By Arthur Peirce
Today is Human Rights today, and as an NGO which works with refugees, the rights of our beneficiaries is of profound importance to our work.
In today’s world where refugees are often discussed, and sometimes criticised, it is important to remind ourselves that refugees have rights which are protected by international law.
The Refugee Convention
The 1951 Refugee Convention was written in a time when the world was still reeling from the catastrophic events of the Second World War. Indeed, the 1951 convention is entirely focused on the rights of people displaced during that conflict. It took the later Optional Protocol of 1967 to remove the territorial and temporal limitations of the original convention. In short, thanks to the convention’s Optional protocol. The rights confirmed in the 1951 convention now apply to everyone fleeing persecution.
There were numerous events during the Second World War which made the creation of a bill protecting the rights of refugees a matter of priority. Take, for example, the story of the MS St. Louis, an ocean liner which sailed across the Atlantic fleeing Nazi persecution. Almost all of the ship’s 900 passengers were Jewish and sought to resettle in America. However when it reached American shores, no port or country accepted them. The ship was forced to return to Europe, where many of the passengers soon perished in concentration camps across the continent.
The protections of the 1951 convention make a repetition of this tragedy impossible. As all passengers of the vessel, fitting the convention’s definition of a refugee would have been protected by international law.
Today, due to its importance, influence, and wide ratification, we can assume it to be customary international law. Which is to say that the laws and clauses within apply to all states regardless of ratification.
What is a Refugee?
The current migration situation in Europe is often described as a “refugee” crisis. This, on a purely legal and technical level, is inaccurate. Ultimately, despite the large numbers of new arrivals, not all of whom will qualify as a refugee, and as such, not everyone will have the same unique protections afforded to those with refugee status.
Per the 1951 convention: a refugee is someone who flees their country out of a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion…and is unwilling to return to it”.
Therefore, someone who fled their country which is in the midst of a bloody conflict, or is a member of a religious group suffering severe persecution (such as the Rohingya in Myanmar) may apply and receive refugee status. However, someone who seeks to move to a different country where their quality of life or employment chances are better will likely not qualify as a refugee but as an economic migrant, who fall under a separate category as a refugee. All are of course protected by International Human Rights Law, but currently, it is not a legal human right for an individual to freely settle in any country they wish (unless there is an agreement, like in the EU which allows freedom of movement). Receiving refugee status can take a long time and some in Ritsona have lived there for over two years.
Chiefly a refugee has the right to settle in a safe country without the limitations or difficulties afforded to regular migrants.
The rights and obligations afforded to refugees in a state are more-or-less the same to citizens. In practice though, there are, unfortunately, many differences between what is afforded to refugees and nationals. For example, the rates of refugees enrolled in formal education are almost always below the levels of non-refugee children. Some refugees in Ritsona have only just entered the Greek School System despite eligibility and the school year starting early in September. This seems to come from the demand far exceeding existing capability for formal education to be provided.
Freedom of religion, movement (within their new state), assembly, etc, is equally maintained in the convention.
Therefore, simply, a refugee is merely someone who has moved from one country to another because they needed to.
Non-Refoulement and Returning home
In international law, there are certain fundamental rights or norms which cannot be violated, modified, or misread under any circumstance. These norms are called Jus Cogens. The right to be protected from slavery is one, the right to be protected from torture is another, for the refugee, so is the right to not be returned to a country where they may suffer mistreatment. This is known as the principle of Non-Refoulement.
For the majority of international law conventions, the laws within only apply to a state once the state has signed the convention, and ratified the laws within.
This idea does not apply to Jus Cogens.
It is becoming increasingly accepted that the principle of Non-Refoulement is a Jus Cogen. Under the principle of Non-Refoulement, it is illegal to return or send a refugee (or indeed any individual) to a state where they may face persecution. In the 1951 Refugee Convention, the principle is described in Article 33, which states:
“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion…..”
Despite its status as a jus cogen, there appears no fixed universal understanding of the Non-Refoulement principle. Some states have applied territorial limitations (for example, can be returned if they are caught in the waters of a state, but not the soil), others have different understandings of what qualifies as a guarantee from a state that they will not mistreat an individual if returned. But despite these disagreements, the principle of Non-Refoulement is a fundamental aspect of the rights of refugees.
If there is no risk of mistreatment, and an individual is not given refugee status, then they can be lawfully returned to their home country. After all, refugee status is meant to be temporary, though, unfortunately, many live their whole lives as refugees.
Equally, refugees have the right to return to their home country. The UN and other internal bodies work hard to ensure this is done safely.
The above guide is by no means comprehensive, the rights of refugees is a massive topic which develops and increases almost daily. Indeed the 1951 convention is only one piece of legislation out many.
Yet the convention ensures that those who are most in need of protection and resettlement have a right to receive it, and all states are obligated to provide and facilitate it.
Without the convention, the work we do, and the work of all refugee organisations would be impossible.