RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

Submitted in the partial fulfillment of B.A.LL.B (Hons.), Tenth Semester

Final Draft

“PROTECTION OF REFUGEES UNDER INTERNATIONAL LAW”

SUBMITTED TO
DR. LAKHWINDER SINGH
(ASST. PROF. OF LAW)

SUBMITTED BY
ANKIT PRASHAR (14041)
B.A. LL.B.(HONS.), 10TH SEMESTER
 TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................................. 11

II. WHO IS A REFUGEE ........................................................................................................... 14

III. SOURCES OF INTERNATIONAL LAW ................................................................................ 16

IV. WHAT IS INTERNATIONAL REFUGEE LAW? .................................................................... 18

A. International Instrument ............................................................................................ 19

B. International Human Rights Treaty System .............................................................. 20

C. International Human Rights Treaty Bodies ............................................................... 20

D. Functions of International Human Rights Treaty Bodies.......................................... 21

E. The Aims of International Human Rights Treaty System ........................................ 22

V. REGIONAL INSTRUMENTS.................................................................................................. 24

VI. REFUGEE PROTECTION UNDER INTERNTAIONAL LAW .................................................... 27

A. Asylum ...................................................................................................................... 28

B. Determination of Refugee Status .............................................................................. 28

C. Non-Refoulement ...................................................................................................... 29

VII. CONCLUSION.................................................................................................................. 30

Page | 2
 LIST OF ABBREVIATIONS

ABBREVIATIONS WORD

UN United Nations

UNHCR UN High Commission on Refugees

IRO Int’l Refugee Organisation

OAU Organisation of African Union

P. Page

EU European Union

CEAS Common European Asylum System

IRL International Refugee Law

ICCPR International Covenant on Civil & Political

Rights

CAT Convention against Torture

ECOSOC Economic and Social Council

ICESCR International Covenant on Economic, Social &

Cultural Rights

CRC Convention on Rights of Child

Page | 3
 INDEX OF AUTHORITIES
Articles

1. Hathaway, James C., Why Refugee Law Still Matters, Melbourne Journal of
International Law, [2007] Vol. 8. 103 ......................................................................... 27
2. Nafees Ahmad, Mapping Refugees Protection Under International Law: Legal
Desirability And Human Rights Suitability,
http://www.countercurrents.org/ahmad030615.html. .................................................. 16

International Instruments

1. Additional Protocol, 1967 to the UN Convention Relating to the Status of Refugees,

June 20,1951 ................................................................................................................ 14
2. Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 2002 ................................................................. 13
3. Optional Protocol to the UN Convention on the Elimination of Discrimination against
Women, 1999 ............................................................................................................... 12
4. Optional Protocol to the UN Convention on the Rights of the Child, 1989 on the
Involvement of Children in Armed Conflict, 2000 ...................................................... 13
5. Optional Protocol to the UN Convention on the Rights of the Child, 1989 on the Sale
of Children, Child Prostitution and Child Pornography, 2000 .................................... 13
6. Optional Protocol to the UN Covenant on Civil and Political Rights, 1966 ............... 13
7. UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 1984......................................................................................................... 12
8. UN Convention for the Protection of All Persons from Enforced Disappearance, 2006
...................................................................................................................................... 12
9. UN Convention on the Elimination of All Forms of Discrimination against Women,
1979.............................................................................................................................. 12
10. UN Convention on the Elimination of All Forms of Racial Discrimination, 1965 ..... 12
11. UN Convention on the Protection of the Rights of all Migrant Workers and Members
of Their Families, 1990 ................................................................................................ 12
12. UN Convention on the Rights of Persons with Disabilities, 2006 ............................... 12
13. UN Convention on the Rights of the Child, 1989 ........................................................ 12
14. UN Convention Relating to the Status of Refugees, June 20, 1951 ............................ 14
15. UN Covenant on Civil and Political Rights, 1966 ....................................................... 12

Page | 4
16. UN Covenant on Economic, Social and Cultural Rights, 1966 ................................... 12
17. UN Universal Declaration of Human Rights, December 10, 1948.............................. 12

Other Authorities

1. Bond Rankin, M., Extending the Limits or Narrowing the Scope? Deconstructing the
OAU Refugee Definition Thirty Years On, New Issues in Refugee Research, No. 113,
2005.............................................................................................................................. 24
2. Claire Reid, International Law and Legal Instruments, [2005] 7 ................................ 28
3. Gillian McFadyen, The Contemporary Refugee: Persecution, Semantics and
Universality, e-Sharp, Special Issue: The 1951 UN Refugee Convention-60 Years On
(2012), pp. 9-35, ISSN: 1742-4542 ............................................................................. 25
4. GS Goodwin-Gill and J McAdam, The Refugee in International Law, 3rd Ed.,
(Oxford: OUP, 2007) ................................................................................................... 18

Research Papers

1. Arendt, Hannah. "Decline of the Nation-State; End of the Rights of Man" in: H.
Arendt. Imperialism: Part Two of the Origins of Totalitarianism. [1968] New York:
Harcourt, Brace and World Inc., 152-153.................................................................... 14
2. Erika Feller, International Refugee Protection 50 Years on: The Protection Challenges
of the Past, Present and Future, [2001] IRRC Vol. 83 No. 843 ................................... 13
3. Erika Feller, The Evolution of the International Refugee Protection Regime, Journal
of Law & Policy, Vol. 5:129 130 ................................................................................. 11

Page | 5
 S U P E R V I S O R ’S C E R T I F I C A T E

RAJIV GANDHI NATIONAL UNIVERSITY

OF LAW, PUNJAB PATIALA -147001

This is to certify that the Project Report entitled PROTECTION OF REFUGEES UNDER

INTERNATIONAL LAW has been submitted to Rajiv Gandhi National University of Law,
Punjab in fulfillment of the requirements for B.A. LL.B (Hons.), Tenth Semester is an
original and bona- fide research work carried out by Ankit Prashar under my supervision and
guidance.

