Bauschard Debate 9/25/15 5: 06 pm refugees Pre-Release

History of international refugee law and action

Guy S. Goodwin-Gill, August 2014, Professor Guy S. Goodwin Gill was formerly Professor of Asylum Law at the University of Amsterdam, served as a Legal Adviser in the Office of United Nations High Commissioner for Refugees (UNHCR) from 1976-1988, and was President of the Media Appeals Board of Kosovo from 2000-2003. He is the Founding Editor of the International Journal of Refugee Law and has written extensively on refugees, migration, international organizations, elections, democratization, and child soldiers. Recent publications include The Limits of Transnational Law, (CUP 2010), with Hélène Lambert, eds., The Refugee in International Law, (OUP, 2007), 3rd edn. with Jane McAdam; Free and Fair Elections, (Inter-Parliamentary Union, 2nd edn., 2006); Brownlie’s Documents on Human Rights, (OUP, 2010), 6th edn., with the late Sir Ian Brownlie, QC, eds; and introductory notes to various treaties and instruments on refugees, statelessness and asylum for the ‘Historic Archives’ section of the UN Audio-Visual Library of International Law. He practises as a Barrister from Blackstone Chambers, London, The International Handbook of Refugee Protection

http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199652433.001.0001/oxfordhb-9780199652433-e-021 DOA: 9-25-15

The modern law can now be traced back nearly 100 years, to legal and institutional initiatives taken by the League of Nations, first, in the appointment of a High Commissioner for Refugees in 1921, and then in agreement the following year on the issue of identity certificates to ‘any person of Russian origin who does not enjoy or no longer enjoys the protection of the Government of the Union of Soviet Socialist Republics and who has not acquired another nationality’. After the Second World War, the refugee question became highly politicized (Goodwin-Gill 2008), and the UN’s first institutional response to the problem—the International Refugee Organization (IRO), a specialized agency—was opposed by the Soviet Union and its allies, remaining funded by only 18 of the 54 governments which were then members of the United Nations. Notwithstanding the politics of the day, tens of thousands of refugees and displaced persons were resettled under IRO auspices, through government selection schemes, individual migration, and employment placement (Holborn 1975; Loescher and Scanlan 1986).

In 1951, the IRO was replaced by a new agency, an initially non-operational subsidiary organ of the UN General Assembly charged with providing ‘international protection’ to refugees and seeking permanent solutions. The Statute of the United Nations High Commissioner for Refugees (UNHCR) was adopted on 14 December 1950, and the Office came into being on 1 January 1951.² Its mandate was general and universal, including refugees recognized under earlier arrangements, as well as those outside their country of origin who were unable or unwilling to return there owing to well-founded fear of persecution on grounds of race, religion, nationality, or political opinion. Once a temporary agency, UNHCR was put on a permanent basis in 2003, when the General Assembly renewed its mandate ‘until the refugee problem is solved’.³

From the start, UNHCR’s protection responsibilities were intended to be complemented by a new refugee treaty, and the 1951 Convention relating to the Status of Refugees was finalized by states at a conference in Geneva in July 1951; it entered into force in 1954 (Goodwin-Gill 2009).⁴ Notwithstanding the intended complementarity, there were already major differences between UNHCR’s mandate, which was universal and general, unconstrained by geographical or temporal limitations, and the refugee definition forwarded to the Conference by the General Assembly. This reflected the reluctance of states to sign a ‘blank cheque’ for unknown numbers of future refugees, and so was restricted to those who became refugees by reason of events occurring before 1 January 1951; the Conference was to add a further option, allowing states to limit their obligations to refugees resulting from events occurring in Europe before the critical date.

