crépeau irl 2014 1 international refugee law: basic parameters françois crépeau united nations...

Crépeau IRL 2014 1

International Refugee Law:Basic Parameters

François CrépeauUnited Nations Special Rapporteur on the Human Rights of Migrants

Hans &Tamar Oppenheimer Professor of Public International LawMcGill University

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In a nutshell:1. History

Asylum Law Refugee Law

2. Definition 1951 Geneva Convention 1967 Bellagio Protocol African and Latin-American Definitions National interpretations

3. Status Principle of Non-refoulement Principle of Penal immunity Principle of Non-detention Other rights

4. Challenges Other forms of protection IDPs Migration controls

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1. History

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The Right of Asylum Asylum has always existed: Treaty of 1265BC, Bible, Greek

tragedies, Roman history, etc. Asylum is a sovereign act by a powerful actor: priest, prince,

general, city, etc. Limited by judicial cooperation and extradition treaties, as

well as by political alliances. It still exists and is today essentially exercised by national

governments as a sovereign permission to remain on their territory: Haiti’s Bébé Doc in France, Chechen envoy Akhmed Zakayev in the UK.

Usually individual in nature. The “right of asylum” is a power of the State, not a right of the

individual fleeing.

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Refugee Law Born (1922-1933) under the League of Nations as an answer to the plight

of millions of Russians (1917 Revolution) and Armenians (1915 Genocide) present in Europe without a nationality.

Developed (1933-1942) in order to answer the needs of the victims of fascist and Nazi regimes.

Strengthened (1943-1946) to facilitate the work of allied armies in the conquest of Europe.

Failed (1946-1951) as a full-fledged UN organization because of the cold war.

Present regime established by the creation of the Office of the United nations High Commissioner for Refugees (1950) and the adoption of the Convention on the Status of Refugees (1951).

Present regime premised on the attribution of refugee status by States, implementing their obligations under the 1951 Convention with the help of UNHCR.

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Today, international refugee law applies very differently in countries of the Global North which have the

means to provide for refined administrative processes for refugee determination, social and labour insertion for refugees and migration control mechanisms, and

in countries of the Global South, where very often refugee come through the borders unchecked, and UNHCR and other aid agencies are the only institutions able to provide support for refugees.

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UNHCR doesn’t have a fixed budget and must appeal yearly, and sometimes exceptionally, to the generosity of donor countries: these often earmark their contributions.

Over the years, the Executive Committee (EXCOM) of UNHCR, composed of the main donor countries, has produced a huge body of “soft law” expanding on the 1951 Geneva Convention’s obligations.

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In 2001, in an international conference celebrating its 50th anniversary, States have unanimously reaffirmed their commitment to the 1951 Geneva Convention and renewed their confidence in the role of UNHCR.

International Refugee Law is a very specialised field of international law, with its specialists, its decision-making bodies, its case law, its journals, etc.

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2. The international refugee definition

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1951 Geneva Convention

« the term “refugee” shall apply to any person who, (…) 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. » (Art. 1.A(2))


Elements: Out of the country Well-founded fear Persecution Five causes linked to socio-political situation

of the individual within her society No possibility of protection from the

authorities


Causes: Race Religion Nationality Political opinions Membership of a particular social group


1967 Bellagio Protocol

Made the definition universal: Deleted the temporal limitation (1 Jan. 1951) Deleted the geographical limitation (Europe)

Today (1 April 2011): as ratified as the 1951 Convention: 145/144 States, of which 142 have ratified both.


African and Latin-American Definitions

They enlarge the 1951 Convention definition to include also: « (…) 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. » (Art. 1.2, Convention Governing the Specific Aspects of Refugee Problems in Africa, Addis-Abeba, 10.09.1969)

« (…) persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order » (Par. 3, Cartagena Declaration on Refugees, 22.11.1984)


National Interpretations

Some countries adopt a narrow interpretation: France, Germany, European Union, etc.

Some countries adopt a wide interpretation: Canada, Australia, etc.

Examples: Persecution by non-State actors Civil war or generalized violence Persecution of homosexuals Domestic violence

A wide interpretation is warranted by the human rights nature of the instruments, inasmuch as a narrow interpretation is expected in the case of a criminal law instrument.

UNHCR favours and generally applies a wide interpretation


3. The international refugee regime


Principle of Non-Refoulement 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.


Issues: expel or return (“refouler”) a refugee in any

manner whatsoever: Extradition? Interception on the high seas or in a foreign

airport? Security exception


Principle of Penal Immunity

Article 32. Refugees unlawfully in the country of refuge

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.


