PROTECTION OF REFUGEES UNDER SOMALILAND LEGAL SYSTEM IN

COMPARISON WITH INTERNATIONAL STANDARDS

A Thesis

Presented to the School of Post Graduate Studies

New Generation University College

Hargeisa, Somaliland

BY:

Khadar Hussein Dahir

ID NO:

In Partial Fulfillment of the Requirements for the Master’s Degree in International Law

Hargeisa Somaliland, 2022

II
Declaration
I declare that I am the author of this paper and that any assistance I received in its preparation is
fully acknowledged and disclosed in the paper. I have also cited any sources from which I used
data, ideas or words, either quoted directly or paraphrased. I also certify that this paper was
prepared by me specifically for the partial fulfillment for the degree of LLM in International Law
at New Generation University.

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 APPROVAL SHEET

This dissertation entitled" Protection of Refugees under Somaliland Legal System in

Comparison with International Standards" prepared and submitted by Khadar Hussein

Dahir in partial fulfillment of the requirements for the degree of Master of International Law

has been examined and approved by the panel on oral examination with a grade of

______________________.

____________________________

Name and Sign. of Chairman

________________________ _______________________

Name and Sign of Supervisor Name and Sign of Panelist

______________________ _____________________

Name and Sign of Panelist Name and Sign of Panelist

Date of Comprehensive Examination: _________________________

Grade: ____________________________

________________________________

Name and Sign of Department Director

__________________________________

Name and Sign of ASAO

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Dedication
This thesis is dedicated to my beloved parents-mother and father.

V
Acknowledgement
First and foremost, I am enormously indebted to my advisor, Associate Professor Mohamed

Alliye for his insightful comments and suggestions from the inception of the topic to the

completion of the thesis. .

Moreover, I am indebted to my family, and to my every season friend Hamda Rage who were

indispensable in the undertaking of the study.

Finally, I am grateful to my lonely time and its alternate breakers.

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Abstract
Since the Second World War, the protection of refugees became an international concern among
the world states. A number of international and regional conventions related with refugees had
been adopted, which made and recognized the protection of refugee rights as an international
obligation. Similarly, United Nations High Commissioner for Refugees (UNHCR) had come in
to existence with the mandate of governing the refugee matters globally. Furthermore, majority
of the sovereign world had signed and ratified the 1951 Refugee Status Convention, and
legalized the rights of refugees in their contexts. As a result, those international commitments
highly contributed to realize the rights of refugees around the world.

Accordingly, though Somaliland constitution recognized the existing international law treaties or
instruments, there is no any specific national law for refugees in place and the study identified
this as a legal gap in refugee protection. As a result, the matters of refugees in Somaliland are
governed by the international human right standards, specifically the 1951 Refugee Status
Convention; therefore, the status of refugees in Somaliland is determined by UNHCR in
accordance with the international refugee convention and its 1950 statute. On the other hand, the
incumbent government of Somaliland established NDRA as a government agency mandated for
the protection of refugees, asylum seekers, and other vulnerable communities including IDPs and
returnees. Since time being, NDRA made remarkable efforts improving the situation of refugees
in the country through leading and coordinating the available assistances for realizing the rights
of refugees. Several organizations including UNHCR, NRC, DRC and others support the
government in the protection of refugees at the areas of education, health, and security, legal and
sometimes household economy.

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Acronyms
NDRA: National Displacement and Refugee Agency

UN: United Nations

UNHCR: United Nations High Commissioner for Refugees

OAS: Organization of American States

EC: European Commission

EU: European Union

ASEAN: Association of South East Asian Nations

LAS: League of Arab States

OAU: Organization of African Unity

AU: African Union

UDHR: Universal Declaration of Human Rights

ICSECR: International Covenant on Economic, Social and Cultural Rights

ICCPR: International Covenant on Civil and Political Rights

NRC: Norwegian Refugee Council

DRC: Danish Refugee Council

DAN: Diversity Action Network

RSD: Refugee Status Determination

NGU: New Generation University

UOH: University of Hargeisa

LC: Legal Clinic

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Table of Contents
Declaration.....................................................................................................................................III
APPROVAL SHEET.....................................................................................................................IV
Dedication.......................................................................................................................................V
Acknowledgement.........................................................................................................................VI
Abstract........................................................................................................................................VII
Acronyms....................................................................................................................................VIII
CHAPTER ONE: INTRODUCTION..............................................................................................2
1.1. Background of the Study...................................................................................................2
1.2. Problem Statement............................................................................................................3
1.3. Objectives of Research......................................................................................................4
1.3.1. General Objectives.....................................................................................................4
1.3.2. Specific Objectives....................................................................................................4
1.4. Research Questions...........................................................................................................5
1.5. Significance of the Study..................................................................................................5
1.6. Scope of the Study............................................................................................................5
1.6.1. Geographical Scope...................................................................................................6
1.6.2. Content Scope............................................................................................................6
1.6.3. Time Scope................................................................................................................6
1.7. Conceptual Framework.....................................................................................................6
1.8. Theoretical Framework.....................................................................................................9
1.9. Definition of Key Terms.................................................................................................10
CHAPTER TWO: LITERATURE REVIEW................................................................................11
2.1. Introduction.........................................................................................................................11
2.2. Literature Survey.................................................................................................................11
2.2.1. Historical Literature.....................................................................................................11
2.2.2. Protection of Refugees under International Legal Regimes.........................................14
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 2.2.3. Regional Protection of Refugees..................................................................................23
2.2.4. Role of UNHCR on Refugee Protection......................................................................29
2.3. Theoretical Literature..........................................................................................................31
2.4. Summary of Literature Review...........................................................................................35
CHAPTER THREE: RESEARCH METHODOLOGY................................................................37
3.1. Introduction.....................................................................................................................37
3.2. Research Design..............................................................................................................37
3.3. Study Area and Population.............................................................................................37
3.4. Study Sample..................................................................................................................38
3.4.1. Sample Design.........................................................................................................38
3.4.2. Sampling Procedure.................................................................................................38
3.4.3. Sample Size.............................................................................................................38
3.5. Data Collection...............................................................................................................39
3.5.1. Data Collection Sources..........................................................................................39
3.5.2. Data Collection Methods and Instruments..............................................................39
3.5.3. Data Collection Procedure.......................................................................................40
3.6. Data Processing and Analysis.........................................................................................40
3.6.1. Data Processing.......................................................................................................40
3.6.2. Data Analysis and Presentation...............................................................................40
3.7. Ethical Consideration......................................................................................................40
3.8. Limitation of Study.........................................................................................................40
CHAPTER FOUR: PRESENTATION AND DISCUSSION OF FINDINGS..............................42
4.1. Introduction.........................................................................................................................42
4.2. Demographic Information of Respondents.........................................................................42
4.3. Applicable Laws for Refugees in Somaliland.....................................................................42
4.4. Refugee Status Determination (RSD) in Somaliland..........................................................44
4.5. Mandate of NDRA in Refugee Protection..........................................................................45
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 4.6. Protection Activities for Refugees in Somaliland...............................................................47
CHAPTER FIVE: CONCLUSION AND RECOMMENDATION..............................................49
5.1. Introduction.....................................................................................................................49
5.2. Summary of Findings......................................................................................................49
5.3. Conclusion......................................................................................................................50
5.4. Recommendation............................................................................................................51
Reference.......................................................................................................................................52
Annex: Key Informant Interview...................................................................................................54

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 CHAPTER ONE: INTRODUCTION
This chapter consists of background of the study, statement of the problem, research objectives
including general and specific objects, research questions, significance, and scope of the study.
Conceptual framework, theoretical framework, and definition of key terms also discussed in this
chapter.

1.1. Background of the Study

Since time immemorial, humans used to flee or escape from their places of origin or homes in
order to avoid persecution, armed conflict or political violence. Although the historians had not
paid special attention to this concept earlier, but every continent and block on the world had
experienced this in some extent, where most religions incorporated concepts like asylum,
refugee, sanctuary and hospitality for those escaping with their lives (Hathaway, 2021). The
efforts and standards for the protection and assistance to those people were neither universal nor
inclusive but essentially localized and ad hoc in nature (Ibid).

Collective action by States to confront the problem of fled refugees or forced migration did not
come on board until the formation of the League of Nations in 1919 following the end of the
First World War. The League operated as an international organization where sovereign states
could have cooperation not only in the political sphere to prevent wars and ensure peace, but also
in the areas of social and economic matters (Virginia, 2017; 97). Even then, the growth of an
international system to respond and manage to refugee problems was slow and intermittent. The
League of Nations appointed a number of High Commissioner Envoys to deal with specific
refugee groups such as Russians, Armenians and Germans, but none of these developed into
long-standing arrangements. Similarly, after the Second World War, separate bodies were
established to deal with European, Palestinian and Korean refugees (Ibid).

Though all those aforementioned international attempts were on fore front, they did not establish
tangible and effective global commitments for the protection and assistance to refugees. The
turning-point came in 1950–51, with the establishment of the office of the United Nations High
Commissioner for Refugees (UNHCR) and the adoption of the United Nations Convention

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Relating to the Status of Refugees (Walzer, 1983). Together they provided, for the first time, a
formal structure for responding to the needs of refugees and standards for the protection of
refugees under international law. Additionally, the 1967 Protocol relating to the Status of
Refugees removed geographic and temporal restrictions in the 1951 Refugee Convention, and
thereby broadened the notion of who was eligible to receive protection as a refugee under the
1951 Refugee Convention (Ibid). Those international instruments and institution had ignited and
opened a new door for a novel legal regime for the protection and assistance to refugees
internationally.

In the same token, after the second world war and decolonization period, a number of regional
organizations with different purposes had come to existence in various geographical locations or
continents for protecting and realizing the common or shared interests of those united with each
of it, like the Organization of African Unity (currently African Union/AU), European Union
(EU), Association of South East Asian Nations (ASEAN), League of Arab States (LAS),
Organization of American States (OAS), and others (Miller, 2007). The regional organizations
played an important role and took a lion’s share in the development of legal and policy
frameworks to better support the safeguarding and advancement of human rights in general, and
specifically the rights of refugees. For example, African Charter on Human and Peoples rights
affirms under article 12 (3) that every individual when persecuted, shall have the right to seek
and obtain asylum from other countries in accordance with the law of those countries and
international conventions (Ibid). In addition, African Union, hereafter AU adopted a specific
convention named ‘Convention Governing the Specific Aspects of Refugee Problems in Africa’
which in accordance with its name governs the rights and issues of refugees in Africa (Ibid).

Considering the aforementioned international and regional commitments, the legal protection of
refugees became a global concern during the 20th and 21st centuries. Most of the countries on the
globe had ratified those international and regional instruments and enacted with their local or
national legislations, which contributed the international obligation of refugee protection. So
that, this study will investigate this issue in legal wise and will analyze and determine the extent
in which those international laws ensured the safeguarding and protection of the rights of
refugees globally (Wellmann, 2008).

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Likewise, in Somaliland, refugee protection is a concern for government’s efforts to improve the
situation of refugees in the country. In his first days, the incumbent president H.E. Muse Bihi had
established the National Displacement and Refugee Agency (formerly Ministry of Resettlement
and Rehabilitation), which takes a role on the protection of refugees in Somaliland. However, the
protection of refugees under Somaliland legal system in comparison with international standards
is not yet investigated, and the study will contextually examine and provide sufficient
information to that issue.

1.2. Problem Statement

The development of international refugee law since the Second World War has established,
prima facie, a structure allowing refugees to be defined, protected and guaranteed by key human
right instruments. The protection of refugees has its origin in a human-rights perspective and the
General Assembly has acknowledged international protection as the principal function of the
United Nations High Commissioner for Refugees in the refugee law context. The notion of
protection encompasses not only a prescribed class of persons, but also an unrestricted human
rights competence. Accordingly, several regional organizations including Organization of
African Unity (OAU), European Union (EU), Association of South East Asian Nations
(ASEAN), and Organization of American States (OAS) made tangible commitments and efforts
ensuring the rights of refugees in their respective locations; where several refugee standards
relevant with the global ones had been adopted by those regional organizations. In similar, a
great number of sovereign countries had signed and ratified both international and regional
instruments, which obliged them to recognize and protect the refugee in their countries.

