Week 4 - Refugees

Territorial Asylum + Key Points

Protection given by a state within its own country

• recognized in IL as a sovereign right

• no sovereignty conflict because the person is already inside the granting State’s territory

• 1951 Refugee Convention

• Ex. Nansen & Nansen passports

Diplomatic asylum

Protection provided within the diplomatic premises of an embassy located in another state.

• recognized mainly as a regional practice —> not recognized as a universal right

• NOT recognized as a general rule of customary IL

• temporary protection

• Ex. Cardinal Jozsef Maindszenty

UN (conventions)

• 1946 International Refugee Organization

• 1949 Palestinian Refugees: UN Relief & Works

• 1951 UN High Commissioner for Refugees

People in Need of Protection (categories + definitions)

• Internally Displaced Persons (IDPs): forced to flee but remain inside own country

• Outside Home Country

Asylum Seekers: applied for protection but not yet recognized

Refugees: legally recognized after asylum approval

Migration Classification

• voluntary vs forced,

• internal vs international,

• temporary vs permanent,

• regular vs irregular,

• immigration vs emigration,

• motivation: economic, political, environmental, family-related.

Forced Migration

• The person moves because life, physical integrity, or basic rights are seriously threatened.

• Examples: war, torture, slavery, human trafficking, severe discrimination.

Voluntary Migration

• The person chooses to move, often for better economic opportunities.

• in practice: compelled/reluctant migration

IDPs

• forced to flee home but do NOT cross an international border

• NOT under then 1951 Refugee Convention because they have not crossed a border

Regular/Legal Migration

• Migration in accordance with national and international rules.

• Example: valid visa, residence permit, legal employment.

Irregular Migration

• Migration that violates entry or stay rules.

• Example: expired residence permit, illegal employment, illegal entry.

Forced Irregular Migration

A person may enter irregularly to escape conflict, famine, persecution, or other danger.

• forced to leave due to well-founded fear of persecution

Direct/Explicit Universal Refugee Protection

1. 1948 Universal Declaration of Human Rights

2. 1951 Convention on Status of Refugees

3. 1961 Refugee Protocol

4. 2018 Global Compact on Refugees

Direct/Explicit Regional Refugee Protection

• 1969 African OAU Refugee Convention.

• 1984 Cartagena Declaration in Latin America

• 2009 AU Kamapala Convention on Internal Discplacement

Indirect/Implicit Universal Refugee Protection

• 1966 Int. Covenant on Civil and Political Rights,

• 1984 Convention Against Torture.

Indirect/Implicit Regional Refugee Protection

• European Convention on Human Rights,

UNHR Article 14

• 1948

• Everyone has the right to seek and enjoy asylum from persecution in other countries.

• But this right cannot be used to escape genuine prosecution for ordinary non-political crimes or acts against UN principles.

Refugee Convention

• 1951

• has a well-founded fear of persecution,

• because of race, religion, nationality, political opinion, or membership of a particular social group,

• is outside their country,

• and cannot or will not seek protection from that country.

• legally binding but no strong enforcement body (UNHCR as a supervisor, disputes go to ICJ, public shaming)

Elements of Refugee Status

• Well-founded fear: the person genuinely fears harm, and the fear is objectively reasonable.

• Persecution: serious harm, such as threats to life, freedom, or severe discrimination.

• Convention ground: persecution must be because of race, religion, nationality, political opinion, or particular social group.

• Outside country of nationality: the person must have crossed a border.

• Unable or unwilling to seek state protection: the home state is persecuting them or cannot/will not protect them.

Criticisms of 5 elements of refugee

• not clearly protect people fleeing generalized violence.

• not cover climate displacement.

• excludes purely economic migration.

• limited persecution grounds.

• requires crossing an international border.

• It was originally state-centered, even though modern persecution may come from militias, gangs, or terrorist groups.

Principles of the Geneva Convention

• Non-refoulement: do not return refugees to danger. (Article 33)

• Unity of the family: refugee protection should respect family unity.

• Non-discrimination: refugees should not be treated differently based on irrelevant characteristics.

Safe 3rd Country

• a country where the asylum seeker was present before reaching the current asylum state and where they could have accessed effective protection.

Safe 3rd Country: Criteria

• no persecution risk,

• real access to asylum procedures,

• respect for non-refoulement,

• basic living standards.

Safe 3rd Country: Controversies

• Some countries are safe on paper but not in practice.

• It may shift responsibility from richer states to poorer neighboring states.

• If applied too rigidly, it may violate non-refoulement.

Refugees: exclusion

fit the definition BUT:

• crimes against peace,

• war crimes,

• crimes against humanity,

• serious non-political crimes,

• acts against UN principles.

Refugee: status end

• voluntarily returns home.

• regains protection from the home state.

• acquires a new nationality.

• permanently resettles elsewhere.

• Conditions in the home country fundamentally change.

Refugee: rights & obligation

• Article 2: must obey the laws and public order rules of the host country.

• Refugees shall be treated at least like nationals

• Refugees shall be treated at least like other non-nationals

Refugees: rights compared to nationals

• freedom of religion,

• artistic and industrial property,

• rationing,

• elementary education,

• public relief,

• labor legislation and social security.

Refugees: rights compared to non-nationals

• property,

• association,

• wage employment,

• self-employment,

• liberal professions,

• housing,

• higher education,

• freedom of movement and residence.

Durable Solution

• Voluntary Return

• Integration

• Resettlement to a third country

Voluntary Return

• Refugees return to their country when it is safe.

• This must be voluntary, informed, safe, and dignified.

• Usually considered the preferred solution.

Integration

• Refugees settle in the host country.

• This can lead to naturalization.

• It requires legal, economic, social, and cultural adaptation.

Resettlement

• Refugees move from the first asylum country to another state that agrees to admit them.

• Used when return and integration are not possible.

• Usually the least available option.