Refugee Law

Dr. V. Vijayakumar
Part I – Introduction
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 Basis of refugee protection
 Ancient – Moral and philosophical basis in
the treatment of refugees – extended
even to the protection of animals and
plants

 Modern – Although moral and

philosophical basis would be present, yet
the protection is purely based upon the
instrument of law and legal procedures
and through legal institutions set up for
this purpose
 The task of caring for refugees becomes an
international concern because of the
following:
a. Moral obligations imposed on the states; (self-
imposed)

b. A clear existence of humanitarian aspect of

the refugee problem duly recognised by the
Charter of the U.N which has distinct
provisions for the respect and protection of
human rights under Article 1 and 55(c) of the
U.N Charter

[Maryan Green, N.A, International Law of Peace,

Macdonald and Evans, London, 1982, at 100]
c. Ever increasing instances of refugee
influxes due to various natural and
manmade disasters; and

d. That the effective tackling of the refugee

problem can be carried out only by a
properly established international
organization with regular and
specialised man-power

[In addition to the two reasons given by

Maryan Green, these two can be added]
The developments of refugee law
could be analysed under two broad
categories

Under the League of Nations; and

a.

Under the United Nations

b.
 A. League of Nations
 On 20th Feb 1921, the President of ICRC,
Mr. Gustav Ador, addressed a
memorandum to the Council of League of
Nations, drawing its attention to the
situation of Russian refugees

 He also suggested a solution to the

problem that could be found in the
appointment under the League of Nations
of a General Commissioner for Russian
refugees
 Dr. Fridtjof Nansen, a Norwegian
explorer, was appointed as the first
High Commissioner for Russian refugees
by a resolution of 20th August 1921 of
the Council of League of Nations

 Under the League of Nations, the

refugees were defined by categories,
i.e., in relation to their country of origin

 This was also the basis for the

determination of their status prima facie
 The functions of the H.C were:
a. To coordinate the actions of the
governments and private organisations
for the relief of Russian refugees;

b. To regulate the legal status of a large

class of persons who had been rendered
‘stateless’

c. To assist them to find permanent homes

and work; and

d. To assist refugees in need.

 ‘Russian refugees’ included
members of the defeated
armies, or counter
revolutionary governments,
members of defeated resistance
groups; deserters; Prisoners of
war; who did not wish to live
under the new political
conditions; and famine victims
 Definition of Russian refugees
included three important elements:
a. Any person of Russian origin;

b. Does not enjoy or no longer enjoys

the protection of the government of
USSR; and

c. Has not acquired another

nationality
 In 1922, Dr. Nansen convened an
intenational Convention to discuss
the matters concerning the
international protection of refugees

 A significant achievement of this was

the conclusion of the Arrangements
for the issue of Certificate of Identity
to the Russian refugees, that later
came to be known as the ‘Nansen
Passport’ – was adopted by 53 states
 The Nansen passport was approved in its final
form by the League Council

 The actual issuance of this passport (travel

document) was to be the responsibility of
individual governments and was valid for one
year

 It did not confer any right to return to the

country of issue unless such a right was
expressly stipulated by that country

 Based on this, only France and Germany

absorbed a large number of Russian refugees
and the rest were dispersed to 45 other
countries
 At a later stage, five gold
francs were exacted from the
richer refugees for the benefit
of poorer refugees for the
issue of Nansen passport

 Stamps were issued to that

value which were called as
‘Nansen Stamps’
 Arrangements were made to issue
Certificate of Identity to Russian
refugees as well as Armenian
refugees (who, consequent upon the
break up of the Ottoman Empire) as
early as May 1926

 Armenians in Turkey found

themselves as Christians in a hostile
environment that resulted in the
massacres of 1894-1896, 1904 and
1909
 The Assembly of the LoN at its 7th
Session in Sep 1926 invited the
League Council to request the H.C
for Refugees and the ILO office to
examine how measures already
taken in favour of Russian and
Armenian refugees could be
extended to other similar groups of
refugees – The Council also made
similar request on 10 Dec 1926
 In 1928, another conference of
government representatives was held
with the efforts taken by Nansen

