8 - Refugees

Refugees: Overview and Legal Framework

Introduction

• Article last updated: March 2010.

• Subject: Refugees and Internally Displaced Persons.

• Author: Dieter Kugelmann.

• Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law.

Notion of Refugee

Broader Definition

• Refugees are individuals who flee their habitual place of residence seeking refuge elsewhere.

• Reasons for displacement:

  • Natural disasters

  • Fear of persecution or war

  • Threats to personal safety or human rights.

Legal Definitions

1. Treaty Definitions

   • The 1951 Convention relating to the Status of Refugees (Refugee Convention) is the fundamental legal instrument for refugee protection.

   • Modified by the 1967 Protocol relating to the Status of Refugees (Refugee Protocol).

   • Both instruments are in force for 144 States.

2. Additional Provisions

   • The Geneva Conventions provide additional protections for refugees and displaced persons (e.g., Geneva Convention IV).

   • Art. 1 of the Convention relating to the Status of Stateless Persons defines a stateless person and their treatment standards.

   • UNGA Resolution 2312 (XXII) emphasizes territorial asylum as a humanitarian act.

Definition Under the Refugee Convention

• Art. 1 A (2): Defines a refugee as someone with a well-founded fear of persecution due to race, religion, nationality, social group membership, or political opinion.

• The fear of persecution must lead to crossing a national border, excluding those fleeing natural disasters or civil unrest.

Grounds and Criteria of Persecution

Definition of Persecution

• Life or significant rights endangered by actions attributed to a State or State-like entity.

• Can also stem from non-State actors, particularly in civil conflicts.

Legal Framework

• Art. 1 A (2) Refugee Convention: Specifies five grounds for persecution.

  • Race: Based on characteristics such as color or ethnic origin.

  • Religion: Violations of freedom of religion can qualify for refugee status.

  • Nationality: Includes origins and specifics like ethnic and cultural membership.

  • Social Group: Includes factors like gender, sexual orientation, and other identities.

  • Political Opinion: Protects freedom of expression and political dissent.

Internally Displaced Persons (IDPs)

Definition

• IDPs are individuals forced to flee within their country without crossing borders, still under the State's responsibility.

• Standpoint of the UNHCR extends responsibilities to include IDPs in refugee-like situations.

Causes of Internal Displacement

• Conflicts, natural disasters, and civil wars are primary reasons for internal displacement.

Legal Protection Mechanisms

• Asylum Seekers: Protection extends to those seeking asylum while their cases are being processed, based on similar grounds for refugee status.

• De Facto Refugees: Individuals awaiting determination of asylum who cannot be expelled due to humanitarian reasons.

Non-Refoulement Principle

Legal Basis

• Art. 33 (1) Refugee Convention: Prohibits expelling or returning refugees to territories where their life or freedom would be threatened.

• Critical for ensuring protection and safety of refugees; influences state sovereignty.

Scope and Application

• Applies to individuals meeting the refugee definition, asylum seekers, and potentially IDPs needing international care.

Exceptions

• Certain individuals may be expelled if deemed a danger to national security or public order under specific provisions of international law.

Rights of Refugees

Fundamental Rights

• Refugees enjoy a range of rights under the Refugee Convention, including:

  • Non-discrimination in public relief and labor rights (Art. 23, 24).

  • Freedom of association and employment opportunities (Art. 15, 17).

  • Access to courts and education (Art. 16, 22).

Paragraphs on Human Rights

• The Refugee Convention affirms the necessity to protect the human rights of refugees, emphasizing their non-discriminatory rights.

• Rights are linked to the presence and acceptance of refugees within state jurisdictions.

Subsidiary Protection

• For individuals who do not meet the refugee criteria but face serious harm upon return to their country of origin.

• Directive 2004/83/EC outlines the standards of subsidiary protection within the EU.

Historical Context

Evolution of Refugee Law

• The issue of refugees emerged internationally in the 20th century, gaining substantial legal frameworks post-World War I and II.

• Significant treaties and declarations led to the current framework set by the 1951 Refugee Convention and the 1967 Protocol.

Regional Activities

• Various regional instruments, such as the Cartagena Declaration in Latin America and the SARPA Convention in Africa, address specific aspects of refugee rights and definitions.

Conclusion

• Continuous development in international and regional law is critical to address refugee protection and ensure compliance with human rights norms.

• Evolving context calls for broadening the understanding and support for refugees and asylum seekers worldwide.

The Global Compact on Refugees and Burden Sharing

Context

• Over 68.5 million individuals are forcibly displaced globally, including 25.4 million refugees (UNHCR).

