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Tribhuvan University

A Comparative Study of Refugee Status Determination in different International Refugee

Documents

A Seminar Paper Submitted to Nepal Law Campus for the Partial Fulfillment of the

Requirements of B.A.LL.B

By:

Shishir Lamichhane

Roll No. : 7/ 3rd

Year/2014

Nepal Law Campus

Exhibition Road, Kathmandu

June, 2014

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Approval of Letter

This seminar entitled “A Comparative Study of Refugee Status Determination in Three

Refugee Conventions” by Mr. Shishir Lamichhane has been approved by the Research

Committee for the viva voce.

Members of Research Committee:

…………………

………………… …………………. …………………

………………… (Supervisor) (Director B.A.LL.B,

……………….. Program)

…………………

………………

(Campus Chief)

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Acknowledgements

I am greatly indebted to Mr. Chandra Prasad Luitel, supervisor of Research and Seminar

for his scholarly guidance.

I also would like to express my thankfulness to Mr. Karna Bahadur Thapa, Campus

Chief, Nepal Law Campus for providing me with an opportunity to carry on this research.

Similarly, I also thank Associate Professor Bibek Kumar Poudel and Asst. Director

Laxmi Sharma, Assistant Professor, Nepal Law Campus for providing me with research

materials and guidance.

Lastly, my thanks go to my friends for assisting me during the process of research.

June, 2014 Shishir Lamichhane

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Preface

A person is a refugee within the meaning of the 1951 Convention or any other refugee

document as soon as he fulfills the criteria contained in the definition. This would necessarily

occur prior to the time at which his refugee status is formally determined. Recognition of his

refugee status does not therefore make him a refugee but declares him to be one. He does not

become a refugee because of recognition, but is recognized because he is a refugee.

There are certain legal instruments developed for the protection of victims of events that

have forced or unknowingly dragged them into situations of refuge into another sovereign

territory. In the process of developing these instruments, they had been developed keeping in

mind the necessity of that time and geography. But later it has been found that with emergence of

newer forms of victimizations, newer approaches have been developed in the form of legal

instruments. Also when refugee status determination remains as the primary objective of these

instruments, certain variations can be observed or drawn out by a careful examination of the

provisions and background behind the instruments. The research paper intends to make a

comparative study into the four different documents: 1951 Convention, its optional protocol, the

Cartagena Declaratoin and the Refugee Convention of the African Union. The study is

significant in a way that it traces a clear picture about the whole idea of RSD and then how it

developed in the period that followed. This is also very important as the researcher aims to

compare the variations with what is being practiced in Nepal as a state not party to the Refugee

conventions or protocol. A solution exists in the finding of the research paper where from the

evaluation of the refugee status determination of different documents, the researcher finds it

necessary to implement a regional instrument to address the refugee problem, which eventually

relates to the whole idea of RSD and the durable solution.

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Table of Contents

Cover Page

Letter of Approval

Acknowledgement

Preface

Chapter One

1.1 Introduction 8

1.2 Statements of problem 9

1.3 Objectives of the research 9

1.4 Methodology and Limitation 10

1.5 Literature review 10

1.6 Organization of study 10

Chapter Two

2.1 Historical Background 11

2.2 International instruments 12

a. 1951 Convention Relating to the Status of Refugee 13

b. 1967 Protocol Relating to the Status of Refugee 14

c. The OAU Convention on Refugee 15

d. Cartagena Declaration on Refugee 15

Chapter Three

3.1 Refugee Governance 18

a. UNHCR 18

b. UNRWA 19

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Chapter Four

4.1 Refugee Status Determination 22

4.2 Interpreting the 1951 Convention 23

a. Events occurring before 1 January, 1951 23

b. Well-founded fear 23

c. Persecution 24

4.3 Inclusion clause 25

4.4 Cessation clause 25

4.5 Exclusion clause 26

4.6 Interpreting the 1967 Protocol 26

a. Geographic Limitation 27

b. Temporal Limitation 27

4.7 Interpreting the OAU Convention on refugee 27

a. External Aggression 28

b. Occupation 28

c. Foreign Domination 29

d. Events seriously disturbing public order 29

either in part or whole of the country of origin

4.8 Interpreting the Cartagena Declaration on Refugee 30

4.9 Comparative Analysis 32

Chapter Five

5.1 RSD in contest of Nepal 33

5.2 Addressing the refugee problem 35

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Lists of Abbreviation

UN: United Nations

UNHCR: United Nations High Commission for Refugee

UDHR: Universal Declaration of Human Rights

UNRWA: United Nations Relief and Work Agency

CSO: Camp Service Officer

OAU: Organization of the African Union

RSD: Refugee Status Determination

IDP: Internally Displaced People

UNRPR: United Nations Relief for Palestine Refugee

GON: Government of Nepal

KCC: Kathmandu Community Centre

CAT: Convention against Torture

CERD: Committee on the Elimination of Racial Discrimination

ESCR: Economic Social and Cultural Rights

HMG: His Majesty Government

SC: Supreme Court

SAARC: South Asian Association for Regional Co-operation

ICRC: International Committee of the Red Cross

IRO: International Refugee Organization

OAS: Organization of American States

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Chapter One

1.1 Introduction

Early in the twentieth century, the refugee problem became the concern of the

international community, which, for humanitarian reasons, began to assume responsibility for

protecting and assisting refugees. 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 UDHR, which was adopted in 1948, guarantees the

right to seek and enjoy asylum in other countries.

The most important of instruments for the protection of refugee today is the 1951

Convention Relating to the Status of the Refugee and its 1967 Optional Protocol. In case of a

sate not party to the mentioned legal instruments, and the office of UNHCR established within

that territory of that country, the protection of the refugee is to be guided by the Statute of the

Office of UNHCR.1 The process of the Refugee Status Determination is solely governed by the

Office of UNHCR. However, the level of co-operation from the non-party state depends on the

state’s own resources and national security issues and its policies.

Substantial numbers of people flee from their countries every year for different reasons.