 Several recommendations were later

approved by the Assembly of the
League to enhance the legal status of
refugees

 A ‘group’ or ‘category’ approach to the

definition of refugees was adopted
 Russian refugees ‘that someone was
(a) outside their country of origin;
and
(b) without the protection of the
government of the state (1922)

 Similar approach was adopted to

define Armenian refugees in 1926
and Assyrian refugees in 1928
 In Oct.1933, the attention of League’s
Council was drawn to the large number
(50,000-60,000) of German nationals
taking refuge in neighbouring countries

 The Council decided to appoint a High

Commissioner for these German
refugees

 However, because of the objections from

Germany, the H.C’s office was
established outside the administrative
structure of the League of Nations
 The expenses of its activities (H.C) were
to be defrayed by funds contributed
voluntarily from private and other
sources. League of Nations advanced
25,000 francs as working capital to
establish the High Commissioner’s office

 In 1936, when Germany left the League

of Nations, a High Commissioner for the
German refugees was appointed by
League of Nations -One of his functions
was to prepare and arrange for the
meetings of an Inter-Government
Conference with a view to establishing a
system of legal protection for these
refugees
 Another Convention was held in 1933
relating to the status of refugees. The
first reference to the principle that
‘refugees should not be returned to their
country of origin’ was found

 Art. 3 of the 1933 Convention provided

that ‘the contracting states undertake
not to remove resident refugees or keep
them from their territory by application
of police measures, such as expulsions
or non-admittance at the frontier
(refoulement) unless dictated by
‘national security’ or ‘public order’
 The second paragraph provided that
‘each state undertook in any case
not to refuse entry to refugees at the
frontiers of their countries of origin’ –
Only 8 states ratified, out of which
three of them emphasised their
retention of sovereign competence in
the matter of expulsion (Principle)

 U.K expressly objected to the non-

rejection at the frontier
 The independent High Commissioner
appointed by the League of Nations
to meet the needs of German
Refugees did not have any links with
the Nansen Office

 In July, 1938, an Inter-governmental

Conference was convened by
President Roosevelt at Evian, France,
that resulted in the development of
‘political refugees’ - IGCR
 ‘political refugees’ as understood by the conference was
intended to include persons who desired to leave
Germany as well as those who had already done so. It
also included the Austrians

 The Director of IGCR was to undertake negotiations to

improve the then existing conditions of exodus and to
promote orderly emigration

 The Director of IGCR had also to approach the

government of various countries of refuge and
resettlement with a view to developing opportunities
for permanent settlement (durable solution to the
refugee problem)
 On Sep 30, 1938, the League
decided to have a single authority
to deal with refugees

 The new authority was called the

High Commissioner for Refugees

 This Office of High Commissioner

for Refugees had a five year tenure
with the head-quarters in London
 Sir Robert Emerson, a British civil
servant was first appointed as the High
Commissioner

 Main functions of the High

Commissioner were:
a. coordination of the humanitarian work
b. promotion of resettlement
opportunities; and
c. supervision of the application of
various conventions and instruments on
international protection
 IN 1939, France admitted about
400,000 refugees from Spain in just
10 days

 The IGCR was reorganised after the

World War II in 1943 and its
competence was extended to ‘any
persons’, wherever they may find
themselves who as a result of events
in Europe have been obliged or may
be obliged to leave their country of
residence due to dangers threatening
their life or freedom because of their
race, religion or political opinion’
 The manner in which the refugee
phenomenon was perceived in
the inter-war period is reflected
in the refugee definition adopted
by the Institute of International
Law at Brussels session in 1936.

 Movement from the group or

category identification of
refugees to individual based
definition
 Brussels definition provided that
a refugee is ‘any person, who
because of political events
arising in the state of which he is
a national, has left or remains
outside the territory of that state
and has not acquired another
nationality and does not enjoy
the protection of another state’
[Four elements]
 In 1943, the mandate of the IGCR was
extended to include refugees from Spain and all
groups of refugees who emerged during World
War II.

