Asylum seekers and refugees ~ The search for meaning
There is, then, every reason to do something about mass migration. All manner of issues are raised-humanitarian, ethical, legal, political. In order to act positively there must be a consensus as to the meaning of the terms used.
In 1945 a Speciallised Agency of the recently formed United Nations, the United Nations High Commission for Refugees (UNHCR), was given the task in Geneva of framing a tight definition of the term refugee. This would be a modern, legal enactment
of the ancient tradition of furnishing asylum to anyone at risk and danger. The definition devised is the one used today, and given the scale and diversity of human movement it remains more than ever necessary to use it to separate very precisely those who are to be distinguished as victims of persecution. A convention was eventually drawn up after seven arduous months of discussion and published by the UNHCR in July 1951 to give the term refugee a very clear definition, namely:
"A person who is outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/ her race, religion, nationality, membership of a particular social group or political opinion; and is unable or unwilling to avail himself/her self of the protection of that country, or to return there, for fear of persecution."
The Convention was to consolidate previous international instruments relating to refugees and would provide a comprehensive codification of basic rights. It must be applied to all without prejudice to race, religion or country of origin.
It was ordained that no application for refugee status would ever be allowed from any person found guilty of committing what was considered to be a war crime or a crime against humanity or a serious non-political offence, or if (in terms thought innovative in 1951) he had been guilty ‘of acts contrary to the purposes and principles of the UN’. Such persons were undeserving of international protection and should face justice. (In later years this ruling was to lead to dilemmas for the UNHCR endeavouring to cope with mass streams of people in the Balkans and Central Africa when all too clearly the agents
of assassination and genocide must be among those looking for sanctuary.)
There were several essential requirements for refugee validity in the Convention definition of refugee. First, one had to cross a frontier in seeking sanctuary elsewhere, to be recognised as a bona fide refugee. Rather strangely, it seems, the Convention was not to apply to those refugees who were the concern of UN agencies other than UNHCR, such as Palestinian refugees in the Near East (UNRWA). Further, one must be the victim or target of an individual and specific form of harassment; it was not enough to be one of a crowd endeavouring to escape the threat or heat of battle, nor to be merely a member of a group suffering from some form of active discrimination. The life and liberty of an individual was at stake. Second, and quite crucially, there was the existence of a rational and ‘well-founded fear’ that any return to the country of origin would be impossible, resulting in individual harm. This must go beyond presumption to some proof, and the burden of proof would be upon the claimant, although UNHCR would do its best to scrutinise evidence of a prospective risk. Third, and most importantly,
"No Contracting State shall expel or return [refouler] a refugee against his or her own will in any manner whatsoever to the frontier of territories where life or freedom would be threatened on account of his race, religion, nationality, membership of a particular group or political opinion."
It was understood by Convention signatories that they would not be required to give permanent asylum to all refugees but, of course, must do their best to ensure adequate and effective protection. As the next chapter records, this proviso has led to many states granting only temporary protection and to encouraging voluntary repatriation when a second or third state is judged to be a ‘safe’ harbour.
The last qualification, known as refoulement, has been much debated since 1951. Even so, there is general acceptance of its over-riding desirability. Two points have been emphasised both by UNHCR and commentators. In the first place, this ruling must not allow any exception, provided that a claimant is not regarded by a host state as a danger to a community or to any aspect of security. A host state must accord any refugee the same treatment and rights as its nationals receive in respect of legislation, right to property, education, housing, welfare benefits and entry to the professions. A special travel passport would guarantee freedom of movement. No refugee must regard himself as outside the law in a country of refuge. Any transgression of that law would render them liable to deportation, if possible, though, to a ‘safe third country’ rather than to a state judged unsafe. Second, and crucially, it was to be a refugee’s actions that would be regarded as hostile by a receiving state rather than any affiliation. Detention, even expulsion, in that case might be the only consequence, although there was to be a right of appeal. (Again, in later years this ruling was to prove troublesome to many governments unsure how far an applicant for asylum was associated with nefarious ideas or schemes.) The Convention was also mindful of the importance of family to a refugee. Governments should take necessary measures to ensure that unity of a family was maintained whenever possible and should take particular care of unaccompanied children. For this and other exigencies, adequate welfare services would be most necessary.
The Convention of 1951 only binds those states (Contracting States) that have signed the documents in Geneva and so are party to it. At present, 140 states out of the 190 United Nations membership have signed in accord. Non-contracting states include a number of Caribbean and southwest Asian states, but the inclusion in that number of significant political players such as Malaysia, Myanmar (formerly Burma), Pakistan and the United Arab Emirates is rather disconcerting to upholders of fundamental human rights. After all, it could be argued that these states have a duty to cooperate with UNHCR since they are signatories to the United Nations Charter whereby they are obliged to cooperate with the Specialised Agencies.
Book of International Law that use in this reference :
- David J, Whittaker, 2006. Asylum seekers and refugees in the contemporary World. Routledge Taylor & Francis Group: London and New York
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Labels: International Law