D R . L A K HW I N D E R S I N G H Patiala
(Punjab)

Date______
(Asst. Prof. Of Law)

Page | 6
 ACKNOWLEDGEMENT

I would like to take this opportunity to thank, Dr. Lakhwinder Singh, who helped me
through out in the accomplishment of this project. Sir has helped me at every step by
guiding my research, suggesting ways to make the project more interesting and better
researched. I sincerely thank him for his support and guidance.

I also thank our Hon’ble Vice Chancellor, Professor (Dr.) Paramjit S. Jaswal, for his
inexplicable greatness to find time to educate us as and when they find an opportunity.

I thank each and every non-teaching staff of RGNUL for their unconditional support and
infinitum. I would also like to convey our thanks to the Library Staff of RGNUL.

Page | 7
 RESEARCH METHODOLOGY

1. STATEMENT OF PROBLEM

Refugee mobility is an alarming and amazing trend happening all over the world attributable
to the numbers of causes. People have been crossing international borders for refuge, safety
and security. On many times, people are compelled to flee unfriendly conditions, unfavorable
situations and persecutory practices and policies of the home state. Human migration causes
distress, destitution and deprivation that result in homelessness, joblessness and statelessness.

Thus, in these circumstances people are tyrannized, tormented and persecuted on the basis of
birth, caste, color, ethnicity, language, race, religion, sex, political opinion and membership
of a particular social group, nationality or social origin, or other status or otherwise.
Likewise, people are also targeted and subjected to persecution due to armed conflict, civil
strife, foreign invasion, alien occupation, generalized violence and massive violations of
human rights and fundamental freedoms etc.

Though, climate change and development have also created conditions of human migration
that, unfortunately, do not find any redress under international refugee law (IRL) yet.
Ordinarily, refugees are identified with inhumanity, indignity and vulnerability that inflict
upon them psychological and mental atrocities. Protection of refugees has been important
since ancient times.

Usually, all people including refugees enjoy security and protection of their own states and
national governments. Without state protection, international community and organizations
are looked up to for refugee protection. Since the inception of IRL in the form of 1951 UN
Convention Relating to the Status of Refugees with its 1967 Additional Protocol (hereinafter
referred to as IRL) that is popularly known as Refugee Convention more than six decades
ago, millions of people got displaced from their roots in different parts of the world.

The main purpose of IRL is to promote, support and provide protection to refugees and
people who are in refugee-like situations and people outside the country of their origin or
people who require aid and assistance to cope with human displacement and migration. Thus,
it is incumbent upon all stakeholders to have recourse to all IHRL mechanisms, mediums and
methods applicable to the protection of refugees adopted by the UN and its agencies.

Page | 8
These institutional structures significantly made refugee protection stronger under a trio of
IHRL, IHL and IRL. Accordingly, refugee protection under international law originates with
the parallel development of IHRL, IHL and IRL as independent and complementary
disciplines to each other. But, unfortunately, Refugee Convention is still perceived by many
to be the only available law on refugee protection and their issues.

1951 UN Convention Relating to the Status of Refugees was adopted after World War-II to
protect the European refugees. Initially, it was limited to Europe in its application but in 1967
an Additional Protocol to 1951 UN Convention Relating to the Status of Refugees was
concluded in wake of world-wide refugee movements which warranted uniformity in
international response, therefore, application of Refugee Convention was made international
without any geo-political demarcations.

2. OBJECT OF THE STUDY

The main objectives of this study are get an overall insight of the concept of International
Refugee Law, starting right from the inception while covering all the treatises and
international conventions which deal with the concept of IRL.

3. SCOPE OF THE STUDY

The scope of this study is to undertake a detailed research on the various issues relating to
Int’l Refugee Law. This study is to analyze the concept of IRL, and see whether the present
structure of IRL is sufficient to regulate the relations worldwide. It also analyses various
International Instruments to give a comprehensive view of the topic.

4. RESEARCH QUESTIONS
a. Why so many people are fleeing their countries?
b. What are the causes of human displacement and migration?
c. What are the rights of refugees under international law?
d. What can the international community do to help refugees?
5. RESEARCH METHODOLOGY

I feel grateful in presenting the project under study. I hope that the readers will find the
project interesting and that the project in its present from shall be well analyzed by all. The
project contains the explanation, assessment and analysis relating to the topic “Protection
of Refugees under International Laws”.

Page | 9
I have tried to follow mixture of objective and subjective methodology wherein I have used
information accumulated through research. Such information is presented along with
opinions of author in order to present a refined picture for the readers to understand.

The research topic has been theoretically analyzed in light of historical as well as recent
concepts. Author has also made a reference to authoritative books from the perspective of
the world community as a whole.

This research has been done with utmost sincerity to ensure the true depiction of facts and
that the research is unbiased. By the process of multiple reading, prejudice of the researcher
has been done away with and all data have been verified. Any similarity is purely
coincidental.

