Principles and Concepts of IRL

Refugee Status

The meaning of what it means to be a refugee has undergone a shift, and continues to do so. In the early years of devising the refugee regime that is now referred to as international refugee law (IRL) (1920-1935) refugees were defined principally in relation to their vulnerability as individuals who did 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. This was an important development insofar as for the first time, it recognized the millions of people who lived outside of normal legal protection and required an additional guarantee of their elementary rights from an external body. The granting of protection was intended to correct the problem of denial of state protection. It did not imply that the individuals protected were bearers of rights. Rights were dependant upon the relation between citizen and the state. According to political theorist Hannah Arendt, the Minority Treaties made explicit what was hitherto implicit in the workings 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.

Between the years 1935-39, it became evident that refugees, understood as peoples without state protection, were not as exceptional as had originally been assumed. In addition to the Russian refugees who resulted out of the Russian civil war and the Armenian refugees who fled the Greco-Turkish war, there were now those persons and groups who were adversely affected by particular socio-political events, namely the National Socialist regime in Germany. Such refugees were defined in a situation-specific manner.

Following the Second World War, the international community developed a more individualist approach to the defining of a refugee. With the dissolution of United Nations Relief and Rehabilitation Association in 1947 and its emphasis upon repatriation, a pronounced focus developed on the notion of personal freedom. Refugee status came to be determined not according to political and social categories, but rather based upon the individual merits of each case, with political reasons for flight as primary. In 1951 the international community negotiated the drafting and the adoption of the 1951 Convention on the Status of Refugees. At the moment of the drafting of a refugee definition, the concept of the refugee became a fixed rather than a contingent concept (Goodwin-Gill 1996; Hathaway 1991).

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Asylum

The concept of a refugee ought not 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).

It is unclear in international law the extent to which individuals have the right to enter and reside in other countries. While the Universal Declaration of Human Rights, Article 14 speaks of the right to seek and to enjoy in other countries asylum from persecution, 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. This gap within the RC is a result of the common assumption within international relations, that states are the only subjects of international law and that individuals and more specifically, refugees and asylum-seekers, have no standing in international law.

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: Artice 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. While Member States of the European Union affirmed the fundamental importance of asylum at the European Council Meeting in Tampere in 1999, the right to asylum remains conspicuously absent from any of the legally binding regional instruments for human rights protection at the European level. The European Charter of Human Rights does not enshrine the right even to seek asylum. (Plender & Mole 1999)

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Refugee Status Determination Procedures

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. 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. The UNHCR is usually only authorized to grant an applicant mandate status which is not the same as refugee status granted by the putative asylum state. The latter is entitled to a much broader range of rights and freedoms than is a mandate refugee.

Safe Third-Country Policies

The notion of a safe third country reflects a shift that has occurred within refugee status determination procedures. Instead of undertaking an in-depth examination of individual applicants situation, states are increasingly resorting to a formal consideration of the applicants flight itinerary. The idea is that if an applicant transits through a third country that is considered by the asylum state to be safe, then the applicant is obliged to apply for refugee status in that third country. This idea is based principally on the expectation of burden sharing. Within the European Union, for example, a refugee must apply for status in the first EU country that they enter. If they do not, and proceed to travel to another EU country, they will automatically be returned to the first EU member country that granted them entrance into the EU area. In some countries, automatic return is not limited to other EU states. Individuals may be sent without prior consideration of their claim and with no regard to their safety to another country, previously established by that state as safe third country. A case in point is Germany who may automatically send an applicant to Norway, Poland, Switzerland, or the Czech Republic. Lists of automatic safe third countries also exist in Finish, Dutch, and British legislation.