According to the UNHCR “Facts and Figures about Refugees,” 51.2 million people are displaced

worldwide, among which 17.9 million were refugees at the end of the year 2013.2 Internal

conflict, war, socio-economic barriers, discrimination and there are myriad of factors responsible

1 UNHCR, “Handbook on Procedures and Criteria for determining Refugee Status under the under 19451

Convention and its 1967 Protocol relating to the status of Refugees” HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 1979, pp E 16. 2 UNHCR, “Facts and Figures about Refugee.” http://www.unhcr.org.uk/about-us/key-facts-and-figures.html.

Accessed date: May 20, 2014.

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for this huge number. Refugee Status Determination is a process that takes two ways. Firstly the

relevant facts need to be ascertained and secondly the definitions from the 1951 Convention and

the 1967 Protocol needs to be applied.3

1.2 Statement of Problem

Refugee Status Determination is the process around which the whole establishment of the

office of UNHCR is concerned. The conventions governing the determination process have

emerged in certain period of time as a result of certain events. Investigating and comparing

different refugee documents governing the status determination process, there should exist some

differences in these conventions/legal documents with regards to its necessity and geographical

dimension as well for further realization of the process of refugee status determination more

clearly and resolve the complexities that might follow. Doing so it would be very useful to

deduce a mechanism that is working out in Nepal, a state not-party to the Refugee Convention or

its protocol and how protection is granted. These findings might help in drawing out an efficient

and workable solution for the refugee problem in Nepal and the whole of South Asia.

1.3 Objectives of the research

The objectives of the research are as follows:

a) To make a clear understanding about the process of the refugee status determination.

b) To examine the different refugee documents and draw a comparative study of the refugee

status determination process.

c) To evaluate the current refugee status determination process in case of Nepal with

regards to UNHCR and GON.

d) To draw a possible solution for the refugee problem in Nepal and the south Asian as a

whole.

3 Supra note 1, pp 28.

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1.4 Methodology and Limitations

The method for the research is primarily doctrinal method. The facts and data gathered

for the research purpose are from the primary source. However, information is also gathered

from secondary sources.

The research paper only takes into account the 1951 Convention relating to the Status of

Refugee, the 1967 Optional Protocol, the Convention Governing the Specific Aspects of

Refugees in Africa and the Cartagena Declaration of 1984.

1.5 Literature Review

For the purpose of this research, different refugee documents have been studied. This

includes the 1951 convention and its protocol of 1967 and the regional instruments like the OAU

refugee convention and the Cartagena Declaration on refugee. An attempt is made to interpret

the provisions of the refugee documents, for the purpose of which different articles and

organizations websites have been surfed. Basically the websites of UNHCR, IOM and other

newspapers national and international have been of great significance to be able to understand

the terms included in this research paper.

1.6 Organization of the study

The first chapter deals with the basic introduction of the process of the concept of

refugee. The second chapter deals with the basic history of refugee problem, and emergence of

different international refugee documents/ instruments. The third chapter deals with the refugee

governance mechanism that includes UNHCR and UNRWA in specific. The fourth chapter deals

with the topic of refugee status determination where interpretations are made of the different

refugee conventions and declaration. The fifth chapter deals with the context of Nepal with

regards to the refugee problem and the RSD in Nepal.

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Chapter Two

2.1 Background

Migration has been a constant feature of human history. People have been migrating

either voluntarily or involuntarily, for a long-term or a short-term. Generally, migration can be

defined as the movement of people across a political or administrative border for a certain

period. Manning distinguished migration as labor migration, refugee migration and urbanization.

In the same manner, while dividing migration as short-term and long-term, voluntary and forced,

national and international, the type of migration that is relevant here is an international migration

with a forced tendency, under which Refugees fall. The refugee migration is concerned with

persons crossing one frontier and entering into another for the purpose of finding a refuge.

During the first half of the twentieth century, because of the Balkans war, the World War I and

the World War II, there was a triggering impact on trend of migration. During the same time

period, the Nazi ideology in Germany and in other collaborative states drove Millions of German

and European Jews, Gypsies, homosexuals, political opponents, alien-enemies into labor and

concentration camps.4 And under the Zionist movement

5, hundreds of Jews began migrating

inside the land of Palestine and after the 1947 UN Partition Plan creating a new state of Israel,

there arose the Palestinian refugee crisis. Millions of Palestinians were forced out of their land

and into neighboring Arab countries. For the purpose of the Palestinian refugee a separate UN

branch was deployed called UNRWA. Several other crises like in former Yugoslavia, Cambodia,

4 Lithi, Barbara, “Migration and Migration History.” http://docupedia.de/zg/ Migration_and Migration_History.

Acessed date: May 19, 2014. 5 Zionist Movement means a political movement for the establishment and support of a national homeland for

Jews in Palestine, now concerned chiefly with the development of the modern state of Israel. It is a policy or movement for Jews to return to Palestine from the Diaspora. Source: http://dictionary.reference.com/browse/zionist.

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Somalia and other war stricken areas/ the land of anguish6 held the role of the refugee

organizations more significant.

In the aftermath of the Second World War, the international community included the

right to seek and enjoy asylum in the UDHR (Article 14). In 1950, the Office of the UNHCR was

created to protect and assist refugees, and, in 1951, the UN adopted the Convention Relating to

the Status of Refugees (1951 Convention), which is the cornerstone document of refugee

protection. The rise in the scope of refugee crisis made it necessary to redefine the existing

instruments regarding refugee. The 1951 Refugee Convention with the spatial and temporal

limitation could not cover the newer emerged and emerging crisis. This is the reason why the

Optional Protocol in 1957 was adopted to supplement the 1951 convention.

It was also felt necessary by the regional organizations like the OAU to develop a

regional instrument to address the refugee problem in their region more specifically.

