SPIL - Jan 17

What is a refugee?
[A refugee is] one who owing to well-founded fear of being
persecuted for reasons of race, religion, nationality, membership
of a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country; or who, not
having a nationality and being outside the country of his former
habitual residence as a result of such events, is unable or, owing to
such fear, is unwilling to return to it (Article 1(A)(2), 1951 Convention
Relating to the Status of Refugees).

SIR: Refugee convention was adopted initially with time constraints and geographical
limitations

At first, it was only applicable to Europe.

And applied to events subsequent to WW2

But that changed. there is an optional protocol for the refugee convention. the protocol
does : elimate the geographical and time constraints. so nowit applies even to events
today and countries outside of Europe.

Ex: To be a refugee, it is a req that there is a refugee status procedure. and state
parties to convention, should have that. PH has it. done by DOJ. there is refugee and
statleess persons protection unit.

a foreigner can go on and apply there and the unit will grant or deny refugee status

If refugee status is granted, there is humanitarian visa issued. PH will give permission to
stay in the PH for humanitarian grounds.
The procedure is unique to every country to who enter or exits its area.

Once granted refugee status, -

DOJ CN 58
- if may denial, applicant can appeal first within the machinery of DOJ, and from there
going to the courts

Something quite interesting is when foreigner comes and applies, the burden of proof
rest on the person who alleges.

however if you look at DOJ CN 58, the duty to prove is shared between PH gov and
foreigner applying for refugee status. so there is that provision.
there is a right to an interpreter.

right to counsel. PAO will provide the counsel

Ex: a person from Ukraine fleeing from the violence caused by the war, goes to the PH.
because the PH president announced that at the beginning of war, that the doors of PH
will be open to ukranians. SO he is applying for refugee status in the PH. Should he be
granted refugee status?

SIR: yes. it can be persecution based on nationality. russian at war with ukranians.

legal basis is Refugee convention, elements, and ukranian refugee fits the elements

so that will be acceptable

the PH gov has a good history.

SIR: PH gov has been receptive

xxxx

What is non-refoulement?
Article 33 of the 1951 Convention Relating to the Status of
Refugees provides that no Contracting State shall expel or return
(“refouler”) a refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular
social group or political opinion.

What is underlying reason for non refoulement?

SIR to protect lige of the individual of the refugee

In what way is safety endangered if refugee go back to country of origin?

- they will be suject to persecution

Non refoulement is impt not just reaty law but also general accepted principle of int law.
even not binding on treaty, states must observe this principle

SO if a person is applying for asylum and refugee status is granted, there is a duty not
to return.

so in the bar, what happens in a situation if gov forces the return, is it lawful?
No. it will be in violation of non refoulement principle
Non refoulement
It is a fundamental right of the refugee

In the long run, it may be feasible to return

Ex: Conflict in Ukrain ends. it may be a viable option for the refugees. at that point no
more refugees. and the agency of UN that overseas this area of int law in UN High
COmmission for Refugees.

WHat UNHCR aims for durable soltuins

1. Return
- once persecution is no longer there
- to return t the country of origin

2. The foreigner might want to be naturalized in the host country

Ex: In the PH, there are vietnamese. in vietnames crisin, there is process here.

A durable solution is for them to be naturalized here.

There is one filmaker in australia which is vietnames, fled violnce in vietnam

3. Naturalized in third country

So, once he become a ciitzen, there are rights that attached. Priority is to give job to
nationals. in PH, need permit if you are a froeigner, to work here, from DOLE.

SO those are durable solutions.

When we talk about non refoulement,

in Australia, there are boat people coming. australian coasguard turn them away.

Italy use to do it. they will shuu the boats away

there is case against the italian gov and the case was to question that pushbacks of the
boats. some of them are economic migrants and asylum seekers.

Court said: there must be a procedure before they ask them to leave

so now, pushbacks are not happening in italy

there must be that procedure first. after that, rights of assylum seeker to look for
protection elsewhere.
In DOJ circular 58, if an nidvidual is denied refugee status, he has right to seek asylum
elsewhere and gov must facilitate in this regard

Australia is not part of Europe, so not in jurisdiction of european courts of int rights.

But in int law, it is violating rights of boat ppl coming to australia

australia is notorious in a way that they bring boat ppl to a place - faraway island

australian prof are concerned

Bar exam Q:
Juan is fleeing his residence in Batangas because of volcanic activity. Taal is erupting.
and Juan finds some rest in an evac center in cavite. is Juan a refugee?
No.

Internally displaced persons are persons or groups of persons who

have been forced or obliged to flee or to leave their homes or
places of habitual residence, in particular as a result of or in order
to avoid the effects of armed conflict, situations of generalized
violence, violations of human rights or natural or human-made
disasters, and who have not crossed an internationally
recognized state border (UN Guiding Principles on Internal
Displacement).

SIR: THe only improvement i will recommend, is instead of definition, go with definition
of refugee.

Then go to internally displaced person.

Is there a treaty for internally displaced persons?

None

UN Guiding Principles on Internal

Displacement

It has definition.

xx

THe UN Guiding Principles on Internal

Displacement is very similar to a declaration.
There’s a UN guiding principle
but no treaty yet

Some principles not moved on into treaties.

xxx
Share screen

Deseoerto named chair rapporteur of UN expert group ___

Filipina. assigned draft treaty on the right to development

xxx

SIR: UN Guiding Principles on Internal

Displacement not a treaty. resembles a declaration

xxx

The PNP take it seriously. the objective, when person being arrested, is not to kill.
rather, but shoot the leg or arm so that still alive.

xxx

I dont see any treaty adopted for internally displaced persons.

i havent heard any drafting process for that.

there is a UN agency that only does is draft treaties, possible articles.

International law commission

there is this big fuss sa time ni du30. harry roque sought to become part of int law
commission. not a full time job. they have there day jobs. and then once in a while they
hold sessions in new york and they draft articles and full blown treaties. how are they
selected?

Fo int law commssion, it is UN gen assempbly that votes. so there are nominees

it is not hard for hroque to be nominated because he was a spokeperson for digs

for the rest, it is hard. perhaps you know in gov, to be nominated. however that is not
the prob.
prob was when he had to be voted for by the gen assembly, PH NGOS there are those
who campaigned against him becos of poor record of adminitration sa human rights

they are saying that bfore he was pro human rights, and now turn his back becaus enow
spokeperson

so he lost

xxx

UN Guiding Principles on Internal

Displacement

is not a treaty.

the argment is that it conains a lot of rights that are guaranteed by treaties
like
-rights of a child.
- protecting women and children
- so there are womens rights are protected
- right to life
- not to be subject to torture

So a lot found there is treaty law

xx

International humanitarian law

- the main diff is that they apply in times of war

so there is a lot of that in protecting civilians

xxx
also there is customary international law.
- it is binding even if no treaty, and state concerned is not party to treaty, still binding to
them.