In 2017, the world was rocked by the mass exodus of Rohingyas from Myanmar into Bangladesh. This was a result of a deadly crackdown by the Myanmar military on their settlements. Around 6,700 Rohingyas, including 730 children under the age of five, were killed within a month of the violence breaking out forcing the Rohingyas to flee their homes and seek shelter in the neighboring countries, particularly Bangladesh. With more than 700,000 Rohingya refugees living in Bangladesh today, this crisis has become one of the largest refugee crises the world has ever seen.
The above example is just one of the many such humanitarian tragedies occurring in the world today. The world hosts around 26 million refugees, half of which are children. As per the United Nations High Commissioner for Refugees, the premier institution to protect and assist refugees,1 in every 95 people on Earth has fled their home. Almost 70% of these refugees come from five counties, Syria, Venezuela, Afghanistan, South Sudan and Myanmar. The fleeing refugees face immense problems in the host country, trying to get shelter, food and eventually employment and acceptance by the new communities. The host countries also face a crisis with their population densities multiplying, markets disrupted, threat of violence breaking out imminent with permanent residents facing threats to their jobs and lives. Thus, the refugee crises around the world are one of the most pressing issues for humankind with most countries affected by one crisis or the other.
Current laws for refugee protection
Given the immense pressure on the host countries as well as the dire threats faced by the victims of persecution who are forced to flee their homes and countries, the world has come together to try and lay out an international framework to help the refugees and countries find suitable solutions in times of conflict. The paramount law on international refugees is the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. The Convention was adopted by the UN General Assembly in 1951. One hundred and forty-nine States have ratified either one or both of the instruments enabling almost global acceptance and enforcement of the laws laid down by the two legal documents. The Convention was drafted after the Second World War keeping in mind the huge number of refugees, particularly in Europe at the time. However, with new refugee crises taking place across the globe in late 1950s and early 1960s, the temporal and geographical scope of the Convention was widened. This was done by the 1967 Protocol to the Convention. The Protocol is independent of but integrally related to the Convention.
The Convention lays down the definition and the criteria to be fulfilled for an individual to qualify as a refugee. It states that a refugee is someone who has a “well-founded fear of being persecuted because of his or her: race; religion; nationality; membership of a particular social group; or political opinion, is outside his or her country of origin or habitual residence, is unable or unwilling to avail him or herself of the protection of that country, or to return there, because of fear of persecution, and is not explicitly excluded from refugee protection or whose refugee status has not ceased because of a change of circumstances”. An individual becomes a refugee as soon as these criteria are met, without needing any positive decision to become so.
Additionally, the Convention and the Protocol cover the rights and obligations of refugees in the host country where they are seeking asylum. Principal among these rights is that of non-refoulement, or the right of refugees to be protected from forcible return to their country of origin. Non-refoulement has come to be regarded as the cornerstone of international refugee law. This protection is applicable to all refugees, regardless of formal recognition by states. Hence, even asylum seekers, which is a pre-requisite for an individual to be considered a refugee, are protected from forced return. The documents also cover the states’ obligations vis-à-vis the refugees. They have to cooperate with UNHCR and follow the Convention and the Protocol. The two documents have attempted to ensure universal and non-discriminatory application of laws as well as provide the widest possible rights to refugees across the world.
However, with regional issues springing up in different parts of the world requiring more specific laws, many countries have also attempted to develop regional laws and standards on refugee protection that complement the 1951 Convention and 1967 Protocol. The most elaborate regional developments have taken place in Europe, specifically under the European Union. It has adopted four legislative instruments, concerning temporary protection, reception of asylum seekers, qualification for refugee status or subsidiary protection and the standards for asylum procedures. These seek to add to the 1951 Convention. The Charter of Fundamental Rights, adopted by the EU, in 2007 include the right to asylum and protection from removal, expulsion or extradition to a serious risk of being subject to the death penalty, torture or other inhuman or degrading treatment or punishment.
