AU Watch

International framework for refugee protection

1 Universal principles and concepts of refugee protection

Main Debates

  • Is there a right to asylum under international law? If so, what are its limits?
  • How broadly should the legal definition of ‘refugee’ be drawn?
  • How long is a state legally obliged to protect refugees?
  • To what extent is a state obliged to develop durable solutions as opposed to temporary protection?
  • When does human rights protection trump migration control?
  • What are the implications of extraterritorial policies that threaten refugee protection?

Main Points

  • International refugee protection as a surrogate to national protection, resulting from the failure of the state to protect the refugee from persecution
  • Standards of protection and refugee rights
  • Increasing importance of core international human rights instruments for refugee protection

Main Debates

  • Is the principle of non-refoulement applicable in cases of mass influx?
  • Is it applicable in international zones?
  • Has it become jus cogens?
  • Do certain persons fall outside the protection afforded by the non-refoulement obligation?

Main Points

  • Non-refoulement and different forms of asylum
  • Non-refoulement under the Geneva Convention v. human rights instruments
  • The absolute nature of non-refoulement
  • Access to protection

Main Debates

  • Are states obliged to provide asylum?
  • Does the ’right to asylum’ cover more than protection against refoulement?
  • How do extradition and other criminal law measures interact with the principle of asylum?

Main Points

  • Asylum v. other forms of protection
  • Asylum and the right to entry

Soft Law

  1. United Nations, Universal Declaration of Human Rights, UN General Assembly Resolution, A/RES/217 A (III), 10 December 1948, Art. 14.
  2. United Nations, Declaration on Territorial Asylum, UN General Assembly Resolution, A/RES/2312 (XXII), 14 December 1967.

Main Debate

Does the principle of non-discrimination forbid all differential or preferential treatment?

Main Points

  • Non-discrimination and the enjoyment of refugee rights
  • Non-discrimination as a norm of customary international law

Main Debate

  • What is the definition of a family?

Main Points

  • Family unity as a principle
  • Right of family reunification is not included in the Geneva Convention
  • Right to respect for family life under human rights treaties

Main Debates

  • How can the warehousing of refugees be changed into self-sustainability?
  • What is the role of UNHCR in situations of premature repatriation?

Main Points

  • Range of actors and obstacles to durable solutions
  • Peace building and return
  • Decline of resettlement
  • The role of individual preference in durable solutions

Main Debates

  • Is there a legal obligation among States to cooperate and share responsibility for refugee protection?
  • If so, what is its basis? What does it require?
  • Burden sharing v. burden shifting
  • Are the financial donations of states a legitimate mechanism for burden shifting?

Main Points

  • Capacity of receiving states
  • Transit states as buffer zones
  • Broader implication on host societies
  • Implicit burden sharing

Main Debates

  • What restrictions may States place on the right to leave one’s country, (if any)?
  • Right to leave vs. right to be admitted to another country

Main Points

  • Legal basis for the right to leave
  • Discriminatory restrictions on the right to leave
  • Interaction with the right to seek and enjoy asylum

Main Debates

  • Are States justified in using penalties to deter and punish asylum-seekers and refugees for irregular entry and presence?
  • From which criminal or administrative offences does Article 31 of the 1951 Convention provide immunity from prosecution?
  • Is detention of asylum-seekers or refugees permissible in this context? (See II.2.7 on detention)

Main Points

  • Preconditions for the application of Article 31: ‘coming directly’ from territory where life or freedom is threatened; ‘present themselves without delay’, ‘show good cause’
  • Restrictions on free movement of asylum-seekers and refugees

2 The 1951 Geneva Convention

Main Debate

  • To what extent should the Convention be interpreted according to the original intent v. evolving understandings?
  • Was the Convention a political tool when adopted?

Main Debate

Should the refugee definition expand to meet protection needs not foreseen in 1951?

Main Debates

  • Where should state jurisdiction and responsibility start?
  • Who has responsibility for asylum seekers rescued at sea?

