Refugee Law

By Mathilde Holmer

The Refugee Convention is limited in its application in terms of time and space, and therefore the 1967 Protocol was created in order to remove the limitations (Weis, P., “The 1967 Protocol relating to the Status of Refugees and some questions of the law of treaties” , British Yearbook of International Law, Vol. 42, 1967, p. 39-70, p. 43). Under Article 3 of the Protocol, the states that become parties to the Protocol undertake to apply Articles 2-34 of the Refugee Convention in their treatment of refugees (See Article 3 of the Protocol). Therefore, the fundamental provisions in the Refugee Convention bind states that become parties to the protocol. The Refugee Convention and the Protocol provide for rights and protections of individuals falling under the refugee definition, the most important ones being the right for individuals to seek asylum and the guarantee not to be forcibly repatriated to the country from which he or she fled (the principle of nonrefoulement). Since the drafting and completion of the Refugee Convention and the 1967 Protocol, these documents have developed into being the cornerstone for international refugee law.

Although international law provides for a framework for refugee protection, it is important to bear in mind that refugee issues are mainly matters of domestic laws and policies, which to a large extent are connected with domestic immigration law. Therefore, international refugee law relies heavily on the interpretation and implementation of international refugee legislation by each country that has accepted to follow its provisions. This basic nature of refugee law is of importance when examining laws and practices in the area. While aiming at treating persons who have fled their countries in fear of persecution in a humane way, refugee law also rests on the demand of sovereign states to maintain control over those who are seeking to enter their territory. (Naumik, A.T.,” International Law and Detention of Asylum Seekers” , in International Journal of Refugee Law, Vol. 19, 2007, p. 661-702, p. 701).

In becoming a state party to the Convention or the Protocol, states undertake to ensure certain standards with regards to the treatment of refugees, as well as guaranteeing them
certain rights (Goodwin, “Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection” , in Feller, et al, p. 185-252, p. 215). Further, states undertake to implement the Convention and the Protocol in their domestic legal system, although they are allowed to freely choose how to implement them. To examine whether a state has taken adequate measures in implementing the provisions of an international document, it is important to look at both domestic legislation and case law, but it is also important to consider the element of administrative discretion (Goodwin, in Feller, et al, p. 216). With regards to refugees and asylum seekers, this is of special importance since the administrative agencies are given broad authority to make determinations (Weissbrodt & Danielson, p. 84).

Due to the nature of refugee law, where a person who is denied refugee status risks being sent back to persecution, torture and even death, the responsibility of the administrative agencies dealing with these matters is highly significant.

Refugee law and its relationship to human rights law

The purpose of the Convention is to ensure refugees the widest possible exercise of their fundamental right and freedoms (See the Preamble of the Refugee Convention). As mentioned earlier, international refugee law is part of the larger body of international human rights law, and refugees are entitled to the rights laid down in human rights documents as conferred to them as individuals, as well as the rights in the Convention conferred to them due to their status as refugees. Refugee protection therefore has a very close connection to the protection of human rights, since refugees flee from their home states in order to escape human rights violations there (Gibney, M., Global Refugee Crisis, 2nd edition, ABC-CLIO, LLC, 2010, p. 27. 47 Gibney, p. 67). When the home state cannot guarantee the protection of human rights, other states may step in and protect these rights by granting the individual refugee status.

Although one must always look at refugee law through the perspective of human rights, it is also important to keep these two areas of international law separated in order to distinguish the particular rights entitled to refugees.

Detention

Article 31 of the Refugee Convention contains provisions for how to handle refugees who enter or remain unlawfully in the country of refuge, with the second paragraph containing the provision that “the Contracting States shall not apply to the movement of such refugees restrictions other than those which are necessary…” This provision regulates the detention of refugees. Further, the term detention “refers to the deprivation of liberty or confinement in a closed space which an asylum seeker is not permitted to leave at will, including, though not limited to, prisons or purpose-built detention, closed reception or holding centers or facilities” . (UNHCR, Detention Guidelines – Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention, 2012, p. 9).

The practice of detaining asylum seekers thus involves the deprivation of liberty and restriction of the freedom of movement of individuals, although they are not suspected of having committed a crime. According to international refugee law, as well as human rights law, detention of asylum seekers should be considered a measure of last resort and avoided if possible.(UNHCR, Detention Guidelines – Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention, 2012, p. 6).

The deprivation of liberty is only permissible if it is done in order to achieve a legitimate government interest. Such government interest can include the verification of the identity of the person, discovering the basic elements of the asylum seeker’s claims, as well as ensuring that the person does not pose a risk to the society (Gibney, pp. 30-31).51 Article 31(2) therefore acknowledges the right of states to initially limit the freedom of movement of asylum seekers, but their continued detention has to be ‘necessary’. According to Guy Goodwin, detention is only ‘necessary’ in situations that can be justified on security grounds or in an extraordinary situation of mass influx (Goodwin, in Feller, et al, p. 222). Although states do have
authority and power to detain asylum seekers, the initial determination to detain an asylum seeker must not be conducted in an arbitrary manner (Goodwin, in Feller, et al, p. 222). The prohibition on arbitrary detention is found in Article 9 of the ICCPR (See Article 9, ICCPR).

Refugee Law and Practice

Contents of Refugee Law and Practice

Contents of this subject matter include:International law and regime of international legal obligations