Star Law Analysis
Who
is a refugee under international law?
Hassan
Faruk Al Imran
The
Second World War not only killed millions people but also
made homeless millions people. At that time basic human
rights (e.g., right to live, enjoyment of properly, right
to seek asylum) were recognised by the United Nation Charter
(1945) and the United Nations Declaration on Human Rights
(1948) but, nevertheless, the world community realised
that theses international instruments were not enough
for the protection of the refugees. As a result in the
1951 Refugee Convention was adopted.
Convention refugee definition
Today, the international law on refugees consists of the
Statute of the office of the United Nations High Commissioner
for Refugees (UNHCR). The Convention relating to the Status
of Refugees (Convention), and the Protocol Relating to
the Status of Refugees (Protocol).
The
Refugee Convention defines 'refugee' as a person with
well-founded fear of persecution due to his or her race,
religion, nationality, political opinion or membership
of a particular social group (Article 1A(2)). At the time
these treaties were ratified, international concern was
on educated Europeans left homeless after the Second World
War as well as those fleeing communism, but the 1967 Protocol
made the Convention applicable regardless of place and
time.
Hathaway,
a well known refugee law scholar, identified six essential
elements of the refugee convention definition: 1) alienage;
2) genuine risk; 3) serious harm; 4) failure of States
protection; 5) ground for the persecution; 6) needs and
deserves protection. However, the core obligation of the
convention is 'non-refoulement', i.e. not sending someone
in to a situation of persecution ( Article 33(1) of the
1951Refugee Convention).
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More
than two- thirds of the world's states are parties to
this treaty, and it is to be said that the remaining states
are also legally bound to respect the refugee definition
as constituting customary international law. However,
it says nothing about the procedures for determining refugee
status, and leaves to the states the choice of means as
to implementation at the national level. Later, in 1979,
a Handbook was issued by UNHCR, which mentions the procedure
and criteria for determining refugee status.
Five
convention grounds of refugee status
Protection is at the heart of responsibility that the
international community bears towards refugees. Protection'
here implies both 'internal protection', in the sense
of effective guaranties in matters such as life, liberty,
and security of the person; and 'external protection',
in the sense of diplomatic protection, including documentation
of nationals aboard and recognition of the right of nationals
to return. The 'right to return', in particular, is accepted
as a normal incident of nationality. In order to grant
protection individuals have to show that they have a 'well
founded of persecution' under one of the five convention
grounds, all of which have been correspondingly developed
in the field of non-discrimination. The five convention
grounds are - race, religion, nationality, political opinion
and member of a particular social group.
1. Race
UNCHR Handbook provides, "race …has to be understood
its widest sense to include all kinds of ethnic groups
that are referred to as "races" in common usage.
Frequently it will also entail membership of a specific
social group of common descent forming a minority with
a larger population. Discrimination for reasons of race
has found worldwide condemnation as one of the most striking
violations of human rights. Racial discrimination, therefore,
represents an important element in determining the existence
of persecution" (paragraph 68).
2.
Religion
UNHCR Handbook provides "Persecution for 'reason
of religion' may assume various forms, e.g. prohibition
of membership of a religious community, of worship in
private or in public, of religious instruction, or serious
measures of discrimination imposed on persons because
they practice their religion or belong to a particular
religious community" (paragraph 72).
Moreover,
Article 18 of the 1966 Covenant on Civil and Political
Rights, elaborating upon Article 18 of the Universal Declaration
of Human Rights (1948), prescribes that every one shall
have the right to freedom of thought, conscience and religion,
which shall include the freedom to have or to adopt a
religion or believe of choice and the freedom to manifest
such religion or belief.
3.
Nationality
Nationality in Article 1A(2) of the 1951 Convention, usually
interpreted broadly, to include origins and the membership
of particular ethnic, religious, cultural, and linguistic
communities. The UNHCR Handbook notes, the term 'nationality'
is not to be understood only as 'citizenship'. It also
refers to membership of an ethnic or linguistic group
and may occasionally overlap with the term 'race'. Persecution
for reasons of nationality may consist of adverse attitudes
and measures directed against a national (ethnic, linguistic)
minority and in certain circumstances the fact of belonging
to such a minority may in itself give rise to a well founded
fear of persecution (paragraph 74).
4.
Political Opinion
The 1951 Refugee Convention also adduces fear of persecution
for reasons of 'political opinion'. 'Political opinion'
actual or imputed is probably the least disputed of all
the grounds included the convention definition, not list
because it implies some direct relationship to the state.
The
UNHCR Handbook outlines what constitutes 'political opinion'
as a ground for persecution: Holding political opinions
different from those of the Government is not in itself
a ground for claiming for refugee status, and an applicant
must show he has a fear of persecution for holding such
opinions. This presupposes that the applicant holds opinions
not tolerated by authorities, which are critical of their
policies or methods. It also presupposes that such opinions
have come to the notice of the authorities or are attributed
by them to the applicant (paragraph 80). Persecution for
reasons of political opinion implies, therefore, that
an applicant holds an opinion that either has been expressed
or has come to the attention of the authorities.
