File Name: civil and political rights of refugees .zip
This chapter examines the international law of refugee protection, focusing on the legal tools, treaties, and national laws which prescribe or implement the obligations of states to refugees, as well as the core protection functions and responsibilities of the Office of the United Nations High Commissioner for Refugees UNHCR.
It first considers the definition of refugee, persecution, and the reasons for persecution as spelled out in the Convention relating to the Status of Refugees.
Finally, it looks at the refugee problem in the context of human rights. Keywords: international law , protection , treaties , refugees , United Nations High Commissioner for Refugees , persecution , voluntary repatriation , asylum , resettlement , human rights. The international law of refugee protection, which is the source of many such exceptions, comprises a range of universal and regional conventions treaties , rules of customary international law, general principles of law, national laws, and the ever-developing standards in the practice of states and international organizations, notably the Office of the United Nations High Commissioner for Refugees.
While the provision of material assistance—food, shelter, and medical care—is a critically important function of the international refugee regime, the notion of legal protection has a very particular focus. Protection in this sense means using the legal tools, including treaties and national laws, which prescribe or implement the obligations of states and which are intended to ensure that no refugee in search of asylum is penalized, expelled, or refouled, that every refugee enjoys the full complement of rights and benefits to which he or she is entitled as a refugee ; and that the human rights of every refugee p.
Protection is thus based in the law; it may be wider than rights, but it begins with rights and rights permeate the whole. Moreover, while solutions remain the ultimate objective of the international refugee regime, this does not mean that the one goal is automatically subsumed within the other. That is, protection is an end in itself, so far as it serves to ensure the fundamental human rights of the individual.
Neither the objective of solutions nor the imperatives of assistance, therefore, can displace the autonomous protection responsibility which is borne, in its disparate dimensions, by both states and UNHCR. Notwithstanding the politics of the day, tens of thousands of refugees and displaced persons were resettled under IRO auspices, through government selection schemes, individual migration, and employment placement Holborn ; Loescher and Scanlan States parties to the Protocol, which can be ratified or acceded to without becoming a party to the Convention, simply agree to apply Articles 2 to 34 of the Convention to refugees defined in Article 1 thereof, as if the dateline were omitted Article I of the Protocol.
The Protocol required just six ratifications and it entered into force on 4 October Then, Article 1A 2 , read now together with the Protocol and without time or geographical limits, offers a general definition of the refugee as including any person who is outside their country or origin and unable or unwilling to return there or to avail themselves of its protection, owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group an additional ground not found in the UNHCR Statute , or political opinion.
However, it is not necessary to have fled by reason of fear of persecution, or even actually to have been persecuted.
Articles 31 and 33 refer to threats to life or freedom, so clearly it includes the threat of death, or the threat of torture, or cruel, inhuman, or degrading treatment or punishment. A comprehensive analysis requires the general notion to be related to developments within the broad field of human rights, 6 and the recognition that fear of persecution and lack of protection are themselves interrelated elements.
The persecuted do not enjoy the protection of their country of origin, while evidence of the lack of protection on either the internal or external level may create a presumption as to the p.
However, there is no necessary linkage between persecution and government authority. A Convention refugee, by definition, must be unable or unwilling to avail him- or herself of the protection of the state or government, and the notion of inability to secure the protection of the state is broad enough to include a situation where the authorities cannot or will not provide protection, for example, against persecution by non-state actors.
This language, which recalls the language of non-discrimination in the Universal Declaration of Human Rights and subsequent human rights instruments, gives an insight into the characteristics of individuals and groups which are considered relevant to refugee protection.
These reasons in turn show that the groups or individuals are identified by reference to a classification which ought to be irrelevant to the enjoyment of fundamental human rights, while persecution implies a violation of human rights of particular gravity; it may be the result of cumulative events or systemic mistreatment, but equally it could comprise a single act of torture Hathaway ; Goodwin-Gill and McAdam The Convention does not just say who is a refugee, but also sets out when refugee status comes to an end Article 1C; for example, in the case of voluntary return, acquisition of a new, effective nationality, or change of circumstances in the country of origin.