Burden of Proof. With the advent of safe third country policies there is often a presumption of safety if the state concerned has ratified the relevant instruments of international law. In the case of EU countries and according to the Council of Europes Recommendation to Member States Containing Guidelines on the Application of the Safe Third Country Concept, a safe third country state must have ratified the RC, the ECHR, and the ICCPR. Ultimately, the burden of proof is shifted to the applicant who must then demonstrate that the proposed safe third country is not safe. If the state has ratified the relevant instruments, the applicant must demonstrate that they do not comply with their obligations under those treaties. In General Comment No.1, the Committee Against Torture confirms that: the burden is upon the author to present an arguable case. This means that there must be a factual basis for the author's position sufficient to require a response from the State party, and that the author must establish that he/she would be in danger of being tortured and that the grounds for so believing are substantial in the way described, and that such danger is personal and present.

Protection Elsewhere. Nevertheless, UNHCR in their 1993 Note on International Protection emphasize the risks inherent in the presumption of protection elsewhere. They note that in many instances applicants are simply sent to a safe third country without guarantees that the state in question will accept responsibility. The ultimate result is that the applicant is returned to their country of origin. Chain deportations of applicants under the basis of protection elsewhere may ultimately result in refoulement. The Committee Against Torture confirms that another state within the meaning of Article 3 of CAT, refers to the State to which the individual concerned is being expelled, returned or extradited, as well as to any State to which the author may subsequently be expelled, returned or extradited. Therefore, if a state engages in chain deportation they may ultimately violate Article 3 of CAT should the individual ultimately end up in a state in which they are faced with a serious risk of torture, cruel, inhuman or degrading treatment.

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Non-Refoulement

Non-refoulement is the cornerstone of IRL. Whereas states have not accepted 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. This right is enshrined in Article 33 of the RC.

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." What the exception in the RC highlights is the fact that while asylum states have accepted the notion that it is unacceptable to return a refugee to a situation in which they are likely to be tortured, they have not accepted the idea that a refugee has the non-derogable right to settle in the asylum state.

Nevertheless, the principle of non-refoulement and its status as a preemptory norm has been established in human rights law. As a preemptory 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. Asylum-seekers and refugees have used the application of the rule of prohibition against torture, cruel, inhuman or degrading treatment in an attempt to prevent extradition. This strategy has been particularly successful in terms of the International Convention Against Torture and the International Covenant on Civil and Political Rights at the universal level and the European Convention on Human Rights at the regional level.

Convention Against Torture (CAT)

Article 3 of CAT states that: No party shall expel, return ( refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture. Unlike the RC, CAT allows for no derogation. In the case of Mutombo v. Switzerland, the Committee on CAT considered favourably the complaint of an asylum-seeker whose application had been rejected by the Swiss Federal Refugee Office. The Committee concluded:

That the expulsion or return of the author to Zaire in the prevailing circumstances would constitute a violation of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

In the light of the above, the Committee is of the view that, in the prevailing circumstances, the State party has an obligation to refrain from expelling Balabou Mutombo to Zaire, or to any other country where he runs a real risk of being expelled or returned to Zaire or of being subjected to torture.

While the Committee Against Torture represents a viable and effective forum for the vindication of rights of asylum-seekers and refugees, it is limited by its own jurisdiction, specifically by the requirement that an applicant exhaust all domestic remedies. The Committee itself rejects many communications. That an asylum-seeker exhaust all domestic remedies is not required under the RC, which recognizes that an individual may be unwilling or unable to avail herself of state protection.

International Covenant on Civil and Political Rights (ICCPR)

Article 7 of the ICCPR enshrines an absolute prohibition on the use of torture, cruel, inhuman or degrading treatment. The Human Rights Committee (the supervisory body for the ICCPR) has developed jurisprudence in regards to Article 7 that is significant for asylum-seekers and refugees, specifically in relation to extradition. In General Comment No. 20 the HRC concludes that:

The text of article 7 allows of no limitation. The Committee also reaffirms that, even in situations of public emergency such as those referred to in article 4 of the Covenant, no derogation from the provision of article 7 is allowed and its provisions must remain in force. The Committee likewise observes that no justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority.

In Kindler v. Canada, the HRC concluded that there could be no discrimination between nationals and non-nationals when it comes to the prohibition on torture.