5.
Membership of a particular social group
Under the refugee definition 'membership of a particular
social group' is the fifth ground of refugee status. The
UNHCR Handbook includes a definition of 'social group'
which is notable for its breadth and simplicity; "a
particular social group normally comprises person of similar
background, habits or social status." (paragraph
77). Whilst noting that mere 'membership of a particular
social group' will not normally be enough to substantiate
a claim of refugee status, the UNHCR Handbook thus accepts
that "there may, however, be special circumstances
where mere membership can be sufficient ground to fear
persecution." (paragraph79). Recently, in a land-mark
decision in Shah and Islam the UK court gave more specific
definition of 'membership of a particular social group.'
The UK court held that Pakistani women, against whom false
adulty allegation was given, are member of a particular
social group as they were unprotected and discriminated
by the State.
Persecution
The Refugee claimant must apprehend a form of harm which
can be characterised as 'persecution'. As it is noted
in the UNHCR Handbook, the phrase a 'well founded fear
of persecution is central to the definition of a refugee
and is said to exist if the applicant can establish, to
a reasonable degree that his continued stay in his country
of origin has become intolerable. This fear may be based
on personal experience, or on the experience of persons
similarly situated (paragraph 42 & 43).
Surprisingly,
persecution is not defined in the 1951 Convention or any
other international instrument. The UNHCR recognised that
there is no universally accepted definition of persecution,
but from Article 33 of the Convention it may be inferred
that 'a threat to life or freedom' or one of the five
enumerated grounds is always persecution. The Handbook
further acknowledges: "Other serious violations of
human rights for the same reason would also constitute
persecution." (paragraph 51).
Is
the 1951 refugee definition deficient?
The 1951 Convention relating to the Status of Refugees
has already celebrated its fiftieth anniversary. With
just one 'amending' and updating Protocol adopted in 1967
it continues as the central feature in today's international
regime of refugee protection. However, the 1951 Convention
is often said to be a relic of a bygone era. Signs of
decrepitude are identified in its failing focus it's inability
to accommodate the 'new' refugees from ethnic violence
and gender based persecution; in its deafness to national,
regional and international security concerns; in its inflexibility
when faced with the changing nature of flight and movement.
Hathaway
identified various well known problems of interpretation
from the refugee definition; e.g. the question of whether
the 'well foundedness' of an individual's fear of persecution
is to be determined on the basis of subjective and /or
objective criteria; to what extent persecution is directed
against some members of a group justifies other members
fears of being persecuted themselves; and how these grounds
for persecution are to be interpreted.
Moreover,
the feminists view was critical; they pointed out that
the Refugee Convention does not cover gender persecution.
Women are neglected by the Convention, and their experiences
are not reflected in the Convention as it was written
by the male's point of view. The feminist argued that
women's persecution is different from man and it is not
reflected in the refugee definition because a woman may
be persecuted as a woman (e.g. rape, female genital mutilation)
for the reasons of gender. As a result the question begged
is whether the Convention responsive the gender persecution,
or whether a specific definition is needed for the women
refugees. Furthermore, the refugee definition does not
include 'economic migrant' or 'natural disaster'.
Later,
in 1991, The United Nations High Commissioner for Refugee
issued Guidelines for women asylum claimants rather than
changing the existing refugee Convention. This proves
that the refugee Convention is a 'living instrument' which
also covers the women refugee claimant under the category
of 'membership of social particular group.' Other countries
(e.g. Canada, Australia, US, UK) also issued their own
Guidelines. These Guidelines provide a framework for analysing
and interpreting the claims of women asylum seekers as
well as guidance for interviewing women applicants and
assessing the evidence they present. Two broad categories
of gender- related claims are identified: those where
the persecution constitutes a type of harm that is particular
to applicant's gender, such as, rape or female genital
mutilation, and those where the persecution may be imposed
because of the applicant's gender, for example, because
of the women's violation of societal norms. Moreover,
in practice, jurisprudence of different countries has
been developed, which ensures that gender-persecution
is a ground for refugee status.
Finally,
after the Second World War world community established
the UN, declared the Universal Declaration of Human Rights;
later adopted the 1951 Refugee Convention, the 1967 Protocol,
the 1979 Refugee Handbook, and the 1991 UNHCR Gender Guidelines.
Moreover, some countries already adopted own national
Guidelines for woman refugees. All these had been done
for better protection of life, to ensure human rights.
However, under the 1951 Refugee Convention, still natural
disaster and economic migrants are not subject of refugee
status. Moreover, at present, many countries, e.g. UK,
US, are imposing lots of restriction on refugee status
by the name of state security and terrorism. Therefore,
we are waiting for the future when all 'genuine' refugee
claims will get justice.
The author is a
Barrister.