For political reasons, the Convention also puts Palestinian refugees outside its scope at least while they continue to receive protection or assistance from other UN agencies; Article 1D ; and it excludes those who are treated as nationals in their state of refuge Article 1E. Finally, the Convention definition categorically excludes from the benefits of refugee status anyone who there are serious reasons to believe has committed a war crime, a serious non-political offence prior to admission, or acts contrary to the purposes and principles of the United Nations Article 1F.
From the beginning, therefore, the Convention has contained clauses sufficient to ensure that the serious criminal and the terrorist do not benefit from international protection. Besides identifying the essential characteristics of the refugee, states party to the Convention also accept specific obligations which are crucial to achieving the goal of protection, and thereafter an appropriate solution.
Foremost among these is the principle of non-refoulement. As set out in the Convention, this prescribes broadly that no refugee shall be returned in any manner whatsoever to any country where he or she would be at risk of persecution. The word refoulement derives from the French refouler , which means to drive back or to repel.
The idea that a state ought not to return persons to other states in certain circumstances was first referred to in Article 3 of the Convention relating to the International Status of Refugees. It was not widely ratified, but a new era began with the p. Today, the principle of non-refoulement is not only the essential foundation for international refugee law, but also an integral part of human rights protection, implicit in the subject matter of many such rights, and a rule of customary international law.
Every state is obliged to implement its international obligations in good faith, which often means incorporating international treaties into domestic law, and setting up appropriate mechanisms so that those who should benefit are identified and treated accordingly. The Convention is not self-applying, and while recognition of refugee status may be declaratory of the facts, the enjoyment of most Convention rights is necessarily contingent on such a decision being made by a state party.
A procedure for the determination of refugee status thus goes a long way towards ensuring the identification of those entitled to protection, and makes it easier for a state to fulfil its international obligations.
In addition to the core protection of non-refoulement , the Convention prescribes freedom from penalties for illegal entry Article 31 , and freedom from expulsion, save on the most serious grounds Article States have also agreed to provide certain facilities to refugees, including administrative assistance Article 25 ; identity papers Article 27 , and travel documents Article 28 ; the grant of permission to transfer assets Article 30 ; and the facilitation of naturalization Article Given the further objective of a solution assimilation or integration , the Convention concept of refugee status thus offers a point of departure in considering the appropriate standard of treatment of refugees within the territory of contracting states.
It is at p. Otherwise, however, the Convention proposes, as a minimum standard, that refugees should receive at least that treatment which is accorded to non-citizens generally.
In addition to measures adopted at the universal level, the international legal protection of refugees and forced migrants benefits from regional arrangements and instruments which, in turn, may be refugee specific or oriented more generally to the protection of human rights.
Also to be accepted as refugees are those compelled to flee owing to external aggression, occupation, foreign domination, or events seriously disturbing public order.
In , 10 Central American States adopted a similar approach in the non-binding Cartagena Declaration, 11 recognizing in addition flight from generalized violence, internal conflicts, and massive violation of human rights. Two years later, in the extradition case of Soering v United Kingdom , 12 the European Court of Human Rights laid the essential foundations for protection from removal under the European Convention.
In this first judgment in what is now a long and consistent body of jurisprudence, the court ruled that it would be a breach of the Convention to remove an individual to another state in which there were substantial grounds to believe that he or she would face a real risk of treatment contrary to Article 3, which prohibits torture or inhuman or degrading treatment.
Neither instrument creates any binding obligations for states. Indeed, both texts suggest a considerable margin of appreciation with respect to who is granted asylum and what exactly this means.
Again, the OAU Convention was among the first to give a measure of normative content to the discretionary competence of states to grant asylum Article II. The ultimate purpose of protection is not to ensure that refugees remain refugees for ever, and voluntary repatriation reflects the right of the individual to return to his or her country of citizenship.
The only formal reference p. Local integration , that is, residence and acceptance into the local community where the refugee first arrives, is the practical realization of asylum. Resettlement aims to accommodate a variety of objectives, the first being to provide a durable solution for refugees and the displaced, unable to return home or to remain in their country of first refuge.
A further goal is to relieve the strain on receiving countries, sometimes in a quantitative way, at others in a political way, by assisting them in relations with countries of origin. Resettlement thus contributes to international solidarity and continued fulfilment of the fundamental principles of protection, but given the continuing relevance of the sovereign competence referred to above and the challenges of translating the principle of international cooperation into effective action, 21 it is difficult to see what more international law can contribute to this solution.
