International Refugee Law: Basic Parameters

François Crépeau

United Nations Special Rapporteur on the Human Rights of Migrants Hans &Tamar Oppenheimer Professor of Public International Law McGill University

Crépeau IRL 2014 1

1.

2.

3.

4.

In a nutshell:

History   Asylum Law Refugee Law Definition     1951 Geneva Convention 1967 Bellagio Protocol African and Latin-American Definitions National interpretations Status     Principle of Non-refoulement Principle of Penal immunity Principle of Non-detention Other rights Challenges    Other forms of protection IDPs Migration controls Crépeau IRL 2014 2

1. History

Crépeau IRL 2014 3

The Right of Asylum

      Asylum has always existed: Treaty of 1265BC, Bible, Greek tragedies, Roman history, etc.

Asylum is a sovereign act by a powerful actor: priest, prince, general, city, etc. Limited by judicial cooperation and extradition treaties, as well as by political alliances.

It still exists and is today essentially exercised by national governments as a sovereign permission to remain on their territory: Haiti’s Bébé Doc in France, Chechen envoy Akhmed Zakayev in the UK.

Usually individual in nature. The “right of asylum” is a power of the State, not a right of the individual fleeing.

Crépeau IRL 2014 4

Refugee Law

      Born (1922-1933) under the League of Nations as an answer to the plight of millions of Russians (1917 Revolution) and Armenians (1915 Genocide) present in Europe without a nationality.

Developed (1933-1942) in order to answer the needs of the victims of fascist and Nazi regimes.

Strengthened (1943-1946) to facilitate the work of allied armies in the conquest of Europe.

Failed (1946-1951) as a full-fledged UN organization because of the cold war.

Present regime established by the creation of the

Office of the United nations High Commissioner for Refugees Convention on the Status of Refugees

(1950) and the adoption of the (1951).

Present regime premised on the attribution of refugee status by States, implementing their obligations under the

1951 Convention

with the help of UNHCR. Crépeau IRL 2014 5

Today, international refugee law applies very differently  in countries of the Global North which have the means to provide for refined administrative processes for refugee determination, social and labour insertion for refugees and migration control mechanisms, and  in countries of the Global South, where very often refugee come through the borders unchecked, and UNHCR and other aid agencies are the only institutions able to provide support for refugees.

Crépeau IRL 2014 6

 UNHCR doesn’t have a fixed budget and must appeal yearly, and sometimes exceptionally, to the generosity of donor countries: these often earmark their contributions.

 Over the years, the Executive Committee (EXCOM) of UNHCR, composed of the main donor countries, has produced a huge body of “soft law” expanding on the

1951 Geneva Convention

’s obligations.

Crépeau IRL 2014 7

 In 2001, in an international conference celebrating its 50 th anniversary, States have unanimously reaffirmed their commitment to the

1951 Geneva Convention

and renewed their confidence in the role of UNHCR.  International Refugee Law is a very specialised field of international law, with its specialists, its decision-making bodies, its case law, its journals, etc.

Crépeau IRL 2014 8

2. The international refugee definition

Crépeau IRL 2014 9

1951 Geneva Convention

« the term “refugee” shall apply to any person who, (…) as a result of events occurring before 1 January 1951 and 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; 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. » (Art. 1.A(2)) Crépeau IRL 2014 10

Elements:  Out of the country  Well-founded fear  Persecution  Five causes linked to socio-political situation of the individual within her society  No possibility of protection from the authorities Crépeau IRL 2014 11

Causes:

 Race  Religion  Nationality  Political opinions  Membership of a particular social group Crépeau IRL 2014 12

1967 Bellagio Protocol

 Made the definition universal:  Deleted the temporal limitation (1 Jan. 1951)  Deleted the geographical limitation (Europe)  Today (1 April 2011): as ratified as the

1951 Convention

: 145/144 States, of which 142 have ratified both.

Crépeau IRL 2014 13

African and Latin-American Definitions

They enlarge the

1951 Convention

 definition to include also: « (…) every 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. » (Art. 1.2,

Convention Governing the Specific Aspects of Refugee Problems in Africa,

Addis-Abeba, 10.09.1969)  « (…) persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order » (Par. 3,

Cartagena Declaration on Refugees

, 22.11.1984) Crépeau IRL 2014 14

National Interpretations

     Some countries adopt a narrow interpretation: France, Germany, European Union, etc.

Some countries adopt a wide interpretation: Canada, Australia, etc.

Examples:     Persecution by non-State actors Civil war or generalized violence Persecution of homosexuals Domestic violence A wide interpretation is warranted by the human rights nature of the instruments, inasmuch as a narrow interpretation is expected in the case of a criminal law instrument.

UNHCR favours and generally applies a wide interpretation Crépeau IRL 2014 15

3. The international refugee regime

Crépeau IRL 2014 16

Principle of Non-Refoulement

Article 33. Prohibition of Expulsion or Return (“Refoulement”)

1.

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2 . The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

Crépeau IRL 2014 17

Issues:  expel or return (“refouler”) a refugee in any manner whatsoever:  Extradition?

