Africa: International Refugee Law

analysis

How are refugees protected by international law?

I - INTRODUCTION

The United Nations High Commissioner for Refugees (UNHCR) recently described the forced displacement of people as "one of the most daunting challenges that confronts the international community in the 21st Century" [1]. Large-scale movement both within and across international borders - as people flee persecution, conflict, famine, climate change and widespread human rights abuses - continues to strain both the willingness and capacity of the international community to respond. In this context, legal instruments at both the international and regional level impose important obligations on states regarding the protection and treatment of refugees. They also provide an important advocacy tool for organisations and individuals seeking to advance protection in practice.

i) General international protection

Under international law, refugees benefit from a wide range of rights provided for by international human rights treaties - notably the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) - as well as regional human rights instruments, in particular the 1981 African Charter on Human and Peoples' Rights (the 'Banjul Charter'). For the most part, states' human rights obligations under these instruments pertain to individuals within their territory or jurisdiction and without distinction as to nationality, and this is widely accepted to include refugees. For example, states party to the ICCPR who host refugees are obliged to afford them the same rights to life, liberty, freedom of opinion and equal treatment before the law as they are obliged to afford their own nationals.

ii) Specific international instruments

However, the particular needs of refugees - who are, by definition, without the protection of their home state - have also been addressed by a number of specific legal instruments, many of which in fact pre-date the more general human rights instruments listed above. Treaties such as the 1951 Convention relating to the Status of Refugees, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, the African Union's Convention for the Protection and Assistance of Internally Displaced Persons in Africa (commonly referred to as the 'Kampala Convention') and the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families are designed to address the particular needs of refugees, as well as some other displaced persons. These instruments will be the focus of this article.

II - INTERNATIONAL REFUGEE PROTECTION

The primary source of refugee protection under international law is the 1951 Convention relating to the Status of Refugees (the '1951 Refugee Convention'). Drafted in response to large-scale displacement in Europe following World War II, the Convention was one of the first human rights treaties and is now one of the most widely ratified.

Article 1A(2) of the 1951 Refugee Convention defines a refugee as any 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." [2]

To show how this definition operates at the refugee adjudication stage, the constituent parts of this definition are split into the subheadings below.

i) Fear upon being returned

The Convention definition is said to be "forward-looking" - that is, the central requirement for refugee status is the establishment of a well-founded fear of future persecution or serious harm if returned to one's country of origin.

ii) Convention grounds

In addition, the persecution must be based on one of the five reasons enumerated in the Convention - that is, for reasons of the person's race, ethnicity, religion, nationality, membership of a particular social group or political opinion.

iii) Nexus and outside the country of origin

Persons fleeing generalised violence such as war will not qualify for refugee status unless they can show the necessary 'nexus', a causal relationship between their fear of harm or persecution and one of the five Convention grounds. Refugees must have also crossed an international border so they cannot access the protection of their home country - this precludes the large number of internally displaced persons.

Under Article 33 of the 1951 Refugee Convention, refugees are entitled to a range of protections, the most central of which is protection from refoulement, that is, from being returned to a place where their life or freedom would be threatened[3]. In addition, Articles 2-34 of the Convention provide minimum standards of treatment for refugees within host countries - including rights to access education, equal treatment regarding housing, and freedom from discrimination on the basis of race, religion or country of origin[4]. States party to the Convention - which includes most African states - are thus obliged to both identify refugees in need of protection and to ensure their rights under the Convention.

The 1951 Refugee Convention thus provides a basis for the protection of many displaced persons in Africa. For example, victims of the harassment and violence frequently perpetrated against political opponents in Zimbabwe may be able to demonstrate a well-founded fear of persecution for reasons of their political opinion. Individuals who find themselves at risk due to discriminatory laws against homosexuality in countries such as Uganda may also have a well-founded fear of persecution.

