RELATION BETWEEN IHL AND REFUGEE LAW

The relationship between international humanitarian law and refugee law is a two-way cross
fertilisation.
 1. International humanitarian law in refugee law and protection  
Armed conflict and international humanitarian law are of relevance to refugee law and
refugee protection in a number of ways.
First, to determine who is a refugee. Many asylum seekers are persons fleeing armed conflict
and often violations of international humanitarian law.  Not every person fleeing an armed
conflict automatically falls within the definition of the 1951 Refugee Convention, which lays
down a limited list of grounds for persecution. While there may be situations, notably in
conflicts with an ethnic dimension, where persons are fleeing because of a fear of persecution
based on their “race, religion, nationality or membership of a particular social group”, this is
not always the case.
Recognising that the majority of persons forced to leave their state of nationality today are
fleeing the indiscriminate effect of hostilities and the accompanying disorder, including the
destruction of homes, food stocks and means of subsistence – all violations of international
humanitarian law – but with no specific element of persecution, subsequent regional refugee
instruments, such as the 1969 OAU Refugee Convention and the 1984 Cartagena Declaration
on Refugees have expanded their definitions to include persons fleeing armed conflict.
Moreover, states that are not party to these regional instruments have developed a variety of
legislative and administrative measures, such as the notion of “temporary protection” for
example, to extend protection to persons fleeing armed conflict.
A second point of interface between international humanitarian law and refugee law is in
relation to issues of exclusion. Violations of certain provisions of international humanitarian
law are war crimes and their commission may exclude a particular individual from
entitlement to protection as a refugee.
 2. Protection of refugees under international humanitarian law  
International humanitarian law offers refugees who find themselves in a state experiencing
armed conflict a two–tiered protection. First, provided that they are not taking a direct part in
hostilities, as civilians refugees are entitled to protection from the effects of
hostilities.   Secondly, in addition to this general protection, international humanitarian law
grants refugees additional rights and protections in view of their situation as aliens in the
territory of a party to a conflict and their consequent specific vulnerabilities.
 A. GENERAL PROTECTION  
If respected, international humanitarian law operates so as to prevent displacement of
civilians and to ensure their protection during displacement, should they nevertheless have
moved.
 i. The express prohibition of displacement  
Parties to a conflict are expressly prohibited from displacing civilians. This is a manifestation
of the principle that the civilian population must be spared as much as possible from the
effects of hostilities.
During occupation, the Fourth Geneva Convention prohibits individual or mass forcible
transfers, both within the occupied territory and beyond its borders, either into the territory of
the occupying power or, as is more often the case in practice, into third states.
There is a limited exception to this rule, which permits an occupying power to “evacuate” the
inhabitants of a particular area if this is necessary for the security of the civilian population or
for imperative military reasons. Even in such cases the evacuations should not involve the
displacement of civilians outside the occupied territory unless this is impossible for material
reasons. Moreover, displaced persons must be transferred back to their homes as soon as the
hostilities in the area in question have ceased.
Also applies in non-international armed conflicts.
 ii. Protection from the effects of hostilities in order to prevent displacement  
In addition to these express prohibitions, the rules of IHL play an important role in the
prevention of displacement, as it is often violations of these rules which are at the root of
displacements in situations of armed conflict.
Of particular relevance are:
 the prohibition to attack civilians and civilian property and of indiscriminate attacks;
 the duty to take precautions in attack to spare the civilian population;
 the prohibition of starvation of the civilian population as a method of warfare and of
the destruction of objects indispensable to its survival; and
 and the prohibition on reprisals against the civilian population and its property.
Also of relevance are the prohibition on collective punishments which, in practice have often
taken form of destruction of homes, leading to displacement; and the rules requiring parties to
a conflict, as well as all other states, to allow the unhindered passage of relief supplies and
assistance necessary for the survival of the civilian population.
 iii. Protection during displacement  
Although prohibited by international humanitarian law, displacement of civilians frequently
occurs in practice. Once displaced or evacuated civilians are entitled to various protections
and rights. Thus we find rules regulating the manner in which evacuations must be effected:
transfers must be carried out are in satisfactory conditions of hygiene, health, safety and
nutrition; during displacement persons must be provided with appropriate accommodation
and members of the same family must not be separated.
Although these provisions relate to conditions to be ensured on situations of evacuation – i.e.
“lawful” displacements for the safety of the persons involved security or for imperative
military necessity - these conditions should be applicable a fortiori in situations of unlawful
displacement.
In addition to these special provisions relating specifically to persons who have been
displaced, such persons are civilians and, as such, entitled, even during displacement, to the
whole range of protection appertaining to civilians.
 B. SPECIFIC PROTECTION OF REFUGEES  
In addition to this general protection, international humanitarian law affords refugees further
specific protection. In international armed conflicts refugees are covered by the rules
applicable to aliens in the territory of a party to a conflict generally as well as by the
safeguards relating specifically to refugees.
 i. Protection as aliens in the territory of a party to a conflict  
Refugees benefit from the protections afforded by the Fourth Geneva Convention to aliens in
the territory of a party to a conflict, including:
 the entitlement to leave the territory in which they find themselves unless their
departure would be contrary to the national interests of the state of asylum;
 the continued entitlement to basic protections and rights to which aliens had been
entitled before the outbreak of hostilities;
 guarantees with regards to mean of existence, if the measures of control applied to the
aliens by the party to the conflict means that they are unable to support themselves.
While recognising that the party to the conflict in whose control the aliens find themselves
may, if its security makes this absolutely necessary, intern the aliens or place them in
assigned residence, the Convention provides that these are the strictest measures of control to
which aliens may be subjected.
Finally, the Fourth Convention also lays down limitations on the power of a belligerent to
transfer aliens. Of particular relevance is the rule providing that a protected person may in no
circumstances be transferred to a country where he or she may have reason to fear
persecution for his or her political opinions or religious beliefs; a very early expression of the
principle of non refoulement.
 ii. Additional protections for refugees  
In addition to the aforementioned rules for the benefit of all aliens in the territory of a party to
a conflict, the Fourth Geneva Convention contains two further provisions expressly for the
benefit of refugees. The first provides that refugees should not be treated as enemy aliens –
and thus susceptible to the measures of control - solely on the basis of their nationality. This
recognises the fact refugees no longer have a link of allegiance with that state and are thus
not automatically a potential threat to their host state.
The second specific provision deals with the precarious position in which refugees may find
themselves if the state which they have fled occupies their state of asylum. In such
circumstances, the refugees may only be arrested, prosecuted, convicted or deported from the
occupied territory by the occupying power for offences committed after the outbreak of
hostilities, or for offences unrelated to the conflict committed before the outbreak of
hostilities which, according to the law of the now occupied state of asylum, would have
justified extradition in time of peace. The objective of this provision is to ensure that refugees
are not punished for acts - such as political offences - which may have been the cause of their
departure from their state of nationality, or for the mere fact of having sought asylum.
The matter was developed in Additional Protocol I. This provides that persons who, before
the beginning of hostilities, were considered refugees under the relevant international
instruments accepted by the parties concerned or under the national legislation of the state of
refuge or of residence are to be considered “protected persons” within the meaning of the
Fourth Convention in all circumstances and without any adverse distinction.

