Overview of Refugee Rights

Sherif Elsayed-Ali*

 

Refugees and the principle of non-refoulement

The modern concept of refugee protection was established following the Second World War, in response to the millions of refugees who fled their countries of origin. The 1951 Convention relating to the Status of Refugees (UN Refugee Convention) and its 1967 protocol instituted the international refugee protection regime.

 

The UN Refugee Convention defines a refugee as someone who is outside of her/his country of origin and has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. At the heart of the protection afforded to refugees is the prohibition of refoulement.

 

The principle of non-refoulement that was introduced in the UN Refugee Convention prohibited the return of refugees to the countries they had fled. This principle was further developed through other regional and international human rights obligations. Nowadays, the principle of non-refoulement can be understood as the prohibition of transferring any person to a country where they are at risk of serious human rights abuses.

 

International human rights treaties like the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) and the International Covenant on Civil and Political Rights (ICCPR) expanded the situations in which non-refoulement is applicable. These international instruments prohibit the transfer of people to situations where they risk torture or ill-treatment. Unlike the refugee protection regime, which excludes certain people from the UN Refugee Convention, the Convention against Torture and the ICCPR do not provide for any exceptions in the types of people protected by them.

 

Additionally, regional human rights treaties have extended international protection to other categories of people.

 

For example, the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Refugee Convention) expands the definition of a refugee to include those who were compelled to leave their country due to “external aggression, occupation, foreign domination, or events seriously disturbing public order”.

 

In the European Union, EU law also provides protection for people who would not qualify as refugees under the UN Convention, such as those escaping indiscriminate violence in situations of armed conflict, torture or other ill-treatment, and the death penalty. 

 

Over time, the principle of non-refoulement has become a customary norm of international law, meaning that it is an obligation that applies to all countries, regardless of whether they are party to the specific conventions where the prohibition of refoulement is found. This means that even if a state has not ratified the UN Refugee Convention, it still has an obligation not to force anyone to return to a country where they would risk persecution. So for instance, the principle of non-refoulement applies across the MENA region, notwithstanding the fact that Bahrain, Jordan, Iraq, Kuwait, Lebanon, Libya, Oman, Qatar, Saudi Arabia, Syria and the UAE are not parties to the UN Refugee Convention.

 

Palestinian refugees

Article 1D of the UN Refugee Convention excludes from this instrument those Palestinian refugees receiving protection or assistance from the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). This means that Palestinian refugees within UNRWA’s areas of operation[1] (Jordan, Lebanon, Syria as well as Gaza and the West Bank) are excluded from the Convention.[2]

 

However, article 1D paragraph 2 helps ensure that Palestinian refugees enjoy a continuity of protection. Accordingly, a Palestinian refugee who was receiving UNRWA assistance subsequently leaves its area of operation, she/he should automatically benefit from the protection of the UN Refugee Convention, without the need for a separate refugee status determination process.[3]

 

It is important to note that this continuity of protection is limited. For Palestinians who previously received assistance from UNRWA and then find themselves outside UNRWA’s areas of operation, they are automatically entitled to the benefits of the UN Refugee Convention, by virtue of the second paragraph of article 1D. But for Palestinians who have not previously received assistance from UNRWA, article 1D – in its totality – does not apply; they will be treated as any other asylum-seeker.

 

Refugee rights

Beyond the UN Convention and regional instruments, other treaties protect a range of human rights entitlements for refugees and asylum-seekers. Although there are cases where the full scope of certain rights is explicitly limited to citizens, these are the exception rather than the rule.

Thus, refugees and asylum-seekers are entitled to virtually all of the human rights found in the ICCPR, such as the rights to life, to be free from torture and other ill-treatment, liberty, freedom of movement, freedom of expression, peaceful assembly, freedom of association, equality before the law and the right to a nationality. An exception is found in article 25, which is restricted to citizens, and which provides for the right to take part in public affairs, to vote and be elected and to have access to public service.

 

Likewise, the International Covenant on Economic, Social and Cultural Rights (ICESCR) protects the rights of refugees and asylum-seekers to just and favourable conditions of work, to form trade unions, social security, an adequate standard of living and education. Article 2(3) of the ICESCR allows developing countries, “with due regard to human rights and their national economy, to determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals”. However, as an exception to human rights guarantees, this limitation must be interpreted restrictively. Furthermore, the UN committee responsible for interpreting the ICESCR has clarified that “[t]he Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation.”

 

The rights of refugees and asylum-seekers are also protected in other treaties, including the Convention against Torture, the Convention on the Rights of the Child, and the Convention on the Elimination of all Forms of Discrimination against Women. In particular, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is notable for guaranteeing the enjoyment of a broad range of rights to refugees and asylum-seekers through article 5.

 

* Amnesty International’s Head of Refugee and Migrants’ Rights



[1] See UNRWA’s website http://www.unrwa.org/where-we-work

[2] UNHCR, Revised Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees, p.3, online at http://www.refworld.org/pdfid/4add77d42.pdf

[3] UNHCR, UNHCR Revised Statement on Article 1D of the 1951 Convention, pp 7-8, online at http://www.unhcr.org/4add88379.html




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