Though all those efforts came on fore front, for most refugees, life in exile is as bad as or even
worse than the conditions from which they fled in their countries of origin. Many are confined to
ramshackle camps or detention centers close to the borders of their home countries where they
are the victims of constant cross-border attacks. They depend on international or private charity
organizations for survival." For those refugees who are eventually resettled, many of them never
emerge from the socially marginalized sectors of society." They continue to suffer alienation,
underemployment and unemployment. On various occasions, some countries of asylum have
closed their borders, expelled new arrivals, incarcerated and harassed those in detention centers

XIV
and border camps, and denied voluntary agencies access to these areas. Additionally, refugees
are simply returned to danger and persecution in some countries, which deteriorated the situation
of refugees in the world and became barrier to the realization of refugee rights globally.

In Somaliland, since ceded from Somalia in 1991, it became a hub for a huge number of refugees
mainly from Ethiopia, Yemen and Syria. According to NDRA, above 15000 refugees and asylum
seekers are currently living in Somaliland which put a considerable pressure on Somaliland’s
economy, social service system and weak community-based infrastructure. Vulnerable refugees
are struggling to cope with existing challenges including protection risks, inadequate housing,
rising living costs, medical emergencies, lack of educational opportunities for children, financial
difficulties and destitution. Though Somaliland constitution recognizes the international
standards, however there are neither special legislations nor policies enacted or developed for the
protection of refugees in Somaliland and the existing ones are inadequate. Therefore the study
will establish that gap and will recommend enacting laws for refugees in Somaliland which is in
line with the international and regional standards. In Similar, the study will examine the
procedures used for the determination of refugee status and the current protection activities
available for refugees in Somaliland.

1.3. Objectives of Research

The objectives of this study will be categorized in to general and specific objectives:

1.3.1. General Objectives

The study will examine the protection of refugees under Somaliland Legal System in comparison
with international standards.

1.3.2. Specific Objectives

 To determine the extent in which international legal instruments protected the rights of
refugees globally
 To identify the applicable Legal Framework for the protection of refugees and the
existing legal gaps in Somaliland
 To examine the functional Refugee Status Determination procedures in Somaliland.

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  To analyze and assess the National Displacement and Refugee Agency (NDRA) mandate
and commitment on the protection of Refugees in Somaliland.
 To elaborate the in place protection activities for refugees in Somaliland.

1.4. Research Questions

 In which extent had the international legal instruments contributed the protection of
refugee rights globally?
 What are the applicable Legal Framework for the protection of refugees and the existing
legal gaps in Somaliland accordingly?
 What procedures are used for the determination of refugee status in Somaliland?
 What is the mandate of NDRA on refugee protection in Somaliland?
 What are the in place protection activities for refugees in Somaliland?

1.5. Significance of the Study

This paper will be the first academic work that had been conducted on this subject and there is no
any academic investigation about this topic done before. So that, according to its title, this it will
be an analysis in the protection of refugees under Somaliland legal system in comparison with
international standards, and will have several significances including but not limited to the
following:

 It will be a tool to the legislative body for the drafting of laws protecting the rights of
women.
 Will be a fact sheet for the institutions that work on the issues of women including the
government itself.
 Will be a reference tool for those who want to make a further study in the field.
 Will be a reference tool for the students in the faculty of law

1.6. Scope of the Study

The scope of this study will be divided in to geographical, content and time:

1.6.1. Geographical Scope

This study will be conducted in the borders of Somaliland country, and other relevant
international related literatures will be referenced.
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1.6.2. Content Scope
The study will examine and analyze the protection of refugees under Somaliland Legal System in
comparison with International Standards.

1.6.3. Time Scope

The study will be conducted within 5 months from April up to July 2022. This is the suitable
time that the university has planned for the conducting of this study.

1.7. Conceptual Framework

Soon after the Second World War, as the refugee problem had not been solved, the need was felt
for a new international instrument to define the legal status of refugees. Instead of ad hoc
agreements adopted in relation to specific refugee situations, there was a call for an instrument
containing a general definition of who was to be considered a refugee. The Convention relating
to the Status of Refugees was adopted by a Conference of Plenipotentiaries of the United Nations
on 28 July 1951, and entered into force on 21 April 1954. Therefore, the refugee status on the
universal level is governed by the 1951 Convention and the 1967 Protocol relating to the Status
of Refugees.

According to the 1951 Convention on Refugee Status and its protocol, the term refugee is
defined 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.”

As a result of two above instruments, international law made a strong case for the protection of
the rights of refugees as an international obligation. Thus, the existed regional organizations took
their space on the protection of refugees in their context. For example, in 1969, the Organization
of African Union (currently, African Union) had adopted a regional refugee convention named
‘Convention Governing the Specific Aspects of Refugee Problems in Africa.’ Firstly, the
convention in the first paragraph of article one had agreed the definition of refugee by 1951
convention and its 1967 protocol. In the second paragraph of article one, the convention added
XVII
some grounds to be applied to the refugees in the context of Africa by recognizing as “every
person 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.”

In accordance with this convention, the obligation on the protection of refugee rights is extended
in a regional level. It strengthened the commitment of African countries on the protection of
refugees in Africa.

Contextually, Somaliland constitution recognized the international laws signed by former

Somalia including the 1951 convention on the Status of refugees and 1969 African convention
for refugees, however there are neither special legislations nor policies enacted or developed for
the protection of refugees in Somaliland. Therefore, there is no any national legal definition of
the term refugee, though the government and UNHCR has taken the definition by the 1951
convention.

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Conceptual Framework in Diagram

International Law National Laws

(Refugee Law, (Constitution
Human Rights and Refugee
Law, international Act)
Humanitarian
Law)
Legal
Frame-
work

Protection of
Refugees

National
International
Commitment
Organizations

Intergover
nmental International
Organizati Ombud
Non-
ons sman
governmental Civil Office
Organizations Society

XIX
1.8. Theoretical Framework
The focus on asylum has largely emerged as a consequence of concern by political theorists with
the more general question of whether immigration controls are morally justifiable. Some liberals
—most notably Joseph Carens—have argued that a commitment to liberal principles of equality
and freedom demands that states allow the free movement of individuals between states (Carens
1992; Cole 2000). These scholars have had little reason to concern themselves with the question
of how to define a refugee, as, in a world with open borders, all individuals regardless of their
status would be free to move as migrants. But scholars who argue that, even under ideal
conditions, immigration controls are acceptable immediately need to consider what should
happen to those people who are forced to move. Almost without exception, defenders of
immigration controls argue that states have a duty to offer some form of asylum that constrains
their right to determine whom to admit and whom to exclude (Walzer 1983; Miller 2007;
Wellmann 2008). This has led them to debate the question of who exactly should be recognized
as a refugee, and provided with special protection.

In general, most scholars have seen the 1951 UN Refugee Convention’s definition as being too
arbitrary or narrow to provide a plausible normative account of who is owed asylum. Andrew
Shacknove, for example, argued in 1986 that a more appropriate definition would classify
refugees as ‘persons whose basic needs are unprotected by their country of origin, who have no
remaining recourse other than to seek international restitution of their needs’ (1985: 277).
Shacknove’s definition has been very influential in part because it highlights the way that
refugee-hood involves a breaking of the political ‘bond’—or, in traditional liberal terms, the
social contract—between the individual and the state that lies at the heart of legitimate rule
(1985: 275). The collapse of this relationship creates a duty on behalf of international society to
provide protection to the individual concerned.

1.9. Definition of Key Terms

Refugee: Any person who is outside their country of origin and unable or unwilling to return
there or to avail themselves of its protection, owing to well-founded fear of persecution for
reasons of race, religion, nationality, membership of a particular social group or political opinion
(1957 Refugee Convention; 1967 Protocol)

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Asylum Seeker: A person who has left his/her country and is seeking protection from
persecution and serious human rights violations in another country, but who hasn't yet been
legally recognized as a refugee and is waiting to receive a decision on their asylum claim
(UNHCR; Amnesty International).

Migrant: An umbrella term, not defined under international law, reflecting the common
understanding of a person who moves away from his or her place of usual residence, whether
within a country or across an international border, temporarily or permanently, and for a variety
of reasons (IOM, 2019).

Forced Migration: A migration that results from coercion, violence, political or environmental
reasons of binding or other forms of coercion, rather than a voluntary decision (UNFPA)

Protection: All activities aimed at obtaining full respect for the rights of the individual in
accordance with the letter and spirit of the relevant bodies of law, namely human rights law,
international humanitarian law and refugee law (UNHCR).

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 (Geneva Academy for International Human Rights Law
and Human Rights).

Non-refoulement Principle: A human rights principle guaranteeing 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 (UNHCR).

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 CHAPTER TWO: LITERATURE REVIEW

2.1. Introduction
This chapter aims to provide an overview and deep analysis on the relevant literature already
written on the topic under study. To reach this goal, the chapter firstly discusses the theoretical
literature about the legal definition of the term ‘refugee’ and the international protection
mechanisms of those considered as refugees by different theorists. The chapter will also
underline the historical evolution of refugee protection in the international arena therein.
Furthermore, it offers an overview of the relevant legal instruments incorporated in several
bodies of international law, namely, international refugee law, international human rights law, as
well as international humanitarian law and additionally elaborates on the regional commitments
of refugee protection by several regional organizations. Last but not least, the chapter examines
the role of UNHCR and other UN and International Organizations on refugee protection.

2.2. Literature Survey

This section discusses the former relevant literature about the topic under study. It analyses the
historical development of the international protection of refugees and the international laws or
standards related with the protection of refugees. In similar, the regional commitments of refugee
protection will be elaborated in this section.

2.2.1. Historical Literature

The movement of people between states, whether refugees or ‘migrants’, takes place in a context
in which sovereignty remains important, and specifically that aspect of sovereign competence
which entitles the state to exercise prima facie exclusive jurisdiction over its territory, and to
decide who among non-citizens shall be allowed to enter and remain, and who shall be re fused
admission and required or compelled to leave (Triandafyllidou, e.d. 2016). Like every sovereign
power, this competence must be exercised within and according to law, and the state’s right to
control the admission of non-citizens is subject to certain well-de fined exceptions in favor of
those in search of refuge, among others. Moreover, the state which seeks to exercise migration
controls outside its territory, for example, through the physical interception, ‘interdiction’, and
return of asylum seekers and forced migrants, may also be liable for actions which breach those

XXII
of its international obligations which apply extra-territorially (Goodwin-Gill 2011; Moreno Lax
2011, 2012).

The international law of refugee protection, which is the source of many such exceptions,
comprises a range of universal and regional conventions (treaties), rules of customary
international law, general principles of law, national laws, and the ever-developing standards in
the practice of states and international organizations, notably the Office of the United Nations
High Commissioner for Refugees (Lax, 2012).

While the provision of material assistance—food, shelter, and medical care, is a critically
important function of the international refugee regime, the notion of legal protection has a very
particular focus. Protection in this sense means using the legal tools, including treaties and
national laws, which prescribe or implement the obligations of states and which are intended to
ensure that no refugee in search of asylum is penalized, expelled, or re-fouled, that every refugee
enjoys the full complement of rights and benefits to which he or she is entitled as a refugee; and
that the human rights of every refugee are guaranteed (Ibid). Protection is thus based in the law;
it may be wider than rights, but it begins with rights and rights permeate the whole. Moreover,
while solutions remain the ultimate objective of the international refugee regime, this does not
mean that the one goal is automatically subsumed within the other. That is, protection is an end
in itself, so far as it serves to ensure the fundamental human rights of the individual. Neither the
objective of solutions nor the imperatives of assistance, therefore, can displace the autonomous
protection responsibility which is borne, in its disparate dimensions, by both states and UNHCR
(Ibid).

