Abstract
This chapter focuses on protection standards for refugees at the international and regional level. The introduction of the norms of protecting human rights as included in the OAU Convention and Cartagena Declaration opened a new frontier in the realm of refugee protection. The bridge between refugee protection and the protection of human rights could become the model for a twenty-first-century protection regime. Lastly, it is argued that the CEAS provisions can be taken into consideration by those who are trying to formulate a refugee protection regime based on a cosmopolitan tradition, human rights protection and balancing security and state practice.
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Notes
- 1.
Convention Relating to the Status of Refugees (adopted July 28, 1951, entered into force April 22, 1954) 189 United Nations Treaty Series 137 (1951 Convention); Protocol Relating to the Status of Refugees (entered into force October 4, 1967) 606 United Nations Treaty Series 267 (1967 Protocol); see how the definition of refugee is interpreted in the Western world in Daniel J. Steinbock, ‘Interpreting the Refugee Definition’ [1998] 19 Immigration and Nationality Law Review 733, 742.
- 2.
1951 Refugee Convention, ibid., Article 1(A)(2).
- 3.
See Arthur C. Helton, ‘What is Refugee Protection?’ [1990] 2 International Journal of Refugee Law 119, 120; Antonio Fortin, ‘The Meaning of Protection in the Refugee Definition’ [2000] 12 International Journal of Refugee Law 548, 558.
- 4.
See generally James C. Hathaway [1991] 4(2) Journal of Refugee Studies 113, 124; O.B. Tshosa, ‘National Refugee Laws in the Light of International Standards: Some Reflections on the Refugee (Recognition and Control) Act, 1967 of Botswana’ [2007] 5 University of Botswana Law Journal 49, 76; Colleen V. Thouez, ‘New Directions in Refugee Protection’ [1998] 22 Fletcher Forum of World Affairs 89, 93.
- 5.
Dennis McNamara, Foreword, Commentary on the Refugee Convention 1951, Division of International Protection of the United Nations High Commissioner for Refugees, 1997.
- 6.
See James Kelley, ‘Refugee Protection: Whose Responsibility Is it Anyway?’ [1990] 2 International Journal of Refugee Law 277, 281; Pierre Bertrand, ‘An Operational Approach to International Refugee Protection’ [1993] 26 Cornell International Law Journal 495, 497.
- 7.
See David Kennedy, ‘International Refugee Protection’ [1986] 8 Human Rights Quarterly 1, 19; Karin Landgren, ‘The Future of Refugee Protection: Four Challenges’ [1998] 11(4) Journal of Refugee Studies 416, 428.
- 8.
1951 Refugee Convention (n 1) Article 3.
- 9.
Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948), Article 2: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”
- 10.
See James C. Hathaway & Anne K. Cusick, ‘Refugee Rights are Non Negotiable’ [2000] 14 Georgetown Immigration Law Journal 481, 593; Michael J. Parrish, ‘Redefining the Refugee: The Universal Declaration of Human Rights as a Basis for Refugee Protection’ [2000–2001] 22 Cardozo Law Review 223, 264.
- 11.
1951 Refugee Convention (n 1) Article 2: “Every 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.”
- 12.
1951 Refugee Convention (n 1) Article 4: “The Contracting States shall accord to refugees within their territories treatment at least as favorable as that accorded to their nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children.”
- 13.
1951 Refugee Convention (n 1) Article 5: “Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention.”
- 14.
1951 Refugee Convention (n 1) Article 16: “1. A refugee shall have free access to the courts of law on the territory of all Contracting States. 2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts, including legal assistance and exemption from cautio judicatum solvi. 3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence.”
- 15.
See how decisions of courts affect the lives of refugees in Kate Ogg, ‘A Sometimes Dangerous Convergence: Refugee Law, Human Rights Law, and the Meaning of ‘Effective Protection’’ [2013] 12 Macquarie Law Journal 109, 124.
- 16.
1951 Refugee Convention (n 1) Article 17: “The Contracting States shall accord to refugees lawfully staying in their territory the most favorable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment.”