RELATION BETWEEN IHL AND HUMANITARIAN/HUMAN RIGHTS LAW

(HRL)

International human rights law and international humanitarian law are traditionally two
distinct bodies of law. They are both concerned with the protection of the life, health and
dignity of individuals. While the first deals with the inherent rights of the person to be
protected at all times against abusive power, the other regulates the conduct of parties to an
armed conflict. Developments in international and national jurisprudence and practice have
led to the recognition that these two bodies of law not only share a common humanist ideal of
dignity and integrity but overlap substantially in practice.
IHL
IHL is a set of international rules, established by treaty or custom, which are specifically
intended to solve humanitarian problems directly arising from international or non-
international armed conflicts. It protects persons and property that are, or may be, affected by
an armed conflict and limits the rights of the parties to a conflict to use methods and means of
warfare of their choice.
IHL main treaty sources applicable in international armed conflict are the four Geneva
Conventions of 1949 and their Additional Protocol I of 1977. The main treaty sources
applicable in non- international armed conflict are article 3 common to the Geneva
Conventions and Additional Protocol II of 1977.
HRL
HRL is a set of international rules, established by treaty or custom, on the basis of which
individuals and groups can expect and/or claim certain behaviour or benefits from
governments. Human rights are inherent entitlements which belong to every person as a
consequence of being human. Numerous non-treaty based principles and guidelines ("soft
law") also belong to the body of international human rights standards.
IHRL main treaty sources are the International Covenants on Civil and Political Rights and
on Economic, Social and Cultural Rights (1966), as well as Conventions on Genocide
(1948), Racial Discrimination (1965), Discrimination Against Women (1979), Torture (1984)
and Rights of the Child (1989). The main regional instruments are the European Convention
for the Protection of Human Rights and Fundamental Freedoms (1950), the American
Declaration of the Rights and Duties of Man (1948) and Convention on Human Rights
(1969), and the African Charter on Human and Peoples' Rights (1981).
ORIGIN
IHL, the origins of which are ancient, was codified in the second half of the 19th century,
under the influence of Henry Dunant. In 1859, while travelling in Italy, Dunant witnessed the
grim aftermath of the battle of Solferino. After returning to Geneva he recounted his
experiences in a book entitled A Memory of Solferino, published in 1862.
In 1863, together with Gustave Moynier, Louis Appia and Théodore Maunoir, Dunant and
Dufour founded the ‘Committee of Five’, an international committee for the relief of the
military wounded. This would become the International Committee of the Red Cross in 1876.
Human rights law is a more recent body of law: it had its origins in certain national human
rights declarations influenced by the ideas of the Enlightenment (such as the United States
Declaration of Independence in 1776 and the French Declaration of the Rights of Man and of
the Citizen in 1789). It was only after the Second World War that human rights law emerged,
under the auspices of the United Nations, as a branch of international law. The Universal
Declaration of
Human Rights of 1948 first defined human rights law at the international level in a non-
binding General Assembly resolution. It was only in 1966 that this Declaration was translated
into universal human rights treaties: the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights, both of 1966.
TEMPORAL SCOPE OF APPLICATION
IHL is applicable in times of armed conflict, whether international or non- international.
International conflicts are wars involving two or more states, and wars of liberation,
regardless of whether a declaration of war has been made or whether the parties involved
recognize that there is a state of war.
Non-international armed conflicts are those in which government forces are fighting against
armed insurgents, or rebel groups are fighting among themselves. Because IHL deals with an
exceptional situation – armed conflict – no derogations whatsoever from its provisions are
permitted.
In principle, IHRL applies at all times, i.e. both in peacetime and in situations of armed
conflict. However, some IHRL treaties permit governments to derogate from certain rights in
situations of public emergency threatening the life of the nation. Derogations must, however,
be proportional to the crisis at hand, must not be introduced on a discriminatory basis and
must not contravene other rules of international law – including rules of IHL.
GEOGRAPHICAL SCOPE OF APPLICATION
IHL binds all actors to an armed conflict: in international conflicts it must be observed by the
states involved, whereas in internal conflict it binds the government, as well the groups
fighting against it or among themselves. Thus, IHL lays down rules that are applicable to
both state and non-state actors.
IHRL lays down rules binding governments in their relations with individuals. While there is
a growing body of opinion according to which non- state actors – particularly if they exercise
government-like functions – must also be expected to respect human rights norms, the issue
remains unsettled.
IHL imposes obligations on individuals and also provides that persons may be held
individually criminally responsible for "grave breaches" of the Geneva Conventions and of
Additional Protocol I, and for other serious violations of the laws and customs of war (war
crimes). IHL establishes universal jurisdiction over persons suspected of having committed
all such acts. With the entry into force of the International Criminal Court, individuals will
also be accountable for war crimes committed in non-international armed conflict.
While individuals do not have specific duties under IHRL treaties, IHRL also provides for
individual criminal responsibility for violations that may constitute international crimes, such
as genocide, crimes against humanity and torture. These crimes are also subject to universal
jurisdiction.
The ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, as well
as the International Criminal Court, have jurisdiction over violations of both IHL and IHRL.
PERSONAL SCOPE OF APPLICATION
IHL aims to protect persons who do not, or are no longer taking part in hostilities. Applicable
in international armed conflicts, the Geneva Conventions deal with the treatment of the
wounded and sick in the armed forces in the field (Convention I), wounded, sick and
shipwrecked members of the armed forces at sea (Convention II), prisoners of war
(Convention III) and civilian persons (Convention IV). Civilian persons include internally
displaced persons, women, children, refugees, stateless persons, journalists and other
categories of individuals (Convention IV and Protocol I).

Similarly, the rules applicable in non- international armed conflict (article 3 common to the
Geneva Conventions and Protocol II) deal with the treatment of persons not taking, or no
longer taking part in the hostilities.
IHL also protects civilians through rules on the conduct of hostilities. For example, parties to
a conflict must at all times distinguish between combatants and non-combatants and between
military and non- military targets. Neither the civilian population as a whole nor individual
civilians may be the object of attack. It is also prohibited to attack military objectives if that
would cause disproportionate harm to civilians or civilian objects.

IHRL, being tailored primarily for peacetime, applies to all persons.

IMPLEMENTATION

States have a legal duty to respect and implement both IHL and human rights law.
Compliance with IHL requires a state to introduce national legislation to implement its
obligations, to train its military and to bring to trial those in grave breach of such law. Human
rights law also contains provisions requiring a State to take legislative and other appropriate
measures to implement its rules and punish violations.
In situations of armed conflict, human rights law complements and reinforces the protection
afforded by International Humanitarian Law.
Implementation at National Level
The duty to implement both IHL and IHRL lies first and foremost with states. States have a
duty to take a number of legal and practical measures – both in peacetime and in armed
conflict situations – aimed at ensuring full compliance with IHL, including :

• translating IHL treaties;

• preventing and punishing war crimes, through the enactment of penal

legislation;

• protecting the red cross and red crescent emblems;

• applying fundamental and judicial guarantees;

• disseminating IHL;

• training personnel qualified in IHL and appointing legal advisers to the armed
forces.

IHRL also contains provisions obliging states to implement its rules, whether immediately or
progressively. They must adopt a variety of legislative, administrative, judicial and other
measures that may be necessary to give effect to the rights provided for in the treaties. This
may include enacting criminal legislation to outlaw and repress acts prohibited under IHRL
treaties, or providing for a remedy before domestic courts for violations of specific rights and
ensuring that the remedy is effective.