 Interception on the high seas or in a foreign airport?

 Security exception Crépeau IRL 2014 18

Principle of Penal Immunity

Article 32. Refugees unlawfully in the country of refuge

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Crépeau IRL 2014 19

Principle of Non-Detention

Article 32. Refugees unlawfully in the country of refuge

2 . The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

Crépeau IRL 2014 20

Other Rights

   The

1951 Convention

provides for all sorts of rights necessary for a normal life: education, health, social protection, intellectual property, etc. Rights are enjoyed differently according to the status of the refugee in the country of refuge:    Some belong to “all refugees” Some to “refugees lawfully staying” in the country of refuge Some to “refugees lawfully residing” in the country of refuge Rights are enjoyed differently according to their level of importance as conceived in 1951 :    either as any other foreigner or as the “most favoured foreigner” or as the national Crépeau IRL 2014 21

Réfugié étranger en général 13. propriété mob/immob 22. éducation post-primaire étranger le plus favorisé 33. non-refoulement traitement national 4. liberté de religion 14. propriété intell.

16. droit d’ester en justice 20. rationnement 22. éducation primaire 29. charges fiscales Réfugié se régulièrement trouvant 18. professions non salariées 26. liberté de circulation 32. expulsion Réfugié régulièrement résidant 19. professions libérales 21. accès au logement 15. droit d’association 17. professions salariées Réfugié irrégulière en situation 31. immunité pénale 31. restrictions de circulation Crépeau IRL 2014 23. Assistance publique 24. législation du travail et sécurité sociale 22

National implementation

 Many states provide a specific refugee status, often temporary, with limited services  Most often in the Global South  Most often, services are offered by IOs or CSOs  Some states offer permanent residency  Most often in the Global North  Leads to resistance to offering refugee status Crépeau IRL 2014 23

 EU has created EASO and developed a considerable body of law on refugee protection:  Asylum Procedures Directive  Qualification Directive  Reception Conditions Directive  Dublin Regulation  EURODAC Regulation  Subsidiary Protection Directive  Family Reunification Directive  The ECJ will be called to interpret the conformity of:  these instruments with the

EU Charter of Fundamental Rights

 national legislation with these instruments Crépeau IRL 2014 24

4. Challenges

Crépeau IRL 2014 25

Other Forms of Protection

   Refugees in the Global North are today better protected by the International Human Rights Law than by International Refugee Law:  Refoulement   Detention Education Human Rights treaty bodies (especially CAT) devote a large part of their jurisprudence to cases relating to the rights of foreigners, including refugees.

ECtHR has also developed a sophisticated case law Crépeau IRL 2014 26

Subsidiary / Temporary protection

 European states have developed alternate forms of protection: B status, temporary protection…  Starts and ends at the discretion of the authorities of the host state:  Form of asylum: exercise of territorial sovereignty  No official supervisory role for UNHCR  Initiated with the Bosnians in Germany (1992-1998)  Temporary protection may respect the refugee regime  UNHCR may consider them refugee, despite national decisions to exclude them from refugee status Crépeau IRL 2014 27

      

IDPs

Refugees must have crossed an international border.

The territorial sovereignty paradigm still means that State authorities are responsible for the persons who are on their territory.

Gross violations of human rights have triggered a discussion about possible “humanitarian interventions” by individual States, when the Security Council is not able to decide, under the R2P principle IDPs have been the focus of an important effort to rationalize international principles when dealing with persons who are still on the territory of their State of nationality:

1998 Guiding Principles on Internal Displacement.

The

Guiding Principles

are inspired from International Human Rights Law, International Humanitarian Law and, by analogy, International Refugee Law. The

Guiding Principles

are very much used by actors in the field.

Questions:   Is Refugee Law still relevant?

Shouldn’t we merge the branches of international law that apply to displaced persons?

Crépeau IRL 2014 28

The Agenda of Securitizing Migration      Migration is part of a new international security paradigm.

Migration controls are now part of the phenomenon of “securitization of the public space”.

Most countries in the Global North want to deter and prevent irregular migration,

including

asylum seekers and refugees.

The operating principle is that of « regionalization »:   refugees should stay in their region of origin, in order to be repatriated as soon as possible asylum seekers should be repatriated to the first « safe third country » IOM has specialized in helping States with irregular migration issues Crépeau IRL 2014 29

Deterrence measures

 Faster refugee determination  Elimination of appeals: credibility issue + RAD  Restricted access to labour market  Reduced legal aid and social protection  Increased detention  Criminalization of all help to irregular migration  Excessive penalties for migrant smuggling  Safe third country agreements Crépeau IRL 2014 30

          

Preventive measures

Visa regimes Carrier sanctions Training of border personnel Interception mechanisms

en route

Immigration intelligence Personal information databases and exchanges “Safe third country” and “safe country of origin” mechanisms Conditionalities on international economic cooperation Militarization of borders and seas Externalization of asylum protection Rejection of international human rights law Crépeau IRL 2014 31

Conclusion

Crépeau IRL 2014 32