The modern law can now be traced back nearly 100 years, to legal and institutional initiatives
taken by the League of Nations, first, in the appointment of a High Commissioner for Refugees
in 1921, and then in agreement the following year on the issue of identity certificates to ‘any
person of Russian origin who does not enjoy or no longer enjoys the protection of the
Government of the Union of Soviet Socialist Republics and who has not acquired another
nationality’. After the Second World War, the refugee question became highly politicized
(Goodwin-Gill, 2008), and the UN’s first institutional response to the problem—the International
Refugee Organization (IRO), a specialized agency—was opposed by the Soviet Union and its
XXIII
allies, remaining funded by only 18 of the 54 governments which were then members of the
United Nations (Ibid). Notwithstanding the politics of the day, tens of thousands of refugees and
displaced persons were resettled under IRO auspices, through government selection schemes,
individual migration, and employment placement (Holborn 1975; Loescher and Scanlan 1986).

In 1951, the IRO was replaced by a new agency, an initially non-operational subsidiary organ of
the UN General Assembly charged with providing ‘international protection’ to refugees and
seeking permanent solutions. The Statute of the United Nations High Commissioner for
Refugees (UNHCR) was adopted on 14 December 1950, and the Office came into being on 1
January 1951. Its mandate was general and universal, including refugees recognized under earlier
arrangements, as well as those outside their country of origin who were unable or unwilling to
return there owing to well-founded fear of persecution on grounds of race, religion, nationality,
or political opinion (Holborn, 1975). Once a temporary agency, UNHCR was put on a permanent
basis in 2003, when the General Assembly renewed its mandate until the refugee problem is
solved (Ibid).

From the start, UNHCR’s protection responsibilities were intended to be complemented by a

new refugee treaty, and the 1951 Convention relating to the Status of Refugees was finalized by
states at a conference in Geneva in July 1951; it entered into force in 1954 (Goodwin-Gill 2009).
Notwithstanding the intended complementarity, there were already major differences between
UNHCR’s mandate, which was universal and general, unconstrained by geographical or
temporal limitations, and the refugee definition forwarded to the Conference by the General
Assembly (Ibid). This reflected the reluctance of states to sign a ‘blank cheque’ for unknown
numbers of future refugees, and so was restricted to those who became refugees by reason of
events occurring before 1 January 1951; the Conference was to add a further option, allowing
states to limit their obligations to refugees resulting from events occurring in Europe before the
critical date (Ibid).

The difficulty of maintaining a refugee definition bounded by time and space was soon apparent,
but it was not until 1967 that the Protocol relating to the Status of Refugees helped to bridge the
gap between UNHCR’s mandate and the 1951 Convention (Triandafyllidou, e.d. 2016). The
Protocol is often referred to as ‘amending’ the 1951 Convention, but in fact it does no such thing.
XXIV
States parties to the Protocol, which can be ratified or acceded to without becoming a party to the
Convention, simply agree to apply Articles 2 to 34 of the Convention to refugees defined in
Article 1 thereof, as if the dateline were omitted (Article I of the Protocol). Cape Verde, the
United States of America, and Venezuela have acceded only to the Protocol; Madagascar and St
Kitts and Nevis remain party only to the Convention; and Madagascar and Turkey have retained
the geographical limitation. The Protocol required just six ratifications and it entered into force
on 4 October 1967 (Goodwin-Gill 2009).

2.2.2. Protection of Refugees under International Legal Regimes

Accordingly, this section offers an overview of the relevant international legal instruments
incorporated in several bodies of international law, namely, international refugee law,
international human rights law, as well as international humanitarian law. It will analyze how the
named legal standards ensured and safeguarded the rights of refugees in global perspective.

2.2.2.1. Refugees under 1951 Convention and its 1967 Protocol

Notwithstanding earlier attempts to create a legally binding instrument on refugee protection
such as the 1933 Convention and the 1938 Convention, the first universally binding refugee
protection instrument was the 1951 Convention relating to the Status of Refugees (1951
Convention), which—unlike the earlier attempts—managed to become widely ratified with its
current 145 states parties. Along with its 1967 Protocol relating to the Status of Refugees (1967
Protocol), it is regarded as the foundation of the international legal framework of refugee
protection.

The 1951 Convention was adopted by the United Nations Conference of Plenipotentiaries on the
Status of Refugees and Stateless Persons on 28 July 1951 in Geneva and entered into force on 22
April 1954. As an instrument responding to the problem of millions of people who were forced
to leave their countries of origin in the wake of the Second World War, it is limited to people
who became refugees as a result of “events occurring in Europe or elsewhere before 1 January
1951” (UN General Assembly, 1951a, p. 154). Regarding the geographical scope of the
Convention, Article 1B(1) permits states to restrict it solely to events occurring in Europe, or to
use it adopting a more inclusive meaning covering events taking place in other areas as well.

XXV
The new challenges that arose throughout the world as a result of decolonization in the 1960s
made the international community realize that the refugee phenomenon has a universal nature
both in time and space, and as such, requires a legal framework without any limitation in scope.
To this end, the Protocol relating to the Status of Refugees was adopted on 31 January 1967, and
the temporal and geographical limitation of the 1951 Convention was removed. Thus, states
acceding to the Protocol consent to applying the main body (Articles 2–34) of the Convention to
any refugee without the limited temporal and geographical scope found in the Convention’s
refugee definition. The only exceptions to this are the states that made geographical reservations
under the 1951 Convention before adopting the 1967 Protocol. Accordingly, while Congo,
Monaco and Turkey were allowed to maintain their restriction to European refugees, Hungary
when acceding to both the Convention and the subsequent Protocol in 1989 had to withdraw its
geographical reservation in 1998 (Hathaway, 2005, pp. 97–98).

As the name suggests, the 1951 Convention was mainly intended to address the question of the
status of refugees, hence it includes the definition of refugee as well as their legal status (rights
and duties) along with states’ obligations to the Convention. Nevertheless, it remains silent on
significant other issues such as solutions or causes. A crucial problem concerning both the 1951
Convention and its 1967 Protocol is the lack of an overarching and efficient enforcement
mechanism. The only possibility provided by these treaties is to refer to the International Court
of Justice (ICJ) in the case of disputes between state parties regarding the interpretation or
application of the treaties. However, states parties to the Protocol can make reservations
regarding this provision under Article VII (1). As of April 2015, the 1951 Convention obtained
145 states parties whereas the number of states that acceded to the 1967 Protocol reached 146,
and there have been no changes since then (UNHCR, 2015a, p. 1).

Refugee Definition

One of the most significant contributions of the 1951 Convention to the international legal
framework protecting refugees is its definition of refugee. The definition consists of inclusion,
exclusion and cessation clauses. The inclusion clauses form the positive basis for determining
whether and under what circumstances a person is eligible for refugee status. According to
Article 1A(2) of the Convention, the term ‘refugee’ applies to “any person who owing to well-

XXVI
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” (UN General
Assembly, 1951a, p. 152).

The Convention’s exclusion clauses define the circumstances under which persons can be denied
refugee status. These circumstances fall into two groups. Refugee status can be denied on the
ground that the person is not in need of international protection or does not deserve such status.
Thus, pursuant to Article 1D, from the definition the Convention excludes “persons who are at
present receiving from organs or agencies of the United Nations other than the United Nations
High Commissioner for Refugees protection or assistance” (UN General Assembly, 1951a, p.
156). During the presence of the United Nations Korean Reconstruction Agency (UNKRA), this
applied to Korean displaced persons under the mandate of the UNKRA. Currently, this only
refers to Palestinian refugees as long as they receive protection or assistance from the United
Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).
Furthermore, according to Article 1E, “a person who is recognized by the competent authorities
of the country in which he has taken residence as having the rights and obligations which are
attached to the possession of the nationality of that country” falls outside the scope of the
Convention (UN General Assembly, 1951a, p. 156). The Convention also excludes from the
definition a person in the case of whom there are serious grounds for believing that:

(a) The person has committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make provision in
respect to such crimes;

(b) The person has committed a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee; (c) he has been guilty of acts
contrary to the purposes and principles of the United Nations (UN General Assembly,
1951a, p. 156).

The cessation clauses of the Convention define the circumstances under which refugee status
comes to an end. Pursuant to Article 1C, it applies to a person if:

XXVII
 1. He/she has voluntarily re-availed himself of the protection of the country of his
nationality; or

2. Having lost his nationality, he has voluntarily re-acquired it; or

3. He/she has acquired a new nationality, and enjoys the protection of the country of his
new nationality; or

4. He/she has voluntarily re-established himself in the country which he left or outside
which he remained owing to fear of persecution; or

5. He/she can no longer, because the circumstances in connection with which he has been
recognized as a refugee have ceased to exist, continue to refuse to avail himself of the
protection of the country of his nationality;

6. Being a person who has no nationality he/she is, because of the circumstances in
connection with which he/she has been recognized as a refugee has ceased to exist, able
to return to the country of his former habitual residence (UN General Assembly, 1951a,
p. 154).

Rights and Duties of Refugees under the 1951 Convention

Besides its definition as to who can qualify for refugee status, the 1951 Convention also outlines
the rights and duties refugees are entitled to under the Convention. The substantive rights found
in the 1951 Convention are argued to have originated from two main sources. The first is the
1933 Convention, whereas second is the 1948 Universal Declaration of Human Rights, which is
explicitly mentioned in the Convention’s Preamble (Hathaway, 2005, pp. 93–94). These
substantive rights include the right to freedom of religion and religious education (Art. 4); the
right of association (Art. 15); the right to access to courts (Art. 16); the right to work (Arts. 17–
19); the right to housing (Art. 21); the right to public education (Art. 22); the right to public relief
(Art. 23); the right to freedom of movement (Art. 26); the right to be issued identity and travel
documents (Arts. 27 and 28); the right not to be punished for illegal entry into the territory of a
contracting state (Art. 31); the right not to be expelled or returned, except under certain, strictly
defined conditions (Arts. 32 and 33); and the right to naturalization (Art. 34) (UN General
Assembly, 1951a, pp. 157–177). The 1951 Convention, however, lacks a significant right from
the perspective a refugee, namely the right to asylum, since none of its provisions explicitly
recognize asylum as a right of refugees.

XXVIII
Although some core rights are applicable to all refugees, there are two main criteria that need to
be taken into account when deciding what rights a particular refugee is entitled to. First, the
nature and duration of their attachment to the asylum state need to be clarified in order to define
what additional rights apply to them under the Convention. According to Hathaway (2005), these
can be summarized as follows:

The most basic set of rights inheres as soon as a refugee comes under a state’s de jure or de facto
jurisdiction; a second set applies when he or she enters a state party’s territory; other rights inhere only
when the refugee is lawfully within the state’s territory; some when the refugee is lawfully staying there;
and a few rights accrue only upon satisfaction of a durable residency requirement (pp. 154–155).

To illustrate them with some concrete examples, the most basic rights include the right to public
education (Art. 22) whereas the right to be issued identity papers (Art. 27) and the right to access
to courts (Art. 16) apply when a refugee enters a state party’s territory; the right to freedom of
movement (Art. 26) and the right to self-employment (Art. 18) can be accorded to a refugee
lawfully in the territory of a state; the right to housing (Art. 21) and the right to wage-earning
employment (Art. 17) apply when a refugee is lawfully staying in the territory of a state party;
while artistic rights (Art. 14) inhere when a refugee satisfies the requirement of durable
residency.

Second, the standard of treatment concerning the rights of refugees under the Convention is
defined through what Hathaway (2005) called “a combination of absolute and contingent
criteria” (p. 155). There are certain rights that apply to refugees absolutely which cannot be
denied even if the host state does not guarantee them to its own citizens. These absolute rights
include the right to administrative assistance, the right to access to courts, the right to be issued
identity papers and travel documents, the right not be imposed of penalties for unauthorized
entry, and the right not to be expelled or returned. As for the contingent rights, refugees can
benefit from these entitlements on the standard of treatment either of citizens of the most favored
nation or the nationals of the asylum state itself. Unless no absolute or contingent standard of
treatment is specified in the Convention, refugees are entitled to be granted a right on the same
standard of treatment accorded to aliens generally, as provided in Article 7(1). However, as
Hathaway (2005) pointed out, “[w]here refugee rights are guaranteed in the Convention only at
the baseline level of assimilation to aliens generally […] the net value of the Refugee
Convention may indeed be minimal” (p. 228).
XXIX
The Convention’s Chapter III on Gainful Employment illustrates these different standards of
treatment very well. It contains provisions on wage-earning employment, self-employment and
liberal professions. As a matter of fact, the importance of refugees’ right to work was
emphasized during the drafting of the 1951 Convention. Louis Henkin- delegate of the United
States on the United Nations Ad Hoc Committee on Refugees and Stateless Persons argued that
“without the right to work all other rights were meaningless” (UN Economic and Social Council,
1950). Article 17 of the Convention specifies that refugees are entitled to engage in wage-
earning employment, and this right shall be accorded to them on the same standard of treatment
applicable to “the most favorable treatment accorded to nationals of a foreign country” (UN
General Assembly, 1951a, p. 164). Under Articles 18 and 19, refugees are entitled to the right to
engage in self-employment and to practice liberal professions. However, the standard of
treatment in the case of these two provisions is different from those attached to the right to wage-
earning employment. Pursuant to Articles 18 and 19, the standard of treatment shall be “as
favorable as possible and, in any event, not less favorable than that accorded to aliens generally”
(UN General Assembly, 1951a, p. 166).