Page | 10
 I. INTRODUCTION

1. Refugees are not a new phenomenon or something unusual. Refugees have existed as long as
history, but an awareness of the responsibility of the international community to provide
protection and find solutions for refugees dates only from the time of the League of Nations
and the election of Dr. Fridtjof Nansen as the first High Commissioner for Russian refugees
in 1921. The League of Nations defined refugees by categories, specifically in relation to
their country of origin. Dr. Nansen’s mandate was subsequently extended to other groups of
refugees, including Armenians in 1924, as well as Assyrian, Assyro-Chaldean, and Turkish
Refugees in 1928.

2. Up until 1950 the League of Nations, and thereafter the UN, established and dismantled
several international institutions devoted to refugees in Europe.1 Nevertheless, Europe and
beyond its boundaries states could not come out with any settlement of refugee problem until
the conclusion and adoption of 1951 UN Convention Relating to the Status of Refugees with
its Additional Protocol of 1967 where under present IRL framework has been contemplated.
The International Refugee Organization (IRO) was established as a temporary inter-
governmental UN agency in 1947 to cope with the refugee problem in Europe after World
War-II.

3. The IRO came into force in 1948 for an initially limited period up to June 30, 1950 but very
soon it was to be replaced by the UNHCR for refugee protection. Primarily, IRO was
dominated by the US and Western European countries that made it unacceptable to erstwhile
USSR. But it was quickly evident that all inclusive nature of the work it had been entrusted
with which included addressing all aspects of refugee problem inter-alia registration, refugee
status determination, repatriation and resettlement. However, these international efforts tried
hard to prevent its wrapping up.

4. Nevertheless, there has been an emerging commitment to the magnitude of a multifarious and
multidimensional approach in addressing the mounting problems of refugees. While UN
General Assembly (UNGA) decided in December 1949 to have a new organization called
UNHCR in place of IRO under Article 22 of the UN Charter. Accordingly, UNGA adopted
the Statute of the UNHCR on December 14, 1950. UNHCR statute and its mandate envisaged
to provide international protection to refugees and to strive for durable and permanent

1
Erika Feller, The Evolution of the International Refugee Protection Regime, Journal of Law & Policy, Vol.
5:129 130.

Page | 11
 solutions to refugee problems by aiding national governments to enable voluntary repatriation
or assimilation within host communities of refugees.

5. The refugee protection in international law has been developed with principles of natural
justice like non-discrimination. The fundamental norms of refugee protection are derived
from customary international law, international treaty obligations for rescue operations at sea
or for shipwrecked people. The principle of non-refoulement in the Refugee Convention
immeasurably augmented the level of refugee protection. At regional level, many refugee
protection mechanisms were emplaced like Asian-African Legal Consultative Committee in
1966 adopted the Bangkok Principles, 1969 OAU Convention Governing the Specific
Aspects of Refugee Problems in Africa and 1984 Cartagena Declaration have been concluded
for attending refugees and their plight and flight.

6. However, universal declaration of human right2 is a non-treaty document which has inspired,
influenced and harmonized a series of legally binding international treaties in the latter years
which talks of eliminating all forms of racial discrimination3 , protecting civil and political
rights 4 , preserving economic, social and cultural rights5 5 , removing all forms of
discrimination against women6 , preventing torture and other cruel, inhuman or degrading
treatment or punishment7 and protecting the rights of the child8 , restoring the rights of all
migrant workers and members of their families9 , protecting the all persons from enforced
disappearance10 and extending the protection to persons with disabilities11 with a number of
additional arrangements to the main conventions like the Optional Protocol12 to the CEDAW
which acknowledges the competency of the Committee on the Elimination of Discrimination
against Women to accept and deliberate submissions from individuals and groups regarding
violations of their rights granted under CEDAW.

2
UN Universal Declaration of Human Rights, December 10, 1948.
3
UN Convention on the Elimination of All Forms of Racial Discrimination, 1965.
4
UN Covenant on Civil and Political Rights, 1966.
5
UN Covenant on Economic, Social and Cultural Rights, 1966.
6
UN Convention on the Elimination of All Forms of Discrimination against Women, 1979.
7
UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
8
UN Convention on the Rights of the Child, 1989.
9
UN Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families, 1990.
10
UN Convention for the Protection of All Persons from Enforced Disappearance, 2006.
11
UN Convention on the Rights of Persons with Disabilities, 2006.
12
Optional Protocol to the UN Convention on the Elimination of Discrimination against Women, 1999.

Page | 12
7. The Human Rights Committee created under the ICCPR 13 and the Committee against
Torture, under the CAT14 can also accept and discuss individual transmissions pertaining to
purported violations of commitments under these treaties. There are two Optional Protocols
to the child rights convention regarding the involvement of children in armed conflict15, sale
16
of children, child prostitution and child pornography with many more regional
arrangements for refugee protection guarantees and securities.

8. The 1951 Convention has a legal, political and ethical significance that goes well beyond its
specific terms, legal in that it provides the basic standards on which principled action can be
based; political in that it provides a truly universal framework within which States can
cooperate and share the responsibility resulting from forced displacement; and ethical in that
it is a unique declaration by the States Parties of their commitment to uphold and protect the
rights of some of the world’s most vulnerable and disadvantaged people. The 1951
Convention is a landmark in the setting of standards for the treatment of refugees.

9. It incorporates, either directly or as an inevitable interpretation, the fundamental concepts of

the refugee protection regime, which are as relevant in the contemporary context as they were
in 1951.17 As a result, IRL cannot be grasped in a void of exactitude. It is the interpretative
equilibrium administered by the judiciary and juridical fraternity to construe the Refugee
Convention in conformity with international human rights norms and standards. Historically,
IRL has been evolved and developed to provide protection to people fleeing persecution in
their country of origin and crossing international borders.