Principle of Non-Detention

Article 32. Refugees unlawfully in the country of refuge

2 . The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.


Other Rights The 1951 Convention provides for all sorts of rights necessary

for a normal life: education, health, social protection, intellectual property, etc.

Rights are enjoyed differently according to the status of the refugee in the country of refuge:

Some belong to “all refugees” Some to “refugees lawfully staying” in the country of refuge Some to “refugees lawfully residing” in the country of refuge

Rights are enjoyed differently according to their level of importance as conceived in 1951 :

either as any other foreigner or as the “most favoured foreigner” or as the national


étranger en général

étranger le plus favorisé

traitement national

Réfugié

13. propriété mob/immob22. éducation post-primaire

33. non-refoulement

4. liberté de religion14. propriété intell.16. droit d’ester en justice20. rationnement22. éducation primaire29. charges fiscales

Réfugié se trouvant régulièrement

18. professions non salariées26. liberté de circulation

32. expulsion

Réfugié résidant régulièrement

19. professions libérales21. accès au logement

15. droit d’association17. professions salariées

23. Assistance publique24. législation du travail et sécurité sociale

Réfugié en situation irrégulière

31. immunité pénale31. restrictions de circulation


National implementation

Many states provide a specific refugee status, often temporary, with limited services Most often in the Global South Most often, services are offered by IOs or CSOs

Some states offer permanent residency Most often in the Global North Leads to resistance to offering refugee status


EU has created EASO and developed a considerable body of law on refugee protection: Asylum Procedures Directive Qualification Directive Reception Conditions Directive Dublin Regulation EURODAC Regulation Subsidiary Protection Directive Family Reunification Directive

The ECJ will be called to interpret the conformity of: these instruments with the EU Charter of Fundamental

Rights national legislation with these instruments


4. Challenges


Other Forms of Protection

Refugees in the Global North are today better protected by the International Human Rights Law than by International Refugee Law: Refoulement Detention Education

Human Rights treaty bodies (especially CAT) devote a large part of their jurisprudence to cases relating to the rights of foreigners, including refugees.

ECtHR has also developed a sophisticated case law


Subsidiary / Temporary protection European states have developed alternate forms of

protection: B status, temporary protection… Starts and ends at the discretion of the authorities of

the host state: Form of asylum: exercise of territorial sovereignty No official supervisory role for UNHCR

Initiated with the Bosnians in Germany (1992-1998) Temporary protection may respect the refugee regime UNHCR may consider them refugee, despite national

decisions to exclude them from refugee status


IDPs Refugees must have crossed an international border. The territorial sovereignty paradigm still means that State authorities

are responsible for the persons who are on their territory. Gross violations of human rights have triggered a discussion about

possible “humanitarian interventions” by individual States, when the Security Council is not able to decide, under the R2P principle

IDPs have been the focus of an important effort to rationalize international principles when dealing with persons who are still on the territory of their State of nationality: 1998 Guiding Principles on Internal Displacement.

The Guiding Principles are inspired from International Human Rights Law, International Humanitarian Law and, by analogy, International Refugee Law.

The Guiding Principles are very much used by actors in the field. Questions:

Is Refugee Law still relevant? Shouldn’t we merge the branches of international law that apply to

displaced persons?


The Agenda of Securitizing Migration

Migration is part of a new international security paradigm. Migration controls are now part of the phenomenon of

“securitization of the public space”. Most countries in the Global North want to deter and prevent

irregular migration, including asylum seekers and refugees. The operating principle is that of « regionalization »:

refugees should stay in their region of origin, in order to be repatriated as soon as possible

asylum seekers should be repatriated to the first « safe third country » IOM has specialized in helping States with irregular migration

issues


Deterrence measures

Faster refugee determination Elimination of appeals: credibility issue + RAD Restricted access to labour market Reduced legal aid and social protection Increased detention Criminalization of all help to irregular migration Excessive penalties for migrant smuggling Safe third country agreements


Preventive measures Visa regimes Carrier sanctions Training of border personnel Interception mechanisms en route Immigration intelligence Personal information databases and exchanges “Safe third country” and “safe country of origin” mechanisms Conditionalities on international economic cooperation Militarization of borders and seas Externalization of asylum protection Rejection of international human rights law


Conclusion

crépeau irl 2014 1 international refugee law: basic parameters françois crépeau united nations...

Documents

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sovereign permission