- 17.
1951 Refugee Convention (n 1) Article 17(2) and Article 17(3).
- 18.
1951 Refugee Convention (n 1) Article 18: “The Contracting States shall accord to a refugee lawfully in their territory treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances, as regards the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies.”
- 19.
1951 Refugee Convention (n 1) Article 19: “1. Each Contracting State shall accord to refugees lawfully staying in their territory who hold diplomas recognized by the competent authorities of that State’ and who are desirous of practicing a liberal profession’ treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances.”
- 20.
1951 Refugee Convention (n 1) Article 20: “Where a rationing system exists, which applies to the population at large and regulates the general distribution of products in short supply, refugees shall be accorded the same treatment as nationals.”
- 21.
1951 Refugee Convention (n 1) Article 21: “As regards housing the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances.”
- 22.
1951 Refugee Convention (n 1) Article 22: “1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.”
- 23.
1951 Refugee Convention (n 1) Article 22(2).
- 24.
1951 Refugee Convention (n 1) Article 33(1).
- 25.
1951 Refugee Convention (n 1) Article 32.
- 26.
1951 Refugee Convention (n 1) Article 34: “The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.”
- 27.
Bemma Donkoh, ‘A Half-Century of International Refugee Protection: Who’s Responsible, What’s Ahead?’ [2000] 18 Berkeley Journal of International Law 260, 263.
- 28.
See Ninette Kelley, ‘International Refugee Protection Challenges and Opportunities’ [2007] 19 International Journal of Refugee Law 401, 411; Guenet Guebre-Christos, ‘State Building and Humanitarian Intervention: New Dimensions in Refugee Protection’ [2001] 24 In Defense of the Alien 33, 36.
- 29.
Hugo Storey, ‘EU Refugee Qualification Directive: A Brave New World?’ [2008] 20 International Journal of Refugee Law 1, 13.
- 30.
Andres B. Johnsson, ‘Two Decades of the 1969 OAU Convention Governing the Specific Aspects of the Refugee Problem in Africa’ [1989] 1 International Journal of Refugee Law 557, 558.
- 31.
Ibid. 558.
- 32.
Emmanuel Opoku Awuxu, ‘Refugee Movements in Africa and the OAU Convention on Refugees’ [1995] 39 Journal of African Law 79, 80.
- 33.
Joe Oloka-Onyango, ‘Human Rights, The OAU Convention and the Refugee Crisis in Africa: Forty Years After Geneva’ [1991] 3 International Journal of Refugee Law 453, 454.
- 34.
OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted September 10, 1969, entered into force June 20, 1974) 14691 United Nations Treaty Series (OAU Convention). The main clauses of the Convention deal with the refugee definition (Article I), asylum (Article II), the prohibition of subversive activities (Article III), non-discrimination (Article IV), voluntary repatriation (Article V), travel documents (Article VI), and cooperation with the OAU and UNHCR (Articles VII and VIII), see W.J.E.M. van Hdvell tot Westerflier, ‘Africa and Refugees: The OAU Refugee Convention in Theory and Practice’ [1989] 7 Netherlands Quarterly of Human Rights 172, 174.
- 35.
Ibid. Article I(2).
- 36.
United Nations General Assembly, Resolution No: A/RES/36/148, December 16, 1981 http://www.un.org/documents/ga/res/36/a36r148.htm accessed December 12, 2016.
- 37.
Micah Bond Rankin, ‘Extending the Limits or Narrowing the Scope? Deconstructing the OAU Refugee Definition Thirty Years On’ [2005] 21 South African Journal on Human Rights 406, 410.
- 38.
OAU Convention (n 34) Article II (3–5): “3. No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2. 4. Where a Member State finds difficulty in continuing to grant asylum to refugees, such Member State may appeal directly to other Member States and through the OAU, and such other Member States shall in the spirit of African solidarity and international co-operation take appropriate measures to lighten the burden of the Member State granting asylum. 5. Where a refugee has not received the right to reside in any country of asylum, he may be granted temporary residence in any country of asylum in which he first presented himself as a refugee pending arrangement for his resettlement in accordance with the preceding paragraph.”