In addition, The Convention contains a single provision in relation to the obligations of refugees.
Under Article 2, “[e]very refugee has duties to the country in which he finds himself, which
require in particular that he conform to its laws and regulations as well as to measures taken for
the maintenance of public order” (UN General Assembly, 1951a, p. 156). However, as Hathaway
(2005) noted, the original draft of the Convention contained a whole chapter dealing with the
duties of refugees including obedience to laws, paying taxes, as well as performing military and
other civic services (p. 98). The legal anomaly and one of the main motives behind the drafters’
move to reduce these duties to general obligations outlined above are best summarized by the
words of Mr. Herment, delegate of Belgium at the UN Conference of Plenipotentiaries on the
Status of Refugees and Stateless Persons who claimed that since the Convention is an instrument
which is concluded between states and to which beneficiaries, i.e., refugees, are not parties, it
cannot impose any direct obligation on refugees (UN General Assembly, 1951b).

XXX
Responsibilities of States under 1951 Convention

Besides the rights and duties of refugees, the 1951 Convention also establishes the
responsibilities of states under the Convention. Pursuant to Article 3, “Contracting States shall
apply the provisions of this Convention to refugees without discrimination as to race, religion or
country of origin” (UN General Assembly, 1951a, p. 156). Furthermore, as mentioned above,
under Article 7 states parties to the Convention are responsible for granting refugees the same
treatment accorded to aliens in general—except where the Convention specifies more favorable
provisions.

Since the practice of determining the status of refugees is not set out in the Convention, it is left
to individual states to develop. In line with Article 35, states have the responsibility to cooperate
with and provide UNHCR with information and statistical data regarding the “condition of
refugees”, “the implementation of this Convention”, as well as “laws, regulations and decrees
which are, or may hereafter be, in force relating to refugees” (UN General Assembly, 1951a, p.
177). Under Article 36, states are also responsible for informing the UN Secretary-General of the
national laws and regulations they adopt in order to facilitate the application of the Convention.
Although contracting states have an implicit responsibility to grant refugees the rights outlined in
the Convention, pursuant to Article 42, they can make reservations to the articles of the
Convention “other than to articles 1, 3, 4, 16(1), 33, 36–46 inclusive” (UN General Assembly,
1951a, p. 182). Thereby, the bulk of the rights granted to refugees under the Convention—except
for the right to freedom of religion and religious education, the right to access to courts and the
right not to be expelled or returned—might in principle be subject to reservations.

2.2.2.2. Refugees under International Human Rights Law

Since human rights law applies to all human beings regardless of their legal status, it is a helpful
standard that complements the international refugee regime. The invocation of human rights in
the context of refugee protection has several benefits. It provides an additional ground for
“assessing the quality of the treatment that asylum countries offer to refugees and asylum seekers
on their territories” (UNHCR, 2005, p. 31), determining the rights of refugees irrespective of
those provided by 1951 Convention and “recognizing a more expansive range of reasons for
flight” (Harley, 2015, p. 46). In fact, some authors claim that the general guarantees provided by

XXXI
human rights law may offer more protection than the specific regime of refugee law. Chetail
(2014), for instance, argued that “contrary to the common belief of many humanitarian and
refugee law specialists, the most specific norm is not always the most protective one.

The tenets of human rights law in the context of refugee protection bear exceptional importance
in the case of states that are not parties to the universal treaties of refugee law (the 1951
Convention and its 1967 Protocol) or relevant regional conventions (such as the 1969 OAU
Convention Governing the Specific Aspects of Refugee Problems in Africa). As Harley (2015)
summarized, “refugees do not only benefit from the rights contained in the 1951 Convention, but
like all those forcibly displaced, also exist within a global framework of human rights standards
and institutions” (pp. 43–44).

Due to space limitations, this subsection clearly cannot examine each and every human rights
instrument that can be invoked in refugee protection. Therefore, it only evaluates the most
crucial ones for its purposes. The ICCPR, the CAT and the 1989 Convention on the Rights of the
Child (CRC) are significant human rights treaties that provide various forms of supplementary
protection to refugees, asylum seekers and displaced persons. Other human rights instruments
such as the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) or
the 1965 International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD) are further examples for the many ways the human rights regime can complement
international refugee law. Although a non-binding instrument, the 1948 Universal Declaration of
Human Rights (UDHR) is widely regarded as a fundamental instrument and the most significant
proclamation of human rights.

The general scope and inclusiveness regarding its beneficiaries are apparent in its Preamble
which states that “recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world” (UN
General Assembly, 1948). The provisions of Article 14 are of special interest to asylum seekers
and refugees. By virtue of Article 14(1), “everyone has the right to seek and to enjoy in other
countries asylum from persecution”; however Article 14(2) offers a limitation stating that “this
right may not be invoked in the case of persecutions genuinely arising from non-political crimes
or from acts contrary to the purposes and principles of the United Nations” (UN General
XXXII
Assembly, 1948). Other rights and freedoms that can be invoked in the context of refugees under
the UDHR among many others include the freedom from discrimination (Art. 2); the right to life,
liberty and personal security (Art. 3); the freedom from torture and degrading treatment (Art. 5);
the right to recognition as a person before the law (Art. 6); as well as to a range of social and
economic rights (Arts. 22, 23, 25, 26).

In 1966, contracting states agreed on creating two legally binding instruments to further promote
human rights and fundamental freedoms. These were the ICCPR and the ICESCR. Along with
the UDHR and the two optional protocols to the ICCPR, these treaties constitute the body of the
so-called International Bill of Human Rights. The ICCPR extends the scope of civil rights to “all
persons” and “everyone” (UN General Assembly, 1966). Therefore, it is a significant source of
rights for refugees that supplements the 1951 Convention by providing rights and freedoms such
as the right to life (Art. 6), the right not be subjected to torture, inhuman or degrading treatment
or punishment and slavery (Arts. 7–8) or the freedom of expression (Art. 19), among others (UN
General Assembly 1966). By virtue of Article 4(2), most of these rights are non-derogable
meaning they must be provided and respected under all circumstances—including public
emergencies.

The CAT also has the potential to play an important part in the context of refugee protection. On
the one hand, in an absolute manner it prohibits states from refoulement “where there are
substantive grounds for believing that he [/the person] would be in danger of being subjected to
torture” (UN General Assembly, 1984). On the other hand, it offers a definition and strict
prohibition of torture and other forms of ill-treatment which are among the main reasons for
refugees’ flight.

2.2.2.3. Refugees under International Humanitarian Law

Besides human rights treaties, instruments of humanitarian law are additional sources of
protection for refugees and asylum seekers. Predating human rights and refugee law,
humanitarian law governs the means and methods of armed conflict and protects the persons who
are not taking part in hostilities. As UNHCR (2005) argued, humanitarian law “is of clear
significance in the protection of refugees as refugees are becoming increasingly targeted in wars”
(p. 36), and more importantly, because the main cause of forced migration is armed conflicts.
XXXIII
However, Chetail (2014), drew attention to the ambiguous nature of humanitarian law’s input to
the refugee protection regime by highlighting that humanitarian law’s “primary function in the
field of forced migration is a preventive one [as t]he explicit prohibition of forced displacement
aims to prevent civilians from becoming refugees”, and by adding that it, at the same time, “is
relatively indifferent to the specific needs of refugees who are in the territory of a party to an
armed conflict” (p. 704).

Nationals of the Occupying Power who, before the outbreak of hostilities, have sought refuge in
the territory of the occupied State, shall not be arrested, prosecuted, convicted or deported from
the occupied territory, except for offences committed after the outbreak of hostilities, or for
offences under common law committed before the outbreak of hostilities which, according to the
law of the occupied State, would have justified extradition in time of peace (International
Committee of the Red Cross, 1949).

Furthermore, Article 73 of the Additional Protocol I provides that stateless persons and refugees
who were recognized as such before the beginning of hostilities “shall be protected persons
within the meaning of Parts I and III of the Fourth Convention, in all circumstances and without
any adverse distinction” (International Committee of the Red Cross, 1977, p. 36).

2.2.3. Regional Protection of Refugees

This section critically analyzes the existing legal regimes region-by-region by examining the
refugee protection frameworks of Africa, the Americas, Europe and Asia-Pacific, by highlighting
their potential input to the international refugee regime.

2.2.3.1. Organization of African Union

The first regional arrangement was the Organization of African Union’s (currently named
African Union) Convention Governing the Specific Aspects of Refugee Problem in Africa
established in 1969. It broke new ground by extending protection to all persons compelled to flee
across national borders by reason of any man-made disaster, whether or not they can be said to
fear persecution. Accordingly, the convention defined the term refugee as “every person who,
owing to external aggression, occupation, foreign domination or events seriously disturbing
public order in either part or the whole of his/her country of origin or nationality, compelled to
Ieave his/her place of habitual residence in order to seek refuge in another place outside his/her
country of origin or nationality”

XXXIV
The period lasting from the 1950s and into the rnid-1980s marked the rise against colonialism
and foreign domination. Under the 1951 Convention the majority of the Africans in flight from
the forces of oppression and in search of bases from which to launch their wars of liberation did
not qualify as refugees. A convention on the African problem had to be found to provide a legal
basis upon which the international community could protect refugee populations caused by man-
made activities (See J.C. Hathaway, supra note 17 at 17). This standard represents an important
conceptual adaptation of the Convention refugee definition, in that it successfully translates the
fore meaning of refugee status to the reality of the developing world without suggesting that
victims of natural disasters or economic misfortune should become the responsibility of the
international community." Rather the AU definition acknowledges that four important
modifications of the 1951 Convention definitions are required in order to accommodate the
specific context of abuse in states of the developing world (Ibid).

First, the OAU definition acknowledges the reality that fundamental forms of abuse may occur,
not only as a result of the calculated acts of the government of the refugee's state of origin, but
also as a result of that government's loss of authority due to external aggression, occupation or
foreign domination. The anticipated harm is no less wrong because it is inflicted by a foreign
power in control of a state, rather than by the government of that state per se. This modification
simply recognizes the need to examine a refugee claim from the perspective of the de facto.
Rather than the formal, authority structure within the country of origin.

Second, the OAU definition reverts to the pattern of pre-World War II refugee accords in
recognizing the concept of group disfranchisement. By its reference to persons who leave their
country as a consequence of broadly based phenomena such as external aggression, occupation,
foreign domination, or any other event that seriously disturbs public order, the OAU recognizes
the legitimacy of flight in circumstances of generalized danger. While the accommodation of
abuse at the hands of a de facto government is little more than extrapolation from the intent of
the 1951 Convention definition, while group-based refugee determination has its historical
antecedents in European practice. There are two additional features of the OAU definition that
are unprecedented in international refugee law.

XXXV
The 1951 Convention definition and al1 of its predecessor’s link refugee status to the prospect of
abuse resulting from some form of personal or group characteristic: in the case of the 1951
Convention, from one's civil or political states (Kneebone & Rawlings-Sanaei, 2007). The OAU
definition, on the other hand, leaves open the possibility that the basis or rationale for the harm
may be indeterminate." As long as a person "is compelled" to seek refuge because of some
anticipated serious disruption of public order, they need not be in a position to demonstrate any
linkage between their personal status, or that of some collectivity of which they are a member,
and the impending The African standard emphasizes assessment of the gravity of the disruption
of public order, rather than motives for flight. Therefore individuals are largely able to decide for
themselves when harm is sufficiently proximate to warrant flight (Ibid).