The difficulty of maintaining a refugee definition bounded by time and space was soon apparent, but it was not until 1967 that the Protocol relating to the Status of Refugees helped to bridge the gap between UNHCR’s mandate and the 1951 Convention.⁵ The Protocol is often referred to as ‘amending’ the 1951 Convention, but in fact it does no such thing. States parties to the Protocol, which can be ratified or acceded to without becoming a party to the Convention, simply agree to apply Articles 2 to 34 of the Convention to refugees defined in Article 1 thereof, as if the dateline were omitted (Article I of the Protocol). Cape Verde, the United States of America, and Venezuela have acceded only to the Protocol; Madagascar and St Kitts and Nevis remain party only to the Convention; and Madagascar and Turkey have retained the geographical limitation. The Protocol required just six ratifications and it entered into force on 4 October 1967.

A refugee is anyone outside his or her own country who cannot return due to fear of persecution for reasons of race, religion, nationality or membership in a particular group

Guy S. Goodwin-Gill, August 2014, Professor Guy S. Goodwin Gill was formerly Professor of Asylum Law at the University of Amsterdam, served as a Legal Adviser in the Office of United Nations High Commissioner for Refugees (UNHCR) from 1976-1988, and was President of the Media Appeals Board of Kosovo from 2000-2003. He is the Founding Editor of the International Journal of Refugee Law and has written extensively on refugees, migration, international organizations, elections, democratization, and child soldiers. Recent publications include The Limits of Transnational Law, (CUP 2010), with Hélène Lambert, eds., The Refugee in International Law, (OUP, 2007), 3rd edn. with Jane McAdam; Free and Fair Elections, (Inter-Parliamentary Union, 2nd edn., 2006); Brownlie’s Documents on Human Rights, (OUP, 2010), 6th edn., with the late Sir Ian Brownlie, QC, eds; and introductory notes to various treaties and instruments on refugees, statelessness and asylum for the ‘Historic Archives’ section of the UN Audio-Visual Library of International Law. He practises as a Barrister from Blackstone Chambers, London, The International Handbook of Refugee Protection

http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199652433.001.0001/oxfordhb-9780199652433-e-021 DOA: 9-25-15
Article 1A(1) of the 1951 Convention applies the term ‘refugee’, first, to any person considered a refugee under earlier international arrangements. Then, Article 1A(2), read now together with the 1967 Protocol and without time or geographical limits, offers a general definition of the refugee as including any person who is outside their country or origin and unable or unwilling to return there or to avail themselves of its protection, owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group (an additional ground not found in the UNHCR Statute), or political opinion. Stateless persons may also be refugees in this sense, where country of origin (citizenship) is understood as ‘country of former habitual residence’.
The refugee must be ‘outside’ his or her country of origin, and having crossed an international frontier is an intrinsic part of the quality of refugee, understood in the international legal sense. However, it is not necessary to have fled by reason of fear of persecution, or even actually to have been persecuted. The fear of persecution looks to the future, and can emerge during an individual’s absence from their home country, for example, as a result of intervening political change.

“Refugee” does not cover those who have committed war crimes

Guy S. Goodwin-Gill, August 2014, Professor Guy S. Goodwin Gill was formerly Professor of Asylum Law at the University of Amsterdam, served as a Legal Adviser in the Office of United Nations High Commissioner for Refugees (UNHCR) from 1976-1988, and was President of the Media Appeals Board of Kosovo from 2000-2003. He is the Founding Editor of the International Journal of Refugee Law and has written extensively on refugees, migration, international organizations, elections, democratization, and child soldiers. Recent publications include The Limits of Transnational Law, (CUP 2010), with Hélène Lambert, eds., The Refugee in International Law, (OUP, 2007), 3rd edn. with Jane McAdam; Free and Fair Elections, (Inter-Parliamentary Union, 2nd edn., 2006); Brownlie’s Documents on Human Rights, (OUP, 2010), 6th edn., with the late Sir Ian Brownlie, QC, eds; and introductory notes to various treaties and instruments on refugees, statelessness and asylum for the ‘Historic Archives’ section of the UN Audio-Visual Library of International Law. He practises as a Barrister from Blackstone Chambers, London, The International Handbook of Refugee Protection

http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199652433.001.0001/oxfordhb-9780199652433-e-021 DOA: 9-25-15
The Convention does require that the persecution feared be for reasons of ‘race, religion, nationality, membership of a particular social group, or political opinion’. This language, which recalls the language of non-discrimination in the Universal Declaration of Human Rights and subsequent human rights instruments, gives an insight into the characteristics of individuals and groups which are considered relevant to refugee protection. These reasons in turn show that the groups or individuals are identified by reference to a classification which ought to be irrelevant to the enjoyment of fundamental human rights, while persecution implies a violation of human rights of particular gravity; it may be the result of cumulative events or systemic mistreatment, but equally it could comprise a single act of torture (Hathaway 2005; Goodwin-Gill and McAdam 2007).

