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International Refugee Law

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Tuuli Karjala

on 1 June 2014

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Transcript of International Refugee Law

International Refugee Law
International Refugee Law
1951 Convention relating to the Status of Refugees

1948 Universal Declaration of Human Rights, Article 14(1): “Everyone has the right to seek and to enjoy in other countries asylum from persecution”.
1951 UN Refugee Convention is the central feature in today’s international refugee protection regime with 145 States having ratified it
The 1951 Convention was drafted in the aftermath of WWII (flood of IDPs) with the Holocaust and the looming Cold War having strongly impacted its substance
The historical context helps to explain both the nature of the Convention and some of its apparent limitations.
The 1951 Convention has been modified only once since its drafting by the 1967 Protocol Relating to the Status of Refugees


Regional Refugee Law Instruments:
Only legally binding regional refugee treaty
Regarded as a “cornerstone of refugee protection in Africa”
The international definition of refugee had proved to be inadequate in Africa
Various events causing large flights of people to neighbouring countries
The OAU refugee definition was adopted to reflect more accurately the realities of Africa during the period of struggle for self-determination and end of colonisation
OAU definition repeats the 51 definition, but further expands the definition of a refugee at Art I(2)
First time that refugee definition was extended to people, who had been forced to leave their country of nationality due to aggression by another state or as a result of invasion.
OAU Convention “marked the beginning of refugee protection system which directly addressed the causes of mass refugee influxes, by emphasising the objective conditions in the country of origin” (Arboleda, 1991)
REFUGEE LAW IN SA
Section 3, Refugee Act No. 130 of 1998:

Subject to Chapter 3, a person qualifies for refugee status for the purposes of this Act if that person-

(a) owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it; or

(b) owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere: or

(c) is a dependant of a person contemplated in paragraph (a) or (b).

Limitations of the current international refugee law regime: Gender
OBJECTIVES:
Provide background to international refugee law

Provide definitions of international refugee law

Examine the development of international refugee law

Discuss problems with the existing refugee definition

REFUGEE DEFINITION UNDER 1951 UN REFUGEE CONVENTION
1951 Convention relating to the Status of Refugees Art. 1 A(2) :

“As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is 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.”

Elements of the refugee definition under international law
1) Well-founded fear
2) Persecution
3) Nexus Requirement (for reasons of race, religion, nationality, membership of a particular social group or political opinion)
4) Outside the country of his nationality
5) Unable or unwilling to avail himself of the protection of that country

Well founded fear
Subjective or objective test?

Assumption that ‘subjective’ perception of the individual will lead to arbitrary evaluation of events vs question whether ‘objective’ evaluation is possible at all

Case law – Subjective test:
R v Secretary of State ex parte Sivakumaran (1987, House of Lords, UK)

Landmark decision within Western jurisdictions.
Sivakumaran established that while the well-founded fear test mainly looks at the refugee’s emotional reaction to persecutory events, the objective circumstances of the case must not contradict the refugee’s subjective assessment of the risk.

Well founded fear (Cont’d)
UNHCR Handbook: Recommends use of both subjective and objective test

Para 37: Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin.
Para 38: To the element of fear--a state of mind and a subjective condition--is added the qualification “well-founded”. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term “well-founded fear” therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration.

James Hathaway: Emphasis on objective test

Refugee’s circumstances evaluated based on concept of reasonableness
Criticised for being tainted with local perceptions and consequently fails to be context-sensitive

Persecution
No universally accepted definition of “persecution”
1951 Refugee Convention Articles 31 and 33 refer to those whose life or freedom “was” or “would be” threatened, so clearly it includes the threat of death, or the threat of torture, or cruel, inhuman or degrading treatment or punishment.
This is repeated in paragraph 51 of the UNHCR Handbook
Drafters of the 1951 Convention deliberately left “persecution” undefined
Has lead to a wide discretion of domestic courts and to a lack of ‘coherent or consistent jurisprudence’ (Goodwill-Gill, 1996)
Western jurisprudence has often interpreted ‘persecution’ to be linked to serious human rights violations.
Has to be read in conjunction with other international human rights treaties (such as ICCPR (1966), CAT (1984), ECHR (1950), ACHR (1969), ACHPR (1981) )

Nexus requirement
“…for reasons of race, religion, nationality, membership of a particular social group or political opinion…”
1951 Convention awards protection to only those whose civil and political rights are violated – no protection awarded for violation of socio-economic rights
Directly linked to Cold War – not a neutral definition
Hathaway has described the 1951 Refugee Convention definition as “lopsided and politically biased human rights rationale for refugee law”.