Implementation at International Level

As regards international implementation, states have a collective responsibility under article 1
common to the Geneva Conventions to respect and to ensure respect for the Conventions in
all circumstances. The supervisory system also comprises the Protecting Power mechanism,
the enquiry procedure and the International Fact-Finding Commission envisaged in Article 90
of
Protocol I. States parties to Protocol I also undertake to act in cooperation with the United
Nations in situations of serious violations of Protocol I or of the Geneva Conventions.

The ICRC is a key component of the system, by virtue of the mandate entrusted to it under
the Geneva Conventions, their Additional Protocols and the Statutes of the International Red
Cross and Red Crescent Movement. It ensures protection and assistance to victims of war,
encourages states to implement their IHL obligations and promotes and develops IHL.
ICRC's right of initiative allows it to offer its services or to undertake any action which it
deems necessary to ensure the faithful application of IHL.
The IHRL supervisory system consists of bodies established either by the United Nations
Charter or by the main IHRL treaties. The principal UN Charter-based organ is the UN
Commission on Human Rights and it’s Sub-Commission on the Promotion and Protection of
Human Rights. "Special procedures" have also been developed by the Commission over the
last two decades, i.e. thematic or country specific special rapporteurs, and working groups
entrusted with monitoring and reporting on the human rights situations within their mandates.
Six of the main IHRL treaties also provide for the establishment of committees of
independent experts charged with monitoring their implementation.
A key role is played by the Office of the High Commissioner for Human Rights which has
primary responsibility for the overall protection and promotion of human rights. The Office
aims to enhance the effectiveness of the UN's human rights machinery, to increase UN
systemwide implementation and coordination of human rights, to build national, regional and
international capacity to promote and protect human rights and to disseminate human rights
texts and information.
Implementation at Regional Level

The work of regional human rights courts and commissions established under the main
regional human rights treaties in Europe, the Americas and Africa is a distinct feature of
IHRL, with no equivalent in IHL. Regional human rights mechanisms are, however,
increasingly examining violations of IHL.

The European Court of Human Rights is the centrepiece of the European system of human
rights protection under the 1950 European Convention. The main regional supervisory bodies
in the Americas are the Inter-American Commission on Human Rights and the Inter-
American Court of Human Rights. The African Commission on Human and Peoples' Rights
is the supervisory body established under the 1981 African Charter. A treaty establishing an
African human rights court has not yet come into force.

OVERLAP OF IHL AND IHRL

The interplay of IHL and human rights law remains the subject of much legal attention,
particularly because of its consequences for the conduct of military operations.
In its very first statement on the application of human rights in situations of armed conflict,
the
1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the
International Court of Justice observed that the protection provided by the International
Covenant on Civil and Political Rights did not cease in times of war and that, in principle, the
right not to be arbitrarily deprived of one’s life applied also in hostilities. The Court added
that what constituted arbitrary deprivation of life had to be determined by the applicable lex
specialis, namely, the law applicable in armed conflict, which is designed to regulate the
conduct of hostilities.

This statement has generally been interpreted as settling the issue of the interplay of IHL and
human rights law and as implying that human rights law, deemed to apply at all times,
constitutes the lex generalis, while IHL, whose application is triggered by the occurrence of
armed conflict, constitutes the lex specialis. In other words, when human rights law and IHL
are in conflict, the latter is deemed to prevail, since it was conceived specifically to deal with
armed conflict.

While the meaning and even the utility of the doctrine of lex specialis have been called into
question, there is a general acceptance of its indispensability for determining the interplay of
IHL and human rights law. Although, generally speaking, these two branches of international
law are complementary, the notion of complementarity cannot resolve the intricate legal
issues of interplay that sometimes arise. In some instance, IHL and human rights rules might
produce conflicting results when applied to the same facts because they reflect the different
circumstances for which they were primarily developed.

DETERMINATION OF REFUGEE STATUS

Refugee status is defined in various international instruments relating to refugees. The early
international instruments adopted between the two World Wars defined refugees by
categories, according to their national or ethnic origin. All refugees have common
characteristics; they are uprooted, they are homeless and they lack national protection and
status. Therefore, a 'refugee' is usually thought of a "person compelled to flee his state of
origin or residence due to political troubles, persecution, and famine or natural disaster.” The
early institutional definitions of refugee status included some of the key elements: (a) being
in a foreign country; and (b) not having the protection of a national.
International instruments for the determination of refugee status

•Refugee in international instruments between (1920-1950) or Refugee in international

instruments prior to 1951 convention on refugee status

The attention of international community has been focused on the need and protection of
refugees since 1921, when the council of the League of Nations decided to appoint a High
Commissioner for Russian Refugees on 1921 .The duty of the High Commissioner was to co-
ordinate the assistance given to those refugees by various countries. The mandate of the high
commissioner had included the following tasks: (i) To define the legal status of refugees; (ii)
To organize their repatriation or their allocation to the various countries; (iii) To undertake
relief work amongst them with the aid of philanthropic societies. The first international
instrument to deal with the legal status of these refugees was signed in Geneva on June
1928.This agreement was supplanted by the regular convention relating to the international
status of refugees signed at Geneva on October 28, 1933.

According to the 1933 Convention "Refugees shall be assured the enjoyment of civil rights,
free and ready access to the courts, security and stability as regards establishment and work,
facilities in the exercise of the professions of industry and commerce, and in regard to the
movement of persons, admission to schools and universities".Group or category approach
was adopted to define refugees in 1936 also in arrangements in respect of people fleeing from
Germany. However, in 1936, when the provisional agreement concerning the status of
refugees coming from Germany was adopted, it followed as "the term refugee covered all
persons coming from. Germany". The same was later incorporated in 1938 convention
According to the 1938 Convention, the term "Refugees" covers (i) Person possessing or
having possessed German nationality and not possessing any other nationality who are
proved not to enjoy in law or fact, the protection of German government and (ii) Stateless
person s not covered by previous Conventions or agreements who have left German territory
after being established therein and who are proved as not having enjoyed in law or fact the
protection of the German government. However, "persons who left Germany for reasons of
purely personal convenience were excluded from the definition of the convention".

1951 Convention And 1967 Addl Protocol- Refugee Status

The 1951 convention for the first time, offered a general definition of refugee, and by the
1967 protocol, extended its protection to such persons irrespective of nationality or
geographical location. The Convention affirms "the principle that human beings shall enjoy
fundamental rights and freedom without discrimination". In this context, refugee law is
essentially human rights based.

The definition of the term 'refugee' has been set out in article 1 of the Convention relating to
the status of refugee, of July 28, 1951 (Article 1-A).

According to Article 1-A the term 'Refugee' Applies to any person who:
i) Has been considered a refugee under the arrangements of 12 May 1926 and 30 June
1928 or under conventions of 28 October 1933 and 10 February 1938, the protocol of 14
September of 1939 or the Constitution of International Refugee Organization

ii) As a result of events occurring before 1 January 1951 and 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.

