation

16. USA: Temporary Protected Status (TPS) In some circumstances, the US has accorded TPS to certain non- nationals (similar to CEAS) where conditions in the country “temporarily prevent the country's nationals from returning safely”: ongoing armed conflict (such as civil war); an environmental disaster (such as earthquake or hurricane), or an epidemic; other extraordinary and temporary conditions To benefit, applicant must be residing in US; During designated period, person cannot be removed; can work; can seek permission to travel abroad

17. Week 4

18. Persons of Concern to UNHCR All persons whose protection and assistance needs are of interest to UNHCR Refugees under the 1951 Convention Recognized by States who have signed Convention or 1967 Protocol Mandate Refugees Refugees who meet definition but whose countries of asylum haven’t signed Persons fleeing conflict, massive human rights violations or serious disturbance of public order – extended definition Asylum seekers UNHCR also has a role in protecting or assisting: Returnees (former refugees) Stateless persons Internally Displaced Persons (covers some, not all)

19. Legal and Institutional Framework: Review International Refugee Law Sets out main principles underlying international protection of refugees Key instruments are 1951 Convention and 1967 Protocol A prohibition on returning refugees and asylum-seekers to a risk of persecution Principle of non-refoulement A requirement to treat all refugees in a non-discriminatory manner Standards for treatment of refugees Obligations of refugees toward the country of asylum A duty on the part of States to cooperate with UNHCR in the exercise of its functions

20. Principle of Non-Refoulement ((1951 Refugee Convention, Article 33(2) Prohibits return of refugees “in any manner whatsoever” to countries or territories where their lives or freedom may be threatened because of race, religion, nationality, membership in a particular social group, or political opinion. exception: if refugee constitutes a threat to national security or convicted of “particularly serious crime” But not if the person would be exposed to torture or cruel, inhumane, or degrading treatment or punishment Binding on all states (whether party to Convention or not; non-derogable) fundamental humanitarian principle – accepted generally by States Customary international norm: jus cogens “Cornerstone” of refugee law / protection regime Stated in various international instruments – universal, regional

21. INT’L HUMAN RIGHTS LAW, HUMANITARIAN LAW, REFUGEE LAW – LINKAGES & INTERSECTIONS

22. Areas of law that complement the global treaties, UNHCR’s Statute and Regional Treaties 1.International human rights law: Generally applies to all people in a State, whether citizens or not; Is central to the concept of international protection and asylum, as refugees seek safety from human rights violations Helps to define how refugees and asylum-seekers should be treated in countries where they seek asylum; Is supervised by various international bodies which can be called on to help individual refugees by, for example, preventing a return to the risk of torture; If applied properly, can prevent situations that lead to refugee movements and contribute to the safe return of refugees. 2.International humanitarian law: Applies during armed conflicts, whether international or internal; Requires that refugees, along with other civilians, are to be treated humanely, and, in particular, to be protected from acts of violence. Other relevant areas of law are: 3. International criminal law; 4. Binding United Nations Security Council resolutions.

23. INTERNATIONAL CODE OF CONDUCT international protection regime reflects and expresses a form of “constitutional code of conduct” Remember: Ubuntu Principle: 'umuntu ungumuntu ngabanye abantu’ / 'Umuntu ngumuntu ngabantu‘ UNHCR (2015) ‘Adrian Edwards interviews Volker Türk, Assistant High Commissioner for Protection: The Growing Politicization of Refugee and Asylum Matters’ http://youtu.be/NVdolNZ8o2E

24. UNHCR Video (2015), ‘Tanzania: Fleeing Burundi, Refugees Seek Safety’ 03 December 2015 Available at: http://youtu.be/dUe6ZPo0CFE UNHCR Video (2015), ‘Nigeria: Homeless in their own country’ [09 November 2015] Available at: http://youtu.be/k8PLE6SpFSw