RELIGION
PARTICULAR SOCIAL GROUP (PSG)
UNHCR Handbook:

Para 77: […] Normally comprises ‘persons of similar background, habits or social status’
Para 79: Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status

In civil law jurisdictions, the particular social group ground is generally less well developed. Most decision-makers place more emphasis on whether or not a risk of persecution exists than on the standard for defining a particular social group

In common law jurisdictions two approaches have dominated decision-making :

1) “protected characteristics” or “immutability” approach
2) “social perception” approach

Immutability/protected characteristics test:

Canada (Attorney-General) v. Ward (1993) Supreme Court of Canada:

groups defined by an innate or unchangeable characteristic
groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association
groups associated by a former voluntary status, unalterable due to its historical permanence.

In re Acosta (1985) US Board of Immigration Appeals (BIA):

"particular social group" may include individuals with shared, immutable characteristics

Social perception test:
INS v. Elias-Zacarias (1992) Ninth Circuit Court of Appeals

There has to be a ‘voluntary association’ amongst the members of the PSG and the PSG has to be a ‘cohesive, homogeneous group’.

Decision has been heavily criticised: E.g. claims by homosexuals and women: “Both these characteristics are either immutable or so fundamental that it would be unjust to demand that they be changed; yet classes of gays and lesbians or women are unlikely to be cohesive or homogenous or to display close affiliation among members”. (Aleinkoff, 2003)

Applicant A. v. Minister for Immigration and Ethnic Affairs (1997) High Court of Australia

What distinguishes the members of a particular social group from other persons in their country ‘is a common attribute and a societal perception that they stand apart
RACE
Outside the country of his nationality
UNHCR Handbook:

Para 88: It is a general requirement for refugee status that an applicant who has a nationality be outside the country of his nationality. There are no exceptions to this rule. International protection cannot come into play as long as a person is within the territorial jurisdiction of his home country.

1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES
Eliminated the geographical and time restrictions included in the 1951 Refugee Convention

Article 1 (2)

For the purpose of the present Protocol, the term “refugee” shall, except as regards the application of paragraph 3 of this article, mean any person within the definition of article 1 of the Convention as if the words “As a result
of events occurring before 1 January 1951 and ...” “and the words”... “a result of such events”, in article 1 A (2) were omitted.

NON-REFOULEMENT
General rule of non-refoulment provides that an individual should not be returned to a state where there is a real chance that he or she will face persecution, other ill-treatment, or torture.
This principle is further codified in, or has been judicially read into, a number of international human rights instruments (CAT 1987, ICCPR 1966)

1951 UN Refugee Convention

Article 33: Prohibition of expulsion or return (“refoulement”)

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.


What happens when principle of non-refoulement is not respected
1969 OAU Refugee Convention
1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa - Refugee definition
Article 1

(1) For the purposes of this Convention, the term "refugee" shall mean every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is 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.

(2) 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 his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

1969 OAU Refugee Convention - Non-refoulement
Differences between the 1951 UN Refugee Convention and the 1969 OAU Refugee Convention
Three fundamental characteristics that differentiate the 1969 OAU definition from the definition found in the 1951 Convention:

1) the OAU definition is objective rather than subjective;

2) the OAU definition does not require a specific type of harm or cause of flight;

3) the OAU definition was primarily designed and intended to be applied to the context of group displacements

UNHCR Handbook:

Para 68: “Race […] has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as ‘races’ in common usage”

Para 69: “Discrimination on racial grounds will frequently amount to persecution in the sense of 1951 Convention. This will be the case if, as a result of racial discriminations, a persons dignity is effected to such extent as to be incompatible with the most elementary and inalienable human rights”

Para 70: “The mere fact of belonging to a certain racial group will normally not be enough to substantiate a claim to refugee status”

NATIONALITY
UNHCR Handbook:

Para 74: Nationality […] is not to be understood only as citizenship. It refers also to membership of an ethnic and linguistic group and may occasionally overlap with the term ‘race’. Persecution […] may consist of adverse attitudes and measures directed against a national (ethnic, linguistic) minority and in certain circumstances the fact of belonging to such a minority may in itself give rise to well-founded fear of persecution

UNHCR Handbook:

Para 72: Persecution for ‘reasons of religion’ may assume various forms, e.g prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practice their religion or belong to a particular religious community

Para 73: The mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status

POLITICAL OPINION
UNHCR Handbook:

Para 80: Holding political opinions different from those of the Government is not in itself a ground for claiming refugee status, and an applicant must show that he has a fear of persecution for holding such opinions.”