“Refugee” definition

Dieter Kugelmann, lawyer and professor, March 2010, Refugees, Max Planck Encyclopedia of Public International Law, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e866 DOA: 9-25-15

3  Art. 1 (1) Convention relating to the Status of Stateless Persons ([adopted 28 September 1954, entered into force 6 June 1960] 360 UNTS 117) defines the term ‘stateless person’ as a person who is not considered a national by any State under the operation of its law (Nationality). It further prescribes the standards of treatment to be accorded to stateless persons. The Agreement relating to Refugee Seamen of 23 November 1957 grants specific protection to a special group of refugees. The non-binding Declaration on Territorial Asylum, United Nations General Assembly (‘UNGA’) Resolution 2312 (XXII) of 14 December 1967, lays down a series of fundamental principles in regard to territorial asylum (Asylum, Territorial) stating that the granting of territorial asylum ‘is a peaceful and humanitarian act and that, as such, it cannot be regarded as unfriendly by any other State’ (at para. 4).

4  Under international law, Art. 1 A (2) Refugee Convention defines the notion ‘refugee’ as a person who,

owing to a 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.

By Agreement, the Refugee Protocol extends the definition of a “refugee” to those impacted by war

Dieter Kugelmann, lawyer and professor, March 2010, Refugees, Max Planck Encyclopedia of Public International Law, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e866 DOA: 9-25-15

“Refugee Convention” definition is accepted world-wide

Dieter Kugelmann, lawyer and professor, March 2010, Refugees, Max Planck Encyclopedia of Public International Law, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e866 DOA: 9-25-15

Although the legal definition of refugees given in the Refugee Convention is a definition solely for the purposes of the Convention, it is in practice recognized for the purpose of humanitarian assistance on a worldwide basis. It can be seen as the core of a minimum standard definition for the status of a person as refugee. The law of the European Union contains a definition which is based on the Refugee Convention. According to Art. 2 lit. c Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need International Protection and the Content of the Protection Granted, the term refugee means

a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of [his] nationality and is unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country, or [it refers to] a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it.

SARPA definition of “refugee”

Dieter Kugelmann, lawyer and professor, March 2010, Refugees, Max Planck Encyclopedia of Public International Law, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e866 DOA: 9-25-15

Within the Organization of American States (OAS), two legal instruments of 28 March 1954 relate to refugees: the Convention on Diplomatic Asylum (Asylum, Diplomatic) and the Convention on Territorial Asylum (so-called Caracas Convention). The notion of refugee used in these conventions is close to the notion used in the Refugee Convention. A broader notion of refugee is endorsed by the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (‘SARPA Convention’). Taking into account the definition of the Refugee Convention, Art. 1 (2) SARPA Convention defines a refugee as a ‘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’. Refugee protection is not centred on the reason for persecution but on the individual need of the refugee to be protected. This notion, however, does not correspond with an enlargement of the rights of the refugee.

There are political, social, and legal definitions of a “refugee,” but all include the idea of someone who flees his or her existing living arrangement

Dieter Kugelmann, lawyer and professor, March 2010, Refugees, Max Planck Encyclopedia of Public International Law, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e866 DOA: 9-25-15

The notion ‘refugee’ can be understood from a sociological, political, or legal point of view. In a broader sense, a refugee is a person who flees his habitual place of residence and seeks refuge elsewhere. Persons may leave their homes because of natural disasters or because of man-made situations, especially out of fear of persecution, war, or other circumstances, menacing their individual sphere of interest. After a certain period of time they may return to their home countries or may stay in the destination country for an unlimited time. However, this description does not yet entail concrete legal consequences, because there is no consent on a general legal definition of the term refugee at the level of customary international law.