The refugee problem cannot be considered apart from the field of human rights as a whole, which touches on both causes and solutions, so that knowledge and appreciation of the rights at issue helps to understand the refugee concept. The treatment of refugees and asylum seekers within a state is governed not only by the refugee treaties, but also by the broader human rights treaties and even rules of customary international law , which set out general standards, whether of a procedural or substantive nature for example, the requirement that a remedy be provided for every violation of human rights; or the duty of a state to protect everyone within its territory or jurisdiction from torture.
Here, local law and practice play an important role in ensuring that international rules are applied. Given the subject matter and the inescapable linkage between human rights violations p. The Convention, however, is not like most other human rights treaties, and it is styled a convention relating to the status of refugees, rather than one on the rights of refugees.
Whereas later human rights treaties tend to identify the individual as the point of departure—whether simply by virtue of being human, or a child, a woman, a worker, or someone with a disability—the practice of states and international organizations has itself helped to bring the concept of refugee rights into the foreground of international legal protection doctrine.
The practice of states at present provides no clear answers, save that states themselves appear to want to maintain the specific, refugee-focused approach of the Convention. The Convention does not deal with the question of admission, and neither does it oblige a state of refuge to accord asylum as such, or provide for the sharing of responsibilities for example, by prescribing which state should deal with a claim to refugee status.
Nevertheless, within the context of the international refugee regime, which brings together states, UNHCR, and other international organizations, the UNHCR Executive Committee, and non-governmental organizations, among others, the Convention continues to play an important part in the protection of refugees, in the promotion and provision of solutions for refugees, in ensuring the security and related interests of states, sharing responsibility, and generally promoting human rights.
In many states, judicial and administrative procedures for the determination of refugee status have established the necessary legal link between refugee status and protection, contributed to a broader and deeper understanding of key elements in the Convention refugee definition, and helped to consolidate the fundamental principle of non-refoulement.
While initially concluded as an agreement between states on the treatment of refugees, the Convention has inspired both doctrine and practice in which the language of refugee rights is entirely appropriate. The concept of the refugee as an individual with a well-founded fear of persecution continues to carry weight, and to symbolize one of the essential, if not exclusive, reasons for flight.
The scope and extent of the refugee definition, however, have matured under the influence of human rights law and practice, to the point that, in certain well-defined circumstances, the necessity for protection against the risk of harm can trigger an obligation to protect.
Brownlie, I. Oxford: Oxford University Press. Find this resource:. Gil-Bazo, M. Refugee Survey Quarterly 27 3 : Goodwin-Gill, G. Refugee Survey Quarterly 8— International Journal of Refugee Law — Hathaway, J. Cambridge: Cambridge University Press. Holborn, L. Loescher, G. McAdam, J. Marrus, M. New York: Oxford University Press. Moreno Lax, V. International Journal of Refugee Law — Find this resource:.
Oxford Handbooks Online. Publications Pages Publications Pages.
States have been granting protection to individuals and groups fleeing persecution for centuries; however, the modern refugee regime is largely the product of the second half of the twentieth century. Like international human rights law, modern refugee law has its origins in the aftermath of World War II as well as the refugee crises of the interwar years that preceded it. Article 14 1 of the Universal Declaration of Human Rights UDHR , which was adopted in , guarantees the right to seek and enjoy asylum in other countries. The controlling international convention on refugee law is the Convention relating to the Status of Refugees Convention and its Optional Protocol relating to the Status of Refugees Optional Protocol. The Convention establishes the definition of a refugee as well as the principle of non-refoulement and the rights afforded to those granted refugee status.
Safeguarding human rights in countries of origin is therefore critical both for the prevention and for the solution of refugee problems. As many as 50 million refugees have been resettled or repatriated since the end of World War II, but nearly an equal number of uprooted people are struggling hard to regain their basic human rights. There is thus greater need for according international protection and assistance to these persons than in the case of people living in their home states. Refugees by definition are victims of human rights violations. The Annexe to the Statute of the Office of the United Nations High Commissioner for Refugees ,  extends the competence of the High Commissioner for the protection of refugees defined in Article 6 a 1 in terms similar to Article 1 a 2 of the Refugee Convention. The Cartagena Declaration on Refugees of November, laid down that the definition of refugee could not only incorporate the elements contained in Convention and the Protocol or the OAU Convention and General Assembly resolutions , but also cover persons who have fled their country because their lives, their safety or their liberty were threatened by a massive violation of human rights. It is clear from the foregoing discussion that it is the risk of human rights violations in their home country which compels the refugees to cross international borders and seek protection abroad.