The above article 1-A of the 1951 Convention covers two groups of persons who are
considered as refugees for the purpose of its application: The first group could be called
"statutory" refugees, i.e. person s who have already been considered as refugees under
previous international agreements or under the Constitution of the International Refugee
Organization. The second group embraces person s who are accorded the status of a 'refugee'
for the first time. It consists of two sub-groups, one possessing a nationality and the other
without a nationality. There are two conditions applicable to both groups: (a) They must be
outside the country of their nationality or of their habitual residence, and (b) They must be
there as a result of events which took place before January 1, 1951.
Refugee defined in the Article 1 of the 1967 Protocol on the Convention relating to Status of
Refugee
The concept of a refugee was expanded by the convention's 1967 protocol. According to 1967
Protocol, the term 'refugee' shall mean any person within the definition of Article 1 of the
convention as if the words .Thus, according to 1967 Protocol, the definition of refugee
modified from "as a result of such events occurring before 1 January 1951" to "as a result of
such events". The present Protocol shall be applied by the state parties to without any
geographical and time limitation,.
Article 1 of the 1967 Protocol defined a refugee as a 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 or for reasons other than personal convenience, 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, is unable or, owing to such fear or for reasons
other personal convenience, is unwilling to return to it. Thus, the Protocol had been set up to
cope with the problem of the limitation of the personal scope of the 1951 convention, as it
was felt "desirable that equal status should be enjoyed by all refugees covered by definition in
the convention irrespective of the definition of 1 January 1951".
REGIONAL INSTRUMENTS –REFUGEE STATUS

Definition of Refugees Status by the Organization of African Unity (OAU) - The first
regional arrangement was established by the Organization of African Unity (OAU) in 1969.
The 1969 OAU convention, defines a refugees as one who "Owing to external aggression,
occupation, foreign domination or events seriously disturbing public order in either part or
the whole of his country of origin or nationality, is compelled to leave his place of habitual
residence in order to seek refuge in another place outside his country of origin or nationality"
The most important aspect of the OAU Convention is its two-fold definition of a 'refugee':
• (a) It incorporates the same definition as in the 1951 convention without the dateline
and without the possibility of geographical limitation.
• (b) At the same time it includes explicitly persons who are victims of manmade
disaster like international armed conflicts or civil wars etc.
Definition of Refugee Status by the Principles Concerning Treatment of Refugees (the 1966
Bangkok principles)- In the definition of the term 'refugee' given in article 1 of the 1966
principles concerning treatment of refugees adopted by the Asian-African legal Consultative
Committee , the term 'refugee is applied to: "A person who, owing to persecution or well-
founded fear of persecution for reasons of race , colour, religion, political belief or
membership of a political social group - (a) Leaves the state of which he is a national, or the
country of his nationality, the state or country of which he is a habitual resident; or (b) Being
outside such stat e or country is unable or unwilling to return to it or to avail him of its
protection" . Two explanations attached to this article state that: (i) The dependents of a
refugee shall be deemed to be refugees; and (ii) The expression 'leaves' includes voluntary as
well as involuntary leaving.
Definition of Refugee Status by the Organisation of American States (OAS) - The most
recent regional extension of the refugee definition is derived from the Cartagena Declaration,
adopted by ten Latin American States in 1984. The Cartagena Declaration extends the notion
of refugees to include, apart from those covered by the universal refugees' concept; also other
externally displaced persons who are in need of protection and assistance. The Cartagena
Declaration of 1984 defined refugees as those "who have fled their country; because their
lives, safety or liberty have been threatened by generalized violence foreign aggression,
internal conflicts, massive violations of human rights or other circumstances which have
seriously disturbed public order". The definition was approved by the 1985 General
Assembly of the Organization of American States, which resolved to urge member states to
extend support and in so far as possible, to implement the conclusions and recommendations
of the Cartagena Declaration on refugees. Although the Cartagena Declaration is not a legally
binding instrument of states, it is never the less of fundamental importance as it reflects
consensus on particular principles and criteria and has guided states in their treatment of
refugees.

Definition of Refugee Status by the Council of Europe (COE)- The Council of Europe has
also introduced standards of refugee protection that go beyond the UN Convention definition,
although the changes are significantly more modest than those of the OAU or OAS. In the
Parliamentary Assembly's Recommendation in Europe expressed its concern in regard to the
situation of "defacto refugees", that is, "Person who either have not been formally recognized
as convention refugees (although they meet the convention's criteria) or who are 'unable or
unwilling for other valid reasons to return to their countries of origin". The Council of Europe
adopted several instruments concerning refugees.

International Agency-Definition of Refugee

Refugee defined in International Refugee Organization (IRO)- In 1946, the Constitution of
International Refugee Organization (IRO) defined refugee by specific categories also
provided the element of more general definition in the classification of valid objection to
repatriation. The actual part of the Constitution reads: "Persecution, or fear based on
reasonable grounds of persecution because of race, religion, nationality or political opinions,
provided these opinions are not in conflict with the principles of the United Nations, as laid
down in the Preamble of the charter of the United Nations". The Constitution of the IRO
covers the cases of refugees of Second World War and post Second World War periods. It
includes following persons: (i) All those persons who have been considered as refugees under
the Constitution of International Refugee Organization. (ii) Victims of Nazi or Fascist
regimes, whether enjoying international status as refugees or not. (iii) Saar refugees, i.e. "all
person who, having previously had the status of inhabitants of the Saar, have left the territory
on the occasion of the plebiscite and are not in possession of national passports".

Refugee defined within the Mandate of the United Nations High Commissioner for Refugees
(UNHCR): UNHCR's statute includes a very similar definition of "refugee" as the 1951
convention. However, over time, UNHCR's mandate has been expanded by the UN General
Assembly and Economic and Social Council to cover other groups in "refugee like" situations
that normally would not fall within the office's competence (including some internally
displaced persons).
“Article 1 of the statue provide that: The United Nations High Commissioner for Refugees,
acting under the authority of the General Assembly, shall assume the function of providing
international protection. Under the auspices of the United Nations, to refugee who fall within
the scope of the present statute and of seeking permanent solutions for the problem of
refugees by assisting governments, and subject to the approval of the governments concerned,
private organizations to facilitate the voluntary repatriation of such refugees, or their
assimilation within new national communities.

Article 6-A: of the statute of UNHCR lays down that the competence of the high
commissioner shall extend to: (i) Any person who has been considered a refugee under the
arrangements of May 12, 1926 and of Jun e 30, 1928 or under the Conventions of October 28,
1933 and February 10, 1938, the Protocol of September 14, 1939 or the Constitution of the
International Refugee Organization. (ii) Any person who, as a result of events occurring
before January l , 1951 and owing to well-founded fear of being persecuted for reasons of
race, religion, nationality or political opinion, is outside the country of his nationality and is
unable or, owing to such fear or for reasons other than personal convenience, 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, is unable or owing to such fear or for
reasons other than personal convenience, is unwilling to return to it.
Article 6-B: of the statute of UNHCR lays down that: Any other person who is outside the
country of his nationality, or if he has no nationality, the country of his former habitual
residence, because he has or had well-founded fear of persecution by reason of his race,
religion, nationality or political opinion and is unable or, because of such fear, is unwilling to
avail himself of the protection of the government of the country of his nationality, or if he has
no nationality, to return to the country of his former habitual residence.
Termination of Refugee Status

A refugee ceases to be a refugee under certain conditions provided under the 1951
convention.