The OAU Convention also extends international protection to persons who seek to escape
serious disruption of public order "in either part or the whole" of their country of origin. This
represents a departure from past practice which generally assumed that a person compelled to
flight should make reasonable efforts to seek protection within a safe part of her own country, if
one exists, before looking for protection abroad." There are at least three reasons why this shift is
contextually sensible (Ibid).

First, issues of distance or the unavailability of escape routes may foreclose travel to a safe
region of the refugee's own state. Underdeveloped infrastructure and inadequate persona1
financial resources may reinforce the choice of a more easily reachable foreign destination."
Second, the political instability of many developing States may mean that what is a "safe" region
today may be dangerous tomorrow. Rapid shifts of power, and the consequent inability to predict
accurately where safe haven is to be found, may lead to a decision to depart the troubled state
altogether (Harley, 2016). Finally, the artificiality of colonially imposed boundaries in Africa has
fiequent1 y meant that kinship, language group and other natural ties often stretch across national
frontiers. Hence, persons in danger may see the natural safe haven to be with family or members
of their own ethnic group in an adjacent state (Ibid).

The relevance of the OAU definition to conditions in the developing world has made it the most
influential conceptual standard of refugee status apart from the 1951 Convention definition itself.
It has provided the basis for enhanced UNHCR activity in Africa. It was at the root of the
XXXVI
proposed conventional definition of persons entitled to territorial asylum and it has inspired the
liberalization of a variety of regional and national accords on refugee protection. UNHCR's
competence in Africa has been recognized as extending also to refugees who have fled owing to
external aggression, occupation, foreign domination or events seriously disturbing public order
(Ibid).

2.2.3.2. America
In recognition of the inadequacy of the 1951 Convention definition to embrace the many
involuntary migrants from generalized violence and oppression in Central America, the state
representatives of ten Latin American states in 1984, responded by agreeing to a definition that is
similar to that enacted by the Organization of African Unity. In addition to Convention refugees,
protection as refugees was extended to “persons who have fled their country because their lives,
safety, or freedom have been threatened by generalized violence, foreign aggression , internal
conflicts, massive violations of human rights or other circumstances which have seriously
disturbed public order.”

This definition was approved by the 1985 General Assembly of the Organization of American
States, which resolved to urge Member States to extend support and. insofar as possible, to
implement the conclusions and recommendations of the Cartagena Declaration on Refugees.

The OAS definition shares some of the innovative characteristics of the OAU Convention. First,
it acknowledges the legitimacy of claims grounded in the actions of external powers by virtue of
its reference to flight stemming from foreign aggression. Second, it offers a qualified acceptance
of the notions of group determination and claims in which the basis or rationale for harm is
indeterminate (Harley, 2016). The qualification stems from the fact that while generalized
phenomena are valid bases for flight, and while acceptance of a claim is not premised on any
status or characteristic of the claimant or group to which they belong, al1 applicants for refugee
status must nonetheless show that "their lives, safety or Freedom have been threatened. This
requirement, that the putative refugee be demonstrably at risk due to the generalized disturbance
in their country, contrasts with the OAU Convention's deference to individuated perceptions of
peril (Ibid). Finally, the OAS definition, unlike its African counterpart, does not explicitly extend

XXXVII
protection to persons who flee serious disturbances of public order that affect only part of their
country (Ibid).

The references to claims grounded in "internal" conflicts and "massive violations of human
rights" provide helpful clarifications of established principles, but in substantive terms do not
break new ground. Any situation of internal conflict would surely "disturb public order" and
hence be included with in the general language of both the OAU and the OAS definitions
Moreover, while the granting of refugee status based simply on the existence of massive
violations of human rights would have been a major innovation, this ground of claim as codified
adds little to the Convention definition, in view of the obligation of refugee claimants to show
that their lives, safety, or freedom have been threatened by such human rights abuses (Mathew,
2016). Overall, the OAS definition of refugee status indicates something of a compromise
between the 1951 Convention standard and the very broad OAU conceptualization (Ibid). It
expands the 'persecution' standard of the 1951 Convention to take into account abuse that can
result from socio-political turmoil in developing countries; but it constrains the protection
obligation to cases where it is possible to show that there is some real risk of him to persons
similarly situated to the refugee claimant (Ibid).

2.2.3.3. Europe
The Council of Europe has also introduced standards of refugee protection that go beyond the
1951 Convention definition, although the changes are significantly more modest than those of
the OAU or OAS (Kneebone, 2007). In its Parliamentary Assembly's Recommendation 773 in
1976, the Council of Europe expressed its concern in regard to the situation of de facto refugees
that is, persons 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." Member governments were invited to apply liberally the
definition of refugees in the Convention and not to expel de facto refugees unless they will be
admitted by another country where they do not run the risk of persecution (Good-win, 2009).

To date, Recommendation 773 (1976) has only been partially implemented. While the
Committee of Ministers had stipulated that Convention refugees not formally recognized as such
should be protected from return, no text has been adopted to deal with the rights of the broader
XXXVIII
class of refugees outside the scope of the Convention definition. Overall it can be said that the
Council of Europe has acknowledged the legitimacy of the claim to protection of an expanded
class of refugees, but has not moved to formalize their status or rights (Ibid).

In those countries not subject to one of these regional agreements, however, there is evidence of
a willingness to protect refugees who may not meet the 1951 Convention definition (Kneebone,
2007). Pakistan and km, for example, sheltered the largest concentration of humanitarian
refugees in the world, made up of persons forced to flee from the Afghanistan conflict."
Similarly, Hong Kong, Thailand and other Southeast Asian States have in most cases provided
temporary refuge to Indochinese migrants in refugee-like situations, pending their resettlement
abroad (Ibid).

2.2.3.4. Asia-Pacific
The Asia-Pacific is the most diverse of all regions comprising of several subregions: Central
Asia, East Asia, South Asia, Southwest Asia, Southeast Asia, and the Pacific. While countries in
the region have long cooperated in the areas of economy and security, cooperation in the context
of human rights evolved relatively late, that is in the 2010s, when the Association of Southeast
Asian Nations (ASEAN) adopted the first regional human rights instrument in the form of the
2012 ASEAN Human Rights Declaration. The Declaration plays a significant role in the context
of refugee protection as it includes several refugee rights-related provisions. However, as
Mathew and Harley (2016) pointed out, the Declaration received some criticism on the grounds
that it departed from universal human rights instruments and that NGOs were not included in the
drafting process.

The Asia-Pacific region is notorious for its intra-regional, large-scale refugee flows such as the
1975–1996 Indochinese refugee influx and the more recent surge of refugees including Burmese
and Vietnamese minority groups, Filipinos, Hmong, Bangladeshis and Rohingya people. Apart
from these refugee flows of regional origin, the Asia-Pacific region has hosted a large number of
interregional refugees from the Middle East as well. Just like in the case of the Middle East, the
most crucial problem pertaining to refugee protection in the Asia-Pacific is that the vast majority
of states are not parties to the 1951 Convention and its Protocol. The situation is further
aggravated by the fact that states hosting the largest number of refugees such as Bangladesh,
XXXIX
India, Malaysia and Thailand did not accede to these fundamental instruments of refugee
protection.

In such an environment, the adoption of the non-binding Bangkok Principles on the Status and
Treatment of Refugees in 1966 can undoubtedly be regarded as a huge step toward common
legal standards of refugee protection. A significant feature of the Bangkok Principles lies in its
extended refugee definition; however, several states entered reservations to this instrument. As a
result, there is a general lack of status for refugees in the region putting them in a grave and
highly vulnerable situation in the host countries. Nevertheless, the principle of non-refoulement
as engraved in international customary law still applies in the Asia-Pacific and several states are
bound by international human rights instruments. As Mathew and Harley (2016) argued, “failure
to recognize refugees does not avoid legal obligations owed to them as a matter of customary
international law or under human rights treaties, while a policy of recognition can open up
mechanisms of protection that do not require much additional activity by the state.”

2.2.4. Role of UNHCR on Refugee Protection

The Office of UNHCR was established to provide a form of supervisory mechanism for
international refugee law. Not only the Statute of UNHCR but also the 1951 Convention and its
1967 Protocol assign UNHCR a supervisory role regarding states’ implementation of instruments
of international refugee law. The Office of UNHCR is operative since 1 January 1951 in line
with Resolution 319 (IV) of the UN General Assembly. Until 2003, UNHCR’s mandate had to
be renewed every three years by the General Assembly; however, in 2003, its temporary mandate
was extended by the General Assembly Resolution 58/153 “until the refugee problem is solved”.

Hence, UNHCR’s role in refugee protection has undergone substantial changes and developed
into one of a quite diverse nature. Over time, its mandate has been extended to include persons of
concern other than refugees such as stateless persons, internally displaced persons (IDPs) and
returnees. UNHCR provides not only technical and operational assistance but also material aid
for the basic needs of refugees in the form of “shelter, food, water, sanitation, medical care and
education” (UNHCR, 2017a, p. 42).

XL
Furthermore, it plays a significant role in the registration and status determination of refugees in
host countries which do not have sufficient capacity to undertake these functions on their own.
With the help of special agreements such as Memorandum of Understanding (MoU), UNHCR
enhances bilateral cooperation on protection-related issues with individual states as well as
international organizations and agencies. As Chapter 3 demonstrates, the status determination
undertaken by UNHCR as well as the MoUs between UNHCR and countries in the region are of
vital importance for the protection of refugees in Middle Eastern states such as Lebanon and
Jordan. With the help of its initiatives such as the Refugee Response Plans tailored to address
specific refugee situations, UNHCR also engages in inter-agency coordination to find an
adequate response to large-scale refugee situations. Chapters 3 and 4 evaluate the tenets of
UNHCR’s Regional Refugee & Resilience Plans in the Middle East as well as its Regional
Refugee and Migrant Response Plans for Europe in the context of Syrian refugees.

As mentioned earlier, UNHCR’s supervisory role is set out in its Statute, the 1951 Convention
and its 1967 Protocol. Paragraph 8(a) of the Statute of UNHCR authorizes UNHCR to supervise
the application and implementation of international conventions on refugee protection and
propose amendments thereto. Furthermore, pursuant to Article 35(1) of the 1951 Convention and
Article II of the 1967 Protocol, contracting states “undertake to co-operate with the Office of the
United Nations High Commissioner for Refugees, or any other agency of the United Nations
which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of
supervising the application of the provisions of the [Convention and the Protocol]” (UN General
Assembly, 1951a, p. 176; 1967, p. 270). Under Article 35(2) of the 1951 Convention, states are
further responsible to inform UNHCR of the laws, regulations and decrees they adopt concerning
refugees, the condition of refugees in their territory, as well as the implementation of the
Convention.

On the other hand, UNHCR works in collaboration with a wide range of actors such as
governments, international and UN organizations as well as NGOs. Their work in refugee
protection is significant not only in their cooperation with UNHCR but also concerning their
independent protection and humanitarian work. UNHCR’s most significant UN sister
organizations relevant to refugee protection and assistance are the International Labour

XLI
Organization (ILO), the United Nations Children’s Fund (UNICEF), the UNDP, the WFP and
the World Health Organization (WHO), just to name a few. Although the work of the IOM—
established in 1951—is focused on migration management, its cooperation with UNHCR is also
significant. This is clearly symbolized by the agreement in 2016 to establish a closer legal and
working relationship with the UN as a related organization. Last but not least, UNHCR actively
and closely cooperates with regional organizations such as the African Union (AU), the
Organization of American States (OAS), the Council of Europe, the EU, the OIC and the LAS.

