Protected Groups in Refugee Law and International Law (original) (raw)
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Mediterranean Journal of Social Sciences, 2015
The goal of this study is to examine how far the definition of a refugee under the Refugee Convention 1951 protects the victims of human rights abuses. Since time immemorial, torture, inhuman and degrading treatment, religious and political persecution and other violations of human rights have forced people to flee. Thousands of people face persecution worldwide, often due to their religious or political belief, their race or nationality, or other fundamental quality such as their gender and sexuality. To support the victims of this problem the 1951 Refugee Convention was introduced. The purpose of refugee law is to protect people in this position. Nowadays, main causes of refugee movements are armed conflict, large-scale human rights abuses and environmental degradation. I am of the positive and proactive opinion that, as the 1951 Refugee Convention was created for the purpose of giving protection to a specific category of people, thus a large number of victims of the human rights abuses are excluded from the protection. However, it could be possible to protect the victims of human rights abuses sufficiently, if the definition of refugee under the 1951 Refugee Convention is amended through wide interpretation and explanation. In this article doctrinal research method has been applied primarily. This research method has provided various primary and secondary sources to fulfil the purpose of the study.
The Evolving Definition of the Refugee in Contemporary International Law
Berkeley Journal of International Law, 2012
Many scholars of international refugee law assert that there is no definition of refugee under international law except that given in the Refugee Convention. This assertion, however, overlooks the dynamic way that the Refugee Convention is interpreted and is usually made without a detailed analysis of customary international law. This article attempts to address this shortcoming in the literature by examining conventional and customary international law contributing to the contemporary definition of refugee. Furthermore, it will attempt to do this is an even-handed manner, concluding that the definition has expanded in favor of claimants in some aspects, but, actually, contracted against the favor of claimants in others. First, the article will examine the definition of refugee under the Refugee Convention, especially the evolving technique for interpreting the Convention, to determine whether the definition has outgrown its conventional shell. Second, the article will undertake a comprehensive analysis of state practice and opinio juris on this question, examining the most up-to-date sources. In particular, it will reflect on the role of specially interested or specially affected states in the formation of customary international law and the growth of “subsidiary” protection. Also the article will consider the contribution of the practice and opinio juris of international organizations in the frame of the contemporary international law’s understanding of the contribution international organizations can make. Lastly, the article will look at the opposite side of the coin: the ways in which customary international law may have narrowed the definition beyond the terms of the Refugee Convention. It will conclude by proposing the new definition of a refugee under conventional and customary international law based on the findings.
Refugee Law and Policy: A Comparative and International Approach
2006
Description The fourth edition of Refugee Law and Policy, which includes all legal developments through mid-2010, provides a thoughtful scholarly analysis of refugee law, and related protections such as those available under the Convention against Torture. The book is rooted in an international law perspective, enhanced by a comparative approach. Starting with ancient precursors to asylum, the casebook portrays refugee law as dynamic across time and cultural contexts. This edition of the casebook has incorporated substantial new materials on the cutting edge area of social group claims, and their relevance to claims for protection based on gender-persecution and LGBT status. It includes an extensive discussion of the concept of “social visibility” which has become one of the most controversial interpretive issues in U.S. refugee law. Although Refugee Law and Policy is directed to students of U.S. law, it draws on the legislation, jurisprudence and guidelines of other Refugee Convent...