According to the last report of the UNHCR, the country bearing the largest number of

refugees was Pakistan with 1.6 million refugees from Afghanistan. And despite the Global

Apartheid/ South-North division, the refugees were found to be concentrated in the developing

countries. The developing countries host over four-fifth of the world’s refugee population (which

is 80%) compared to 70% ten years ago.7

2.2 International Instruments

There are most importantly two legal instruments governing the refugee regime i.e., the

1051 Convention Relating to the Status of Refugee and its 1967 Protocol. In case of the states

not party to the Refugee Convention or its Protocol, the Office of UNHCR in that territory is

6 The land of anguish means the country of origin that the asylum seekers leave because of some sort of violence,

persecution or fear of such. The phrase taken from http://www.huffingtonpost.co.uk/jehangir-malik/syria-land-of-anguish-and-despair_b_3633933.html 7 Supra note 2.

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governed by the Statue of the Office of UNHCR. Pursuant to a decision of the General

Assembly, the Office of the UNHCR was established on 1 January 1951. The Statute of the

Office is annexed to Resolution 428 (V), adopted by the General Assembly on 14 December

1950. According to the Statute, the High Commissioner is called upon--inter alia--to provide

international protection, under the auspices of the United Nations, to refugees falling within the

competence of his Office.

a. 1951 Convention Relating to the Status of Refugee

The 1951 Convention came as a result of mass movement of people in Europe because of

the World War I and World War II when between 20 to 30 million people were displaced in

Europe alone.8 This convention was aimed at addressing and solving the problems of refugee

that arose because of the events before 1 January, 1951 in Europe or such events elsewhere.9

Keeping in mind the definitions made by other conventions and agreements like the

Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933

and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International

Refugee Organization, the 1951 Convention defines the term refugee as to apply to persons 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.”

8 Berg, Chris. “Why cling on to an outdated refugee convention?” http://www.abc.net.au/unleashed/3577538.html

Accessed date: May 19, 2014. 9 1951 Convention Relating to the Status of the Refugees, 189 UNTS 137, Entry into Force 22 April 1954, Chapter

One B 1.

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Hungary and Turkey being a state party to the 1951 Convention recognized only the

Europeans that were victims before 1951 until the new national law was passed in Turkey (for

the purpose of Turkey). This is a best exam ple to illustrate why there was a necessity for a

supplementing document.

s. 1967 Protocol relating to the Status of Refugee

But the flow of people or their migration as asylum seekers didn’t stop as there were

newer conflicts taking place in the form of decolonization and inter-state wars, that forced a lot

of people to move out of their land and seek asylum in other countries. As the 1967 Protocol

Relating to the Status of Refugee reads:

Considering that the Convention relating to the Status of Refugees done at Geneva on 28

July 1951 (hereinafter referred to as the Convention) covers only those persons who have

become refugees as a result of events occurring before 1 January 1951, Considering that new

refugee situations have arisen since the Convention was adopted and that the refugees concerned

may therefore not fall within the scope of the Convention, Considering that it is desirable that

equal status should be enjoyed by all refugees covered by the definition in the Convention

irrespective of the dateline 1 January 1951. The definition of the term refugee in the Protocol

reads as from the Protocol

For the purpose of this Protocol, the term refugee shall except as regards to the

application of paragraph 310

of this article, means any person within the definition of article 111

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Paragraph 3 of the 1967 Protocol relating to the Status of Refugee, Article 1 reads “The present Protocol shall be applied by the States Parties hereto without any geographic limitation, save that existing declarations made by States already Parties to the Convention in accordance with article 1 B (1) (a) of the Convention, shall, unless extended under article 1 B (2) thereof, apply also under the present Protocol.” 11

Article 1 A (2) of the 1951 Convention relating to the Status of Refugee reads “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

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of the Convention as if the words “As a result of events occurring before 1 January 1951 and...”

and the words “... as a result of such events”, in article 1 A (2) were omitted.

c. Conventions Governing the Specific Aspects of Refugee Problem in Africa

In the same manner, the Convention Governing the Specific Aspects of Refugee Problem

in Africa adopted by the OAU in 1969 reads in Preamble no. 8:

Convinced that all the problems of our continent must be solved in the spirit of the

Charter of the Organization of African Unity and in the African context.

This is to say that the Convention developed by the OAU was deemed necessary for the

context of the continent, to solve the refugee problem in Africa more effectively. It defines the

term refugee as (including the definition of the 1951 Convention and the 1967 Protocol) 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.12

d. Cartagena Declaration on Refugees

The experiences of mass refugee flows from Cuba in the sixties, South America in the

seventies and Central America in the eighties, involving countries such as El Salvador,

Guatemala and Nicaragua did reveal that States and Communities in this region of the world

were simply not prepared for these type of refugee and humanitarian emergencies involving a

massive increase in individuals seeking Asylum, recognized refugees, repatriates, internally

displaced population as well as externally displaced population who feared being sent back to

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. 12

Organization of African Unity (OAU), Convention Governing the Specific Aspects of Refugee Problems in Africa ("OAU Convention"), 10 September 1969, 1001 U.N.T.S. 45, Article 1, pp 2.

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their countries where they could face persecution, discrimination and punishment as well as

military incursions in their refugee camps. These new challenges demanded new solutions and

forced governments to abandon the Asylum tradition and apply the Universal System more

extensively with the assistance of UNHCR.

Another international instrument discussed on this research paper is the Cartagena

Declaration on Refugees which is a non-binding agreement which was adopted by the

Colloquium on the International Protection of Refugees in Latin America, Mexico and Panama,

held at Cartagena, Colombia from 19-22 November 1984. The Cartagena Declaration on

Refugees bases its principles on the “commitments with regards to refugees” defined in the

Contadina Act on Peace and Cooperation (which are based on the 1951 UN Refugee Convention

and the 1967 Protocol).13

It reads in the document in No. I Para 2, “Recognizing that the refugee situation in

Central America has evolved in recent years to the point at which it deserves special attention;”

And in Para 7,” Expressing its conviction that many of the legal and humanitarian

problems relating to refugees which have arisen in the Central American region, Mexico and

Panama can only be tackled in the light of the necessary co-ordination and harmonization of

universal and regional systems and national efforts;”

The Cartagena Declaration defines the term refugee as,” The concept of a refugee to be

recommended for use in the region is one which, in addition to containing the elements of the

1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their

country because their lives, safety or freedom have been threatened by generalized violence,

13

Fahamu Refugee Program, “Cartagena Declaration on Refugee.” http://www.refugeelegalaidinformation.org/cartagena-declaration-refugees. Accessed date: May 22, 2014.