It worth notes that, other key actors in refugee protection include the International Committee of
the Red Cross (ICRC) and the International Federation of Red Cross and Red Crescent Societies
(IFRC) which play a crucial role in providing humanitarian relief and protection. Moreover, the
work of hundreds of NGOs—both at the international and national levels—is very important in
delivering humanitarian aid to refugees, especially in the field. Due to capacity and funding
shortages, their contribution might be relatively smaller than that of the aforementioned
international agencies, but they seem to be faster in responding to the changing needs of
refugees, especially in times of mass influxes. The Final Act of the United Nations Conference
of the Plenipotentiaries on the Status of Refugees and Stateless Persons itself highlights the
significance of NGOs by stating that “in the moral, legal and material spheres, refugees need the
help of suitable welfare services, especially that of appropriate non-governmental organizations”
and by recommending “Governments and inter-governmental bodies to facilitate, encourage and
sustain the efforts of properly qualified organizations” (UN General Assembly, 1951d, pp. 8–9)

2.3. Theoretical Literature

The focus on asylum has largely emerged as a consequence of concern by political theorists with
the more general question of whether immigration controls are morally justifiable. Some liberals
—most notably Joseph Carens—have argued that a commitment to liberal principles of equality
and freedom demands that states allow the free movement of individuals between states (Carens
1992; Cole 2000). These scholars have had little reason to concern themselves with the question
of how to define a refugee, as, in a world with open borders, all individuals regardless of their
status would be free to move as migrants. But scholars who argue that, even under ideal
conditions, immigration controls are acceptable immediately need to consider what should

XLII
happen to those people who are forced to move. Almost without exception, defenders of
immigration controls argue that states have a duty to offer some form of asylum that constrains
their right to determine whom to admit and whom to exclude (Walzer 1983; Miller 2007;
Wellmann 2008). This has led them to debate the question of who exactly should be recognized
as a refugee, and provided with special protection.

In general, most scholars have seen the 1951 UN Refugee Convention’s definition as being too
arbitrary or narrow to provide a plausible normative account of who is owed asylum. Andrew
Shacknove, for example, argued in 1986 that a more appropriate definition would classify
refugees as ‘persons whose basic needs are unprotected by their country of origin, who have no
remaining recourse other than to seek international restitution of their needs’ (1985: 277).
Shacknove’s definition has been very influential in part because it highlights the way that
refugee-hood involves a breaking of the political ‘bond’—or, in traditional liberal terms, the
social contract—between the individual and the state that lies at the heart of legitimate rule
(1985: 275). The collapse of this relationship creates a duty on behalf of international society to
provide protection to the individual concerned.

However, this expansive trend has led to a backlash from some legal scholars. James Hathaway
has responded that the Refugee Convention’s requirement of persecution on a range of specific
grounds is not arbitrary at all but rather a way of picking out ‘the most deserving among the
deserving’ of people on the move (1997: 86). Because refugees are people who have been both
denied fundamental rights and are socially and politically marginalized, they are less likely than
other forced migrants to find protection at home. In contrast, Matthew Price (2009) has argued
that what makes the refugee morally distinctive is her need for an alternative political
membership (citizenship) rather than simply temporary protection, and that providing asylum is
one way of morally condemning a persecutory state.

However, the arguments of these refugee definition puritans are not completely convincing. The
question of who is the ‘most deserving of the deserving’ seems otiose if non-persecuted but
threatened individuals (such as those facing indiscriminate bombing) are in imminent mortal
danger. Moreover, many of the world’s Convention refugees do not necessarily need (or get)
citizenship in another country (cf. Bradley 2013b). There is also no reason for believing that a
XLIII
state providing protection to victims of generalized violence, or even those covered by the
exclusion clauses of the Refugee Convention, does not (or cannot) express a degree of moral
condemnation in Price’s sense. It is understandable why one might seek to constrain the concept
of the refugee: the reality of contemporary politics means that states are concerned with limiting
refugee numbers, rather than admitting all those who might be judged to be morally deserving of
asylum. Nonetheless, the refugee puritans fail to establish good moral grounds for prioritizing
Refugee Convention in the rationing of asylum.

As in the case of the refugee definition, International Law provides a starting point for
considering how responsibilities to refugees are incurred and what these might involve (see
Goodwin-Gill, this volume). The cornerstone of legal refugee protection is the principle of non-
refoulement-the requirement not to send back refugees to territories where their lives or
fundamental freedoms would be at risk. This duty is effectively distributed on the basis of
location (a state has a duty to those refugees who arrive at or in its territory) (Gibney 2000).
Michael Walzer (1983) follows this approach, arguing that states have a duty not to expel
refugees who arrive in their territory, in part because such people have already made their escape
and sending them back would involve using force against desperate and helpless people, which is
morally unacceptable (Walzer 1983: 49–51). But most normative theorists have been more
skeptical of the location principle for two reasons. First, it tends to privilege (in practice) those
refugees with access to the resources and ability to move in search of asylum (like young men),
leaving many people endangered in their country of origin (Gibney 2004). This has led Singer
and Singer to argue that states should offer asylum to those refugees most in danger, regardless
of where they are located (Singer and Singer 1988). Walzer’s position, they reason, unjustifiably
privileges location over need, and acts (using force to expel refugees) over omissions (failing to
save refugees in other countries when this is possible) (1988: 119–20). Growing international
focus on internal displacement in the past two decades might be seen to reflect this concern.

A second worry is that the location principle leads to unjust distributions in refugee ‘burdens’
between states (Gibney 2007; Miller 2007; Owen 2012). States located near displacement
generating states, typically poorer countries in the global South, tend to find themselves with the
highest proportion of refugee claimants because they are the easiest to access. The resulting

XLIV
inequalities between states mock the idea of re fugee protection as a common responsibility of
the ‘international society of states’ (Owen 2012). In response, a number of theorists have argued
that a just distribution needs to be more sensitive to the integrative abilities of particular states
(e.g. level of GDP, size, political stability, etc.) (Gibney, 2007; Miller, 2007; Carens, 2013). The
result would be an allocation of refugees across states quite different from the current one,
which, as already noted, is skewed towards poorer states.

The problem with this conclusion is that it is unclear what to do with it. To shuffle refugees
between states for the sake of international justice would probably require riding roughshod over
the choices of refugees themselves. Redistributing refugees runs the risk of reducing these people
to mere commodities, especially if states are allowed to trade their refugee quotas as is proposed
in some market systems (Schuck 1997; Anker, Fitzpatrick, and Shacknove 1998; Gibney 2007;
Sandel 2012). While states could redistribute resources instead of refugees (financially
compensating poorer states with their higher burdens), this is also morally dubious because it
smacks of richer countries buying themselves out of asylum (Anker, Fitzpatrick, and Shacknove
1998). There appears to be a profound tension between doing justice to refugees and achieving
justice between states (Gibney 2007).

Repatriation is often presented as the most desirable means of ending refugee crises. It is
therefore not surprising that the question of repatriation has been a focus of normatively inclined
scholars. The question of under what conditions return might be ‘just’ is of particular importance
for two different reasons: first, because re fugees have typically (p. 57) escaped a position of
acute vulnerability and their rights risk being violated once again upon return; second, because
the question of whether re fugees might have a duty to return to their country (because by doing
so they may be able to help rebuild their country of origin or show gratitude to the state of
asylum) is often a politically salient one.

While normative discussion of the legitimacy of repatriation programs is not new (Weiner 1998;
Barnett 2001), return processes have only recently begun to receive systematic normative
attention (Bradley 2008, 2013a; Long 2008, 2013). Megan Bradley, for instance, has argued that
there is an intimate connection between enabling a ‘dignified return’ by refugees (a stated goal of
most international organizations involved in repatriation) and appropriate redress for the
XLV
injustices experienced by those who have been forced to flee. For redress (or reparation) plays an
essential role in asserting the dignity of refugees by showing that the rights of such people cannot
be breached with impunity (2008: 306). Long’s approach is similarly indebted to the idea of the
social contract, though she carefully reworks the concept to highlight the challenges of just
repatriation. She labels this approach ‘empatriation’ because it involves the beginning or creation
of a new relationship not a return to things as they were.

It is clear from the normative literature on repatriation that the conditions for a ‘just return’
involve far more than simply a cessation of hostilities or the emergence of a government that
respects basic rights. A morally defensible account of when return is appropriate (or even
obligatory) must involve reckoning with the relationship between the refugees and their country
of asylum, respect for the dignity and autonomy of refugees as agents, and attention to the terms
on which refugees will be (re )integrated into the country they originally fled.

2.4. Summary of Literature Review

The current unprecedented number of refugees and asylum seekers since the Second World War
is estimated to be 31.7 million (UNHCR, 2021), and this sheds light to the continuing and
increasing need for providing adequate protection to them. Despite the obvious shortcomings of
the 1951 Convention— its protection gaps, the lack of durable solutions and developed burden
sharing mechanisms—it remains a crucial source for providing protection to refugees. Although
human rights instruments are important subsidiary sources of refugee rights, the wide range of
rights provided under the Convention are in many instances much better suited for the special
needs of refugees than the general entitlements under human rights instruments. To sum up with
the optimistic words of Feller (2001), “the 1951 Convention is fifty years-old, but not outdated;
human rights principles are not weakened by age.”

On the other hand, regional frameworks for the protection of refugees have the theoretical
potential to bring along more enhanced protection outcomes for refugees as long as they are
consistent with the universal standards of refugee law. Since their significance is often overseen
with much more focus given to the international refugee regime, one of the underlying aims of
this chapter was to bring them back into the discussion of refugee protection. As the protection
frameworks examined in this chapter illustrate, the existing regional frameworks in Africa, the
XLVI
Americas and Asia-Pacific are very diverse and developed in different regional contexts. The
regional settings in Africa and the Americas paved the way for rather well-developed legal
frameworks with most of the state’s parties to the universal and regional instruments of refugee
and human rights law, extended refugee definitions and significant provisions on regional
responsibility sharing. In contrast, the Asia-Pacific region shows serious deficiencies with the
majority of states unwilling to accede to the universal instruments of refugee law, the lack of a
binding regional instrument of refugee law and the poor standards contained in the existing
regional refugee and human rights instruments.

The practice of states in these regions—with probably the sole exception of the Americas—may
show some deviation from the provisions contained in these frameworks and the implementation
as well as transposition of these provisions into the domestic legislation of states may be
imperfect. However, as far as the same can be observed regarding the universal refugee regime,
these arguments do not provide a well-founded basis against the raison d’être or potential
significance of regional refugee protection frameworks

XLVII
 CHAPTER THREE: RESEARCH METHODOLOGY

3.1. Introduction
This chapter outlines the study area description which justifies where the study was conducted. It
also describes the study design, data collection methods and sample size calculations employed
throughout the research study to gain the relevant information required. In similar, it explained
the procedures and approaches adopted for data analysis and presentation. Finally, the ethical
considerations and limitations of this study are discussed in the chapter.

3.2. Research Design

The research adopted the descriptive research design to describe the protection of refugees under
Somaliland legal system in comparison with international standards. This research design
contributed to the deep understanding of the research problem and objectives. A qualitative
research approach will be used for this study. The theoretical perspective most often associated
with qualitative researchers is phenomenology (Bogdan&Biklen, 2004). Following the
phenomenological approach, researchers seek to understand meaning the interaction between the
states and influence of their interactions. Further, the context is important to the interpretation of
data. This approach requires that “the researcher centers on the attempt to achieve a sense of the
meaning that others give to their own situations" (Smith, 2005) employed as primary sources.

3.3. Study Area and Population

The study area is in Somaliland, which covers an area of 137,600 square kilometers. Somaliland
is situated in Horn of Africa and borders with the Republic of Djibouti to the West, the Federal
Republic of Ethiopia to the South, and Somalia to the Southeast. Though, due to its unrecognized
status, its recent history of war, migration and displacement, as well as nomadic culture, is
difficult to accurately estimate the size of the population, but in 2010, the Ministry of National
Planning and Coordination had estimated the population at 4.5 million residents and about 55
percent are thought to be nomadic. The urban population has increased rapidly (ICG: 2003).

The targeted population of this study was government agencies, UN Agencies and Local or
International Non-governmental Organizations which involve in the protection of refugees in
Somaliland by ensuring inclusiveness and gender balance.

XLVIII
3.4. Study Sample
Sample design, sampling procedure and sample size of the study is detailed here below:

3.4.1. Sample Design

In this study, the researcher will use non-probability sampling design, because this kind of
sampling technique is very suitable and the researcher will select samples based on the
subjective judgment of the researcher rather than random selection.