10. Basically, IRL encourages the idea of non-refoulement and safeguards protections for
refugees under basic human rights regimes of countries of reception. Presently, the principle
of non-refoulement is regarded an inalienable part of customary international law. It has also
been elevated to the status of jus cogens under international law and any derogation,
exemption or reservation is not possible from this principle.

13
Optional Protocol to the UN Covenant on Civil and Political Rights, 1966.
14
Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, 2002.
15
Optional Protocol to the UN Convention on the Rights of the Child, 1989 on the Involvement of Children in
Armed Conflict, 2000.
16
Optional Protocol to the UN Convention on the Rights of the Child, 1989 on the Sale of Children, Child
Prostitution and Child Pornography, 2000.
17
Erika Feller, International Refugee Protection 50 Years on: The Protection Challenges of the Past, Present and
Future, [2001] IRRC Vol. 83 No. 843.

Page | 13
 II. WHO IS A REFUGEE

11. The word “refugee” is in constant change in its meaning and understanding. Initially, refugee
regime (1920-1935) construed it in relation to vulnerability of refugees who do not enjoy
state protection. The refugee was an anomaly within the international state system and
international protection was designed so as to correct this anomaly. During this time the
Minority Treaties were established to offer protection to those displaced during the First
World War. These Treaties entrusted the League of Nations with the minority peoples'
protection.18

12. According to political theorist Hannah Arendt, the Minority Treaties made obvious what was
hitherto hidden in the dealings of the Nation-State, namely that: Only nationals could be
citizens, only people of the same national origin could enjoy the full protection of legal
institutions, that persons of different nationalities needed some law of exception until or
unless they were completely assimilated and divided from their origin. All people fleeing and
crossing international borders cannot avail the status of refugee as there is a criterion to be
followed under IRL.

13. Accordingly, the expression “who is a refugee” as enshrined under Article 1 of the 1951 UN
Convention Relating to the Status of Refugees becomes crucial to be understood as follows:
“A refugee is a person who, owing to a well-founded fear of persecution for reasons of race,
religion, nationality, membership of a social group or political opinion, is outside the country
of his origin and is unable or 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.19”

14. The above definition lays down that a person ought to be outside his or her country of origin
and it also excludes Internally Displaced Persons (IDPs) from international protection.
However, definition of refugee emphasizes on individual persecution whereas it does not
address the nature of circumstances like civil strife, mass violence, and natural disasters and
across the board development projects which cause human migration and displacement. The
1967 Additional Protocol 20 to the Refugee Convention was adopted to eliminate the geo-
political and time limitations demarcated in Refugee Convention on the subject and inclusion

18
Arendt, Hannah. "Decline of the Nation-State; End of the Rights of Man" in: H. Arendt. Imperialism: Part
Two of the Origins of Totalitarianism. [1968] New York: Harcourt, Brace and World Inc., 152-153.
19
Article 1A (2) of UN Convention Relating to the Status of Refugees, June 20, 1951
20
Additional Protocol, 1967 to the UN Convention Relating to the Status of Refugees, June 20,1951

Page | 14
 of the same deliberated the post-World War-II backdrop in which the 1951 UN Convention
relating to the Status of Refugees was ordered to provide aid and assistance to refugees.

15. Although, Additional Protocol talks in the same language that Refugee Convention has
employed. It is, indeed, worth mentioning that Refugee Convention and Additional Protocol
do not visualize the concerns and concepts relating to asylum, lawful admission and
situations in which refugees are treated under these concepts as these are exclusively
exercised by the States. However, the Refugee Convention envisages the principle of non-
refoulement enunciated under Article 33 (1) which lays down that: "No Contracting State
shall expel or return ('refouler') a refugee in any manner whatsoever to…territories where
his (or her) life or freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion."21

Thus, it is evident that the refugee definition is international in its application but has been
construed in general expressions. Although, this definition is liable to be interpreted in tune
with international human rights standards while international law norms supplement IRL at
regional level. In Africa, people who cross intra-regional borders owing to the grounds of
being confronted with haphazard consequences of armed conflicts or events dangerously
disrupting public order are also deemed as refugees under the 1969 OAU Convention.
Similarly, 1984 Cartagena Declaration adopted for Latin American countries also
acknowledges the refugees who are not indulged in crimes against humanity, war crimes and
crimes against peace or acts contrary to the principles and purposes of UNO.

21
UN Convention Relating to the Status of Refugees, June 20, 1951.

Page | 15
 III. SOURCES OF INTERNATIONAL LAW

16. There are formal (primary) and informal (secondary) sources of international law (IL) but
treaties and rules of customary international law are considered to be most important sources
of international law. Treaties are legally-binding instruments which set out the rights and
duties of states at two levels i.e. bilateral and multilateral on a variety of fields. International
treaties are also designated with such nomenclature as charter, convention, covenants, pact
and protocol etc.

17. However, customary international law as an important source of international law

encompasses the unwritten rules evolved out of state practice and opinio juris (legal
obligations) which are adhered to by the states in their international transactions, inter-state
relations and diplomatic parleys. Moreover, customary rules are also binding irrespective of
the fact whether states are privy to such rules or consented thereto or connected therewith or
not but they are bound by them.