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foreign aggression, internal conflicts, massive violation of human rights or other circumstances

which have seriously disturbed public order.”14

While the Statue of the UNHCR still remains as the chief instrument for RSD in case of

countries not party to the Refugee convention or its protocol. This the Cartagena Declaration also

focus as,” …those of resolution 428 (V) of the United Nations General Assembly, by which the

mandate of the United Nations High Commissioner for Refugees is applicable to all States

whether or not parties to the said Convention and/or Protocol.”15

14

Regional Refugee Instruments & Related, Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984, pp II no. 2. 15

Ibid,pp I para 4.

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Chapter Three

3.1 Refugee Governance

In general “a person who is forced to leave their country of home because of war or

political, religious or social distortions” is called refugee. Likewise “a person who flee or is

expelled from a country, especially because of persecution, and seeks haven in another country”

are also regarded as refugee.

a. UNHCR

In the world context today, worldwide the refugee issue is governed by UNHCR. IN

Resolution 319 (IV) of 3 December 1949, the United Nations General Assembly decided to

establish a High Commissioner’s Office for Refugees as of 1 January 1951. The first United

Nations High Commissioner for Refugees was Gerrit J. van Heuven Goedhart from the

Netherlands (1951-1956). UNHCR’s headquarters are located in Geneva, Switzerland.16

The

High Commissioner has appointed representatives and correspondents in over 120 countries

throughout the world. UNHCR is entitled to grant refugee status in countries where its office is

established. The High Commissioner is also entitled to other activities as resettlement of the

refugees and repatriation The High Commissioner shall administer any funds, public or private,

which he receives for assistance to refugees, and shall distribute them among the private and, as

appropriate, public agencies which he deems best qualified to administer such assistance.

In the Statute the General Assembly called for states to co-ordinate with the office of

UNHCR by:17

Becoming parties to the international conventions relating to refugees

16

UN General Assembly, Statute of the Office of the United Nations High Commissioner for Refugees, 14 December 1950, A/RES/428(V), introductory Note. 17

Ibid, pp 2 a=h.

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Entering into agreements with the High Commissioner for the resolution of the

refugee problem

Admitting refugee to their territory

Assisting the High Commissioner by promoting the voluntary repatriation

Promoting assimilation of refugee by allowing naturalization

Providing refugee with travel and other documents

Assist the refugee in transfer of their assets especially for resettlement

Providing the High Commissioner with information regarding the number of

refugee and laws concerning and regulations concerning the refugees.

These very points mentioned and asked by the General Assembly to all the member

nations of the United Nations’ include the very founding durable solution for the solution of the

refugee problem i.e., voluntary repatriation, local integration and resettlement. The office of

UNHCR works not with an objective to facilitate the refugee protect their right to life out of the

country where they had threat by providing them with safe land in the host state or financially

assisting them. These are only the steps taken by UNHCR before it achieves one of the three

above mentioned durable solutions.

b. UNRWA

While UNHCR applies for all the cases but except for the Palestinians whose issue is

governed by a different body called the UNRWA. Israel expelled or forced the flight of some

700,000 Palestinians during and after the 1948 Arab-Israeli war that included the formation of

the state of Israel. Palestinians became refugees in Jordan, Syria, Egypt and Lebanon. The United

Nations established the UNRPR in November 1948, and pursuant to UN Resolution 302 on

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December 8, 1949, established the UNRWA in the Near east.18

The UNRWA for Palestine

Refugees in the Near East is a relief and human development agency, established as a subsidiary

body to the UNHCR, originally intended to provide jobs on public works projects and direct

relief for 652,000 Arabs who fled or were expelled from Israel during the fighting that followed

the end of the British mandate over Palestine.19

Today it provides education, health care, social

services and emergency aid to 5 million Palestinian refugees from the 1948 and 1967 wars and

their descendents.20

Operating through more than 11,000 staff in over 200 installations across the

Gaza Strip, UNRWA delivers education, health care, relief and social services, microcredit and

emergency assistance to registered Palestine refugees.21

UNRWA's responsibility in the camps is limited to providing services and administering

its installations. The Agency does not own, administer or police the camps, as this is the

responsibility of the host authorities. UNRWA has a camp services office in each camp, which

the residents visit to update their records or to raise issues relating to Agency services with the

Camp Services Officer (CSO). The CSO, in turn, refers refugee concerns and petitions to the

UNRWA administration in the area in which the camp is located.

The remaining two thirds of registered Palestine refugees live in and around the cities and

towns of the host countries, and in the West Bank and the Gaza Strip, often in the environs of

official camps. While most of UNRWA's installations such as schools and health centers are

18

Tristen, Pierre. “What is UNRWA- The United Nations Relief Works Agency?” http://middleeast.about.com/od/palestinepalestinians/f/what-is-unrwa.htm. Accessed date: May 23, 2014. 19

Dowty, Alan. Israel/Palestine, Polity (2012): 243. 20

Utrikespolitiska Institutet. “3/10:UNRWA in the light of the developments in the Middle East.” http://www.fib.se/pa-gang/item/1861-3-10unrwa-in-the-light-of-the-developments-in-the-middle-east. Accessed date: May 25, 2014. 21

UNRWA. “Where we work.” http://www.unrwa.org/where-we-work/gaza-strip. Accessed date: May 23, 2014.