The Convention Relating to the Status of Refugees , also known as the Refugee Convention or the Geneva Convention of 28 July ,  is a United Nations multilateral treaty that defines who a refugee is, and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The Convention also sets out which people do not qualify as refugees, such as war criminals. The Convention also provides for some visa-free travel for holders of refugee travel documents issued under the convention. The Refugee Convention builds on Article 14 of the Universal Declaration of Human Rights , which recognizes the right of persons to seek asylum from persecution in other countries. A refugee may enjoy rights and benefits in a state in addition to those provided for in the Convention.
Human Rights are universal, and civil, political, economic, social and cultural rights belong to all human beings, including refugees and internally displaced people. Refugees also enjoy certain human rights specifically linked to their particularly vulnerable status, including the right to seek asylum, to freedom from forcible return, to freedom of movement, to a nationality, and to receive protection and assistance in securing their basic economic, social and cultural rights. The Human Rights at Issue The Human Rights of Refugees include the following indivisible, interdependent and interrelated human rights: The human right to seek and enjoy asylum from persecution. The human right not to be forcibly returned to the country he or she is fleeing if such a return would pose a threat to the life, security, or freedom of the refugee.
The legitimate security interests of the State and international refugee protection. After the tragic events of September 11, , there has been a strong interest amongst States in matters relating to national security. While every State has a right to ensure security and control borders, it is also necessary to ensure that the legitimate security interests of States are consistent with their international human rights obligations and that immigration controls do not indiscriminately affect those refugees in need of international protection, so as not to undermine the international regime for protection of refugees.
All rights reserved. Universal Declaration of Human Rights , Article Rights at Stake III.
Refugee law is the branch of international law which deals with the rights and duties states have vis-a-vis refugees. There are differences of opinion among international law scholars as to the relationship between refugee law and international human rights law or humanitarian law.
This chapter examines the international law of refugee protection, focusing on the legal tools, treaties, and national laws which prescribe or implement the obligations of states to refugees, as well as the core protection functions and responsibilities of the Office of the United Nations High Commissioner for Refugees UNHCR. It first considers the definition of refugee, persecution, and the reasons for persecution as spelled out in the Convention relating to the Status of Refugees. Finally, it looks at the refugee problem in the context of human rights. Keywords: international law , protection , treaties , refugees , United Nations High Commissioner for Refugees , persecution , voluntary repatriation , asylum , resettlement , human rights.
All persons in South Africa share a certain set of basic human rights under international law, regardless of their immigration status. Refugees have, in addition, rights based on international refugee law and the principle that persons should not be returned to a country where they fear persecution on the grounds of race, religion, nationality, membership of a particular social group, or political opinion, or which they were compelled to leave owing to external aggression, occupation, foreign domination or events seriously disturbing public order. The following section first sets out the international law relating to the rights of all persons in South Africa, and then describes the particular entitlements of refugees. International human rights law in general places obligations on states in relation to all people, not only citizens. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in , is not a treaty to which states can become parties, but it is a statement by the international community of the minimum standards of state practice and is also regarded as an articulation of states' human rights obligations as parties to the Charter of the United Nations. Moreover, many of the rights contained in these treaties and set out in the UDHR are considered to have become part of customary international law, by which South Africa is bound simply as a member of the community of states. South Africa's constitution recognizes the importance of adhering to principles of international law, stating that "customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
Towards a Rights Based Perspective on Disability 1. Civil and Political Rights 1. Economic, Social and Cultural Rights 2. Rights of Special Groups with Disabilities 1. Article 4 of the Declaration on the Rights of Mentally Retarded Persons deals with the obligation to insure a normal family life to mentally disabled persons, and to make them remain in their family surrounding.
Наверху Сьюзан ждала возвращения коммандера, сидя на диване в Третьем узле словно парализованная. Она не могла понять, что задержало его так надолго. У ее ног лежало тело Хейла. Прошло еще несколько минут. Она пыталась не думать о Дэвиде, но безуспешно.
Your email address will not be published. Required fields are marked *