18. There are norms of customary law such as prohibition of refoulement, slavery, torture and
genocide etc. Likewise, there is another dimension of international law known as soft law that
consists of nontreaty standards like declarations, principles, paragraphs, guidelines and
understandings adopted by the UN system to evolve and develop new norms in emerging
spheres of international law.22 In addition to the above discussion, in a nutshell, sources of
international law may be summarized as under:

 The General Principles of International Law

 International Treaties or Agreements

 Customary International Law

 Decisions of the Courts and Tribunals

 Decisions of the International Organizations

 Publicists, Juristic and Scholarly Writings

 Interactions of the Sources

22
Nafees Ahmad, Mapping Refugees Protection Under International Law: Legal Desirability And Human
Rights Suitability, http://www.countercurrents.org/ahmad030615.html.

Page | 16
  International Economic Law

 International Investment Law

 International Trade Law

19. The sources of international law do not exist in exclusive zones rather they exist in an inter-
connected legal environment. General principles of international law23 are difficult to define
in present state practices. The Statute of International Court of Justice recognized general
principles as informal source of international law. International treaties and agreements are
regarded primary sources of international law which create laws for the states and subjects of
international law.

Customary international law flows from the uniform practices of the states which are
popularly known as opinio juris in international legal parlance. Both treaties and customary
international law enjoy parity with each other under international law. However, Court
decisions and scholarly writings are secondary sources and cited as subsidiary means to
establish the rules of international law.

23
Article 38-Paragraph 1 (C) of the Statute of International Court of Justice (ICJ) applicable to “ General
Principles of Law Recognized by Civilized Nations”.

Page | 17
 IV. WHAT IS INTERNATIONAL REFUGEE LAW?

20. The modern framework of international obligations in respect of persons in need of

international protection dates from the end of WW-II. The international conventions were
revised and updated as a result of the tremendous pressures which had arisen from the 1930s
onwards in Europe.24 The cornerstone of the international refugee protection system is the
1951 UN Convention Relating to the Status of Refugees and its 1967 Additional Protocol.

21. The key elements of the Refugee Convention are first, that it defines who is a refugee as a
person outside his or her country of nationality or habitual residence with a well-founded fear
of persecution on the basis of race, religion, nationality, membership of a particular social
group or political opinion. Secondly, it requires all contracting states to respect the principle
of non-refoulement: no person who claims to be a refugee must be returned to the borders of
the state where he or she fears persecution.

22. Thus, all contracting states must consider and assess an application for refugee status and
protection before any action is taken to expel a person to his or her country of origin or to any
intermediate country where there is a substantial risk that he or she will suffer onwards
expulsion to persecution. Thirdly it sets out the rights and obligations of state parties in
respect of the treatment of refugees. The Refugee Convention permits contracting states to
apply an exclusion provision where the refugee has committed particularly serious (and
circumscribed) crimes or is guilty of acts contrary to the principles of the UN.

23. All EU Member States are signatories of the Refugee Convention. The original Refugee
Convention had a temporal and territorial limitation – it applied only in respect of events in
Europe before 1 January 1951. The 1967 Protocol lifted the two limitations – territorial and
temporal. There are states, such as Turkey, which are signatories to the Refugee Convention
but not the Protocol and vice versa, like the USA. However, Treaty on the Functioning of the
European Union 25 (TFEU) stipulates that the Common European Asylum System (CEAS)
must be in conformity with the 1951 UN.

24. Refugee Convention Relating to the Status of Refugees with its Additional Protocol along
with other relevant treaties in this regard. Consequently, IRL has been created to protect and
assist persons who have crossed an international border and provide them asylum from

24
GS Goodwin-Gill and J McAdam, The Refugee in International Law, 3rd Ed., (Oxford: OUP, 2007).
25
Article 78 of the Treaty on the Functioning of the European Union, March 30, 2010.

Page | 18
 persecution. IRL framework delivers a series of well-defined rights, protections and
guarantees to the refugees by treating them a special class of people. Unsurprisingly, legal
protection under IRL regime also coincides with protection mechanisms enunciated in
international human rights law and international humanitarian law on many points.

25. The sources of IRL are particularly international treaty law along with well established
principles of international customary law aimed to protect and preserve human rights. IRL is
considered to be the most successful human rights instrument ever created by the comity of
nations. IRL has attained the status of customary international law wherefrom no derogation
or reservation is permitted. However, debates and discourse keep on advocating the
international community regarding the nature and scope of refugee protection and scale of
obligations of receiving states.

A. INTERNATIONAL INSTRUMENT

26. There are two principle international instruments which govern IRL namely: 1951 UN
Convention Relating to the Status of Refugees with its 1967 Additional Protocol. This
convention stipulates the standards, scale and canvass of treatment of refugees in the
countries of reception. Whereas human rights of refugees, protection prescriptions for
refugees and their development are also deliberated under the following international human
rights instruments:

 Universal Declaration of Human Rights

 International Covenant on Economic, Social and Cultural Rights

 International Covenant on Civil and Political Right

 Optional Protocol to the International Covenant on Civil and Political Rights

 Second Optional Protocol to the International Covenant on Civil and Political Rights
Aiming at the Abolition of the Death Penalty

 International Convention on the Elimination of All Forms of Racial Discrimination

 Convention on the Elimination of All Forms of Discrimination against Women

 Optional Protocol to the Convention on the Elimination of All Forms of

Discrimination against Women

Page | 19
  Convention on the Rights of the Child

 Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography

 Optional Protocol to the Convention on the Rights of the Child on the Involvement of
Children in Armed Conflict