Cartagena definition includes those fleeing war

Hugo Story, Upper Tribunal Judge (Immigration and Asylum Chamber) (UTIAC) (formerly Senior Immigration Judge of the Asylum and Immigration Tribunal) in the United Kingdom (UK); formerly a law academic, and later an Honorary Research Fellow, at the University of Leeds; and a founding member of the International Association of Refugee Law Judges (IARLJ). The views expressed herein are my own and do not necessarily reflect those of UTIAC or the IARLJ. draft, 2012, Refugee Survey Quarterly, Armed Conflict in the Asylum Law: The “War-Flaw,” http://rsq.oxfordjournals.org/content/31/2/1.full DOA: 9-25-15

The Cartagena Declaration’s drafters were even more concerned to ensure their regional definition of refugee embraced those fleeing armed conflict and generalised violence, stating that: The definition or 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 generalised violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order.²

Those fleeing war are covered by broader and or subsidiary definitions of “refugee”

Hugo Story, Upper Tribunal Judge (Immigration and Asylum Chamber) (UTIAC) (formerly Senior Immigration Judge of the Asylum and Immigration Tribunal) in the United Kingdom (UK); formerly a law academic, and later an Honorary Research Fellow, at the University of Leeds; and a founding member of the International Association of Refugee Law Judges (IARLJ). The views expressed herein are my own and do not necessarily reflect those of UTIAC or the IARLJ. draft, 2012, Refugee Survey Quarterly, Armed Conflict in the Asylum Law: The “War-Flaw,” http://rsq.oxfordjournals.org/content/31/2/1.full DOA: 9-25-15

Significantly, within Europe, starting with various non-binding resolutions between EU Member States,²⁷ progressing to the Temporary Protection Directive²⁸ and culminating in the Qualification Directive, reform to ensure international protection for persons fleeing armed conflict was effected, not by including any specific criteria relating to them in the definition of persecution, but by dealing with them in the context of extra-1951 Convention “subsidiary protection”. Thus Article 15(c) of the QD provides that one of the three categories of serious harm concerns: “(c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”.

Article 15 of the EU QD was drafted against the backdrop that within the wider framework of the Council of Europe, the European Court of Human Rights (ECtHR) and its predecessor Commission, had been dealing with many cases involving persons fleeing from armed conflict who had been denied refugee status but claimed they should succeed under Articles 2 and 3 of the European Convention on Human Rights (ECHR).²⁹ At that time the Court’s response was as given in Vilvarajah v. the United Kingdom,³⁰ which concerned an asylum-seeker from Sri Lanka, that a person could not succeed on such a basis unless they could show a risk personal to him – again, some kind of exceptionality approach.

So when it comes to persons fleeing armed conflict there has been in various ways a visible displacement of refugee decision-making away from dealing with them under the Article 1A(2) refugee definition and towards catering for them either under broader, supplementary definitions of refugee (as in the OAU Convention) or under forms of subsidiary protection.

Four reasons those fleeing armed conflict should be protected as refugees

Hugo Story, Upper Tribunal Judge (Immigration and Asylum Chamber) (UTIAC) (formerly Senior Immigration Judge of the Asylum and Immigration Tribunal) in the United Kingdom (UK); formerly a law academic, and later an Honorary Research Fellow, at the University of Leeds; and a founding member of the International Association of Refugee Law Judges (IARLJ). The views expressed herein are my own and do not necessarily reflect those of UTIAC or the IARLJ. draft, 2012, Refugee Survey Quarterly, Armed Conflict in the Asylum Law: The “War-Flaw,” http://rsq.oxfordjournals.org/content/31/2/1.full DOA: 9-25-15

Before seeking to clarify the implications of the above analysis for refugee law, it is salient to remind ourselves of the major reasons why armed conflict cases need to be looked under the Refugee Convention. Firstly, because we know that Article 1A(2) was not supposed to exclude those fleeing armed conflict from consideration; secondly because we know that the Refugee Convention has primacy (it must have primacy on an international law level because, leaving aside the ICCPR and the Convention against Torture, it is the only refugee-specific treaty with a global application); thirdly, because we also know that all the regional treaties accord it primacy; and, finally, because otherwise we fail to combat the error of displacement – using other systems of refugee protection at a regional or state level as a substitute for application of Refugee Convention protection.