The end of colonial era in Africa brought with it a number of conflicts in different parts of the continent and consequently many large-scale refugee movements. This led to the drafting and adoption of the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa. It confirms the universal applicability of the 1951 Convention, adopting its refugee definition but also expanding it to include any person compelled to leave his or her country because of “external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his or her country of origin or nationality”. Along with this, it has other important provisions, like “grant of asylum to refugees is a peaceful and humanitarian act not to be considered an unfriendly act by any member of the African Union” and it requires State parties to take appropriate measures to lighten the burden of a State granting asylum “in spirit of African solidarity and international cooperation”.
Countries in Latin America also adopted a regional law to ensure refugee protection in 1984. This has come to be known as the Cartagena Declaration on Refugees. This too lays down the centrality of the 1951 Convention and the 1967 Protocol, while like the OAU Convention adding a regional specification to the definition of refugees vis-à-vis the 1951 Convention. While it is not a legally binding instrument, it has been incorporated into the national legislations by most countries in the region. This instrument has been endorsed by the Organization of American States, the UN General Assembly and the UNHCR’s Executive Committee.
The Arab Convention on Regulating Status of Refugees in the Arab Countries was adopted by the League of Arab States (LAS) in 1994. However, it could never enter into force, leading the LAS to adopt a new Convention on refugees in 2017.
The Asian and African countries also adopted the Bangkok Principles on the status and treatment of refugees in 2001. It uses the refugee definition given in the 1969 OAU Convention on Refugees.
The Members of the Organization of Islamic Cooperation adopted the Ashgabat Declaration in 2012, which recognizes “over fourteen centuries ago, Islam laid down the basis of granting refuge, which is now deeply ingrained in Islamic faith, heritage and tradition”. It also recognizes the importance of the 1951 Convention and the 1967 Protocol. Yet the declaration remains non-binding.
Moving beyond the regional specific agreements on refugee protection, there are a number of additional international laws that seek to complement the refugee law. The 1948 Universal Declaration of Human Rights lays down the rights available to all individuals on account of being human. It states that “all human beings are born free and equal in dignity and rights”. They also provide additional prohibitions on torture, slavery and non-discrimination which cannot be restricted or suspended by States for any reason. The Convention against Torture and Convention on Rights of the Child also provide protections to asylum-seekers and refugees, with the former prohibiting torture and refoulement and the latter providing fundamental rights for refugee children including their right not to be separated from their parents, special protection and assistance by State and assurance of education, adequate food and highest attainable standard of health. There are also many regional human rights instruments which are relevant to refugee protection like African Charter on Human and People’s Rights, ASEAN Human Rights Declaration, European Convention for Protection of Human Rights and Fundamental Freedoms, etc. Beyond these, the International Humanitarian law conventions like the Geneva Conventions and their Additional Protocols as well as International criminal law instruments like the Rome Statute provide additional details on criminal acts that may lead to individuals being excluded from refugee status.
The United Nations General Assembly, in 2018, approved the Global Compact on Refugees, which is a framework to provide for more predictable and equitable responsibility-sharing. It aims to ease the pressure on host countries, enhance self-reliance of the refugees, expand access to third-country solutions and support conditions in countries of origin for return in safety and dignity. Thus, the international refugee law has a plethora of legal instruments and literature available for the treatment and protection to refugees across the world.
International organizations protecting the refugees
The premier institution that helps refugees across the world is the UNHCR, even known as the UN Refugee Agency. It was established by the UN General Assembly after the World War II to help displaced Europeans. The UNHCR has a large staff, most posted in different parts of the world to help refugees on the field. It has been the primary organization helping the refugees in crisis hit countries like Afghanistan, Democratic Republic of Congo, Jordan, Lebanon, Colombia and Iraq.