The availability of the HRC as a forum for the vindication of a refugees rights is limited by the jurisdictional provision in the ICCPR. In order to receive individual petitions attempting to prevent extradition/deportation with reference to Article 7 ICCPR, the particular state of asylum must have ratified the Optional Protocol to the ICCPR granting the Committee competence to investigate the claim. If the particular state in question has not done so, the asylum-seeker/refugee would be unable to communicate with the Committee.

European Convention of Human Rights (ECHR)

Article 3 of the ECHR enshrines the absolute prohibition against torture or inhuman or degrading treatment or punishment. In response to the Governments claim that Article 33(2) of the RC permitted states to derogate from its obligations not to refoule, the Court in the case of Chahal v. UK replied that:

The Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation.

This conclusion illustrates well the difference between the absolute prohibition of torture, cruel, inhuman, or degrading treatment that is established in IHRL, and the prohibition in the RC, which is derogable and also restricts its protection to those with a well-founded fear based upon one of the five Convention grounds.

In addition, Article 8 of the ECHR is highly relevant to cases of expulsion. An expulsion will only be in accordance with this Article if it is lawful domestically, pursues one of the aims of Article 8(2) and the expulsion is proportionate. Relevant factors for assessing proportionality include the reason for the expulsion, the applicants ties with the deporting state, the extent of the disruption of his/her family life, whether there are real obstacles to establishing life elsewhere and, in criminal cases, the gravity of the offence in respect of which deportation was ordered.

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Non-Discrimination

Concern for discrimination in regards to the protection of refugees and asylum-seekers is part of a larger, more general preoccupation within IHRL. General prohibitions against discrimination can be found in Article 2(1) ICCPR, Article 2(2) ICESCR, Article 1(1) CERD, Article 1 CEDAW, Article 2(1) CRC, and ILO Convention No.111. This principle is also emphasized within regional human rights law: Article 14 ECHR, Article 1(1) ACHR, and Article 2 ACHPR. Conspicuously lacking is a non-discrimination clause in the European Social Charter.

While discrimination is clearly defined in CERD, CEDAW, and CRC, these definitions specify their relation to race, women, and children respectively. Consequently, the general definition generally accepted in IL is that provided for in the ILO Convention No.111 Concerning Discrimination in Respect of Employment and Occupation. Article 1 of said Convention defines discrimination as: any distinction, exclusion, or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

A careful reading of the ILO Convention definition of discrimination reveals that it is not only direct discrimination that is prohibited, but in addition, indirect discrimination. The key concern is whether the purpose of a given piece of legislation was discriminatory and/or if its end effect plays out on a discriminatory basis. If an apparently neutral piece of legislation favours one group over another then that particular piece of legislation is discriminatory. This is also the view taken in IRL. If an otherwise legitimate piece of legislation is enforced on a discriminatory basis and/or used to oppress a governments opponents, a victim demonstrating that they have been discriminated against on one of the enumerated grounds might constitute as a refugee within the meaning established by the RC.

Discrimination and IRL

The principle of non-discrimination is particularly relevant to IRL given that a Convention refugee is someone who is fleeing persecution based upon discriminatory grounds. Under the RC, an applicant must demonstrate that they face a risk above and beyond the risk faced by the general population. They must demonstrate a nexus between the objective conditions in their country of origin and the subjective fear they experience. Under the RC, persecution is discriminatory if it is based upon one of the five grounds enumerated therein: race, religion, political opinion, nationality, or membership in a social group. The principle of discrimination and its role within refugee status determination procedures is a particularly contentious issue when one is considering admitting claimants fleeing civil war or internal tensions/disturbances.

In addition, the principle of non-discrimination is relevant to IRL in terms of protections afforded to those refugees who return to their country of origin; thereby ceasing to be refugees and whom are returnees. The UNHCR, the only international organization mandated to provide protection to refugees, weighs all protection activities against the principle of non-discrimination, which it determines to be "the basic international legal standard guiding the protection of returnees."