3.4.2. Sampling Procedure

Since there are limited organizations and experts in the field of refugees, the researcher used
judgmental or Purposive Sampling procedure which respondents are selected based purely on
researcher’s knowledge and credibility. The researcher selected only those organizations, who he
feels are a right fit (with respect to attributes and representation of a population) to participate in
this research study. Therefore, the researcher mapped both governmental and non-governmental
agencies that directly involve on the protection of refugees, and they became seven in number,
namely, NDRA, Immigration police, UNHCR, Norwegian Refugee Council (NRC), Danish
Refugee Council (DRC), University of Hargeisa Legal Clinic and Diversity Action Network
(DAN).

3.4.3. Sample Size

Due to the time and resource capacity of the researcher, this study focuses on a limited number
of respondents who have been purposefully selected on the basis of their in-depth knowledge of
the topic under study. As a result, the researcher selected four organizations (NDRA, UNHCR,
NRC and UoH Legal Clinic) as a sample size, and 3 respondents were interviewed from each
organization, which made the number of respondents eighteen (18) individuals.

XLIX
3.5. Data Collection
The sources, methods, instruments and procedure of data collection of this study is described in
this section:

3.5.1. Data Collection Sources

During conducting this study, the researcher will use both primary and secondary data including
statutory materials, case reports, standard text books and reference books, legal periodicals,
parliamentary debates and government reports to address the researcher’s objectives. The
primary data are the first and most immediate recording of a situation. Without this kind of
recorded data, it would be difficult to make sense of anything but the simplest phenomenon and
be able to communicate the facts to others. Primary data can provide information about virtually
any facet of our life and surroundings” Walliman, N., 2011, Research Method: The basics
(Abindogan: Routledge).

In accordance with this study, the primary data will be obtained from government officials,
refugee experts, and staff of UN agencies, international organizations and civil society
organizations mandated to the protection of refugees. In addition, national laws and policies, as
well as regional and international standards relevant to the protection of refugees will be
employed as primary sources. On the other hand, the secondary data will be from published and
unpublished sources, like books, journals, reports and internet resources.

3.5.2. Data Collection Methods and Instruments

It’s is very important the data to be referenced and comprehensive so that the focus matter can
be extremely explored, as stated in the scope and limitation of this study due to the need for deep
knowledge on the topic, the qualitative research approach has been used throughout the study.
While conducting this study, the researcher will use a key informant interview because, the key
informant interview method is very suitable this study. Key informant interview are qualitative
in-depth interviews with people who know what is going on in the community. The purpose of
key informant interviews is to collect information from a wide range of people including
government officials, experts, or UN/non-governmental staff who have firsthand knowledge and
experience about the context. Meanwhile, the researcher will use this method through semi
structured questions that the respondent will answer directly.
L
3.5.3. Data Collection Procedure
In order to realize its intended purpose, this research undertaking has employed variety of
strategies in gathering pertinent data. First, key informants were contacted in order to obtain their
agreement to take part in the study. Secondly, secondary data sources have been identified and
sorted out on the basis of their relevance for the study. Thirdly, series of interviews were
conducted with the key informants in accordance with the prior arrangements made with the
respondents. Fourthly, responses from different respondents have been tallied to check their
consistency with each other. Finally, data obtained from primary sources have been substantiated
with facts from secondary sources.

3.6. Data Processing and Analysis

3.6.1. Data Processing

The process of data analysis involved making sense out of data. It involved preparing the data for
analysis, conducting analysis, moving deeper and deeper in to understanding the data,
representing the data, and making an interpretation of the larger meaning of the data.

3.6.2. Data Analysis and Presentation

This research employed one of the commonly known qualitative research method analysis which
is called Narrative analysis. This type of data analysis is one of the simplest ways that can be
easily used for processing the qualitative data. In this type of analyses, the researcher has used to
exam and interpret in a meaningful and coherent way to the concepts, notes and views that
collected form the respondents or from secondary source of information.

3.7. Ethical Consideration

In the process of data collection due care was taken in order to make this piece of work ethically
sound. Respondents have been informed that their contribution was sought for exclusive
academic purpose. Their consent was also obtained on the basis of consensus to fully respect
their rights, needs, values, and desires as far as the issue of this research is concerned.

3.8. Limitation of Study

There are several limitations against the well conducting of this study or research paper including
but not limited to the following:
LI
 Insufficient or shortage of literature. The available literature deals with each of the
principal topics covered in the study separately. There is a little work which combines
these topics in to integrated form in both International and Somaliland studies.
 The availability or accessibility of documentary evidence was also a problem or another
limitation.
 Since Somali language was written in 1972, most of the Somaliland knowledge and
experiences remained oral and this raised difficulties in identification and verification.
 Existence of insufficient experts and academicians for the topic under study has also
become a limitation.
 The subject in which this study or research concerns was very broad and the time
assigned to conduct it was so limited and not enough to do it in deeply.
 Lack of financial support for both the research work and writing up the thesis was also a
limitation to the study.

LII
 CHAPTER FOUR: PRESENTATION AND DISCUSSION OF FINDINGS

4.1. Introduction
This chapter presents the analyses, interpretations and discussions of the data collected in
accordance with the objectives and research questions of the thesis. The chapter also outlined the
complementary literature information of the findings in respective to the local context and
stakeholder’s views and concepts. Additionally, the chapter explored and evaluated the
protection interventions for refugees by both governmental and non-governmental agencies in
Somaliland. Finally, the chapter will capture the participants view and suggestions related to the
topic under study.

4.2. Demographic Information of Respondents

Demographic information highlights the age, sex, education level and marital status of the
respondents: In sex, 50% of the respondents were male, while the other 50% were female. This
shows that the gender equality and sensitivity have been respected throughout the study. In age
category, more than three quarters of the respondents were among 30-45 years old, while less
than quarter out of them were above 45. According to the education level of the respondents,
nearly two-third of them had the first level university degree, while nearly half had second level
university degree. This shows that the majority oral of the respondents had a higher education
and were highly understandable to the topic under study. Finally, the marital status of the
respondents was captured and the majority oral of them were married.

4.3. Applicable Laws for Refugees in Somaliland

The protection of refugees is an international obligation as guaranteed in the 1951 convention on
the rights of refugees and its 1967 protocol. As discussed in the literature, since its inception, a
great number of independent countries have become member states to it and ratified with their
national legislations, which obliged them to take any steps ensuring the rights of refugees
entering or living in their own countries. Contextually, though Somaliland is not yet
internationally recognized, it accepted all the treaties formerly entered by Somalia and the
international law as stated the first two paragraphs of article ten of Somaliland constitution:

LIII
 1. The Republic of Somaliland shall observe all treaties and agreements entered into by the
former state of Somalia with foreign countries or corporations provided that these do not
conflict with the interests and concerns of the Republic of Somaliland.
2. The Republic of Somaliland recognizes and shall act in conformity with the United
Nations Charter and with international law, and shall respect the Universal Declaration of
Human Rights.

Accordingly, Somaliland has obliged itself to abide by the articles of the aforementioned refugee
convention since Somalia had formerly signed and ratified it.

The first objective of the study was to identify the existence of legal framework for the
protection of refugees in Somaliland. Therefore, the respondents were asked if there is any legal
framework for refugees in Somaliland. In majority oral, they answered that there are no any laws
enacted for the protection of refugees by the Somaliland government and this identified or
showed the first problem of refugee protection in Somaliland as a legal gap, which deteriorated
the situation of refugees as a respondent from UNHCR explained.

Furthermore, half of the respondents out of 100%, including those from NDRA mentioned that a
new refugee bill is recently drafted and is currently under the review of parliamentary committee
of legal reform and human rights. In the opinion of the researcher, if the parliament approves that
bill as a functional refugee law, it will boost the situation of refugees in Somaliland by creating
them an environment where they can exercise their rights freely and legally. The law will also
shed a light on the Somaliland’s commitment to the protection of refugees and respect to the
international human right standards until yet remained unrecognized by the sovereign world
states.

In other words, since we found out that there is no specific law for refugees, a question about
what law decides the refugee hood in Somaliland arises. The researcher presented this question
to the respondents, where 75% out of 100% of them marked the 1951 refugee status convention
and its 1967 protocol as the deciding legal instruments of refugee hood in Somaliland.

LIV
4.4. Refugee Status Determination (RSD) in Somaliland
Due to the UNHCR handbook on Procedures and Criteria for Determining Refugee Status under
the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 1979, Refugee
Status Determination (hereinafter RSD), is the legal or administrative process by which
governments or UNHCR determine whether a person seeking international protection is
considered a refugee under international, regional or national law. RSD is often a vital process in
helping refugees realize their rights under international law.

In this study, the second objective was to elaborate and assess the in place RSD procedures in
Somaliland. Respectively, the institutions that involve on refugee status determination were
asked to the respondents, and they provided different responses on the basis of their knowledge
and experience. Majority all of the respondents marked UNHCR as the major institution which
takes the main role of RSD, while NDRA accompanied by the Immigration Police take a very
minor role restricted to the registration of asylum seekers or refugees in prima facie
circumstances. In accordance with the UNHCR Statute (1950), States have the primary
responsibility to conduct RSD, however, UNHCR may conduct RSD under its mandate when a
state is not a party to the 1951 Refugee Convention and/or does not have a fair and efficient
national asylum procedure in place. As a result, since Somaliland is legally unrecognized and no
legal framework for refugees is in place, the RSD mandate of Somaliland government is stepped
in by UNHCR on the grounds of its Statute and 1951 Convention.

Furthermore, the functional procedure on RSD in Somaliland was also questionable under this
study, and the researcher presented it to the interviewees. They provided detailed information
about the operative procedures employed by UNHCR on RSD which are compatible with the
international refugee standards as respondents highlighted. As a researcher, for controlling the
data quality, I crosscut the information provided by the respondents with the publications of
UNHCR about the Somaliland RSD procedures (Accessible at
https://help.unhcr.org/somalia/en/asylum/) as summarized and analyzed below:

1. After the arrival of those seeking asylum, NDRA starts the registration process by
classifying them as a prima facie and individual asylum seekers. Those from Yemen,
Syria, Afghanistan and Palestine are registered as Prima facie and recognized collectively
LV
 as refugees without RSD interview, while Ethiopians and other nationals are registered
individually and are accepted as refugee or accepted after the RSD interview by UNHCR.
2. During registration process, important information relating to asylum seeker, his/her
family members and relatives in Somalia if existed and abroad, and the relevant
documents including passport, National ID, and birth certificate will be collected. They
will also be asked to answer questions about what made them leave their country of
origin and why they cannot return. Once they are registered with the authorities, UNHCR
will collect your biometric data (fingerprints, iris scan) to complete the registration.
3. Once the registration is completed, the asylum seeker will be provided with
documentation to enable him/her to stay in Somaliland for the period between the
registration and the decision on his/her application (if an individual asylum claim is
lodged) and to access the services provided by the government, UNHCR and its partners.
4. After the registration and application for asylum is completed, the asylum seeker will be
invited to RSD interview, unless he/she came from a country that will be granted prima
facie refugee status upon registration. The interview assesses whether the individual
qualifies for refugee status under UNHCR’s mandate because of a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion.
5. Finally, UNHCR makes a decision which is either recognition of refugee status or a
rejection of the asylum application. If accepted, a recognition letter is provided to the
individual for applying the Refugee ID card. If rejected, the individual can apply again,
but not third time.

4.5. Mandate of NDRA in Refugee Protection

Finding out and analyzing the mandate of National Displacement and Refugee Agency (NDRA)
in refugee protection was a part of the research objectives of this study. According to the NDRA
strategic plan 2022-2026, it is a governmental agency founded on 3rd January, 2018 by a
presidential decree to provide support in terms of protection and durable solutions for
refugees/asylum seekers, IDPs, returnees, and migrants in Somaliland. Referencing to the
aforementioned strategy, the agency is mandated to several functions including but not limited
to:
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 I. To develop laws, policies, plans, and projects of the IDPs, refugees, returnees, and
migrants in collaboration with government institutions and other concerned agencies.
II. To initiate and implement the durable solution projects for the IDPs, returnees from the
abroad countries.
III. To implement all basic social service projects for IDPs, Refugees, and returnees such as
security, water, health, education, etc.
IV. To coordinate aid and donations from the government agencies, local community, and
international aid organizations for the IDPs.
V. To evaluate and monitor the resettlement projects to returnees in line with agreements
and concerning national laws (Somaliland law).
VI. To lead help the IDPs in getting their assistance and support.
VII. To make sure the resettlement of the returnees and IDPs.
VIII. To register refugees and asylum seekers in the country in collaboration with Somaliland
immigration and border control agency and other concerned institutions in line with the
national policies and laws.
IX. To apply other national laws in line with the agency’s roles and responsibilities.