• The 1951 Refugee Convention lacks explicit provisions for burden sharing among states.

• The New York Declaration for Refugees and Migrants (Sept 2016) called for a Global Compact on Refugees (GCR) to establish equitable burden sharing practices.

• The GCR was adopted on December 17, 2018, aiming to promote international cooperation and distribution of responsibilities.

The Burden Sharing Gap in International Law

Definition of the Normative Gap

• Normative Gap: Lack of clear international guidelines surrounding co-responsibility for refugee hosting.

• Burden sharing, often seen as related to responsibility sharing, involves distributing costs and benefits among states addressing global challenges.

• Key legislative gaps include:

  • No clear reference to burden sharing in the 1951 Refugee Convention.

  • Absence of compensation mechanisms for states disproportionately supporting refugees.

Types of Protection Gaps

• Application Gaps: Instruments not applicable to certain states.

• Implementation Gaps: Variations and discrepancies in application among states.

• Normative Gaps: Unaddressed challenges in the contemporary refugee landscape, e.g., large influxes of refugees.

International Response Initiatives

The New York Declaration and its Goals

• Member states committed to equitable burden sharing and responsibility in providing assistance to refugees.

• Calls for:

  • The adoption of Global Compacts: GCR and the Global Compact on Migration.

  • UNHCR tasked with the preparation of the GCR.

• Objectives include:

  • Alleviating host country pressures.

  • Enhancing self-reliance of refugees.

  • Expanding resettlement opportunities.

The Global Compact on Refugees Overview

Key Features of the GCR

• The GCR is non-binding; it serves to guide international efforts.

• Promotes predictability and shared responsibility but lacks enforcement mechanisms.

• The GCR's goals include:

  1. Ease pressures on host countries.

  2. Enhance self-reliance of refugees.

  3. Expand access to third country solutions.

  4. Support conditions in countries of origin for safe return.

Proposed Mechanisms

• The GCR introduces:

  • Global Refugee Forums: Held every four years to track progress and foster international cooperation.

  • Support Platforms: Tailored responses to specific refugee crises.

  • Solidarity Conferences: Enhance collaboration among states and stakeholders.

Critiques of the GCR

• GCR does not adequately fill the normative gap; it's seen as superficial in terms of obligating states to share the burden of refugees.

• Important critiques include:

  • Lacks concrete mechanisms for compensation.

  • Terms are vague and do not establish clear obligations for states.

  • Risks replicating past inadequacies without providing valid solutions.

Conclusion and Future Considerations

Suggestions for Improvement

• Inclusion of concrete distribution models in the GCR, such as:

  1. Quota-based systems for refugee distribution per state.

  2. Financial contributions benchmarked on GDP or population.

  3. Minimum contributions from all participating states to avoid free-riding.

• These models should specify responsibilities and incorporate common but differentiated responsibilities, allowing for tailored contributions based on state capacity.

Final Thoughts

• The GCR, while a significant step forward, requires further refining to effectively address the pressing normative gap regarding burden sharing.

• Solid models for burden cooperation can enhance international response to future refugee crises.

The Global Compact for Migration

• Date and Author: November 21, 2018, by Anne Peters

• Context: The "Global Compact for Safe, Orderly and Regular Migration" was set to be adopted at an intergovernmental conference in Marrakesh in December 2018.

• Key States Refusing to Sign: United States (2017), Austria, Hungary, Czech Republic, etc.

Juridical Quality of the Compact

• Raises questions about its relevance in international law.

• Legal Consequences and Normative Impact: The Compact's legitimacy and normative power are under scrutiny.

Overview of the Compact's Contents

• Structure: The Compact has four parts:

  • Preamble

  • Vision and Guiding Principles

  • Objectives and Commitments (23 objectives)

  • Implementation

  • Follow-up and Review

• Purpose: Aims for a common understanding and shared responsibilities regarding migration, emphasizing that migration should "work for all" (para. 13).

• Guiding Principles: Include people-centeredness, international cooperation, national sovereignty, rule of law, due process, and sustainable development (para. 15).

• Key Objectives: 23 objectives, including:

  • Save lives (Objective 8)

  • Respond to smuggling (Objective 9)

  • Eradicate trafficking (Objective 10)

  • Promote transfer of remittances (Objective 20, more relevant for states of origin)

  • Facilitate return and readmission (Objective 21, more relevant for receiving states).

Controversies and Criticisms

• Some states argue it would force them to admit migrants and violate sovereignty.