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International Protection as Subsidiary

The primary responsibility for the respect, protection, and fulfillment of human rights and freedoms rests with states. The majority of human rights enshrined in the various international human rights treaties are intended for all human beings, regardless of their status. The ICCPR, Article 2(1) states that State parties are obliged to protect and ensure the rights of all individuals within its territory and subject to its jurisdiction. Other international human rights treaties include variations on this phrase. Very few rights are limited only to nationals.

However, over the course of history it has become painfully clear that states are not only incapable in certain circumstances of providing for the rights of those within its jurisdiction, but that in addition states have actively attacked and jeopardized the rights and lives of those within its jurisdiction. With the advent of IHRL, beginning with the UDHR in 1948, there was a gradual acceptance amongst members of the international community that states who systematically and continuously violate the human rights of those individuals within their jurisdictions, ought not to be shielded from the prying eyes of the international community by the doctrine of state sovereignty.

Nevertheless, primary responsibility for protection remains with the state and this is reflected in the status of international protection as subsidiary to national protection. The international protection provided through instruments of IHL and IRL is intended to provide protection to those individuals who are unable or unwilling for legitimate reasons to vindicate their problems within the state of which they are citizens or in which they currently reside. The supervisory mechanisms of the various human rights treaty bodies, such as the HRC, Committee on CEDAW, the Committee on CERD, and so forth all require that applicants first exhaust domestic remedies prior to submitting a communication to the relevant committee. Under IRL, it is clear that the intent is not to protect individuals from common crimes, which is the responsibility of the relevant state, but rather serves only to protect against persecution when a state is unwilling or unable to provide such protection.

When a state fails in its obligation to protect an individual, another state must provide protection. Therefore, the primary responsibility for the protection of refugees lies with asylum states pursuant to their obligations under the RC and/or any regional arrangements/Conventions (eg. 1969 OAU Convention or the CD) to which they are a party. However, while the competence of the state in the country of asylum to provide protection is clear, the content of that protection is more difficult to discern. The RC places protection and all that this entails, entirely in the hands of states. The only legal obligation states have under IRL is that of non-refoulement.

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Family

The right to a family is a fundamental human right. Article 16 of the UDHR establishes this right for all peoples, regardless of status. Protection of the family as the natural and fundamental group unit of society is confirmed in the ICCPR , ICESCR , CAT , International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, African Charter on the Rights and Welfare of the Child , American Declaration on the Rights and Duties of Man , American Convention on Human Rights , the European Convention for the Protection of Human Rights and Fundamental Freedoms , Article 4.3 Protocol II of the Geneva Convention, and Article 23 of the European Council Directive on the on minimum standards for the qualification of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.

Despite the universal confirmation that it is worthy of protection, there is no one universally accepted definition of what constitutes a family. There is a great range of opinions and contentious debate regarding its definition. The differences between what constitutes a family may be based upon one or a number of cultural, religious, political or other factors.

Family Unity and Reunification

The right to marry and to found a family implies the right to live together as a family. International Law, therefore, has established the right to family unity. This is especially relevant in regards to refugees, to the extent that families are often separated during flight. As a result of visa requirements, many refugees are forced to leave family members behind in their country of origin and to then seek reunification once granted refugee status in the asylum state. In the context of IRL, the right to family unity is qualified primarily because it intersects with the right of sovereign states to control the entry of non-nationals into their territory.

The right to marriage and family as established within IHRL entails contrasting obligations upon states. On the one hand, states are obliged to refrain from taking action that disrupts families. On the other hand, states must take positive steps to reunite families if they have been separated.

Given that the right to family unity is established in IHRL and IL, and therefore applies to all human beings regardless of citizenship or status, provisions, or lack thereof within IRL cannot limit its scope. Indeed, the RC does not incorporate the principle of family unity. Nevertheless, UNHCR notes that most states respect the principle and that a failure to allow for family reunification and thereby for family unity, is interpreted as a violation of the right as opposed to evidence that the right does not exist.

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