In respect to its enlisted functions, NDRA is not specifically mandated to the protection of
refugees or asylum seekers but also other groups like IDPs and returnees. As the idea of the
researcher, this creates a gap on the priority of the agency in refugee protection as the other
groups specially the IDPs are more organized and much more in number than the refugees in the
country. In support to this argument, there is IDP policy in place for the protection and assistance
of IDP communities but none for refugees. In similar, there are a huge number of IDP
settlements throughout the country, while no specific settlements for refugees and asylum
seekers, and this can be considered as another factor, which heightens the NDRAs focus on
refugees.

In addition, majority of the respondents elaborated the mandate of the agency as enlisted above,
however, nearer half of them have argued that the agency is not serious to the protection of
refugees basing their argument on the absence of refugee act and non-allowance of any budget
for the refugees by the Somaliland government.

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4.6. Protection Activities for Refugees in Somaliland
Due to its strategic location, Somaliland became a route and departure, transit and destination for
people moving in mixed movements through the East Africa region. Every year, tens of
thousands of refugees and migrants travel to Somaliland to look for safety and better
opportunities, and many (including Somalis) transit through Somaliland on their way to other
destinations within the region or further afield (NDRA, 2021). Due to its geographical location,
Somaliland is positioned along two primary routes for mixed movements: the northern route
towards North Africa through Ethiopia and often Sudan and Libya; and the eastern route to the
Arabian Peninsula, via Bosaso or Djibouti to Yemen (Ibid). Since 2015, Somaliland’s coastal
town of Berbera has also served as a port of entry for (largely) Yemeni refugees and Somali and
Ethiopian returnees fleeing conflict in Yemen. In October 2021, UNHCR published that the total
number of registered refugees and asylum-seekers in Somaliland was 15,248, whereby 7,078
individuals were asylum seekers while 8170 individuals are refugees mainly from Ethiopia and
Yemen.

According to NDRA 2021, the increased number of refugees and asylum seekers put a
considerable strain on Somaliland’s economy, social service system and weak community-based
infrastructure. In similar, Vulnerable refugees are struggling to cope with existing challenges
including protection risks, inadequate housing, rising living costs, medical emergencies, lack of
educational opportunities for children, financial difficulties and poverty. As a result of those
problems and protection risks, the incumbent president of Somaliland has established the
National Displacement and Refugee Agency (NDRA) to provide support in terms of protection
and durable solutions, and respond the growing needs of its targeted populations.

Accordingly, as an objective of this study, the researcher asked the existed protection
interventions for the refugees in Somaliland to the respondents. Firstly, majority of the
respondents elaborated that several agencies or organizations led by NDRA and UNHCR provide
material and financial support to the refugees. For example, according to the respondents, NRC
provides education support both formal and non-formal to the refugees, while DRC supports
them in health. In similar, UOH Legal Clinic provides legal support, where DAN gives a security
and protection assistances. Accordingly, UNHCR delivers several assistances including cash

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assistance for housing in some cases. As the respondents highlighted, these assistances enabled
some of the refugee people to access their socio-economic and civil rights by creating them
opportunities to cover their services. Though all these protection activities are forefront, however
they are not sufficient and accessible to all the refugees in the country.

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 CHAPTER FIVE: CONCLUSION AND RECOMMENDATION

5.1. Introduction
This chapter summarized the findings of the research study in accordance with the objectives. It
also made conclusions that resulted from the findings and finally elaborates the remarkable
recommendations in both for policy development and further research areas in the future.

5.2. Summary of Findings

the obvious shortcomings of the 1951 Convention— its protection gaps, the lack of durable
solutions and developed burden sharing mechanisms—it remains a crucial source for providing
protection to refugees. Although human rights instruments are important subsidiary sources of
refugee rights, the wide range of rights provided under the Convention are in many instances
much better suited for the special needs of refugees than the general entitlements under human
rights instruments. In similar, regional frameworks for the protection of refugees have the
theoretical potential to bring along more enhanced protection outcomes for refugees as long as
they are consistent with the universal standards of refugee law. The existing regional frameworks
in Africa, the Americas and Asia-Pacific are very diverse and developed in different regional
contexts. For example, the regional settings in Africa and the Americas paved the way for rather
well-developed legal frameworks with most of the state’s parties to the universal and regional
instruments of refugee and human rights law, extended refugee definitions and significant
provisions on regional responsibility sharing. Concisely, those international and regional
instruments or commitments had made the situation of refugees better and created conducive
environment for the protection of refugees globally.

Contextually, although Somaliland constitution recognized the existing international law treaties
or instruments, however, there is no any specific law for refugees in place and the study
identified this as a legal gap in refugee protection. As a result, the matters of refugees in
Somaliland are governed by the international human right standards, specifically the 1951
Refugee Status Convention. Consequently, the status of refugees in Somaliland is determined by
UNHCR in accordance with the international refugee convention and its 1950 statute, while
NDRA takes small role restricted only to the former registration of the asylum seekers. In
similar, the registration and recognition of refugees are carried out as prima facie for those from
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Yemen, Syria, Afghanistan, and Palestine through a simple former security background
screening process, while those from Ethiopia and other nationalities are determined as individual
basis through RSD interview by UNHCR.

On the other hand, the incumbent government of Somaliland established NDRA as a government
agency mandated for the protection of refugees, asylum seekers, and other vulnerable
communities including IDPs and returnees. Since time being, NDRA made remarkable efforts
improving the situation of refugees in the country through leading and coordinating the available
assistances for realizing the rights of refugees. Several organizations including UNHCR, NRC,
DRC and others support the government in the protection of refugees at the areas of education,
health, and security, legal and sometimes household economy. Respectively, those assistances
enhanced the situation of the refugees, though they are all project based and can’t be considered
as sustainable, which is likely to create a protection in the future. Consequently, it’s worth noting
that the government had not allocated any budget to the assistance refugees, which can be
questionable to the government’s commitment on the protection of refugees.

5.3. Conclusion
In conclusion, this study has resulted three main conclusions: Firstly, based on the findings that a
refugee act is not yet existed in Somaliland, it’s logical to conclude that there is a big gap in the
legal protection of refugees in Somaliland. It’s also notable that the status of refugees and the
role of the government on the matters of refugees are not well defined and unclear under
Somaliland legal system. Secondly, in respect to the findings that the president of Somaliland
had established an agency for the protection of refugees and other concerned populations in
Somaliland, it’s arguable that the government made some efforts to realize the rights of refugees,
though there are some gaps related with its commitment as discussed in the findings. Thirdly,
based on the findings that the government, UNHCR and other partners provide some material
and financial assistance to the refugees, it’s justifiable to conclude that the refugees are in some
instance under protection both socially and economically, though not sufficient.

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5.4. Recommendation
 The government should enact a refugee law for legal guaranteeing the rights of refugees
in Somaliland
 Refugee Status Determination (RSD) national committee should be nominated.
 The government should allocate a specific budget to assistance of refugees
 UNHCR should increase the fund for the assistance of refugees in Somaliland
 The available protection programs and efforts should be integrated.

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Reference
Addo, M. K, The Legal Status of Refugees in the United Kingdom: A Report prepared for
the Congress of International Academy of Comparative Law," Athens,

Non-Governmental Advisory Group (1991), Putting Our World To Rights: Towards a

Commonwealth Human Rights Policy, London.

Alston, P. (1992), United Nations and Human Rights: A Critical Appraisal, Oxford:
Clarendon Press.

Amador, G. (1973), Violations of Human Rights and International Responsibility in

International Protection of Human Rights, Indianapolis.

Bade, K. J. (2003), Migration in European History, Oxford: Wiley-Blackwell

Mc. Adam, J. (2007), Complementary Protection in International Refugee Law, Oxford:

Oxford University Press.

Arendt, H. (1986), The Origins of Totalitarianism, New York: Andre Deutsch.

Fielden, A. (2008), Local Integration: An Under-Reported Solution to Protracted Refugee

Situations: New Issues in Refugee Research, UNHCR Working Paper No. 158.

Horst, C. (2006) Transnational Nomads: How Somalis Cope with Refugee Life in the
Dadaab Camps of Kenya, Oxford: Berghahn.

Duffield, M. (2001), Global Governance and the New Wars: The Merging of Development
and Security, London: Zed Books.

Collinson, S. (2003), Power, Livelihoods and Conflict: Case Studies in Political Economy
Analysis for Humanitarian Action HPG Report 13, London: Humanitarian Policy Group,
Overseas Development Institute.

AbulA’laMawdudi (1997), Human Rights in Islam, Lahore(Pakistan): Islamic Publications

ltd

United Nations Human Rights Office of the High Commissioner (2014), Refugee Rights are
Human Rights, New York and Geneva, United Nations Publications.

Henry J. Steiner, Philip Alston & Ryan Goodman (2007), International Human Rights in
Context, London, Oxford University Press.

JanuszSymonides& Vladimir Volodin (1999), Human Rights of Women: A Collection of

International and Regional Normative Instruments, Unesco.

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Academy for Peace and Development (2002), Women’s Rights in Islam and Somali Culture,
Hargeisa Somaliland, Published by Unicef.

International and Regional Instruments

1. Charter of the United Nations

2. Universal Declaration of Human Rights
3. International Covenant on Economic, Social and Cultural Rights
4. International Covenant on Civil and Political Rights
5. International Convention on Refugee Status
6. Protocol on the Rights of Refugees
7. African Charter of Human and Peoples Rights
8. African Union Convention for the Protection and Assistance of Internally Displaced
Persons in Africa (Kampala Convention).

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Annex: Key Informant Interview

Key Informant Interview Questions

The purpose of this interview is to collect firsthand information about Protection of Refugees
under Somaliland Legal System in Comparison with International Standards. This study is
believed to result in generating new ideas and approaches towards well-informed decision
making regarding issues of refugee protection in Somaliland. Your honest responses will play a
significant role in making this study successful. Therefore, you are kindly requested to make
remarks on the following questions as freely and frankly as possible.

The interview does not have "good" or "bad" answers. You can stop the interview at any time or
refuse to answer any questions that you don't want to answer. The information will be kept
confidential and will help my dissertation and to improve the relevant programs on refugee
protection.

If consented to the interview, open the questions, if not, close it.

Thanks in advance for frankly cooperation

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Date of Interview: ______________

1. Demographic Background of the respondent:

A. Name (Optional):
B. Agency:
C. Sex: D. Age: E. Marital Status:

2. In your knowledge and experience, is there any legal framework ensuring the rights of
refugees in Somaliland? If yes, name it?
3. Which law decides the status of refugee hood in Somaliland?
4. Which are the institutions that decide the acceptance or rejection of refugee hood in
Somaliland?
5. What is the procedure followed for recognizing refugee hood in Somaliland? Do you
think that it’s compatible with the international standards?
6. What is the mandate of National Displacement and Refugee Agency (NDRA) in the
protection of refugees? How it contributed to the improvement of refugee situation in
Somaliland?
7. Did the Somaliland government allocate any specific budget to the refugees in the
country? If yes, is it sufficient?
8. Are there any integrated programs that ensure the rights of refugees by both government
and non-governmental agencies? If yes, which assistances?
9. What is the social and civil status of refugees in Somaliland? Do the refugees access to
educational, health and legal support? If yes, from which agencies?
10. In your observation, do the government and other agencies create job opportunities to the
refugees in Somaliland? If yes, explain? If no, why not?
11. According to your legal knowledge and experience, are refugees eligible to vote or be
voted for in elections?
12. As a respondent, have you ever observed refugees returned to their countries
involuntarily? If yes, when?

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13. What are the legal gaps in the protection of refugee in Somaliland? And what are
recommendations for improving those gaps?

LXVII