 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment

 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment

 International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families

B. INTERNATIONAL HUMAN RIGHTS TREATY SYSTEM

27. International human rights standards are maintained by the human rights treaty system that is
reflected in the following six major treaties:
 The Convention on the Elimination of all forms of Racial Discrimination (CERD),
1969
 The International Covenant on Civil and Political Rights (ICCPR), 1966)
 The International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966
 The Convention on the Elimination of Discrimination Against Women
(CEDAW),1979
 The Convention Against Torture (CAT), 1984
 The Convention on the Rights of the Child (CRC), 1989

C. INTERNATIONAL HUMAN RIGHTS TREATY BODIES

28. The aforementioned six treaties are concomitant with six treaty bodies which have been
entrusted with the task of monitoring the implementation of treaty obligations. The meeting
of the five out of the six treaty bodies meets primarily in Geneva and is assisted the by the
Office of the High Commissioner for Human Rights (OHCHR). These are made of the
following:

Page | 20
  The Committee on the Elimination of Racial Discrimination (CERD)

 The Human Rights Committee (HRC)

 The Committee on Economic, Social and Cultural Rights (CESCR)

 The Committee Against Torture (CAT)

 The Committee on the Rights of the Child (CRC)

29. Whereas one treaty body i.e. the Committee on the Elimination of Discrimination against
Women (CEDAW) is convened in New York and is assisted by the UN Division for the
Advancement of Women. These treaty bodies are comprised of those members who are
elected by each group of states parties or through ECOSOC in the case of CESCR.

D. FUNCTIONS OF INTERNATIONAL HUMAN RIGHTS TREATY BODIES

30. The functions of the international human rights treaty bodies mainly include monitoring
which is fulfilled through different modes as under:

 All states parties to the treaties are required to make State Reports on domestic
standards and practices with regard to observance of the treaty rights and obligations.
The treaty bodies periodically review these reports in the presence of state
representatives and make comments, observations and statements on the compliance
and sufficiency status of these reports relating to treaty obligations whether these
reports have been implemented or not by the states parties in conformity with such
review.

 Individuals may lodge complaints regarding violations of their rights protected under
the four human rights treaties (ICCPR, CAT, CERD, and CEDAW). The treaty bodies
consider these complaints whether a case of any violation is made out or not as
contemplated under these four treaties.

 The treaty bodies adopt inquiry procedure in the matter of CAT and CEDAW where
under inquiry procedure stipulates that missions to states parties take into account the
anxieties regarding systematic or serious or grave violations of treaty rights and
obligations. Moreover, treaty bodies also prepare and write General Comments or
Recommendations that contribute to the development and understanding of

Page | 21
 international human rights. These comments and commentaries are on the nature of
treaty rights, freedoms and obligations which needed to be adumbrated, expanded and
executed.

E. THE AIMS OF INTERNATIONAL HUMAN RIGHTS TREATY SYSTEM

31. The fundamental aims of the international human rights treaty system may be outlined as
follows:
 To foster a culture of human rights
 To concentrate the human rights system on standards and obligations
 To involve all states in the treaty system
 To interpret the treaties through reporting and communications
 To identify benchmarks through general comments and recommendations
 To present a correct, pragmatic, excellent report in the form of commentaries,
recommendations and observations for each state
 To provide a corrective forum for individual complaints
 To encourage a serious national process of review
 To make reform through collaborations at the national level
 To operationalize standards
 mainstream human rights in the UN system and mobilize the UN community to assist
with implementation and the dissemination of the message of rights and obligations.
32. The contemporary civilizations, societies and human assemblies are mapped and measured on
the footing of human rights. Human rights determine the health of the society in which people
exercise and enjoy these rights. Human rights are the essence of human existence. Human
rights are the custodian of humanity and its vertical and horizontal development. Human
rights ensure discipline, decency and dignity in the lives of the people and nations.
33. But, unfortunately, there are many people in every region and geo-political entity where they
have still been struggling for a modicum of human rights and refugees are not an exception to
this struggle. The quality of life in any society speaks volumes of human rights availability as
well as their vulnerability. It is the human rights which have become crucial in any
international discourse on peace, progress and prosperity in every walk of life. Human rights
of refugees are also the same as that of the ordinary citizens in every part of the world.
34. Thus, human rights are universal values which have universal legitimacy in the cycle of
human accomplishments in the modern world. Human rights lay down a certain blue print for

Page | 22
states and governments to make them accountable to the people in their actions, reactions and
transactions. Thus, human rights are bare minimum guarantees for the people in their
respective countries.

Page | 23
 V. REGIONAL INSTRUMENTS

35. There are regional instruments where under fundamental principles of refugee protection and
an expansion of refugee convention definition has been addressed in a pragmatic manner
while dealing with major causes of refugee migration such as generalized violence, internal
conflicts and massive human rights violations etc. These regional instruments26 such as 1969
Organization for African Unity Convention Governing the Specific Aspects of Refugee
Problems in Africa and 1984 Cartagena Declaration on Refugees for Latin America have
further developed international refugee law.

36. The 1951 UN Refugee Convention provides the traditional individualistic definition of what
constitutes a refugee, with war and persecution being the classic drivers. However, if we look
beyond the Western perception of what constitutes a refugee, we find that the understanding
of refuge is far more inclusive than the narrow UN Convention allows. Due to the issues
presented by regional conflicts, states have developed the Refugee Convention to match the
principles of humanitarianism, as well as that of expedience.27

37. The environment encompassing the drafting of the Refugee Convention post World War II
was restrictive in nature and failed to sufficiently react to the situations of the following
decades. For the drafters of the Refugee Convention overlooked and failed to imagine the
problems that might be generated from underdeveloped states.