III - LIMITATIONS OF THE REFUGEE CONVENTION

Despite the extensive ratification of the 1951 Refugee Convention, there remain significant limitations in its implementation and enforcement, owing at least in part to the lack of sufficient international oversight. Unlike other international human rights treaties which include treaty monitoring bodies charged with the supervision and enforcement of states' adherence to their obligations under the treaty, oversight of the 1951 Refugee Convention is left largely to states themselves.

i) UNHCR oversight

In this absence, the United Nations High Commissioner for Refugees takes on an important role in promoting the Convention among states and in providing practical assistance to refugees; however it is not a supervisory body and does not have the power or capacity to enforce states' adherence to its provisions. Individual refugees affected by a state's failure to provide the requisite rights thus have little or no opportunity for redress under the 1951 Convention.

ii) Generalised harms

In addition, there remains a great many people who are forced to leave their homes for safety, but who do not satisfy the fairly narrow, technical definition of a refugee in the 1951 Refugee Convention. For example, as noted above, the so-called 'nexus' requirement - requiring that a person's fear of persecution be for reasons of one of the five enumerated grounds of race, religion, nationality, political opinion or membership of a particular social group - means that people fleeing more generalised forms of harm, such as famine in Somalia or civil conflict in Libya, may face considerable challenges in bringing themselves within the scope of the 1951 Convention.

The failure of the 1951 Refugee Convention to extend protection to many who need it has led to assertions that the Convention is out of date and no longer reflects the current causes of displacement. The political and historical origins of the Convention - which was drafted during a time of conflicting Eastern and Western bloc Cold War ideologies - has resulted in privileging a limited range of (Western) civil and political rights over (Eastern) socio-economic ones.

This original context saw countries accept refugees in order to make a statement about the failings in the country of origin. The narrow criteria also meant that the country could not be overburdened. It is said that this has limited the Convention's capacity to respond to the fact that, at least since the 1970s, the vast majority of refugees have come from the developing world[5].

But in fact, much of this criticism fails to take account of the extensive work that has been done by scholars, advocates and policy-makers to extend the Convention's protection beyond those who were initially envisaged by its drafters. Economic deprivation, for example, is now widely recognised as a form of persecution under the Convention's refugee definition, extending protection to great numbers of people who are at risk of being denied their socio-economic rights[6]. Nevertheless, these criticisms and the other limitations of the 1951 Convention discussed above have, at least in part, contributed to the development of further, more expansive refugee protection mechanisms at the regional level.

IV - REGIONAL REFUGEE PROTECTION IN AFRICA

In Africa, the 1969 Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (African Refugee Convention) provides an alternative source of protection for persons falling outside the ambit of the 1951 Convention. As the "regional complement" to its 1951 counterpart, Article 1(2) of the 1969 African Refugee Convention extends the term "refugee" beyond the international definition to also include any 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." [7]

This expansion of the term 'refugee' was part of a broader intention of the drafters of the African Refugee Convention to reflect the particular nature and challenges of displacement on the continent; in particular, to ensure that so-called 'freedom fighters' - those resisting colonial rule in African states - would be able to access protection in neighbouring states.

There is considerable debate among scholars and practitioners about the precise scope of the Convention's expanded refugee definition, but most people agree that the breadth of its terms - in particular to include any person fleeing "events seriously disturbing public order" - makes it a more humanitarian and less restrictive source of protection, and better suited to the often large-scale nature of displacement on the African continent.

In addition to expanding the concept of refugeehood, the African Refugee Convention has been praised for the liberalisation of refugee protection in other ways. This includes its strengthening of the principle of asylum, the absolute nature of its prohibition on refoulement (which does not include the 1951 Convention's exception on grounds of national security) and its explicit provision for voluntary repatriation[8]. The African Refugee Convention itself does not provide an extensive rights regime for refugees, however its intention to provide the "regional complement" to the 1951 Convention presents a strong argument in favour of extending an equivalent range rights to refugees under both instruments.