Persecutor or Persecuted? Exclusion Under Article 1F (A) and 1F (B) of the Refugee Convention'(2000)
UNSWLJ
In the 6th century, the Emperor Justinian-anticipating modem ^sylum lawslimited the privilege [of refuge] to people not guilty of serious crimes. State of the World's Refugees (1995) Law-abiding citizens of the United Kingdom might reasonably feel disquiet about a state of affairs which permits international terrorists proved to be a danger to the national security to remain here.2 Mr Justice Potts, UK Special Immigration Appeals Commission, dismissing deportation orders against Mukhtiar Singh and Paramjit Singh (31 July 2000) * BA (Hons) (London) LLB (UNSW). This article is based on a paper which was awarded the 1999 NSW Red Cross International Humanitarian Law prize. The author would like to thank the anonymous reviewers o f the U N S W U for their insightful comments, and Rosemary Rayfuse for her encouragement and direction, noting that the opinions presented are his own alone. 1 UNHCR, State o f the World's Refugees, Oxford University Press (1995). 2 Judgment o f the UK Special Immigration Appeals Commission, as reported in The Guardian, 1 August 2000. 3 Convention Relating to the Status o f Refugees (1951), 189 UNTS 150, as amended by the Protocol Relating to the Status o f Refugees (1967), 606 UNTS 267. 6 Article 1A(2) o f the Convention defines 'refugee' for the purposes o f the Convention. Article 33(1) establishes the obligation o f non-refoulement. 7 Regional agreements contain very similar clauses. See for example the Principles and Criteria fo r the Protection o f and Assistance to Central American Refugees, Returnees, and Displaced Persons in Latin America, drafted by the International Conference on Central American Refugees ("CIREFCA") in May 1989, UN Doc A /43/874 (1988). 8 Note 3 supra. The different possible interpretations o f the vaguely worded Article lF (c) are summarised by JC Hathaway, The Law o f Refugee Status, Butterworths (1991) p 226-9. This article does not examine Article lF (c) in depth: it has been the least utilised provision, and is usually read as applying to persons in positions o f power, and thus is inapplicable to the posed hypothetical. I note, however, that this view has been repeatedly challenged (see discussion in Pushpanathan v Canada (Minister o f Citizenship and Immigration) [1998] 1 SCR 982), and may yet lead to more jurisprudence concerning its applicability to non-state actors. 9 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status ("UNHCR Handbook"), (Geneva, January 1992) at para 148 H CR/lP/4/Eng/REV.2. See also paragraph 3 o f the 1997 UNHCR Executive Committee Note on the Exclusion Clauses, UN Doc EC/47/SC/CRP.29. 10 GS Goodwin-Gill, The Refugee in International Law, Clarendon (2nd ed, 1996) p 108. See also UNHCR Handbook, ibid at para 151. The provision must be seen in parallel with Article 33(2), which permits the return o f a refugee if there are reasonable grounds for regarding them as a danger to the security o f the country. The two are sometimes confused. See JC Hathaway, note 4 supra, p 225. 11 UNHCR Executive Committee, note 9 supra. 12 See JC Hathaway, note 4 supra, p 214. 13 This rhetoric did not, however, hinder the widespread practice o f providing sanctuary to 'useful' Nazi war criminals. 14 1997 UNHCR Executive Committee, note 9 supra at para 3. In a rather reductionist reasoning, the Supreme Court o f Canada examined the travaux in Pushpanathan v Canada, note 8 supra, and declared that "the general purpose o f Article IF is not the protection o f the society o f refuge from dangerous refugees. ...Rather, it is to exclude ab initio those who are not bona fide refugees at the time o f their claim for refugee status." 15 As the Canadian Supreme Court has asserted in its examination o f the context, object and purpose o f the exclusion clauses, "those who are responsible for the persecution which creates refugees should not enjoy the benefits o f a Convention designed to protect those refugees": Pushpanathan v Canada (Minister o f Citizenship and Immigration) [1998] 1 SCR 982 at para 63, per Bastarche J; also see Sivakumar v Canada (Minister o f Employment and Immigration) [1994] 1 FC 433 at 445. Interestingly, the Supreme Court saw this principle as arising out o f the fundamental human rights character o f the Convention.
THE INTERNATIONAL LEGAL FRAMEWORK OF REFUGEE PROTECTION
2019
The more there are conflicts, the more they generate a large number of refugees, the more a large number of refugees is spread out around the world, the more it becomes a global issue involving the entire international community. Nowadays, the protection of refugees has become a major problem states, international organizations and other refugees' agencies have been facing, so it can be seen as a continuous feature of international life in the present century. The aim of this article is to show the place of the protection of refugees in the international legal framework, which is International refugee law, governing refugee protection as a branch of international law, originating from the revolution in Russia and the collapse of the Ottoman Empire after the First World War in Europe, causing mass movement of people. International law is not itself a solution to the problem of refugees and the challenges produced by migratory flow, but it can be a facilitator and a guide to the principled effectiveness of measures which states may take. The significance of this topic is perceived from the fact it remains a current one and a global issue involving all the states signing the 1951 Geneva Convention on the status of the refugees.
Ending Exclusion from Refugee Protection and Advancing International Justice
Laws
In any utopic vision of the international refugee protection regime at least these two conditions ought to prevail: (1) all those who are genuinely in need of refugee protection will be granted international protection; (2) all those who are responsible for criminality, especially, serious international crimes, shall be held criminally liable. This presumes that the so-called “exclusion clauses” of the 1951 Refugee Convention, Article 1F, and those found in the regional refugee rights instruments (1969 OAU Convention, 1984 Cartagena Declaration, 2011 EU Qualifications Directive) are not required. No one would be excluded from refugee protection who meets the definition of refugee as found in these international refugee rights instruments. By the same token, anyone who is responsible for serious criminality, especially, serious international crimes, (as defined by the 1998 Rome Statute of the International Criminal Court) shall be held criminally liable. This serves the ideal of brin...