SWAYAM COURSE TITLE : HUMAN RIGHTS, INTERNATIONAL LAW &

INTERNATIONAL HUMANITARIAN LAW

COURSE CO-ORDINATOR : Prof. (Dr.) G. B. REDDY

University College of Law,
Osmania University, Hyderabad.

SUBJECT EXPERT & AUTHOR : Prof. (Dr.) DAVID AMBROSE

TEACHING ASSISTANT : Dr. S. B. Md. Irfan Ali Abbas

SCRIPT

LESSON-31: REFUGEE LAW

Introduction

Throughout the world and over the centuries, societies have welcomed frightened,
weary strangers, the victims of persecution and violence. This humanitarian traditions
offering sanctuary across the globe as war and large scale persecution produce millions of
refugees. People continue to flee from threats to their lives and freedom for many reasons.
The governments are also finding difficult to reconcile their humanitarian impulses and
obligations with their domestic needs and political realities. In the beginning of the 21st
century, the most threatened challenge of the states are protecting refugees and
maintaining solidarity with the international system that was created to do just to the
refugee population. The protection of refugees has many aspects. These include:
• Safety from being returned to danger,
• Access to fair and efficient asylum procedures, and
• Measures to ensure that their basic human rights are respected while they
secure a longer-term solution.

In every region of the world, governments have generously granted asylum to

refugees and allowed them to remain until conditions were conducive for the refugees to
return to their homes in safety and with dignity. Governments have allowed United Nations
Human Commissioner for Refugees in short UNHCR to operate on their territories and have

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provided financial assistance to refugees, both through their own domestic refugee
programs and by funding UNHCR’s protection and assistance operations.

The legal framework that supports the international refugee protection regime was
built by States. Through the years, States have affirmed their commitment to protecting
refugees by acceding to 1951 Convention relating to the Status of Refugees, the cornerstone
document of refugee protection. The Convention, which was developed and drafted by
States, enumerates the rights and responsibilities of refugees and the obligation of States
that are parties to it. While the international community has generally responded swiftly
and generously to refugee crises over the past half century, in recent years, some worrying
trends have begun to emerge. Countries that once generously opened their doors to
refugees have been tempted to shut those doors for fear of assuming open-ended
responsibilities, of abetting uncontrolled migration and people-smuggling, or of
jeopardizing national security.

Refugees have been the targets of violent attacks and intimidation, largely because
they were perceived as “different” from the communities in which they had temporarily
settled. Tensions between refugees and local populations have erupted when refugees
were seen as competitors for natural and economic resources. Armed combatants have
been allowed to mingle freely with and intimidate with seeming impunity, the civilians who
sought safety in refugee camps and settlements.

Meaning of Refugees

A refugee is someone who has been forced to flee his or her country because of
persecution, war, or violence. A refugee has a well-founded fear of persecution for reasons
of race, religion, nationality, political opinion or membership in a particular social group.
Most likely, they cannot return home or are afraid to do so. War and ethnic, tribal and
religious violence are leading causes of refugees fleeing their countries.

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1951 Refugee Convention

The United Nations Convention relating to the Status of Refugees was adopted in
1951. The refugee convention was adopted to fulfill the rights enumerated in Article 14 of
the Universal Declaration of Human Rights 1948. The said Article recognizes the right of
persons to seek asylum from persecution in other countries.

The 1951 Refugee Convention is the key legal document that forms the basis for the
legal protection, other assistance and social rights a refugee can receive from the countries
who have signed the document. The 1951 Convention, as a post-Second World War
instrument, was originally limited in scope to persons fleeing events occurring before 1
January 1951 and within Europe. The 1967 Protocol removed these limitations and thus
gave the Convention universal coverage. A refugee, according to Art.1 of the Convention, is
someone who is unable or unwilling to return to their country of origin owing to a well-
founded fear of being persecuted for reasons of race, religion, nationality, membership of
particular social group, or political opinion.

The Convention is both a status and rights-based instrument and is underpinned by

the number of fundamental principles, most notably non-discrimination, non-penalization
and non-refoulement. The provisions of the Conventions are to be applied without
discrimination as to race, religion or country of origin. Developments in international
human rights law also reinforce the principles that the Convention be applied without
discrimination as to sex, age, disability, sexuality, or other prohibited grounds of
discrimination.