25. International Refugee Protection - Legal Instruments: Convention Relating to the Status of Refugees, 28 July 1951 Convention Relating to the Status of Refugees Protocol Relating to the Status of Refugees, 30 January 1967 Protocol Relating to the Status of Refugees Statute of the Office of the United Nations High Commissioner for Refugees, 14 December 1950 (United Nations General Assembly Resolution) Statute of the Office of the United Nations High Commissioner for Refugees Convention Governing the Specific Aspects of Refugee Problems in Africa ("OAU Convention"), 10 September 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa ("OAU Convention") Cartagena Declaration on Refugees [Latin America], 22 November 1984 Cartagena Declaration on Refugees EU Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, Official Journal of the European Union, L 304/12, 30 September 2004 Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted Videos: UNHCR (2014), State of Refugee Protection 2014, available at: https://www.youtube.com/watch?v=H904xOGLy7o UNHCR (2014), The UN Refugee Agency: Our Story. Available at: https://www.youtube.com/watch?v=mvn9pA374Ko https://www.youtube.com/watch?v=mvn9pA374Ko

26. “REFUGEE” AS DEFINED IN 1951 CONVENTION DEFINITION ELEMENTS - UNPACKED

27. Article 1 of the 1951 Convention: principal refugee definition Contains: Inclusion Criteria Exclusion Criteria Circumstances for Cessation of Refugee Status

28. INCLUSION CRITERIA Refugee Inclusion clauses of the 1951 Convention: Article 1A(2) Form the positive basis on which a person’s eligibility for refugee status is determined: well-founded fear of persecution For reasons of race, religion, nationality, membership of a social group or political opinion Be outside country of nationality or habitual residence; Be unable or, owing to that fear, unwilling to seek that country’s protection or to return there.

29. “well-founded fear” good reason for fearing return to home country includes both: a subjective element (person’s fear) and an objective element (external evidence “justifying” this fear) Subjective element: assessed from individual’s statements and behaviour. Objective element: assessment of conditions in country of origin, among other factors.

30. “Internal flight alternative ” (a.k.a. “internal relocation alternative” Refuge could have been sought an alternative safe location in country of origin Concept susceptible to abuse; applicability is limited ‘Non-state actor’ contexts Why here? Why not (over) there?

31. “persecution” Deliberately not defined in the 1951 Convention for flexibility Has come to be understood as serious human rights abuses or other serious harm Carried out in a systematic or repetitive way Death, torture, physical assault, unjustified imprisonment, and illegitimate restrictions on political or religious activities Don’t qualify: Discrimination Natural Disasters Poor Economic Conditions Difference between government and “non-State agents” Convention covers non-State agents facilitated or tolerated by State Covers when State is unwilling or unable to protect citizen

32. Persecution vs. Prosecution Whether the law conforms with human rights standards or is inherently persecutory Whether implementation of the law amounts to persecution because: Person charged under the law is denied due process for Convention reason Prosecution is discriminatory (e.g.,: certain ethnic groups targeted) Punishment is discriminatory (e.g.,: political opposition gets greater sentence) Punishment amounts to persecution (cruel, inhuman, degrading punishment) In case of refusal to perform military service: Military action is condemned by international community Person is conscientious objector Whether there is an exception for conscientious objectors and it is acceptable and proportionate

33. State vs. non-State actors Some States restrict “persecution” to harm emanating from the State UNHCR recommends (and most asylum countries agree) that non- State agents are included because source of fear is irrelevant 1951 Convention ensures protection of refugees but says nothing about the source of the fear determining what constituted “persecution” UNHCR has, therefore, consistently maintained that the presence of well- foundedness of fear - of an actual or potential harm - which is serious enough to amount to persecution, for a reason enumerated in the Convention is the most relevant consideration.

34. Persecution vs. War and Armed Conflicts To be a refugee, persecution must have a “well founded fear of persecution” for one of these reasons: Race is understood to cover all ethnic groupings often referred to as races. Religion comprises any belief system held by an individual. Includes the freedom to change one’s religion and to manifest it in public or private, whether through teaching, practice, worship or observance, as well as the right not to have any religion. Nationality refers to citizenship and to membership of any ethnic, religious, cultural or linguistic community. A particular social group is a group of persons who either share a common characteristic, other than the risk of persecution, or who are perceived as a group by society. The characteristic will often be one which is innate (i.e. inborn/inherent/intrinsic/), unchangeable, or which is otherwise fundamental to a person’s identity, conscience, or the exercise of fundamental rights. In certain circumstances, for example, women and homosexuals have been considered as particular social groups. Political opinion covers the holding or expression of views on any matter regarding the State, government or public policy.