21

located in the Palestine refugee camps, a number are outside; all of the Agency’s services are

available to all registered Palestine refugees, including those who do not live in the camps.22

UNRWA's $1.1 billion annual budget is underwritten by the United States, the European

Commission, Britain and Sweden. Other major donors include the Arab States of the Gulf

Cooperation Council, Scandinavian countries, Japan and Canada. Non-governmental

organizations and concerned individuals also contribute in smaller amounts.23

More than half the money is spent on education, with remarkable results. Palestinian

literacy is among the highest in the Middle East, and second-highest only to Kuwait among Arab

nations (the Palestinian illiteracy rate is 8%, Kuwait's 7%). In 2009, a Palestinian literacy group

won Sweden's Astrid Lindgren Memorial Award, a testament to UNRWA's work in Occupied

Palestine.24

22

UNRWA. “Palestinine Refugees.” http://www.unrwa.org/palestine-refugees. Accessed date: May 25, 2014. 23

Supra note 18. 24

Supra note 18.

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Chapter Four

4.1 Refugee Status Determination

A person is a refugee within the meaning of the 1951 Convention and its protocol as soon

as he fulfills the criteria contained in the definition. This would necessarily occur prior to the

time at which his refugee status is formally determined. Recognition of his refugee status does

not therefore make him a refugee but declares him to be one. He does not become a refugee

because of recognition, but is recognized because he is a refugee.25

Refugee Status

Determination is a process of marking the irregular migrants as refugee after certain criteria’s are

fulfilled by the applicant (asylum seeker). Refugee Status Determination is a process where the

body entitled for granting the refugee status (UNHCR) examines the application of the asylum

seekers and grant them refugee status after the criteria’s mentioned either in the refugee

conventions are fulfilled (in case of state parties to the Refugee Convention or its protocol) or the

criteria mentioned in the Statute of the UNHCR. And thus, the refugees that come under the

1951 Convention or its protocol are called conventional refugees. In the same manner, the

refugees granted the status by UNHCR in case when the host country is not a party to the

Refugee convention is called a UNHCR mandate refugee.

The provisions of the 1951 Convention defining who is a refugee consist of three parts,

which have been termed respectively “inclusion”, “cessation” and “exclusion” clauses.26

The

inclusion clauses define the criteria that a person must satisfy in order to be a refugee. They form

the positive basis upon which the determination of refugee status is made. The so-called

cessation and exclusion clauses have a negative significance; the former indicate the conditions

under which a refugee ceases to be a refugee and the latter enumerate the circumstances in which

25

Supra note 1, Chapter 2 General Principles No. 28. 26

Supra note 1, Chapet 2 General Provision No. 30

23

a person is excluded from the application of the 1951 Convention although meeting the positive

criteria of the inclusion clauses.

4.2 Interpreting the 1951 Convention Relating to the Status of Refugee

Definition of the term “refugee” under this convention: 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.” This general definition is discussed in detail below.

a. Events occurring before 1 January, 1951

The 1951 dateline originated in the wish of Governments, at the time the Convention was

adopted, to limit their obligations to refugee situations that were known to exist at that time or to

those which might subsequently arise from events that had already occurred.27

Now the term

“events” as the phrase has been removed by the 1967 protocol. It has not however been

interpreted in the Convention. The term “events’ can be interpreted as happenings of major

importance involving territorial or profound political changes as well as systematic programmers

of persecution which are after-effects of earlier changes.28

b. Well-founded fear

Fear is regarded as the most essential character of a refugee. Fear is however, a subjective

phenomenon and for the purpose of refugee status determination thus, the applicant’s statement

27

Supra note 1, Introduction para 7 28

Supra note 1, pp 36.

24

is taken more into consideration than the situation in the applicant’s country of origin.29

And to

this subjective condition i.e., the fear there is added an objective condition “well-founded”. And

this has to be satisfied as well. So, for the determination of refugee status, a person needs to

satisfy both the subjective and objective conditions. To prove that the fear is well-founded, the

applicant has to establish that his/her stay in the country of origin was intolerable because of the

reasons mentioned in the Convention. It will also be called well-founded when a friend of mine

or other person is attacked and not directly the applicant but the applicant is convinced of being

victim of persecution in near future. It can also be considered a well-founded fear of persecution

if the applicant has already been persecuted for at least once for the reasons mentioned in the

Convention.

c. Persecution

The concept of persecution evolved from the legitimate concern that used to be referred to as

“Valid objections” during the period of the IRO in which it excluded those persons who left their

country for “reasons of purely personal convenience.30

Even though the term “persecution” is not

defined in any international legal instrument, it can be

recalled that the drafters of the Refugee Convention intentionally left the term undefined in

cognizance of the nature of the concept as a sufficiently flexible and inclusive matter.31

A well-known Refugee Law scholar, James Hathaway, defines persecution as a sustained or

systemic violation of basic human rights resulting from a failure of state (Hathaway, 1991, p.

101). According to Hathaway, every type of serious harm does not amount to persecution.

29

Supra note 1, Chapter 2 Para 36 30

Hathaway, James C. The Law of Refugee Status. Canada: Butterworths Canada Ltd, 1001: 99. 31

Michelle, Lauren. “A New Standard for Evaluating Claims of Economic Persecution Under the 1951 Convention Relating to the Status of Refugees.” Vanderbilt Journal of Trans national Law 44.2: 504

25

Rather, the failure of the state in protecting its individuals from sustained and systemic violation

of basic human rights should be attributed in order for a persecution to exist.

From Article 33 of the 1951 Convention reads, “It may be inferred that a threat to life or

freedom on account of race, religion, nationality, political opinion or membership of a particular

social group is always persecution. Other serious violations of human rights--for the same

reasons--would also constitute persecution.” Whether other prejudicial actions or threats would

amount to persecution will depend on the circumstances of each case. Not all discrimination

amounts to persecution but only if it leads the applicant to a prejudicial nature.32

It is also very important to understand this Convention takes no account of the person’s

victim of famine or natural disaster who might flee their homeland for protection in other

neighboring states.33

4.3 Inclusion Clause

Inclusion clause governs criteria for determining a refugee status. Events occurring

before 1 January, 1951 are mentioned as criteria for the determination of refugee status in the

1051 Convention. While in the 1967 Protocol the dateline has been lifted and the geographical

limitation as well. Other elements like a well founded fear of persecution and that for the reason

of race, religion, sex or race has been mentioned in the convention. In the OAU Convention, due

to the aggression or external invasion has also been included as one of the factors of persecution.