The Convention further stipulates that, subject to specific exceptions, refugees

should not be penalized for their illegal entry or stay. This recognizes that the seeking of
asylum can require refugees to breach immigration rules. Prohibited penalties might
include being charged with immigration or criminal offences relating to the seeking of
asylum, or being arbitrarily detained purely on the basis of seeking asylum. Importantly,
the Convention contains various safeguards against the expulsion of refugees. The principle
of non-refoulement is so fundamental that no reservations or derogations may be made to

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it. It provides that no one shall expel or return (“refouler”) a refugee against his or her will,
in any manner whatsoever, to a territory where he or she fears threats to life or freedom.

Finally, the Convention lays down basic minimum standards for the treatment of
refugees, without prejudice to States granting more favourable treatment. Such rights
include access to the courts, to primary education, to work, and the provision for
documentation, including a refugee travel document in passport form. Most States parties
to the Convention issue this document, which has become as widely accepted as the former
“Nansen passport”, an identity document for refugees devised by the first Commissioner
for Refugees, Fridtjof Nansen, in 1922.

Rights of Refugees

The refugee has the right to safe asylum under the Refugee Convention. However,
international protection comprises more than physical safety. Refugees should receive at
least the same rights and basic help as any other foreigner who is a legal resident, including
freedom of thought, of movement, and freedom from torture and degrading treatment.
Economic and social rights are equally applicable. Refugees should have access to medical
care, right to education and the right to work.

Durable Solutions

Then we will see durable solutions. The ultimate goal of refugee protection is to find
durable solutions, which will enable refugees to live in safety and rebuild their lives. The
three kinds of durable solution are: (1) Voluntary repatriation, (2) Local integration and (3)
Resettlement. The concept of durable solutions has traditionally been associated with
permanent settlement, whether in the host country, a third country or the country of
origin. However, in the context of an increasing interrelationship between refugee
protection and international migration, some refugees or former refugees are using
temporary or permanent alternatives offered by migration schemes, either in the host
country or through regularized onward movements to a third country. Such possibilities
may be considered particularly where the refugee is not able to sustain him/ herself in the

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host country or where refugee protection is no longer necessary but where reintegration
possibilities remain limited in the country of origin.

Voluntary Repatriation
Ø Provide information and advice on the situation in the country of origin.

Ø Facilitate return, by negotiating tripartite agreements between the country of

asylum, country of origin and UNHCR.

Ø Promote “Go and See” Visits to facilitate the repatriation process.

Ø Monitor the repatriation and reintegration process in cooperation with other key
actors.

Ø Promote development assistance and sustainable reintegration.

Local integration

Ø Advocate for the advantages of integrating the refugee population into host
communities.

Ø Advise on laws and policies on asylum and migration to facilitate integration.

Ø Promote dialogue between countries of asylum to share good practices on local

integration.

Ø Identify implementing partners to participate in reintegration projects, such as

NGOs for microfinance schemes, vocational trainings and community mobilization
projects.

Resettlement

Ø Coordinate resettlement needs, and promote cooperation among relevant actors.

Ø Then, Develop resettlement criteria, and identify candidates for resettlement.

Ø Promote resettlement in combination with other durable solutions.

Ø Lobby for resettlement opportunities, including increased quotas, diversified intake,

introduction of more flexible selection criteria, and a greater number of
resettlement country agreements.

Ø Ensure emergency resettlement, including through emergency resettlement centres.

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PRINCIPLE OF NON-REFOULEMENT

Principle of Non-Refoulement, is a concept which prohibits States from returning a

refugee or asylum seeker to territories where there is a risk that his or her life or freedom
would be threatened on account of race, religion, nationality, membership of a particular
social group, or political opinion. The concept of non-refoulement is relevant in a number
of contexts – particularly , but not exclusively, of a treaty nature.

Article 33 of the 1951Convention Relating to the Status of Refugees speaks about

this principle, similarly the principle also appears in varying forms the number of later
instruments like in 1966 principles concerning treatment of refugees adopted by the Asian,
African Legal Consultative Committee, in Article III(3). The 1967 Declaration on Territorial
Asylum adopted unanimously by the United Nations General Assembly (UNGA) as
Resolution 2132 (XXII), 14 December 1967, in Article 3 also recognizes this principle.

According to this principle no country shall deport, expel or forcefully return the
refugee back to his original territory against his will or if there is a reasonable threat to his
life, liberty and freedom. There is enough evidence and State practice to conclude that
principle of non-refoulement binds all states as it is a part of customary international law
and no opposition to the same has been found in India.

