The essence of refugeehood is that an individual is left without the protection of his or her state. Refugees are those migrants who migrate from one state to another to escape persecution. In public international law and the Westphalian system, a state is responsible for the protection of its citizens. However, those who are not protected then migrate and seek sanctuary in another state.
The 1952 refugee convention defines a refugee as “someone unable or unwilling to return to their country of origin owing to a well-founded fear of being prosecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”
The UN High Commissioner for Refugees (UNHCR) was created in 1950 by the UN General Assembly and given a remit that covered the protection of refugees worldwide. One year after the creation of the UNHCR, the refugee convention was adopted by the UN. The convention of 1951 was aimed at resolving the post-World War II crisis. This is evident from Article 1 of the convention which places a temporal and geographical limit on the identification of refugees. This means that only those affected by the events in Europe before 1951 will be considered refugees for the convention. However, the convention has been extended beyond those limitations by the 1967 protocol to refugees from all around the world.
The convention is also supplemented by other international instruments, including the ICCPR (1966), the convention on the rights of the child (1989), the convention against torture, and the (ICERD). There are also regional instruments that relate to refugees, for example in Latin America there are several relevant international treaties. Similarly, the convention and its optional protocol were further stressed by the world conference on human rights held in Vienna in 1993, and has been repeatedly affirmed by the general assembly, which stated and complemented the convention and its protocol as “the cornerstone of the international system for the protection of the refugees”.
The convention also consists of a list that contains certain obligations which apply to both state parties and refugees. Article 2 provides the general obligation of a refugee to a country to conform to law and measures of public order.
According to Article 3, the state must apply conventions to refugees without discrimination. Refugees should also be provided with the same favourable treatment as accorded to their nationals to practice their religion (Article.4). The list of the rights given to refugees in the convention goes on to ensure that they are equally treated as nationals of the state.
Article 33 gives us one of the important principles of the convention which is non-refoulement. According to A.33, refugees must not be forced to return to their home country once they have entered the receiving state. The importance of the convention can be seen from the fact that the non-refoulement principle has been reflected in several universal and regional human rights instruments. It is now recognised as a general principle of customary international law, which is binding on all states. It has been stated that the non-refoulement principle has also provided a broad foundation for the state practice in refugee content. However, looking at the other side, the principle was contentious at the time of the drafting of the convention, and it also remains today. This is because governments were concerned that they were under an obligation to allow an unlimited number of persons to claim status as refugees once they crossed a national border.
Moreover, considering the statistics of refugees around the world, there are millions of refugees internally and outside of their countries. According to the UNHCR, some 2.6 million Afghan refugees live in more than 70 countries around the world. A majority of around 95 percent are hosted by just two countries, the Islamic Republic of Iran and Pakistan. Recently these Afghan refugees are being made to return to Afghanistan because of the increased burden they are causing to these already developed countries.
This act of forcing refugees out of the host countries clearly shows the violation of the principle of non-refoulement. Now according to UNHCR, the refugee crisis in South Sudan is the world’s fastest growing. UNICEF’s figures show that 1.9 million people have been internally displaced since 15 December 2013 and there are 1.7 million South Sudanese refugees in neighbouring countries.
Also according to UNHCR, almost 5 million people have fled Syria since 2011, seeking safety in Lebanon, Turkey, Jordan, and beyond. Similarly, millions of people are displaced inside Syria. The UNHCR 2020 estimated that there are 26 million refugees in the world. The executive orders of the US former president Donald Trump, stopping people from seven Muslim countries from entering the US and also stopping the refugees of the Syrian crisis from seeking refuge in the US, show a clear contravention of the convention and its protocol. From the above paragraph, one can say that the 1951 convention and its 1967 protocol are important to tackle the issues and provide protection to these millions of refugees. However, to achieve this, powerful and developed nations must comply with the convention and its rules.
It has been stated that the 1951 convention is narrow in terms of the grounds and criteria that must be satisfied. Those who seek to escape persecution are entitled to certain rights while their status is determined and are entitled to remain in the host state during that time. This has led to a fairly widespread and troubling discrediting of the 1951 convention in the eyes of many politicians, in particular the developed states. Those who legitimately seek refuge are often very unfairly considered economic migrants seeking to circumvent immigration controls.
We can say that the 1951 convention and its protocol are now important to give protection to refugees all around the world. This is because of the increasing number of refugees in different countries of the world. To do this the powerful nations must conform to the convention and its protocol. However, it has been argued that refugee law is a complex web, and it is difficult to say what rights protect the immigrants and when it protects them.
Shafin Wadood
The writer is an LLB graduate and freelance contributor based in Islamabad