 The end of World War II witnessed an

unprecedented influx of refugee population. In
response to this situation, the allied nations
established UNRRA on Nov 9, 1943

 The main function of the UNRRA (the United

Nations Relief and Rehabilitation
Administration) was limited to extending
assistance to ‘displaced persons’ and did not
cover refugees specifically
A review of these developments would indicate the
following:
a. The status of refugees was determined based on
a specific group or class or category of people fleeing
their countries of origin (German, Assyrian, Russian,
Spanish)

b. Individual refugee was not the focus of these

developments

c. Emergence of the concepts of ‘refoulement’ and

‘non-refoulement’ (Refoulement – summary reconduction
to the frontier of those discovered to have entered
illegally and summary refusal of admission of those
without valid documents

non-refoulement- FRENCH –’refouler’ drive back or

repel- refugees not to be returned to any country where
he or she is likely to face persecution or danger to life and
freedom)
 Legal
and
institutional
developments
under
the United Nations
 The U.N began to concern itself with the
refugee problem almost immediately after its
establishment

 On Feb 12, 1946, the General Assembly

adopted a resolution recognizing:

(a) that the problem of refugees and

Displaced Persons of all categories was
one of immediate urgency; and

(b) that there was a necessity of clearly

distinguishing between genuine refugees
and DPs on one hand and war criminals,
quislings (collaborator and traitor to his
own country) and traitors on the other
 The General Assembly also laid down
three broad principles / guidelines to
deal with the situation. They were:

a. That the refugee problem should be

viewed as ‘international in scope and
nature;

b. That there should be no forced

repatriation; and

c. That the repatriation of displaced

persons should be pursued and assisted
 The ECOSOC, on 16th Feb 1946, adopted
a corresponding resolution, establishing a
Special Committee on Refugees and
Displaced Persons to make a thorough
examination of the problem in all its
respects

 This special committee met between 8th

April and 1st June 1946 and
recommended for the establishment of a
special organization to deal with the
problem of refugees and Displaced
Persons, which became the International
Refugee Organization, and a proposed
draft constitution for this organization
 All the proposals submitted to this
special committee for a broad
definition of the terms ‘refugees’
and ‘Displaced Persons’ did not
include the term ‘persecution’ as a
criterion of refugee character

 Applicability of these legal

definitions exclusively to Europe or
extending them beyond Europe and
for all categories and nationalities
of refugees and Displaced Persons
 On 15-12-1946, a resolution was passed
by the General Assembly through which
the International Refugee Organization
was established (as the United Nations
Relief and Rehabilitation Administration
and Inter-Government Committee on
Refugees were nearing their closing
dates) and the mandate of the League’s
High Commissioner for Refugees was also
terminated. Till then, the UNRRA, IGRC
and High Commissioner under the League
had helped about 21 million people
scattered throughout Europe
 International Refugee Organization
was designed as a temporary
specialized agency with a life span of
four and a half years

 functioned from Geneva, essentially

as a field agency organizing its own
assistance /activities and then
integrating them to the help and
support coming from the local
authorities first and finally the
voluntary agencies and the central
government concerned
 Its main task was the protection and
resettlement of about 2 million People
who were reluctant to return to their
homeland as they were totally uprooted
from their countries

 International Refugee Organization had

only 18 out of the 42 members of the
United Nations Organization

 It could not cope up with the ever

increasing influx of refugees
 International Refugee Organization - Constitution-
definition of refugee as belonging to one of the
following categories:

 a. victims of the Nazi or facist regimes

 b. Spanish refugees

 c. persons who were considered refugees before the

outbreak of the World War II, for reasons of race,
religion, nationality or political opinion

 d. who had resided in Germany or Austria, and being of

Jewish origin or foreigners or stateless persons, were
victims of Nazi persecution

 e. to unaccompanied children who are war orphans and

less than 16 years of age
 Definition of Displaced Persons –
‘persons who, as a result of the
actions of authorities, have been
deported from, or has been
obliged to leave his country of
nationality or of former habitual
residence, such as persons who
were compelled to undertake
forced labour or who were
deported for racial, religious or
political reasons
 UNRWA- UN Relief and Works
Agency for Palestinian refugees in
the Near East was established as a
subsidiary organ by the General
Assembly in 1949

 UNRWA functions independently

from the United Nations High
Commissioner for Refugees
(UNHCR) and both have distinct
mandates to deal with the refugee
situations