Following persons cease to be a refugee, if;

(i)He has voluntarily re-availed himself of the protection of the country of his nationality'; or

(ii) He has voluntarily re-acquired the nationality which was previously lost by him; or
(iii) He has acquired a new nationality, and enjoy the protection of the country of his new
nationality
(iv) He has voluntarily re-established himself in the country which he left or outside which he
remained owing to fear of persecution; or
(v) The circumstances in connection with which he or she has been recognized as a refugee
have ceased to exist, and he can no longer continue to refuse the protection of the country of
his or her nationality. However, if there is compelling reasons arising out of previous
persecution, he can refuse to avail himself of the protection of the country of nationality; or
(vi) He is able to return to the country of his former habitual residence after the circumstances
in connection with which he has been recognized as a refugee have ceases to exist. However,
if there is compelling reasons arising out of previous persecution, he can refuse to return to
the country of his former habitual residence.
Exclusion from Refugee Status

The 1951 Convention, in section D, E and F of Article 1, contain provisions whereby persons
otherwise having the characteristics of refugee, as defined in Article 1, Section A, are
excluded from refugee status. Such persons fall into three groups
(i) Persons receiving Protection from Organs of United Nations-Persons who are
receiving protection or assistance from organs or agencies of the United Nations other than
United Nations High Commissioner for Refugees shall not be entitled

(ii) Persons having Rights and Obligations Similar to the Nationals- A person, who is
recognized by the competent authorities of the country in which he has taken residence a s
having the rights and obligations which are attached to the possession of the nationality of the
country, shall not be entitled to the benefit under this convention.

(iii) Persons Guilty of Serious Crimes - No person shall be entitled to the benefit under
this convention, if: (a) He has committed a crime against peace, a war crime, or a crime
against humanity; (b) He has committed a serious non-political crime outside the country of
refuge prior to his admission to that country a s a refugee; (c) He has been guilty of acts
contrary to the purpose s and principle s of the United Nations. An analysis of the
international refugee law regime shows that, it recognizes a very board concept of human
rights to refugees.
1951 CONVENTION RELATING TO THE STATUS OF REFUGEES AND ITS 1967
PROTOCOL

The 1951 Convention protects refugees. It defines a refugee as a person who is outside his or
her country of nationality or habitual residence; has a well-founded fear of being persecuted
because of his or her race, religion, nationality, membership of a particular social group or
political opinion; and is unable or unwilling to avail him or herself of the protection of that
country, or to return there, for fear of persecution (see Article 1A(2)). People who fulfil this
definition are entitled to the rights and bound by the duties contained in the 1951 Convention.
The rights enjoyed by refugees under this convention cover wide and diverse areas, such as
religious, economic, social, educational, cultural, fiscal and civil rights etc. The 1951
Convention and the 1967 Protocol constitute the most important codification efforts of the
rights of refugees. These ensure the refugees certain fundamental rights laid down in the
1948, Universal Declaration of Human Rights. The Convention has a clear nexus with the
basic concept of human rights
The 1951 Convention contains a number of rights and also highlights the obligations of
refugees towards their host country. The cornerstone of the 1951 Convention is the principle
of non-refoulement contained in Article 33. According to this principle, a refugee should not
be returned to a country where he or she faces serious threats to his or her life or freedom.
This protection may not be claimed by refugees who are reasonably regarded as a danger to
the security of the country, or having been convicted of a particularly serious crime, are
considered a danger to the community. Other rights contained in the 1951 Convention
include:
• The right not to be expelled, except under certain, strictly defined conditions (Article
32);
• The right not to be punished for illegal entry into the territory of a contracting State
(Article31);
• The right to work (Articles 17 to 19);

• The right to housing (Article 21);

• The right to education (Article 22);

• The right to public relief and assistance (Article 23);

• The right to freedom of religion (Article 4);

• The right to access the courts (Article 16);

• The right to freedom of movement within the territory (Article 26); and

• The right to be issued identity and travel documents (Articles 27 and 28).
Some basic rights, including the right to be protected from refoulement, apply to all refugees.
A refugee becomes entitled to other rights the longer they remain in the host country, which
is based on the recognition that the longer they remain as refugees, the more rights they need.

1967 ADDITIONAL PROTOCOL

The 1967 Protocol broadens the applicability of the 1951 Convention. The 1967 Protocol
removes the geographical and time limits that were part of the 1951 Convention. These limits
initially restricted the Convention to persons who became refugees due to events occurring in
Europe before 1 January 1951.
According to 1967 Protocol, the term 'refugee' shall mean any person within the definition of
Article 1 of the convention as if the words .Thus, according to 1967 Protocol, the definition
of refugee modified from "as a result of such events occurring before 1 January 1951" to "as
a result of such events". The present Protocol shall be applied by the state parties here to
without any geographical and time limitation.
Article 1 of the 1967 Protocol defined a refugee as a 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 or for reasons other than personal convenience, 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, is unable or, owing to such fear or for reasons
other personal convenience, is unwilling to return to it. Thus, the Protocol had been set up to
cope with the problem of the limitation of the personal scope of the 1951 convention, as it
was felt "desirable that equal status should be enjoyed by all refugees covered by definition in
the convention irrespective of the definition of 1 January 1951".
Why is it important for States to accede to the 1951 Convention and its Protocol?

The refugee phenomenon is one of truly global proportions, affecting not only millions of
marginalized people directly but also the policies and practices of virtually every government
in the world. To help tackle this problem UNHCR believes that it is necessary to broaden the
base of State support for these refugee instruments, ensuring that the protection provided to
refugees is more universal in scope and the burdens and responsibilities of governments are
more equitably distributed and consistently applied.

When a State accedes to the 1951 Convention:

 it demonstrates its commitment to treating refugees in accordance with internationally

recognized legal and humanitarian standards;
 it gives refugees a possibility to find safety;
 it helps to avoid friction between States over refugee questions.
 Granting asylum is a peaceful, humanitarian and legal act rather than a hostile gesture,
and should be understood by the refugee’s country of origin as such;
 it demonstrates its willingness to share the responsibility for protecting refugees; and
 it helps UNHCR to mobilize international support for the protection of refugees.

LIMITATIONS

The first limitation is 1951 Convention’s lack of a precise definition of the term
“persecution”, key element of the refugee definition.

The second limitation is regarding the five grounds of persecution (race, religion,
nationality, membership of a particular social group and political opinion), categorically
listed in the refugee definition. These five grounds considerably limit its scope: indeed, only
the presence of at least one of them can determine the application of the 1951 Convention.

The third limitation concerns the lack of a broader integration between the refugee
definition and other human rights, as only violations of civil and political rights are
considered for determining the refugee status. In light of this, the integration between the
three generations of human rights is little considered when it comes to the concept of refugee

UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR)

The United Nations High Commissioner for Refugees is a UN agency mandated to aid and
protect refugees, forcibly displaced communities, and stateless people, and to assist in their
voluntary repatriation, local integration or resettlement to a third country. Since 1951,
UNHCR started its operation as a subsidiary body of the United Nations for a limited period
and the mandate has been regularly extended. It has a global geographical coverage and
operates on the basis of its statute, adopted in 1950.One of the remarkable feature of the
UNHCR, is that this agency is of an 'entirely non-political character’ and attempts to be
objective in dealing with refugee situations. This has not been entirely possible, as the United
Nations has become a highly political organization and every specialized agency is involved
in the politics of the day.
According to UNHCR, ‘Refugees are people who have fled war, violence, conflict or
persecution and have crossed an international border to find safety in another country’. They
often have had to flee with little more than the clothes on their back, leaving behind homes,
possessions, jobs and loved ones. Refugees are defined and protected in international law. At
least 79.5 million people around the world have been forced to flee their homes. Among them
are nearly 26 million refugees, around half of whom are under the age of 18.There are also
millions of stateless people, who have been denied a nationality and lack access to basic
rights such as education, health care, employment and freedom of movement. At a time when
1 per cent of the world’s population have fled their homes as a result of conflict or
persecution, our work at UNHCR is more important than ever before. In the Leaders’ summit
on refugees held on 2016 French president M. François Hollande, said that the refugee crisis
is the most serious crisis the United Nations has encountered since it was created.
UNHCR was created in 1950 to address the refugee crisis that resulted from World War II.
The 1951 Refugee Convention established the scope and legal framework of the agency's
work, which initially focused on Europeans uprooted by the war. As of June 2020, UNHCR
has over 20 million refugees under its mandate. The agency's work includes providing
protection, shelter, healthcare and emergency relief, assisting in resettlement and repatriation,
and advocating for national and multilateral policies on behalf of refugees.
Some of the important activities carried by UNHCR are as follows:

•Coronavirus Outbreak: UNHCR is ensuring hygiene in areas hosting displaced people,

including airlifting emergency supplies & establishing isolation units. It has procured items
like gowns, masks, oxygen concentrators etc for the refugees and delivered refugee housing
units, hospital tents & PPE kits.

•DR Congo Emergency: UNHCR is assisting people displaced through activities aimed at
strengthening the protection of vulnerable people. It also provide shelter materials and cash
grants to the most vulnerable among the displaced and returnees.
•Iraq emergency: UNHCR is providing protection and life-saving aid such as tents, mattresses
& other basic essentials.
•Rohingya Emergency: When the crisis began the UNHCR airlifted of emergency life-saving
aid to Bangladesh including blankets, plastic sheets, sleeping mats etc. It has developed new
sites to accommodate refugees, has ensured proper sanitation and drinking water for them.

•Burundi Situation: UNHCR is helping families unite with their loved ones & training camp
community workers to spot signs of sexual exploitation and abuse. They are helping mothers
give birth in a healthy manner & making arrangements for drinking water.

•Central African Republic: UNHCR’s focus remains on life-saving protection and assistance,
distributing basic relief items to the newly displaced and new community shelters are being
set up in response to the growing number of IDPs.

•Displacement in Central America: UNHCR supports shelters across Central America &
Mexico so that immediate assistance is available to those moving & to those who are in need
of international protection. It provides life-saving support and cash grants to help displaced
people cope.

•Nigeria Emergency: UNHCR is providing protection-by-presence in the field through

strategic protection monitoring, vulnerability screening, provision of material assistance and
subsequent individual protection referrals to service providers. It also ensures that the rights
of persons of concern are respected.

•Sahel Emergency: UNHCR is providing shelter and core relief items, supporting victims of
rampant sexual and gender-based violence helping people to access education & working to
mitigate the devastating impact of climate change.
Organization of UNHCR

The UNHCR is mandated by the United Nations (UN) to lead and co-ordinate international
action for the world- wide protection of Refugees and the resolution of refugee problems.
UNHCR's primary purpose is to safe guard the rights and will being of refugee.
Status of UNHCR

The status of the office of the UNHCR is a subsidiary organ of the General Assembly
functioning under art. 22 of the charter. The office enjoys a special status within the United
Nations with high degree of independence and autonomy along with prestige arising out of
important and at times vital function which it performs.

Structure
The office consists of a High Commissioner, a Deputy High Commissioner and an Assistant
High Commissioner. Apart from them, the office of high commissioner has been divided in to
seven division/ departments. They are as follows:

•The executive (High Commissioner's) office;

•The division of international protection-which is responsible for the agency's core protection
mandate
•The department of operations- which covers all field programmes;

•The division of external relations;

•The division of human resources management for personnel;

•The division of information system and technology; and

•The division of financial and administrative management.

All the divisions have been divided in to further subdivisions, sections and desks. These
divisions work in close co-operation with each other. The UNHCR performs its
responsibilities with the help of all regional offices and their staff. However, the High
Commissioner holds the key position and performs its duty in terms of co- ordination,
formulation of policy and effective planning.
Tenure

The office of the United Nations High Commissioner for Refugees was set up on January 1,
1951 for a period of three years. Later in 1954, the tenure of the United Nations High
Commissioner for Refugees has been continuously renewed and extended from time to time.
The office of the United Nations High Commissioner is usually held by a person of
distinction.
Functions of UNHCR

To provide protection to refugees is the main function of the UNHCR. It is the primary
operating agency, with responsibility for coordinating relief activities and ensuring that all
refugees received the basic, minimal level of assistance.
The material function of UNHCR is in para 8 of the statute which is as follows:

•Promoting the conclusion and ratification of international conventions for the protection of
refugees, supervising their application and proposing amendments there to;

•Promoting through special agreements with governments the execution of any measures
calculated to improve the situation of refugees and to reduce the number requiring protection;

•Assisting governmental and private efforts to promote voluntary repatriation or assimilation

within new national communities;

•Promoting the admission of refugees, not excluding those in the most destitute categories, to
the territories of states.

•Endeavoring to obtain permission for refugees to transfer their assets and especially those
necessary for their resettlement;

•Obtaining from governments information concerning the number and conditions of refugees
in their territories and the laws and regulations concerning them;

•Keeping in close touch with the governments and intergovernmental organizations

concerned;
•Establishing contact in such manner as he may think best with private organizations dealing
with refugee questions.
•Facilitating the co-ordination of the efforts of private organizations concerned with the
welfare of refugees.
The purpose of international protection is to give refugee's similar legal status as the nationals
living abroad. However the permanent solution means economic and social integration of
refugees in the country of asylum and repatriation to their country of origin. Traditionally
three major durable solutions have been promoted by the UNHCR "voluntary repatriation,
integration on the spot or local settlement and third country settlement". However, the
international community has placed emphasis on voluntary repatriation as the strongly
preferred solution. The High Commissioner performs such activities including repatriation
and resettlement, as the General Assembly determines, within the limits of the resources
placed at his disposal.

Repatriation
The statute of the UNHCR gives direction to the High Commissioner to facilitate and to
promote voluntary repatriation. The repatriation can be considered only when conditions in
the country of origin have changed so much that the refugees should not believe that their
lives are in danger or liberty is being threatened. It is noteworthy that under the UNHCR
auspices thousands of refugees have returned to their homes.

For example, in April 1994, the UNHCR initiated an organized repatriation programme for
the Refugees. Under this programme thousands of refugees repatriated under the high
commissioner's auspices. As part of its efforts to promote and consolidate voluntary
repatriation and to prevent new displacement, the UNHCR has expanded its activities in
countries of origin. Whenever, voluntary repatriation takes place, the UNHCR tries to ensure
that a legal frame work is set up to protect the rights of returnees.

