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Yap. Francis George S.

Medical Refugee International Law
Background and Introduction
Asylum is a form of protection given by a state to an individual who has applied and qualified for recognition as a refugee.
International Law provides guidelines on how individuals may apply for asylum, usually due to persecution within their
original state. With the current widespread outbreak of contagious and life threatening diseases, this paper would like to ask
the question: should life threatening diseases be considered to qualify for asylum in International Law?
Among the key customs to be addressed is the concept of Non-refoulement 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.
In light of the spirit that asylum and refugee status are meant to protect persons from dangers to life,
International Law on refugee and asylum should now address the concern of medical crisis.
Though the criteria for refugees has been social/political threats in the past, with the modern times we
must seriously consider that to return a refugee to territories where serious deadly illnesses are prevalent
would be similar to a death sentence under International Law.
The problem lies between balancing the interest of the state in protecting its own citizens from possible contagious
diseases, and the rights of individuals to be protected from life threatening diseases. If a person can be
shown to be free from the disease, should he not be granted asylum or refugee stats under International Law
as well?

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Interpretation of Key Terms

In order to understand how these procedures operate it is necessary to first identify how certain key terms in the 1951
Convention are defined within the domestic legal systems of particular States.
Refugee States Parties to the 1951 Convention and/or the 1967 Optional Protocol have incorporated the Conventions
definition of a refugee into their domestic law. See, 8 U.S.C. 1101(a)(42) (U.S.); Immigration Rules, 2012, S.I. 2012/11,
art. 334 (U.K.); C.E.S.D.A. L711-1 (Fr.); The Immigration and Refugee Protection Act, 2011 S.C., ch. 27,96 (Can.). States
that are also party to the Cartagena Declaration or the 1969 OAU Convention have also incorporated those instruments
broader definition of a refugee, recognizing individuals fleeing generalized violence and other breakdowns of public order.
See, e.g., Decree No. 3301, May 6, 1992 (Ecuador); The Refugees Act, No. 13 (2006), Kenya Gazette Supplement No. 11
Asylum seeker person within a State Party who has applied for recognition as a refugee. If the asylum seeker is
determined to meet the definition of a refugee they are granted asylum.
Well-founded fear individual States have interpreted the 1951 Conventions requirement of a well-founded fear of
persecution to require asylum seekers to show that there is a reasonable possibility that they will suffer persecution if
returned to their country of nationality or habitual residence. See, e.g., Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
This is considered to be both an objective and subjective standard. Although well-founded fear refers to a future threat of
persecution, individuals who have faced persecution in the past are presumed to have a well-founded fear. See, e.g.,
Immigration Rules, 2012, S.I. 2012/11, art. 339, K (U.K.).
Persecution persecution is not defined in the 1951 Convention or the 1967 Optional Protocol. In an attempt to provide
guidance on what constitutes persecution, the Council of Europe included a non-exhaustive list in the Qualification

Directive of acts that could be considered persecution such as:

acts of physical or mental violence, including acts of sexual violence; legal, administrative, police, and/or
judicial measures which are in themselves discriminatory or which are implemented in a discriminatory
manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress
resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform
military service in a conflict, where performing military service would include crimes or acts falling under the
exclusion clauses as set out in Article 12(2); acts of a gender-specific or child-specific nature.
Qualification Directive, art. 9(2). The persecution at issue also does not need to have been committed by a State actor,
persecutory acts committed by non-state actors may qualify under the 1951 Convention where the State is unwilling or
unable to protect the individual claiming refugee status. See, e.g., id., art. 6.

Rule of Law in Armed Conflicts Project
International refugee law

International refugee law is a set of rules and procedures that aims to protect, first, persons seeking
asylum from persecution, and second those recognized as refugees under the relevant instruments. Its
legal framework provides a distinct set of guarantees for these specific groups of persons, although,
inevitably, this legal protection overlaps to a certain extent with international human rights law as well
as the legal regime applicable to armed conflicts under international humanitarian law.
The main sources of refugee law are treaty law, notably the 1951 Convention relating to the status of
refugees (1951 Refugee Convention ) and its 1967 Protocol , and customary international law.
Customary international law applies to all states irrespective of whether they are a party to relevant
treaties or not. Regional instruments represent a further set of protections, particularly the 1969
Organization of African Unity Convention (for Africa) and, although it is not formally legally binding,
the1984 Cartagena Declaration (for Latin America).
The Definition of a Refugee
International legal protection of refugees centres on a person meeting the criteria for refugee status as
laid down in the 1951 Refugee Convention. Under Article 1(A)2, the term refugee shall apply to any
person who:
...owing to well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail himself of the
protection of that country; or who, not having a nationality and being outside the country
of his former habitual residence as a result of such events, is unable or, owing to such fear,
is unwilling to return to it.
Thus, according to this provision, refugees are defined by three basic characteristics:
they are outside their country of origin or outside the country of their former habitual
they are unable or unwilling to avail themselves of the protection of that country owing to a
well-founded fear of being persecuted; and
the persecution feared is based on at least one of five grounds: race, religion, nationality,
membership of a particular social group, or political opinion.
It is important to stress that the term asylum seekers refers to persons, who have applied for asylum,
but whose refugee status has not yet been determined.

The principle of non-refoulement

The obligation exists under Article 33 of the 1951 Refugee Convention not to return a refugee to a
country of territory where he/she would be at risk of persecution:
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.
This is known as the principle of non-refoulement, which is considered part of customary international
law and therefore binding on all states. The principle is also incorporated in several international
human rights treaties, for example the 1984 Convention against Torture, which prohibits the forcible
removal of persons to a country where there is a real risk of torture.
Internally displaced persons
Internally displaced persons (IDPs) are defined in the 1998 Guiding Principles on Internal
Displacement as persons or groups of persons who have been forced or obliged to flee or to leave
their homes or places of habitual residence, in particular as a result of or in order to avoid the effects
of armed conflict, situations of generalized violence, violations of human rights or natural or humanmade disasters, and who have not crossed an internationally recognized State border.
Internally displaced persons, who now constitute some 22 million persons, are persons whose situation
is similar to that of refugees. However, there are several differences between IDPs and refugees. First,
IDPs are not the subject of a treaty adopted at the universal level, although the Guiding Principles are
based on binding international human rights and humanitarian law. Second, as opposed to refugees,
IDPs have not crossed an international border from their country of origin. Third, the definition of
IDPs in the Guiding Principles is significantly broader than the refugee definition, including those
displaced by armed conflict, human rights violations and natural disasters, while the refugee definition
is restricted to those with a well-founded fear of being persecuted on at least one of five grounds.

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