Para 81: While the definition speaks of persecution “for reasons of political opinion” it may not always be possible to establish a causal link between the opinion expressed and the related measures suffered or feared by the applicant. More frequently, such measures take the form of sanctions for alleged criminal acts against the ruling power. It will, therefore, be necessary to establish the applicant's political opinion, which is at the root of his behaviour, and the fact that it has led or may lead to the persecution that he claims to fear

Refugee status determination process in SA
1) A person, who has entered RSA and claims to be an asylum seeker is issued with an “asylum transit permit” valid for 14 days. During these 14 days, the person must report to the nearest Refugee Reception Office in order to apply for asylum.

2) Once at the Refugee Reception Office a status interview is conducted by a Department of Home Affairs official, known as a Refugee Status Determination Officer (RSDO).

3)A rejected asylum seeker has the right to have the RSDO's decision reviewed by the Refugee Appeal Board (RAB), a quasi-judicial tribunal created in terms of the Refugees Act.

4) In certain cases the decision of the RAB can be further reviewed in the High Courts, Supreme Court of Appeal and ultimately in the Constitutional Court.

Terms
Asylum seeker
= a person who has fled his or her country of origin and is seeking recognition and protection as a refugee in another country, and whose application is still under consideration.

Refugee
= a person who has been granted asylum status and protection in terms of the 1951 UN Convention relating to the Status of Refugees
Article 2

(3) No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I.

This definition is broader than the 1951 UN Convention’s non-refoulement provision in two respects:

it does not include a national security exception
it applies at frontiers, while the 1951 Convention makes no such explicit
Fitting gender-related persecution to the current refugee law framework
The ‘nexus requirement’ included in the 1951 Refugee Convention refugee definition is one of the most difficult obstacles faced by victims of gender-related persecution seeking asylum

Various courts have attempted to fit GRP claims to the "particular social group" category:

Has lead to arbitrary jurisdiction due to the wide discretion of the courts
Courts have not accepted 'gender' alone as a basis of PSG - emerge of the so-called ‘gender +’ standard
Victims are required to be identified more narrowly as a part of 'a particular subset of the female population’
Has led to heavy manipulation of the definition of a ‘particular social group’ in order to include a claim based on gender

Alternative approach taken by domestic courts has been to try to fit GRP cases under the ‘political opinion’ category

Construction of ‘political opinion’ to include a woman’s attitude towards her government or her opinion about the treatment of women in her country
Problematic as women's political activities have typically been seen as marginal, peripheral or non-existent
‘Political opinion’ category effectively excludes many other gender-based claims

Third option to include gender claims under the current international refugee law is under the 'religion' category

Right to not to hold a particular belief system and the right not to practice a prescribed religion as part of freedom of religion
Similarly to 'political opinion' category, excludes various forms of GRP
Gender bias in the construction of ‘persecution’ under the current refugee law framework
Traditional construction of persecution is based on the male experience

In addition to 'traditional' persecution women face persecution due to their gender

Sexual violence constituting persecution often normalised and down-played
Campos-Guardado v INS (US, 5th Cir, 1981)

Dichotomous construction of acts into 'public' and 'private' ones
State responsibility and non-state actors
Majority of the violence and abuse experienced by women is committed by non-state actors rather than by state officials

Persecution by non-state actors has traditionally been ignored as a ‘private act’ by private actors without any state culpability

However, states have positive obligations towards their citizens to protect their broader human rights

Emerge of the ‘bifurcated approach’:

Ward v Canada (Supreme Court of Canada, 1993)
"State complicity in persecution is a not a prerequisite to a valid refugee claim" - Judge La Forest

Islam v. Secretary of State for the Home Department and R v. Immigration Appeal Tribunal and Another Ex Parte Shah (House of Lords, UK, 1999)
‘Persecution = Serious Harm + Failure of State Protection’
Developing current international refugee law
Adding new, sixth category?
Flood-gate arguement

Fitting gender-related persecution under the current refugee law framework?

Inclusion of sever cases of economic refugees and environmental refugees?
Ms Tuuli Karjala (tuuli.karjala@gmail.com)
In Re R-A-
US Board of Immigration Appeals, 1999
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