- 39.
Eduardo Arboleda, ‘The Cartagena Declaration of 1984 and its Similarities to the 1969 OAU Convention-A Comparative Perspective’ [1995] 7 International Journal of Refugee Law 87, 91.
- 40.
Cartagena Declaration on Refugees, Adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, November 22, 1984.
- 41.
Ibid. Part III, Article 3.
- 42.
See James C. Hathaway, ‘Reconceiving Refuge Law as Human Rights Protection’ [1991] 4 Journal of Refugee Studies, 113, 123.
- 43.
Jill I. Goldenziel, ‘Regulating Human Rights: International Organizations, Flexible Standards, and International Refugee Law’ [2013–2014] 14 Chicago Journal of International Law 453, 464.
- 44.
Presidency Conclusions, Tampere European Council, October 15–16, 1999 http://www.europarl.europa.eu/summits/tam_en.htm#a accessed December 2, 2015.
- 45.
Directive on Standards for the Qualification of Third-country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted (recast), 2011/95/EU of the European Parliament and of the Council, December 13, 2011.
- 46.
Directive on Common Procedures for Granting and Withdrawing International Protection (recast), 2013/32/EU of the European Parliament and of the Council, June 26, 2013.
- 47.
Directive on Laying Down Standards for the Reception of Applicants for International Protection (recast), 2013/33/EU of the European Parliament and of the Council, June 26, 2013.
- 48.
Council Directive on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts between Member States in Receiving such Persons and Bearing the Consequences Thereof, 2001/55/EC of the European Council, July 20, 2001.
- 49.
See Helene Lambert, ‘The EU Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom and International Law’ [2006] 55 International and Comparative Law Quarterly 161, 161.
- 50.
Ibid.
- 51.
Ibid. 162; see also R. Piotrowizc and C. van Eck, ‘Subsidiary Protection and Primary Rights’ [2004] 53 International and Comparative Law Quarterly 107, 115.
- 52.
Qualification Directive (n 45) Article 2(a); For internal protection see generally Jonah Eaton, ‘The Internal Protection Alternative Under European Union Law: Examining The Recast Qualification Directive’ [2012] 24 International Journal of Refugee Law 765, 777.
- 53.
Qualification Directive (n 45) Article 2(f); see also Jane McAdam, ‘The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime’ [2005] 17 International Journal of Refugee Law 461, 469.
- 54.
Qualification Directive (n 45) Article 15.
- 55.
Alte Grahl-Madsen, The Status of Refugees in International Law (1966) 193.
- 56.
Qualification Directive (n 45) Article 9.
- 57.
Qualification Directive (n 45) Article 6.
- 58.
Qualification Directive (n 45) Article 7.
- 59.
Storey (n 29) 3.
- 60.
Qualification Directive (n 45) Article 20.
- 61.
Qualification Directive (n 45) Article 21.
- 62.
For effective remedy see Marcelle Reneman, ‘Access to an Effective Remedy in European Asylum Procedures’ (2009) 1 Amsterdam Law Forum 65, 70.
- 63.
Qualification Directive (n 45) Article 22.
- 64.
Qualification Directive (n 45) Article 23.
- 65.
Qualification Directive (n 45) Article 24.
- 66.
Qualification Directive (n 45) Article 25.
- 67.
Qualification Directive (n 45) Article 26.
- 68.
Qualification Directive (n 45) Article 27.
- 69.
Qualification Directive (n 45) Article 28.
- 70.
Qualification Directive (n 45) Article 29.
- 71.
Qualification Directive (n 45) Article 30.
- 72.
Qualification Directive (n 45) Article 31.
- 73.
Qualification Directive (n 45) Article 32.
- 74.
Qualification Directive (n 45) Article 33.
- 75.
Qualification Directive (n 45) Article 34.
- 76.
Qualification Directive (n 45) Article 35.
- 77.