A2: International Humanitarian Law

International Humanitarian Law doesn’t protect refuges in conflict situations

Refugees caught in armed conflicts represent an archetypal case for testing the potential of the complementarity approach. The overlapping between international humanitarian law, refugee law, and human rights law is not disputable in this particular situation and their cumulative application reveals some unexpected conclusions. Although international humanitarian law is supposed to be the main branch of international law applicable in times of armed conflict, closer scrutiny of its specific norms proves rather frustrating (Section A). Indeed, international humanitarian law has little to provide for protecting the specific needs of refugees caught up in armed conflicts.

Related – Definition of “Persecution”

Persecution includes the threat of death

Guy S. Goodwin-Gill, August 2014, Professor Guy S. Goodwin Gill was formerly Professor of Asylum Law at the University of Amsterdam, served as a Legal Adviser in the Office of United Nations High Commissioner for Refugees (UNHCR) from 1976-1988, and was President of the Media Appeals Board of Kosovo from 2000-2003. He is the Founding Editor of the International Journal of Refugee Law and has written extensively on refugees, migration, international organizations, elections, democratization, and child soldiers. Recent publications include The Limits of Transnational Law, (CUP 2010), with Hélène Lambert, eds., The Refugee in International Law, (OUP, 2007), 3rd edn. with Jane McAdam; Free and Fair Elections, (Inter-Parliamentary Union, 2nd edn., 2006); Brownlie’s Documents on Human Rights, (OUP, 2010), 6th edn., with the late Sir Ian Brownlie, QC, eds; and introductory notes to various treaties and instruments on refugees, statelessness and asylum for the ‘Historic Archives’ section of the UN Audio-Visual Library of International Law. He practises as a Barrister from Blackstone Chambers, London, The International Handbook of Refugee Protection

http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199652433.001.0001/oxfordhb-9780199652433-e-021 DOA: 9-25-15
Although central to the refugee definition, ‘persecution’ itself is not defined in the 1951 Convention. Articles 31 and 33 refer to threats to life or freedom, so clearly it includes the threat of death, or the threat of torture, or cruel, inhuman, or degrading treatment or punishment. A comprehensive analysis requires the general notion to be related to developments within the broad field of human rights,⁶ and the recognition that fear of persecution and lack of protection are themselves interrelated elements. The persecuted do not enjoy the protection of their country of origin, while evidence of the lack of protection on either the internal or external level may create a presumption as to the (p. 39) likelihood of persecution and to the well-foundedness of any fear. However, there is no necessary linkage between persecution and government authority. A Convention refugee, by definition, must be unable or unwilling to avail him- or herself of the protection of the state or government, and the notion of inability to secure the protection of the state is broad enough to include a situation where the authorities cannot or will not provide protection, for example, against persecution by non-state actors.
The Convention does require that the persecution feared be for reasons of ‘race, religion, nationality, membership of a particular social group, or political opinion’. This language, which recalls the language of non-discrimination in the Universal Declaration of Human Rights and subsequent human rights instruments, gives an insight into the characteristics of individuals and groups which are considered relevant to refugee protection. These reasons in turn show that the groups or individuals are identified by reference to a classification which ought to be irrelevant to the enjoyment of fundamental human rights, while persecution implies a violation of human rights of particular gravity; it may be the result of cumulative events or systemic mistreatment, but equally it could comprise a single act of torture (Hathaway 2005; Goodwin-Gill and McAdam 2007).

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