Integration
Where voluntary repatriation is not feasible, the best solution is to settle refugees in their host
country. This can only be done with the agreement of the government of the asylum country
and the UNHCR. In Africa, refugees have been moving for a long time into neighbouring
countries, they have generally been admitted unconditionally. The integration is either
spontaneous or in an organized manner. If it is in an organized manner the same is achieved,
within a programme set up by UNHCR and the government concerned jointly. Most of the
local settlements have become the permanent home of refugees. For example in 1981, 66
such settlements were established in 14 African countries in which a million people
integrated. In Tanzania itself about 36,000 refugees, who were there for more than 20 years,
have been integrated and offered Tanzanian citizenship. However, due to bad economic and
social conditions in many host countries, the UNHCR’s integration activities in recent years
have diminished in relation to its other material assistance programmes.
Resettlement
Resettlement in the third country may be the only way to guarantee international protection to
a refugee who has been denied protection in the country of asylum and who cannot repatriate
to the country of his origin. UNHCR has been actively engaged in the promotion of
resettlement with cooperation of interested governments and voluntary agencies concerned
with the resettlement of Refugees. Resettlement involves transferring a refugee from his or
her country of asylum to another state which has agreed to admit that person, to grant them
long- term residence rights and the opportunity to become naturalized citizens. Agency
encouraged states to accept more refugees for permanent settlement to integrate them locally
in countries where they had first sought refuge or asylum.

ASYLUM AND NON- REFOULMENT

NON- REFOULEMENT
Under international human rights law, the principle of non-refoulement guarantees that no
one should be returned to a country where they would face torture, cruel, inhuman or
degrading treatment or punishment and other irreparable harm. This principle applies to all
migrants at all times, irrespective of migration status. Under international human rights law
the prohibition of refoulement is explicitly included in the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International
Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). In
regional instruments the principle is explicitly found in the Inter-American Convention on the
Prevention of Torture, the American Convention on Human Rights, and the Charter of
Fundamental Rights of the European Union. International human rights bodies, regional
human rights courts, as well as national courts have guided that this principle is an implicit
guarantee flowing from the obligations to respect, protect and fulfil human rights.
SCOPE
The prohibition of refoulement under international human rights law applies to any form of
removal or transfer of persons, regardless of their status, where there are substantial grounds
for believing that the returnee would be at risk of irreparable harm upon return on account of
torture, ill-treatment or other serious breaches of human rights obligations. As an inherent
element of the prohibition of torture and other forms of ill-treatment, the principle of non-
refoulement is characterised by its absolute nature without any exception. In this respect, the
scope of this principle under relevant human rights law treaties is broader than that contained
in international refugee law. The prohibition applies to all persons, irrespective of their
citizenship, nationality, statelessness, or migration status, and it applies wherever a State
exercises jurisdiction or effective control, even when outside of that State’s territory.
The prohibition of refoulement has been interpreted by some courts and international human
rights mechanisms to apply to a range of serious human rights violations, including torture,
and other cruel, inhuman or degrading treatment, flagrant denial of the right to a fair trial ,
risks of violations to the rights to life , integrity and/or freedom of the person, serious forms
of sexual and gender-based violence , death penalty or death row, female genital mutilation,
or prolonged solitary confinement, among others. Some courts and some international human
rights mechanisms have further interpreted severe violations of economic, social and cultural
rights to fall within the scope of the prohibition of non-refoulement because they would
represent a severe violation of the right to life or freedom from torture or other cruel,
inhuman or degrading treatment or punishment. For example, degrading living conditions,
lack of medical treatment, or mental illness have been found to prevent return of persons.
ASYLUM
States are entitled to control immigration, a practice recognized to be within the reserved
domain of their sovereignty. Immigration control presupposes two prerogatives—denying or
blocking access to state territory, and ensuring the return of those aliens who have succeeded
in entering. At the same time, immigration control as an expression of state sovereignty is
subject to the principles and norms of international human rights law. More specifically, the
prerogatives of states to control entrance, residence, and deportation of aliens are subject to
certain human rights obligations. However, immigration control and human rights protection
come into conflict when asylum-seekers flee their countries and try to find safe shelter.
Article 14 of the Universal Declaration of Human Rights recognizes the right “to seek and to
enjoy in other countries asylum from persecution.” “Asylum” is protection offered by states
to aliens who flee persecution and human rights violations. Accordingly, asylum-seekers are
persons whose applications for asylum are under review by the state authorities and who
might or might not receive protection. When they do not receive asylum or refugee status and
when they have no other legal ground to stay in the country, they must leave. As per the
Refugee Conventions, asylum-seekers are potential refugees, and they receive the status of
“refugee” if they prove that they have a well-founded fear “of being persecuted for reasons of
race, religion, nationality, membership of a particular social group or political opinion.”
The principle of non-refoulement applies to asylum-seekers who are still under the refugee
status determination procedure; to individuals who cannot be returned since there is a risk
that they will be subjected to torture or to inhumane or degrading treatment or punishment;
and to individuals who have been recognized as refugees within the meaning of Article 1 of
the Refugee Convention. Any act of removal is prohibited, which means that the formal
description of the act—deportation, expulsion, extradition, return is not material.
STATE’S OBLIGATION TO GRANT ACCESS TO THEIR TERRITORY
Article 13 of the Universal Declaration of Human Rights stipulates that “Everyone has the
right to freedom of movement and residence within the borders of each state” and “Everyone
has the right to leave any country, including his own, and to return to his country.”
Accordingly, asylum-seekers have the right to leave their countries, but they are not entitled
to enter other countries. While freedom of movement within the borders of each state is
recognized, freedom of movement across international borders is a controversial issue.
There is no explicit international norm that obliges states to grant asylum and consequently to
accept refugees into their territories. The non-refoulement principle provided for in Article
33(1) of the Refugee Convention does not give individuals the right to receive asylum in a
particular state. The prohibition for refoulement therefore does not negate the sovereign right
of states to regulate the entrance of aliens in their territory. At the same time, it has been
recognized that non-refoulement to a certain degree limits state sovereignty, because the
prohibition in Article 33(1) could in certain situations amount to a de facto obligation to
accept asylum-seekers in a state’s territory if the denial of acceptance “in any manner
whatsoever” results in exposure to risk. James Hathaway, a scholar finds that acceptance in a
state’s territory could be the only way the consequences from risk exposure can be avoided.
Non-refoulement cannot be guaranteed without granting asylum-seekers access to state
territory. Denial of access to state territory equates to a denial of fair refugee status
determination procedure. If a refugee status determination procedure is not conducted, it
becomes impossible to identify those asylum-seekers who face risk of persecution if denied
protection. Since non-refoulement prevents violations of human rights, which are recognized
to hold such significant value (like the prohibition of torture) that states should invest special
efforts in order to achieve some degree of certainty that these rights are not breached. Along
these lines of reasoning, conducting refugee status determination procedures is of paramount
importance. The procedure has the objective of determining who is a refugee and who is not a
refugee, and therefore what rights each is entitled to.
Another pertinent issue, except the right to appeal, would be whether asylum-seekers have
access to legal assistance. Without legal help, asylum-seekers are at the mercy of state
immigration officials, which is a premise for arbitrariness. Further, although the duty to
ascertain and evaluate all relevant facts is shared between the applicant and the examiner,
generally the burden of proof lies on the individual submitting a claim. Demonstrating that
the particular situation of an asylum-seeker falls within the conditions of Article 1A of the
Refugee Convention is an arduous endeavour even for a person with a legal background. It
follows that access to state territory also means access to legal aid and real chances for
asylum-seekers to prove their asylum claims. Equally important is the availability of an
interpreter. Preliminary interviews at state borders and in international zones might not
include an interpreter, which makes it impossible for asylum-seekers to communicate their
stories.