38. The OAU felt that in light of the struggles for independence across the continent, the Refugee
Convention needed to be elaborated in order to be more effective in handling the myriad
refugee problems facing Africa. The OAU Convention highlights in detail the needs of the
African states in meeting refugee crises and reflects the generosity of the African peoples in
granting hospitality to those in distress. It is perceived as being in harmony with the Refugee
Convention, as much of the drafting of the OAU Convention was done in conjunction with
legal representatives of the UNHCR.

39. Whilst continuing with the basic refugee definition prescribed by the UNHCR, the OAU
differed by asserting that the term refugee shall also apply to every person who, 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, is compelled to leave

26
Bond Rankin, M., Extending the Limits or Narrowing the Scope? Deconstructing the OAU Refugee
Definition Thirty Years On, New Issues in Refugee Research, No. 113, 2005.
27
Eduardo Arboleda, Pragmatism, IJRL 2 (1991), p. 195.

Page | 24
 his place of habitual residence in order to seek refuge in another place outside his country of
origin or nationality.

40. The OAU definition relating to refugees was the first ‘salient challenge’ to the idea that
persecution is the fundamental criteria for refuge. Indeed, the definition allows for the fact
that unfortunately, states will still persecute their citizens, thus creating refugees. However it
recognizes, where the UNHCR does not, that the link between the citizen and the state can be
dissolved in numerous ways, with ‘persecution’ being but one way.28

41. The OAU definition allowed for a number of unique specifications. Article 1 highlighted that
the term refugee would be available to individuals who had fled their country of origin owing
to external aggression, occupation, foreign domination, or events seriously disturbing the
public order. Unlike the Refugee Convention, individuals under the OAU could obtain ipso
facto refugee status: they would not have to provide evidence of the persecution.

42. The new definition of refugee is qualitatively different from the classical definitions for it
considers situations where the qualities of deliberateness and discrimination need not be
present. They allowed the grant of refugee to asylum-seekers whose fears were grounded in
the accidental but nonetheless dangerous consequences of intensive fighting and associated
random lawlessness in their countries of origin. From the beginning there was an accord
amongst the OAU drafters that the Refugee Convention's definition was not adequate for
handling the issues present within an African perspective.

43. Hence, the language of the OAU Convention and definition highlighted evident humanitarian
problems and aimed to provide a realistic solution to the issue of establishing refugee status;
for the massive exoduses experienced made the individual assessment of the UNHCR
approach unworkable. For an alternative definition of refugee protection, the Cartagena
Declaration on Refugees---adopted by the Colloquium on the International Protection of
Refugees in Central America, Mexico and Panama in 1984---is an apt example to be relied
upon.

44. The Cartagena Declaration follows in the footsteps of the OAU, and argues that due to the
evolving nature of refugee flows in the Latin American region, the definition of a refugee
needed to be broadened from the narrow Refugee Convention term. The ‘new’ refugees

28
Gillian McFadyen, The Contemporary Refugee: Persecution, Semantics and Universality, e-Sharp, Special
Issue: The 1951 UN Refugee Convention-60 Years On (2012), pp. 9-35, ISSN: 1742-4542.

Page | 25
 within the Latin American region were challenging. These were not prestigious or well-
known individuals, as was seen up till the 1970s.

45. No longer were the refugees principally from urban areas, nor were they mainly
representatives of the social or political elite who had fled authoritarian rule. The ‘new’
refugees of Latin America were predominantly rurally based, ethnically diverse individuals,
who congregated in isolated areas bordering their country of origin. Therefore, it was
considered that a revised definition was obligatory to safeguard the life, liberty and safety of
the refugees.

Page | 26
 VI. REFUGEE PROTECTION UNDER INTERNTAIONAL LAW

46. Refugee law is a powerful sign of solidarity with the world’s most severe people. It is the
only international human rights remedy which can be engaged directly and immediately by
at-risk persons themselves. Most important of all, it is a fundamentally practical remedy
which can be reconciled to the most basic interests of states. It is, in sum, a uniquely valuable
asset which must never be allowed to atrophy.29 The Refugee Convention therefore requires
all state parties to treat refugees who make a clean breast of their illegal entry or presence as
non-transgressors.
47. Thus, there are three important areas of international law which have emerged to have
established them as separate but complementary branches of law which are inter-woven
within the framework of international fundamental freedoms wherein protection of refugees
has been comprehensively contemplated namely:
 International Refugee Law
 International Human Rights Law
 International Humanitarian Law
48. These three major branches of international law envelop the provisions of protection to
refugees and asylum seekers. The standards fossilized in these complementary divisions of
international law are integral to refugee protection and execution and implementation thereof
is entrusted to United Nations High Commissioner for Refugees (UNHCR) --- the main
agency to protect and assist refugees around the world.
49. Primarily, problem of refugees is a human right issue which must be dealt with under human
rights treaties on torture, non-discrimination, protection of civil and political rights, socio-
economic and cultural rights etc. The international protection of refugees under various
human rights instruments is provided as follows:
 To protect against torture (Article 3, UN Convention against Torture (CAT), 1984)
 To protect civil and political rights (Articles 5, 9, 12, UN Covenant on Civil and
Political Rights (ICCPR), 1966)
 To protect against racial discrimination (Article 5 d (i), UN Convention on
Elimination of Racial Discrimination)
 To protect fundamental freedoms (Article 3, European Convention for the Protection
of Human Rights and Fundamental Freedoms (ECHR), 1950)