It works closely with a number of other UN agencies whose work complements the protection of refugees. The International Organization for Migration helps ensure humane management of migrants, helps solve migration related problems as well as provide assistance to migrants and internally displaced people in need. The Office for Coordination of Humanitarian Affairs helps support co-ordination and mobilization of humanitarian action in response to emergencies and natural disasters and has helped the UNHCR in tackling displacement crises and humanitarian coordination. The Office of the United Nations High Commissioner for Human Rights works closely with the UNHCR to ensure the displaced and stateless refugees have access to their human rights in all situations. The United Nations Population Fund has signed an agreement with the UNHCR to help assess reproductive health and needs of refugees, put down measures to prevent and protect from sexual violence and integrate information on sexually transmitted diseases. The UNICEF further helps ensure child refugees are protected, live in sanitary environments and are provided with education. The two organizations in 2007 even launched appeal for funds to send thousands of Iraqi refugee children living in Syria, Jordan, Egypt and Lebanon to school. The World Food Programme and the World Health Organization similarly help the UNHCR in working towards protection and healthy survival of refugees.
The United Nations Relief and Works Agency for Palestine in the Near East (UNRWA) was established by the UN General Assembly in 1949 to help Palestine refugees in the Middle East. It provides direct services, including primary and secondary education, health care, social services, microfinance and emergency aid to Palestine refugees.
Additionally, there are a number of international NGOs and think tanks, like Amnesty International, Brookings, Carnegie Endowment for International Peace etc. which help provide basic facilities, medical aid, food etc. to these refugees, complementing the work done by the official UN agencies.
Current scenario and the future
As is clear, there is an abundance of laws, regulations and organizations in the international arena to efficiently tackle the problem of refugees across the world. Yet, in practice, countries have fallen more than a little short in helping the victims of some of the worst conflicts. This is especially true in case of the developed and the rich countries which continue to treat refugees as “not their problem”. As a matter of fact, most of the refugees of the world are hosted by the Middle East, African and South Asian countries. They’ve also held back in providing funds to the plethora of organizations leaving them too broke to even feed refugees properly. The makeshift nature of the refugee camps further fails to protect them from potential natural disasters. The recent fire in Cox Bazaar, one of the largest refugee camps in the world hosting Rohingya refugees, was evidence of this fact. It led to more destruction and devastation for an already traumatized group of people.
The recent pandemic further worsened the plight of refugees. Faced with lockdowns and economic shutdowns, the refugees have had their meagre sources of livelihood being taken away with no immediate end in sight. The sanitary conditions of the camps that they live in further heightens their vulnerability to the virus. Medical aid has been less than adequate in most camps through the course of the pandemic.
Yet, there have been measures taken to protect refugees against the virus with the International Organization for Migration installing sanitizer stations, closing community kitchens, educating refugees and the staff about the virus and how to be safe from it. Additionally, the UNHCR has been monitoring the vaccination procedures for refugees and asylum seekers, with the process under way in 101 of the 162 countries.
Some of the steps that the world can take to ensure better protection and treatment of the refugees include allowing refugees to cross borders without travel documents, ensuring immediate help is provided to the displaced people instead of questioning them at the border. There is a need to stop blaming refugees for the host country’s economic and social problems, and combat problems like xenophobia and racial discrimination. Funding the UN Agencies is another imminent step that needs to be taken by countries, especially the rich and developed ones. Above all else, countries need to respect and follow the 1948 Universal Declaration of Human Rights provision stating that ‘asylum is a human right’ in spirit.
Additionally, no international or regional legal instrument on refugees currently specifically addresses the predicament of those having to leave their countries due to natural disasters, which are increasingly being triggered by climate change, another pressing global issue. There is an urgent need to incorporate this provision into the current laws given more and more people are impacted by natural disasters and have to flee their countries consequently.
[Photo by DFID – UK Department for International Development]
Akanksha Singh is pursuing a master’s degree in international relations at Jindal School of International Affairs, India.