• Critics argue the Compact lacks clarity and addresses migration mostly from an economic perspective, ignoring broader cultural implications.

• Responsibilities of states of origin to improve living conditions and the issue of overpopulation are notably absent.

Legal Nature of the Compact

• Non-Binding Status: The Compact is legally non-binding, meaning it cannot dictate migration policy.

• Binding nature depends on the intentions of states:

  • Generally seen as non-binding due to its title and content.

  • Previous examples of binding compacts exist (e.g., Pact of San José).

  • Process followed typical conference proceedings without strong indicators of binding commitment.

  • The text explicitly classifies itself as a non-legally binding cooperative framework (para. 7, 15).

Functions of the Migration Compact

• Legal Functions: Can serve as:

  • Pre-Law: A potential forerunner to hard law.

  • Para-Law: A workaround for the low ratification status of extensive migration treaties.

  • Law-Plus: A guideline for interpreting hard law commitments.

• Domestic Implementation: It could influence national authorities and judicial interpretations.

Effectiveness in International Relations

• Non-binding texts often have similar effects to binding texts in practice due to challenges in enforcement.

• Follow-Up Mechanism: Includes biannual reporting and an international forum every four years starting in 2022 (Implementation structures outlined in paras. 45-49).

Legitimacy Issues

• Discussion on democratic legitimacy arises due to the compact's non-binding nature.

• Examples from the NATO Strategic Concept illustrate differing interpretations of binding treaties and parliamentary involvement.

• Some governments' reluctance to sign reflects internal political landscapes and public pressure.

Global Transparency and Participation in Law Making

• Ongoing debates on transparency in negotiations; some argue a lack of inclusive public participation may undermine legitimacy.

• Comparison to previous treaties like the Paris Agreement, which were openly developed under public scrutiny.

• The need for global migration regulation persists, hinting that negotiations may continue despite some governments retracting commitments.

Overview of the Global Compact on Refugees

• Affirmation Date: On 17 December 2018, the UN General Assembly affirmed the Global Compact on Refugees after extensive consultations.

• Consultation Process: Led by UNHCR, involved Member States, international organizations, refugees, civil society, private sector, and experts over a two-year period.

• Purpose: The Compact serves as a framework for predictable and equitable responsibility-sharing, emphasizing that sustainable solutions to refugee situations necessitate international cooperation.

• Goals: To transform responses to refugee situations for the benefit of both refugees and host communities.

Key Objectives of the Global Compact on Refugees

1. Ease Pressures on Host Countries: Recognizes the burden faced by countries hosting refugees and seeks to provide support.

2. Enhance Refugee Self-Reliance: Aims for refugees to lead productive lives and contribute to their communities.

3. Expand Access to Third-Country Solutions: Facilitates pathways for refugees to settle in third countries.

4. Support Conditions for Return: Encourages safe and dignified return of refugees to their countries of origin.

Components of the Global Compact on Refugees

• Divided into four main parts:

  1. Introduction: Outlines background and guiding principles, encapsulating political will and collective ambition for cooperation and solidarity.

  2. Comprehensive Refugee Response Framework (CRRF): Established by Member States as part of the New York Declaration.

  3. Programme of Action: Detailed concrete measures to meet the objectives, including initiatives like the Global Refugee Forum to share responsibilities and support host communities.

  4. Follow-Up and Review: Mechanisms for oversight through periodic forums, high-level officials meetings, and annual reports by the High Commissioner.

Implementation Events

• Global Refugee Forum (GRF): Held every four years to address issues and facilitate cooperation.

• High-Level Officials Meeting (HLOM): Takes place two years after each GRF to discuss commitments and progress.

• Indicator Report: Compiled every two years to measure effectiveness and progress.

Background Context

• The 2016 New York Declaration established international responsibilities for the protection of refugees and support for host countries, emphasizing equitable and predictable distribution of these duties.

• Consultation Process: The development of the Global Compact included thematic discussions, formal consultations, and contributions from various stakeholders, leading up to its affirmation in December 2018.

Community Engagement

• Digital Platform: A growing online community promotes initiatives supporting refugees and hosts, gathering pledges and contributions to turn the Compact into actionable strategies.

• Good Practices Submission: Individuals and organizations can share effective initiatives assisting refugees and host communities.

Additional Resources

• Indicator Reports: Assessing progress since the Compact’s adoption, such as the Indicator Report of 2023 and previous frameworks from 2019 and 2021.

• Complementarity with the 1951 Convention: Highlights the relationship between the Global Compact and existing international refugee law.