Steve Peers, ‘Legislative Update 2011, EU Immigration and Asylum Law: The Recast Qualification Directive’ [2012] 14 European Journal of Migration and Law 204, 204.
- 78.
Ibid. 220.
- 79.
Ibid. 221.
- 80.
Asylum Procedure Directive (n 46) Article 51(1); for detailed negotiation process, see Doede Ackers, ‘The Negotiations on the Asylum Procedures Directive’ [2005] 7 European Journal of Migration and Law 1–33
- 81.
Asylum Procedure Directive (n 46) Article 1; see Maria Panezi, ‘The 2005 Asylum Procedures Directive: Developing the European Asylum Law’ [2006–2007] 13 Columbia Journal of European Law 501, 505.
- 82.
Asylum Procedure Directive (n 46) Article 3.
- 83.
Asylum Procedure Directive (n 46) Article 8.
- 84.
Asylum Procedure Directive (n 46) Article 9.
- 85.
Asylum Procedure Directive (n 46) Article 10.
- 86.
Asylum Procedure Directive (n 46) Article 14–17.
- 87.
Asylum Procedure Directive (n 46) Article 11.
- 88.
Asylum Procedure Directive (n 46) Article 12.
- 89.
Asylum Procedure Directive (n 46) Article 26.
- 90.
Asylum Procedure Directive (n 46) Article 31.
- 91.
See Cathryn Costello, ‘The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection?’ [2005] 7 European Journal of Migration and Law 35, 39.
- 92.
Asylum Procedure Directive (n 46) Article 33.
- 93.
Asylum Procedure Directive (n 46) Article 35; see Costello (n 79) 39.
- 94.
Asylum Procedure Directive (n 46) Article 38.
- 95.
Asylum Procedure Directive (n 46) Article 36.
- 96.
For a detailed discussion, see Pieter Boeles and Ashley Terlouw, ‘Minimum Guarantees for Asylum Procedures’ [1997] 9 International Journal of Refugee Law 472, 478.
- 97.
Panezi (n 81) 512; see also Kay Hailbronner, ‘The Right to Asylum and Future of Asylum Procedures in the European Community’ [1990] 2 International Journal of Refugee Law 341, 358.
- 98.
Reception Conditions Directive (n 47) Article 1; See also Nicola Rogers, ‘Minimum Standards for Reception’ [2002] 4 European Journal of Migration and Law 215, 228.
- 99.
Reception Conditions Directive (n 47) Article 2(f).
- 100.
Reception Conditions Directive (n 47) Article 2(g).
- 101.
Reception Conditions Directive (n 47) Article 17.
- 102.
Reception Conditions Directive (n 47) Article 18.
- 103.
Reception Conditions Directive (n 47) Article 14.
- 104.
Reception Conditions Directive (n 47) Article 19.
- 105.
Reception Conditions Directive (n 47) Article 15.
- 106.
Reception Conditions Directive (n 47) Article 16.
- 107.
Reception Conditions Directive (n 47) Article 8.
- 108.
Reception Conditions Directive (n 47) Article 9–11.
- 109.
Rogers (n 98) 230.
- 110.
Temporary Protection Directive (n 48) Article 1; for a detailed discussion on mass influx, see Karoline Kerber, ‘The Temporary Protection Directive’ [2002] 4 European Journal of Migration and Law 193, 196.
- 111.
Temporary Protection Directive (n 48) Article 2(a).
- 112.
Temporary Protection Directive (n 48) Article 2(c).
- 113.
Temporary Protection Directive (n 48) Article 2(d).
- 114.
Temporary Protection Directive (n 48) Article 4.
- 115.
Kerber (n 110) 201.
- 116.
Ibid.
- 117.
Temporary Protection Directive (n 48) Article 12.
- 118.
Temporary Protection Directive (n 48) Article 13.
- 119.
Temporary Protection Directive (n 48) Article 13–16.
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Sarker, S.P. (2017). International Standards of Refugee Protection. In: Refugee Law in India. Palgrave Macmillan, Singapore. https://doi.org/10.1007/978-981-10-4807-4_5
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