35. Other refugee definition requirements: Must be OUTSIDE the territory of his/her home country They don’t have to have been in the country when events occurred Main point is the individual’s unwillingness or inability to return because of a well- founded fear of persecution Can mean the refugee was abroad, the political situation changed, and now returning would put them at risk. “refugees sur place” “Country of Nationality” 1951 Convention provides for people without a nationality, or stateless persons Can be defined by “country of former habitual residence” Unable or unwilling to avail him- or her- self of that country’s protection Ongoing civil war Must be due to the well-founded fear of persecution

36. EXCLUSION CRITERIA Refugee status denied, if: refugee protection or assistance not needed Receiving protection /assistance from another UN body Treated like citizen by country of residence refugee protection or assistance not deserved: Has committed a serious (criminal) act

37. Persons not in need of protection Articles 1D & 1E of the 1951 Convention Person qualifies under the inclusion clauses but are excluded because: Individual is receiving UN protection or assistance from agency or group besides UNHCR Includes Palestinian refugees who receive assistance/ protection from United Nations Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA) Palestinians without this assistance are not excluded Individual has been recognized by the authorities of another country in which they have taken residence as having the same rights and obligations as nationals.

38. Persons undeserving of protection Article 1F of the 1951 Convention Person is excluded because of their responsibility for certain serious acts: Committed a crime against peace, a war crime, or a crime against humanity Committed a serious non-political crime outside the country of refuge prior to being admitted as a refugee Been guilty of acts contrary to the purposes and principles of the UN OAU Convention has addition of "acts contrary to the purposes and principles of the OAU" Cases involving Article 1F raise complex issues and are handled carefully. 1F lists criteria exhaustively. Dependents should not be excluded if head of the family falls under 1F Example: Rwandan ‘genocidaires’ A significant number of asylum-seekers were suspected of being involved in the genocide, so sorting was problematic.

39. CESSATION Refugee status is temporary in nature, with expectation of a durable (permanent) solution. Remains valid until international protection no longer necessary or justified.

40. Cessation: Article 1C of the 1951 Convention Refugee status comes to an end when the person: Voluntarily accepts the protection of his/her country of nationality Voluntarily re-acquires his/her nationality after losing it Acquires a new nationality and enjoys the protection of that country Has voluntarily re-established himself/herself in the country he/she fled Can no longer refuse to accept the protection of his/her country because the circumstances that led to recognition as a refugee have ceased to exist Has no nationality but can no longer refuse to accept the protection of his/her country of habitual residence because the circumstances that led to recognition as a refugee have ceased to exist

41. Cessation: Article 1C of the 1951 Convention Exclusion vs. Cessation: Exclusion precludes a person from being recognized as a refugee. Cessation removes that status from someone already recognized. Grounds lists in Article 1C are exhaustive. First four circumstances are voluntary on the part of the refugee Last two are "ceased circumstances" or "general cessation" (the situation has resolved) Exceptions: An individual can request to be reconsidered for compelling reasons Additional grounds under OAU (Article 1.4 (f) and (g)): (F) he/she has committed a serious non-political crime outside his country of refuge after his admission (G) he/she has seriously infringed the purposes and objectives of this Convention

42. Cessation of Refugee Status v. (i)Cancellation; (ii) Revocation Cessation of Refugee Status differs from both ‘cancellation’ and ‘revocation’ of status (i) Cancellation: Involves a determination that person should not have been recognised as a refugee in the first place Examples: - Finding of misrepresentation of material info. essential to the determination process - An exclusion clause should & would have been applied – had all the relevant information been known

43. Cessation v. Revocation “Revocation”: - A decision to withdraw refugee status based on a finding that the refugee has engaged in conduct coming within the scope of Article 1F(a) or 1F(c), subsequent to being recognised as a refugee. 1F(a) crime against peace, a war crime, or a crime against humanity 1F(c) guilty of acts contrary to the purposes and principles of the United Nations. N.B. 1F(a) & 1F(c) are excludable crimes ‘whenever and wherever’ committed 1F(b) – serious non-political crime committed after refugee status recognition - has repercussions for punishment or expulsion under Art. 32 & Art 33(2)