3.3 Cessation Clause

This clause governs the condition when the refugee ceases to be a refugee. Of the six

cessation clauses, the first four reflect a change in the situation of the refugee that has been

brought about by him, namely: (1) voluntary re-an ailment of national protection; (2) voluntary

32

Supra note 1, Para 54. 33

Supra note 1, pp 39.

26

re-acquisition of nationality; (3) acquisition of a new nationality; (4) voluntary re-establishment

in the country where persecution was feared.

4.5 Exclusion Clause

Exclusion clause includes the criteria where an individual is excluded from receiving a

refugee status. 1) Persons already receiving United Nations protection or assistance, (2) Persons

not considered to be in need of international protection (Article 1 E of the 1951 Convention:

“This Convention shall not apply to a person who is recognized by the competent authorities of

the country in which he has taken residence as having the rights and obligations which are

attached to the possession of the nationality of that country.”), (3) Persons considered not to be

deserving of international protection are some of the criteria for the exclusion of an individual

from being eligible for applying for refugee status (war criminal, common crimes, acts contrary

to the purposes and goals of the United Nations.)

4.6 Interpreting the 1967 Protocol

The Convention relating to the Status of Refugees done at Geneva on 28 July 1951 covers

only those persons who have become refugees as a result of events occurring before 1 January

1951, and that new refugee situations arose since the Convention was adopted and that the

refugees concerned may therefore not fall within the scope of the Convention, the protocol was

adopted. And this particular protocol defined the term refugee as:

“…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 “... as a result of such events”,

in article 1 A (2) were omitted. The present Protocol shall be applied by the States Parties hereto

without any geographic limitation, save that existing declarations made by States already Parties

27

to the Convention in accordance with article 1 B (1) (a) of the Convention, shall, unless extended

under article 1 B (2) thereof, apply also under the present Protocol.

a. Geographic limitation

The Convention relating to the Status of Refugees made it clear the geographic limitation in

Article 1 B (1) and Article 1 B (2). In the paragraph following the point, it made it clear that the

states parties can have reservations to what extent its obligations are to be. This very notion of

reservation from the Convention was removed in the Protocol and also the spatial factors owing

to the fact that several other regions of the world were suffering from refugee crisis, and the

Convention certainly with the reservation was unable to address those issues.

b. Temporal limitation

As mentioned in the definition of the term “refugee” in the Convention, that stated events

accruing before 1 January, 1951 which was to address to the events of the World Wars, this there

were some states only party to the Convention who agreed to only recognize the Europeans as

the refugee that were victims before 1 January, 1951. A very clear example of the limitation and

why the protocol was adopted without these fashions of limitations.

However, the terms like “persecution”, “events” and “well-founded fear” meant the same in

this protocol.

It is very interesting to realize that these documents did not take into account the persons

Vitim of aggression, natural calamities or disasters or external invasion, which is also already

mentioned above in the research paper.

However, these two documents are taken as the corner stone of the refugee regime.

4.7 Interpreting the Convention Governing the Specific Aspects of Refugee Problem in Africa

28

“…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.”

“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.”

What happens in a regional instrument is that the problem of the region is basically

focused giving the most priority. The same is the cace with this Convention as well.

a. External aggression

Aggression, in international relations, is defined as an act or policy of expansion carried out

by one state at the expense of another by means of an unprovoked military attack. For purposes

of reparation or punishment after hostilities, aggression has been defined in international law as

any use of armed force in international relations not justified by defensive necessity,

international authority, or consent of the state in which force is used.34

The first use of armed

force by a State in contravention of the Charter constitutes prima facie evidence of aggression.

b. Occupation

Under IHL, there is occupation when a State exercises an uncommented-to effective control

over a territory on which it has no sovereign title. Article 42 of The Hague Regulations of 1907

34

Britanicca Encyclopedia. “Aggression.” http://www.britannica.com/EBchecked/topic/9091/aggression. Accessed date: May 26, 2014.

29

defines occupation as follows: “Territory is considered occupied when it is actually placed under

the authority of the hostile army. The occupation extends only to the territory where such

authority has been established and can be exercised.”35

c. Foreign Domination

It indicates the loss of authority by the government of a state and power exerted by a foreign

nation is explicitly felt in the victim state.

d. Events seriously disturbing public order either in part or whole of the country of origin

Public order is the absence of disorder in the public domain. It is the state when all the

individuals are free to exercise their will without conflicting them with others and without

harming others. Disturbed public disorder can be understood as a situation when people are

unable to exercise their rights and perform accordingly to pursue happiness. Adding the

qualification of “serious” is added to it, it might relate to the event being intolerable and

unbearable for continuation of one’s stay in that particular region.

The OAU definition acknowledges the reality that fundamental forms of abuse may occur not

only because of calculated acts of government of the refugees’ state of origin but also as a

governments loss of authority due to external aggression, occupation, foreign domination. The

anticipated is harm is no wrong because it is inflicted by a foreign power in control of a state

rather by a government of that state per se.36

The definition of OAU reverts to the pre-World War II refugee accords in recognizing the

concept of group disfranchisement.37

By its reference to people leaving their territory with

35

ICRC. “Occupation.” http://www.icrc.org/eng/war-and-law/contemporary-challenges-for-ihl/occupation/index.jsp. Accessed date: May 27, 2014. 36

Supra note 30, pg 17. 37

Supra note 30, pg. 18.

30

regards to external aggression, foreign domination or seriously disturbed public order, the OAU

legitimizes flight in situations of generalized danger.