In Ktaer Abbas Habib Al Qutaifi V Union of India (1999 Cri LJ 919) the Gujarat High
Court upheld the principle of non- refoulement under the wide umbrella of Article 21 of the
Indian Constitution and decided not to deport the two Iraqi nationals to their original
country as long as they had a fear for their life and liberty. In Malvika Karlekar v. Union of
India Supreme Court Case 1992, Crl. WP No. 243 of 1992 the Indian Supreme Court stayed
the order of deportation of Burmese refugees by upholding the principle of non-
refoulement. Therefore, it can be easily said that non-refoulement principle is a
preemptory norm and is not dependent on ratification of any treaty or convention for its
application. This principle comes into force as soon as the refugee is unwilling to go back to
the parent country because he fears “threat to life”.

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CONSTITUTIONAL PROTECTION

Now we will move on to the Constitutional protection accorded to the refugees.

India has ratified a number of International human rights treaties which obliges India to
provide protection to refugees on humanitarian grounds. The Government gives temporary
protection to refugees. Some fundamental rights are guaranteed to non-citizens under the
Constitution. The foremost provision is the right to approach courts for issuance of writs in
case of infringement or enforcement of fundamental rights which is usually done by filing
Public Interest Litigation or else known as PILs to ensure enforcement of refugee rights.

Some of the rights are given in Arts. 14, 21, 22, 25-28, 32 and 226 of the Indian
Constitution. The most important of them all is the equality of law and equal protection
under law which guarantees fair and just treatment for all refugees. This is however
subjected to reasonable classification and intelligible differentia which differentiates
between citizens and refugees also have the right to life and dignity and this does not
connote drudgery or mere animal existence. Their cases should be also dealt in accordance
with the due process of law.

Indian Judiciary and Refugees

Now we will move on to the role of Indian Judiciary while protecting rights of
refugees. The role of Indian Judiciary is very pivotal. It can be understood from the
following decisions of the Judiciary. In Louis De Raedt v. Union of India (AIR 1981 SC 1886)
the Honurable Apex Court held that even non- citizens have the fundamental right to life,
liberty and dignity. This right of life is followed by right against arrest and detention.

Again, in U MyatKayew and Another V. State of Manipur and Another, Guwahati High
Court 1991 ordered for interim bail for Burmese refugees who were detained and the court
was considerate in not insisting on local sureties. Similarly, the courts have given liberal
interpretation in detention cases so that the UNHCR can determine the status of the
refugee. In another case of Majid Ahmed Abdul Majid Mohd. Jad Al-Hak and . Union of India,
the Court upheld that food and medical care should be provided to detainees as they are
the bare minimum essentials for survival. Apart from the above-mentioned rights, the

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refugees are given rights to practice and profess their own religion subject to reasonable
restrictions that are applicable to everyone including aliens. They are given the right to
establish educational institutions and form peaceful assemblies.

The Laws Governing Refugees

India has a federal set up and is described as a Union of States. This union is
considered as a State in international law. The Union legislature, i.e., the Parliament alone is
given the right to deal with the subject of citizenship, naturalization and aliens. India has
not passed a refugee specific legislation which regulates the entry and status of refugees. It
has handled the refugees under political and administrative levels. In India refugees are
considered under the ambit of the term ‘alien’. The word alien appears in the Constitution
of India (Article 22, Para 3 and Entry 17, List I, Schedule 7), in Section 83 of the Indian Civil
Procedure Code, and in Section 3(2)(b) of the Indian Citizenship Act, 1955, as well as some
other statutes.

Enactments governing aliens in India are the Foreigners Act, 1946 under which the
Central Government is empowered to regulate the entry of aliens into India, their presence
and departure there from; it defines a ‘foreigner’ to mean ‘a person who is not a citizen of
India’. The Registration Act, 1939 deals with the registration of foreigners entering, being
present in, and departing from India. Also, the Passport Act, 1920 and the Passport Act,
1967 deals with the powers of the government to impose conditions of passport for entry
into India and to issue passport and travel documents to regulate departure from India.

Conclusion

The word refugee in general term means a person who has been forced to leave
their country in order to escape war, persecution, or natural disaster. It is stated that a
person becomes a refugee because of he/she has left with no other option but to flee from
human rights violations, socio-economic and political insecurity, generalized violence, civil
war or ethnic strife all these leading to fear of persecution. The term ‘Refugee’ has a
particular meaning under International Law and its legal definition is laid down in the
United Nations 1951 Convention and 1967 Protocol.

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 Article 1 of the 1951 Refugee Convention defines a refugee as:- "A person who
owing to a 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 to or, owing to such
fear, is unwilling to return to it.

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