V - PROTECTION GAPS AT INTERNATIONAL AND REGIONAL LEVELS

i) IDPs

Despite the many important protections provided for refugees by both the international and African Refugee Conventions described above, significant numbers of people forced to leave their homes will still fall outside definitions of 'refugee'. For example, both instruments are premised on a person having crossed an international border, thus excluding great numbers of internally displaced persons (IDPs) - those displaced from their homes by conflict, persecution, natural disaster or even development-related projects, but who have not crossed an international border.

ii) Migrant workers

Migrant workers also largely fall outside the scope of refugee protection instruments, which are mostly founded on risks faced only in one's country of nationality. While migrant workers are not necessarily forced migrants per se, they may become so, for example where they have been victims of trafficking, or where conditions in their country of residence deteriorate, such as happened in Libya in 2011.

Displaced persons not entitled to refugee status are frequently said to fall into a 'protection gap' within international and regional protection regimes. Recent developments, however, have shown an increasing willingness by states, particularly African states, to address this gap. The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families provides important rights for migrant workers in their country of residence, though it does not specifically address the issue of displacement, and the African Union's Convention for the Protection and Assistance of Internally Displaced Persons in Africa (the Kampala Convention), when it comes into force, will provide binding obligations on African states party to provide for the protection of persons displaced within their own borders.

The refugee rights and other protections discussed so far are all contained in treaties and thus depend not only on an individual satisfying various definitional requirements, but also on an individual's host country having both ratified the relevant treaty and implemented it under its domestic law.

Forced migrants who do not satisfy the listed requirements or find themselves in a country not party to such treaties may nevertheless benefit from the broader customary international law principle of non-refoulement. Unlike treaty obligations, this principle prohibits all states from returning a person to certain forms of harm, regardless of their other treaty-based obligations.

There are a range of international and regional instruments that impose important obligations, in addition to general human rights obligations, on African states to ensure sufficient protection and standards of treatment for vulnerable refugees and other displaced persons. While regional instruments such as the 1969 African Refugee Convention and the 2009 Kampala Convention for IDPs may be particularly relevant to displaced persons in Africa, these sit within a broader body of treaty-based and customary international law. This is important in ensuring that the international community, as well as African states themselves, share the burden of providing necessary assistance, protection and ultimately durable solutions to African refugees.

VI - REMAINING CHALLENGES

Perhaps the greatest challenge to the capacity of international and refugee legal protection mechanisms, however, is in their implementation in practice. Limited resources and institutional capacity, combined with a lack of political will, frequently result in African states falling short of their obligations to refugees and other forced migrants. In many parts of Africa, UNHCR plays a significant role in achieving some level of protection for such persons - for example, by conducting refugee status determination procedures and/or providing material assistance - however, as noted above, its capacity to ensure effective protection by states is limited.

The widespread lack of effective and affordable legal assistance available in Africa further undermines the ability of refugees and other forced migrants to access the rights to which they are entitled. Given the absence of any complaints or redress procedure for individuals affected by states' failure to fulfil their international protection obligations, the strength of African states' domestic legal frameworks may ultimately determine the extent to which the protection aims of international and regional regimes are realised in practice.

For more information about the course please read our introductory blog post.

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QUESTIONS TO CONSIDER:

1. In what ways are refugees inevitable - both narrowly and broadly speaking?

2. What are the limitations of the legal definitions of 'refugees'? Which groups do they miss?

3. How have African countries attempted to legally protect refugees?

4. Why are refugees especially at risk?

[1] UNHCR Global Appeal 2012-2013, 'Ensuring protection for People of Concern'.

[2] 1951 Convention relating to the Status of Refugees (1951 Refugee Convention), Art 1A(2).

[3] See 1951 Refugee Convention, Art 33.

[4] See Arts 2 - 34 of the 1951 Refugee Convention for a full list of refugee rights.

[5] See generally, Laura Barnett, 'Global Governance and the Evolution of the International Refugee Regime' (2002).

[6] See generally, Michelle Foster, Refuge from Deprivation (2007)

[7] 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Art I(2).

[8] See generally, George Okoth-Obbo, 'Thirty Years On: A Legal Review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa' (2001).

Tamara works in the fields of international forced migration and refugee law and is currently undertaking a PhD investigating the impact of expanding the international definition of a refugee.She also has extensive experience in teaching and tutoring in law, philosophy, applied ethics and research skills and is currently teaching Forced Migration and Human Rights in International Law at the University of New South Wales.

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