4.8 Interpreting the Cartagena Declaration

According to Gibney (2005) the earlier definitions of the Latin American Asylum System

only recognized persecutions for political reasons and not for reasons of religious or ethnic

affiliation. However, the experiences of different crisis of massive flows of refugees in the region

forced them to transform their Asylum System.38

One of the most recent extensions to the refugee definition was made in the Cartagena

Declaration, adopted by ten Latin American states in 1984.39

In recognition of the inadequacy of

the Convention definition to embrace the involuntary migrants from generalized violence and

oppression in Central America, the state representatives agreed to a refugee definition that is

similar to the enacted by the OAU, where the definition of refugee was extended to:

“…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.”

The Convention of OAS shares some of the innovative characteristics of the OAU. It legitimizes

the refugee claim grounded on actions of external powers. Secondly, it offers a qualified

acceptance of group determination and the claim where the basis or rationed harm is

indeterminate. However, the OAS unlike its African counterpart does not explicitly provide

protection to claims of seriously disturbed public orders from a part of a region.

38

Gutierrez Silva, Rodolfo. “The impact of the Cartagena Declaration in Latin America – The Case of Ecuador.” http://rightsbasedapproach.wordpress.com/2012/09/04/the-impact-of-the-cartagena-declaration-in-latin-america-the-case-of-ecuador/. Accessed date: June 1, 2014. 39

Annual Report of Inter-American Commission on Human Rights 1984-1985, OEA/ Ser.L/ 11.66, doc. 10, rev. 1, 190-193.

31

Overall, OAS definition of a refugee marks something as a compromise between the Convention

standards and the very broad standards of OAU. It expands the persecution standard of the

Convention to take into account of abuse that can result from socio-political turmoil in

developing countries, yet constrains the prosecution obligation to the cases where it is possible to

show that there are some real risks of harm to person similarly situated to the refugee claimant.

According to Kneebone (2007: 9) the primary purpose of the Declaration was to promote the

adoption of national laws to implement the 1951 Refugees Convention and 1967 Protocol, “thus

fostering the necessary process of systematic harmonization of national legislation on refugees”.

Under this definition, refugees are primarily persons whose life, security or liberty is threatened.

The inclusion of generalized violence, internal conflicts, and massive violations of human rights

expands the refugee definition.

Sydney (2005) argues that although the Declaration extends the Refugee Convention´s

understanding of persecution to include those abused as a result of socio-political unrest, it also

limits the obligation to provide protection to cases where a real risk of harm can be proven,

which is similar to the burden of proof placed on an asylum claimant under the Refugee

Convention.

It is not just simply a document it is a process, it is not just a non binding legal

instrument, it is the main Directive that set the principles for a common strategy at the regional

level and a framework that provides a vision that focuses on providing Protection and Durable

Solutions.40

4.9 Comparative analysis

The researcher evaluates it is very important role of a regional document to address the

refugee problem in the region. As a document of universal nature might not be able to address

40

Supra note 39.

32

the minute details existing specifically in a region. The OAU remains as a good example of a

good regional document and specific definition of a refugee, carefully crafted after carefully

measuring the actual problems in the continent. The 1951 convention however, should act as a

guideline for drafting such a document; it still remains as the cornerstone of refugee document.

It is also very important because such problems have been observed all around the world, of

course but affecting particular regions with the flow of people from certain geography.

Such regional instruments certainly does not mean the regionalization of Human Rights or the

Refugee meaning but a collective effort by nations in a region to address the problem more

specifically by the identification of such problems.

33

Chapter Five

5.1 RSD in context of Nepal

a. Background

Nepal is not a state party to the 1951 Convention relating to the status of neither the

Refugee nor the 1967 Protocol. Recommendations have been made by CAT Committee, the

Committee on ESCR and the Committee on CERD suggesting Nepal to ratify the Refugee

Convention. So far, Nepal has not ratified any of the refugee conventions. Nor any other state in

South Asia has ratified the refugee convention, except for Afghanistan where terrorism and

violence are at peak and people flee continuously for safety.

Nepal is known in the international arena as a refugee receiving state and not as a refugee

generating state. Nationals from Bhutan and Tibet first created the refugee crisis in Nepal, for the

resolution, for the resolution of which the Office of UNHCR was established in Nepal on the 27th

day of August, 1989 with an objective of finding durable solution for asylum seekers arriving in

Nepal. Article 1 of the very agreement mentions about the establishment of the office of UNHCR

branch in Kathmandu, with tenure of 3 years which can be extended mentioned in Article 4.05

under the heading of General Provisions of the same agreement. This agreement was extended in

September 1, 1998 until a new Co-operation Agreement was signed between HMG and the

Office of UNHCR. A new agreement was later signed between the HMG and UNHCR on 20th

July, 2007 for the purpose of Refugee certificates. The agreement reads in point III under the

heading of UNHCR RSD that, “States and UNHCR are to fulfill their international obligations

towards refugees but in the absence of regulations or legal framework from the part of the state,

UNHCR implements the RSD from the international protection mandate directly.” the process of

RSD is governed by UNHCR solely in Nepal.

34

However, state has recognized the nationals from Bhutan and Tibet determined as

“mandate refugee” by UNHCR as refugee. Even though a regular policy is lacking in the case of

Bhutanese and Tibetans as well and the whole is carried out in ad hoc manner.41

The only

agreement that exists is the Gentlemen’s Agreement42

in the case of Tibetan refugee to provide

facilitation from state side for safe passage of the Tibetans to India.

More than 90 thousand of the total Bhutanese refugees in Nepal have already been

resettled till this date43

and the resettling process of other remaining around 29 thousand is on

process as a part of durable solution which includes voluntary repatriation, local integration and

resettlement.