29
Hathaway, James C., Why Refugee Law Still Matters, Melbourne Journal of International Law, [2007] Vol. 8.
103.

Page | 27
  To promote the right to seek and be granted asylum (Article 22 (7), American
Convention on Human Rights (ACHR)

A. ASYLUM

50. The concept of a refugee ought not to be conflated with that of an asylum seeker.
Traditionally, asylum meant a right to refuge and an asylum-seeker was one who sought out
such refuge in a state other than one of his origin or habitual residency. With time, however,
the term has undergone a shift and is now increasingly interpreted as the right of the state to
give protection to exiles and refugees. This was clearly emphasized in the Asylum case
before the International Court of Justice (ICJ).30

51. Article 14 of the UDHR speaks of the “right to seek and to enjoy in other countries asylum
from persecution,”31 whereas there is no explicit mention of a right to be granted asylum. The
RC does not even address asylum, but rather considers it to be a matter best left to state
discretion. The right to “receive” or “be granted” asylum, which establishes a positive
obligation upon states can only be found in various regional arrangements, such as: Article
22(7) of the American Convention on Human Rights, Article 27 of the American Declaration
on the Rights and Duties of Man, and Article 12(3) of the African Charter on Human and
Peoples’ Rights.

52. While Member States of the European Union affirmed the fundamental importance of asylum
at the European Council Meeting in Tampere in 1999.32 Unfortunately, the right to asylum
still does not find a proper place in any of the legally-binding regional human rights
instruments in the European context.

B. DETERMINATION OF REFUGEE STATUS

53. The determination of refugee status refers to the legal act by which the particular conditions
giving rise to an individual's flight are examined with the aim to determine whether or not the
individual is deserving of international protection. The RC does not expressly provide for
how such procedures ought to be organized and function. Unfortunately, in Latin America,
the Middle East, and Africa, few states have adopted any such procedures.

30
Colombia v. Peru, [1950] I.C.J.
31
Article 14 of the Universal Declaration of Human Rights, 1948.
32
Claire Reid, International Law and Legal Instruments, [2005] 7.

Page | 28
54. For those states that have not developed such procedures, the responsibility often falls to the
UNHCR to determine status and subsequently to make recommendations to the respective
governments. However, UNHCR addresses such refugees as mandate refugees who also
enjoy the same rights under international refugee law.

C. NON-REFOULEMENT

55. Non-refoulement is the obligation to necessarily admit people to their respective territories;
they have created a right of refugees and asylum-seekers to not be returned to a country in
which one is likely to be tortured or subject to cruel, inhuman, or degrading treatment.
Despite its importance, Article 33(2) of the RC permits derogation from the principle of non-
refoulement, in the name of "security of the country" when a refugee "has been convicted by
a final judgment of a particularly serious crime" and thereby "constitutes a danger to the
community of that country."

56. Nevertheless, the principle of non-refoulement and its status as a preemptory norm has been
established in human rights law. As a pre-emptory norm, human rights treaty bodies, regional
human rights courts, and domestic courts have ruled that the right to be free from torture,
cruel, inhuman or degrading treatment is absolute and under no circumstances may it be
violated.33 Undoubtedly, the institution of non-refoulement in international refugee law has
become sacrosanct, paramount and dominant while dealing with the problems arising out of
refugee flight across the globe.

57. It is, indeed, difficult to contemplate a situation in which the protection of refugees under
international refugee law could be met most effectively by agencies other than UNHCR and
other UN subsidiaries. The biggest challenge in addressing the root causes of why refugees
exist is a political one. States must interpret existing IRL according to its "object and
purpose"- namely “to assure refugees the widest possible exercise of these fundamental rights
and freedoms.”

58. Nevertheless, protection of refugees will continue to be the major concern for the
international community at one hand and on the other hand it shall remain a central theme, a
litmus test and a challenge in international law to be braced in future.

33
UNHCR EXCOM, 'Non-refoulement', Conclusion No. 6 (XXVIII), 1977 UNHCR, 'Note on International
Protection', UN doc. A/AC.96/830, 7.

Page | 29
 VII. CONCLUSION

60. Off late, the international refugee law has been confronting with a world wide web of denial
of fundamental principles of equality, liberty and fraternity based on diversity, affinity and
justice in the global human rights parameters. International legal framework for refugees
which gives primacy to refugee personhood in state practices and regional mechanisms must
be strengthened to mitigate their sufferings.

61. International refugee law must evolve cosmopolitan orientation life to address the present
issues of refugee rehabilitation, re-integration and repatriation. There are two significant
challenges in international refugee law which have been evolving since long, one is status-
based protection challenge and second is rights-based challenge which have not been treated
adequately. The international legal order should discourage the categorization and
compartmentalization of human sufferings. The issues of definitional dilemma, detention,
repression and enclosures are human rights concerns and required to be attended in human
rights contexts.

62. Thus, the future of international refugee law must contour the centrality of refugee protection
as its raison d’etre that emanates from global human rights advocacy. Thus, in consonance
with global human rights discourse, the status-based and rights-based protection tests must
reflect in the ref-conceived, re-constructed and re-imagined IRL that incorporates classical
standards and contemporary trends for a supreme and realistic worldwide protection of
refugees.

Page | 30