INTERCEPTION ON THE HIGH SEAS

The United States practice of returning asylum-seekers from Haiti is a notorious example of
denying access to state territory. It is also an example of how states can exercise
extraterritorial jurisdiction and, after that, claim that they are not responsible for the actions
of their officials committed outside national borders. In the Sale v. Haitian Centers Council
decision, the majority of the USA Supreme Court held that United Nations Protocol Relating
to the Status of Refugees does not apply to actions taken by the Coast Guard on the high seas.
Accordingly, in the opinion of the majority, the non-refoulement principle embodied in
Article 33 (1) from the Refugee Convention is inapplicable outside USA borders.
The idea that states are not responsible for human rights violations committed by their agents
in so-called international zones is unacceptable. By signing international human rights
treaties, states have undertaken obligations to respect the rights of individuals under their
jurisdiction.
States should respect the rights of all individuals under their effective control, even if they are
not in the states’ territory. The concept of jurisdiction is therefore not limited to national
territory. Furthermore, the European Court of Human Rights has emphasized that the phrase
“within their jurisdiction” includes state responsibility for actions of state officials in
international zones at airports and actions of state authorities irrespective of the place where
they have been committed. The decisive factor is whether the individual is under the effective
control of the state officials.
The International Court of Justice has also noted that the drafters of the International
Covenant on Civil and Political Rights “did not intend to allow States to escape from their
obligations when they exercise jurisdiction outside their national territory.”
A narrow interpretation of Article 33(1) of the Refugee Convention allows the return of
asylum-seekers to persecution with the justification that they have not set foot on state
territory and accordingly states do not have any obligations regarding them. However, such
interpretation is unacceptable since it is inconsistent with the objectives of the Refugee
Convention, which is an international instrument within the international human rights
treaties framework.

ASYLUM-SEEKERS RESCUED AT SEA

Intercepted asylum-seekers could turn into people in distress at sea. In this case, the issue that
arises is which states are responsible for the rescued asylum-seekers. International refugee
law and international maritime law are both relevant when examining the problem. Many
questions need answering, such as those that deal with the obligations of the coastal state and
of the state whose ship rescued the asylum-seekers. The duty to render assistance to persons
in distress at sea is established in both international treaty and customary law. However, the
case of rescued asylum-seekers constitutes a problem for the following reasons—the asylum-
seekers do not want to go back to their countries of origin and at the same time no other state
is obliged to accept them in its territory. Asylum-seekers in distress on the high seas have to
be rescued; however, it is not clear who should take responsibility for them after their rescue.
There is no provision in international maritime law to stipulate where the rescued asylum-
seeker can disembark from the ship which has rescued them. States are obliged not to return
asylum seekers to the frontiers of territories where their lives or freedom might be threatened.
No state, nevertheless, has the positive obligation to accept them. It is not clear which state is
responsible to review their applications for asylum. Without procedure aimed at identifying
the refugees, the observance of non- refoulement cannot be ensured.

The incident of the Norwegian ship Tampa and Australia’s unwillingness to accept asylum-
seekers on its territory illustrates how asylum-seekers rescued at sea fall into a legal limbo.36
The pending questions at the time of the incident were if Tampa was entitled to enter
Australian territorial waters and port and whether Australia had any obligation regarding the
rescued individuals who wanted to submit applications for asylum in Australia. After
rescuing asylum-seekers in distress at sea, Tampa was not allowed to enter Australian
territorial waters and port. The position of Australia was that Tampa carried individuals who
intended to enter Australia illegally, which is a breach of the conditions for admission.
Consequently, closure of the Australian harbor is necessary for the prevention of the entrance
of illegal immigrants. Further, international maritime law entitles coastal states to demand
that a ship, which carries illegal immigrants, should leave their territorial waters. It could be
concluded that current maritime law does not take into consideration the problem of asylum-
seekers.
However, an issue which should raised is whether the individuals saved by Tampa could be
labeled as illegal immigrants. Australia cannot define them as illegal immigrants, since it has
not conducted refugee status determination procedures. Some of the rescued asylum-seekers
could be refugees and, as it was already clarified, refugees are not illegal immigrants. From
the perspective of international refugee law, it has to be mentioned that no provision
explicitly indicates where the obligation for reviewing the asylum application arises.40
However, once an asylum-seeker is under the jurisdiction of a particular state and claims to
be in need of international protection, that state is obliged to fulfill its obligations under the
Refugee Convention and to determine the status of the person. In respect to the Tampa case,
it should be emphasized that the ship entered Australian territorial waters, in which Australia
has full sovereign rights. The asylum-seekers expressed their desire to submit applications for
asylum and to seek protection in Australia. Accordingly, by denying review of their asylum
applications, Australia exposed them to potential refoulement.
STOWAWAYS
International human rights law does not contain specific binding rules concerning stowaway
asylum-seekers. An international convention—the Brussels Convention—relating to
stowaways was adopted in 1957, but it has not yet entered into force due to the absence of a
sufficient number of ratifications by states.41 Therefore, its provisions are valid only as
recommendations. Article 1 of the Brussels Convention defines a stowaway “as a person
who, at any port or place in the vicinity thereof, secretes himself in a ship without the consent
of the shipowner or the Master or any other person in charge of the ship and who is on board
after the ship has left that port or place.” If a stowaway is found on board, the Master may
deliver him to the appropriate authority at the first port in a state party to the convention at
which the ship calls after the stowaway is found. The state of first port of disembarkation
only temporarily accepts the stowaway. That state may return the stowaway to his country of
nationality, to the state where his port of embarkation is considered to be situated, or to the
state in which the last port at which the ship called prior to his being found is situated.
Finally, the state of first port of disembarkation could return the stowaway to the state whose
flag was flown by the ship in which he was found. The Brussels Convention specifically
indicates that the Master of the ship and the appropriate authorities of the port of
disembarkation should take into account the reasons which may be put forward by the
stowaway for not being disembarked at or returned to those ports or states mentioned in the
convention.
The Brussels Convention does not provide for an adequate solution to the problem of
stowaway asylum-seekers. The possibility for chain transferring equates to a lack of any
responsibility on the part of a state for conducting a refugee status determination procedure.
Moreover, among the asylum-seekers there could be refugees, who have already undergone
human rights violations and the transfer could be very traumatic for them. The process of
transfer itself could even amount to inhumane and degrading treatment.
Authorities of the presence of stowaways upon arrival at the port of entry and that stowaways
are held on board until they can be presented to the authorities for examination. When coastal
states face a situation with stowaway asylum-seekers, they might demand from the
shipmaster to hold the stowaways on board. The coastal state could require that the flag state
take responsibility for the stowaways if the next port of disembarkation is not an acceptable
option. Allowing disembarkation under the condition of subsequent resettlement is another
possible alternative. The immigration authorities of the coastal state could intercept the ship
and officials could embark in order to determine if the stowaways are “genuine” asylum-
seekers. Subsequently, some form of a refugee status determination procedure could be
initiated. However, such a practice is very problematic.
It is difficult to imagine how an asylum-seeker, who is scared and exhausted by the long
journey, with barely any knowledge of the foreign language, could reveal his/her reasons for
fleeing his/her country of origin. The absence of an interpreter constitutes another problem.
The interviews at ships are not real refugee status determination interviews; they are a
preliminary procedure, on whose basis immigration officials make an assessment whether to
allow asylum-seekers to disembark the ship in order to submit applications for asylum.
Preliminary interviews at ships are of paramount significance since asylum-seekers will not
have the chance to submit an application for asylum if they are not allowed to disembark.