But applicants are not only from Bhutan and Tibet asking for refugee status from the

office of UNHCR, there are applications from the nationals of Pakistan, Somalia, Iran,

Bangladesh and some other countries as the officer in KCC answered the researcher. These

urban refugees amount to some 670 in number.44

So far, these urban refugees and asylum seekers

of such nature are only regarded as illegal immigrants from the GON and no facilitation or

whatsoever is provided by the GON for their case. The attitude of GON is tolerant in their case

however. Only some allowances for education and health are provided by the office of UNHCR

to these urban refugees.45

The KCC is assisting the urban refugees in Nepal in coordination with

the office of UNHCR in Nepal.

41

Interview with Luma Singh Bishwokarma, Protection Officer, UNHCR Nepal. Date: May 12, 2014. 42

Gentlemen’s Agreement means A gentlemen's agreement (or gentleman's agreement) is an informal and legally non-binding agreement between two or more parties. It is typically oral, though it may be written, or simply understood as part of an unspoken agreement by convention or through mutually beneficial etiquette. The essence of a gentlemen's agreement is that it relies upon the honor of the parties for its fulfillment, rather than being in any way enforceable. It is, therefore, distinct from a legal agreement or contract, which can be enforced if necessary. 43

http://article.wn.com/view/2014/05/21/90000_refugees_from_Bhutan_resettled_IOM_International_Organ/. Accessed date: May 21, 2014. 44

Information gathered from the Kathmandu Community Centre. 45

United Nations Nepal Information Platform. http://www.un.org.np/unhcr. Accessed date: May 22, 2014.

35

5.2 Addressing the problem

Sides have been taken by intellectuals on whether Nepal should ratify the refugee

convention or not. The judiciary has also mentioned its view and concern on the refugee problem

and stated in the case “Muhammad Rashid versus GON 2064”46

asking for the government to

formulate a national legislation to address the refugee problem, SC however decided in favor of

the government and asserted that ratification of treaties and conventions is a political matter and

the matter of state’s foreign affairs and policy, and thus not suitable to give a verdict by the

judiciary. These certain assertions soared much the debate as Human Rights versus National

Interest, where the states would supposedly either chose not to ratify the particular conventions

or put reservations, to avoid the obligations that might arise.

It is also very important to note that the refugees were found to be concentrated in the

developing countries, the developing countries hosting over four-fifth of the world’s refugee

population (which is 80%) compared to 70% ten years ago. More precisely in context of Nepal,

the asylum seekers arriving belong to some country of South Asia or the very next neighboring

state. A national legislation would mean an isolated attempt by Nepal to solve the refugee

problem with other south Asian countries silent. It is very unlikely that the refugee problem

would be solved with the isolated attempt when most of the asylum seekers are from some south

Asian country or the very immediate neighbor state.

Let’s take into account how the OAU Convention on refugee and the Cartagena

Declaration on refugee worked, which are taken as example documents today. These documents

made specific provisions to address the specific problems in their region.

In context of Nepal, asylum seekers arrive from Bhutan and Tibet, Pakistan, Afghanistan,

Bangladesh, all belonging to south Asian region. India holds some 2 laky refugees from

46

Nepal Kanoon Patrika, 49.6 (2008): 765.

36

Afghanistan and Myanmar (the immediate neighbor). While Pakistan also holds some good

amount of refugee and asylum seekers from Afghanistan. Here it seems quite explicit, the need

for a regional instrument to address the issue.

The states generating the refugees and creating problem for other countries could be

asked to work more rapidly and more efficiently to halt the further creation of refugees and

asylum seekers from their respective country. This could help address the discriminatory laws

directed towards a certain group of people those were implemented in their country and created a

situation of persecution towards that particular group (for instance the 1984 legislation in

Pakistan declaring the Ahmadi people as non-Muslims and the government’s strict action

directed towards the Ahmadi people that were on the basis of religion). This regional instrument

could as well work for the best durable solution that is, voluntary repatriation by making the

governments of the respective country responsible for the fearful environment in their country

and to create a environment that is healthy to live for the people who fled such environment.

SAARC is the best platform to perform this Endeavour, which has been blamed for being

inactive.

This problem belongs to the region and an isolated attempt by Nepal presumably can

bring very less change. This might as well create more problems for Nepal by the arrival of more

asylum seekers. Nepal. At that time, because of a national legislation, more certainly three will

be obligations more in number and huge in responsibility compared to now.

37

Works Cited

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the under 19451 Convention and its 1967 Protocol relating to the status of Refugees”

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2. UNHCR, “Facts and Figures about Refugee.” http://www.unhcr.org.uk/about-us/key-

facts-and-figures.html. Accessed date: May 20, 2014.

3. Lithi, Barbara, “Migration and Migration History.” http://docupedia.de/zg/

Migration_and Migration_History. Acessed date: May 19, 2014.

4. Berg, Chris. “Why cling on to an outdated refugee convention?”

http://www.abc.net.au/unleashed/3577538.html Accessed date: May 19, 2014.

5. 1951 Convention Relating to the Status of the Refugees, 189 UNTS 137, Entry into Force

22 April 1954.

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Refugee Problems in Africa ("OAU Convention"), 10 September 1969, 1001 U.N.T.S. 45.

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for Refugees, 14 December 1950, A/RES/428(V), introductory Note.

38

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99.

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Under the 1951 Convention Relating to the Status of Refugees.” Vanderbilt Journal of

Trans national Law 44.2: 504.

16. Britanicca Encyclopedia. “Aggression.”

http://www.britannica.com/EBchecked/topic/9091/aggression. Accessed date: May 26,

2014.

17. ICRC. “Occupation.” http://www.icrc.org/eng/war-and-law/contemporary-challenges-for-

ihl/occupation/index.jsp. Accessed date: May 27, 2014.

18. Gutierrez Silva, Rodolfo. “The impact of the Cartagena Declaration in Latin America –

The Case of Ecuador.” http://rightsbasedapproach.wordpress.com/2012/09/04/the-

39

impact-of-the-cartagena-declaration-in-latin-america-the-case-of-ecuador/. Accessed

date: June 1, 2014.

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Ser.L/ 11.66, doc. 10, rev. 1, 190-19.

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May 22, 2014.

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