Sunday, December 20, 2015

International Refugee Law

© Prazis / Fotolia


“Everyone has the right to seek and to enjoy in other countries asylum from persecution.”
(Universal Declaration of Human Rights, Article 14.1).


To understand the struggle of today's refugees crisis, forced migration, and human trafficking we need to understand the field of international law.

 

What is international law? 


International law is the set of rules generally regarded to be binding only in relations between states and between nations. Because of state sovereignty, much of international law is consent-based governance. However, there are other aspects of international law such as customary international law and peremptory norms (jus cogens) are obligatory upon state and non-state actors. These include private corporations and non-state actors, including nongovernmental organizations (NGOs). 

International law serves as a framework for organized international relations for sovereign states. One of the most important international organizations, the United Nations the development of international law one of its main mandates. The UN Charter, in its Preamble, sets the objective "to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained". More than 500 multilateral treaties have been deposited with the Secretary-General of the United Nations. Many other treaties are deposited with governments or other entities such as the European Court of Human Rights, the International Criminal Court (ICC). Treaties such as the Geneva Conventions may require national law to conform to respective parts

The domains of international law encompasses a wide range of issues of international concern such as human rights, disarmament, international crime, refugees, migration, problems of nationality, the treatment of prisoners, the use of force, and the conduct of war, among others. It also regulates the global commons, such as the environment, sustainable development, international waters, outer space, global communications and world trade.

 

What is a refugee in international law? 


According to the 1951 Convention relating to the Status of Refugees a
refugee is someone who:
1. Has a well founded fear of persecution because of his/her
  • Race,
  • Religion,
  • Nationality,
  • Membership in a particular social group, or
  • Political opinion;
2. Is outside his/her country of origin; and
3. Is unable or unwilling to avail him/herself of the protection of that country, or to return there, for fear of persecution.
Read more from United Nations High Commission for Refugees. (2012). Text of Convention

 

Refugee Law is based on Human Rights Law


Most of the rights crucial to refugee protection are also the fundamental rights stated in the 1948 Universal Declaration of Human Rights
  • Right to life, liberty and security of person
  • Right to seek and enjoy asylum
  • Freedom from torture, or cruel, inhuman or degrading treatment or punishment
  • Freedom from slavery or servitude
  • Recognition as a person before the law
  • Freedom of thought, conscience, and religion
  • Freedom from arbitrary arrest and detention
  • Freedom from arbitrary interference in privacy, home and family
  • Freedom of opinion and expression
  • Right to be educated
  • Right to participate in the cultural life of a community

 

Refugee and Migrants: An issue of 'force'


International law distinguishes the rights of the migrant from those of a refugee. Unlike migrants, refugees do not choose to leave their countries; they are forced to do so. Economic migrants are persons who leave their countries of origin purely for economic reasons, to seek material improvements in their lives. The key difference between economic migrants and refugees is that economic migrants enjoy the protection of their home countries; refugees do not. Economic migrants do not fall within the criteria for refugee status and are therefore not entitled to benefit from international protection as refugees. 

 

How does refugee law relates to humanitarian and human rights law?


In her book The Human Rights of Migrants and Refugees in European Law Cathryn Costello has clearly identified the strengths and limits of international law and international human rights in relation to the 2015 EU refugee and migration crisis.

"The human rights of migrants and refugees are far from secure. Human rights and refugee law both contain strong norms of non-refoulement, or non-return to face persecution or serious human rights violations. However, those seeking refuge rarely have a legal route to claim asylum in the EU. To claim asylum, they must normally be on the territory, and usually this means a dangerous irregular journey. EU law requires the states where they arrive (predominantly Greece and Italy in 2015) to process their asylum-claims (unless they have close family elsewhere). However, that allocation mechanism would be unworkable if it was properly enforced. It creates many legal frictions, as people resist being transferred back to countries of first arrival, which often run weak asylum systems." (Read more here).

 

Read more on International Law and Refugee

  1. International Refugee Law
  2. Refugee Protection: A Guide to International Refugee Law
  3. International Journal of Refugee Law
  4. Free access to Oxford University Press resources on refugee law


The human rights of migrants and refugees are far from secure … The figure of the ‘migrant’ sits uneasily with the basic human equality than underpins human rights law. - See more at: http://blog.oup.com/2015/12/migrant-detention-rights-europe/#sthash.XJrI2JHL.dpuf
Cathryn Costello, is a Andrew W Mellon Associate Professor in International Human Rights and Refugee Law, Refugee Studies Centre, Oxford Department of International Development. She is the author of The Human Rights of Migrants and Refugees in European Law. - See more at: http://blog.oup.com/2015/12/migrant-detention-rights-europe/#sthash.XJrI2JHL.dpuf
Cathryn Costello, is a Andrew W Mellon Associate Professor in International Human Rights and Refugee Law, Refugee Studies Centre, Oxford Department of International Development. She is the author of The Human Rights of Migrants and Refugees in European Law. - See more at: http://blog.oup.com/2015/12/migrant-detention-rights-europe/#sthash.XJrI2JHL.dpuf