Main Points

  • Relocating the borders into international zones and third countries
  • Offshore action of state authorities and outsourcing of state functions
  • Interaction between international law of the sea and refugee and human rights law

Main Debates

  • Should asylum seekers have a choice?
  • Are states free to delegate the task of refugee protection to other states?
  • Under what conditions, should a state be entitled to return/send an asylum seeker to another state (if any at all)?

Main Points

  • Content of effective protection

The need to specify the grounds for removal

  • To the asylum seeker
  • To the authorities of the destination state

Main Debates

  • How should asylum-seekers and refugees be treated upon arrival? What rights do they enjoy during the examination of their claims?
  • Who should maintain law and order in refugee camps?
  • How should armed asylum seekers be demobilized?

Soft Law

UNHCR Documents

  1. UNHCR, ’Reception of Asylum Seekers, Including Standards of Treatment in the Context of Individual Asylum Systems’, September 2001.
  2. Elizabeth Umlas, ’Cash in hand: Urban refugees, the right to work UNHCR’s advocacy activities, 5 May 2011, PDES/2011/05, [Part of the Policy Development and Evaluation Service’s New Issues in Refugee Research Series].
  3. UNHCR, ’UNHCR Policy on Refugee Protection and Solutions in Urban Areas, September 2009.
  4. UNHCR, ’UNHCR Policy on Alternatives to Camps, 22 July 2014, UNHCR/HCP/2014/9.

 Basic procedural requirements

 Evidentiary issues

Main Debates

  • Should refugees enjoy the rights of citizens?
  • Do international human rights instruments provide sufficient protection for refugees in host countries?

Main Points

  • The correlation between the refugee’s attachment to the country and the extent of rights
  • Significance and definition of lawful stay in host country
  • Refugee specific standards v. universal human rights standards

Readings

Main Debates

  • Is detention a penalty within the meaning of Art. 31 of the 1951 Geneva Convention?
  • Under what circumstances and for how long may asylum seekers be detained?
  • Is it lawful to use detention for the purpose of deterrence?

Main Points

  • Refugees are often subject to penalties for illegal entry contrary to the 1951 Geneva Convention
  • Detention of children and other vulnerable populations
  • Standards for conditions of detention

3 Other forms of international protection

Main Debates

  • Is temporary protection on the basis of group assessment of protection need an adequate alternative to individualized examination of refugee status?
  • Are there legally binding norms for temporary protection or is it a matter of discretionary state practice?
  • What should be the duration of temporary protection?
  • What level of rights must be accorded to those granted temporary protection?

Main Points

  • Temporary protection as an administrative measure until individual examination is carried out or group recognition occurs
  • Temporary protection is a precursor, not an alternative, to 1951 Geneva Convention protection
  • Temporary protection does not suspend states’ duties under the 1951 Geneva Convention and other human rights treaties

Main Debates

  • Is the 1951 Geneva Convention adequate in the context of forced displacement?
  • How can the protection needs of victims of generalised violence and armed conflict be met?
  • Should there be a ‘sliding scale’ or other connection between the various kinds of protection needs and the ensuing entitlements?
  • Is complementary protection a humanitarian issue under state discretion or a matter of state duty?

Main Points

  • Limitations of 1951 Geneva Convention give rise to the need for complementary forms of protection
  • Role of international human rights treaties in establishing protection standards to be accorded to persons who fall outside of the 1951 Geneva Convention
  • Distinction between complementary protection and stay for compassionate or practical reasons.

Main Debates

  • To what extent can international human rights law fill existing gaps in refugee protection? What are their differences?
  • Are refugees rights bearers under human rights treaties?
  • How can international human rights treaties provide protection without enforcement powers?

Main Points

  • Complementarity between 1951 Geneva Convention and other human rights instruments
  • International monitoring bodies and their protection-related practices

4 Internally displaced persons

Main Debates

  • Is the extension of UNHCR’s mandate sufficient or is there a need for a specialized agency?
  • Should there be a separate treaty for the protection of internally displaced persons?

Main Points

  • Emergence of IDPs as a category of individuals in need of protection in the 1990s
  • International border as a defining criterion
  • Challenge of implementing human rights treaties to offer sufficient protection for the internally displaced