Chapter 7: International Refugee Law

Introduction

Refugee law has a unique place in international law. It combines public and private international law as well as national laws of States. Also, it has to mind the balance between State sovereignty and humanitarian principles deriving from international law, including the purposes and principles of the United Nations. Refugee law, as an element of international law, dates back to the earliest times of human history. The cohabitation of different people brings about social pressure, violence and persecution. These social phenomena call for regulations in international law for the remedy of the people injured. Foundations and institutions arising out of legislative works directed towards this area constitute the basis of the contemporary refugee law. The major milestones for the refugee law are the Second World War and the emergence of the conflict in Syria in 2011. The first one shapes the general framework of the refugee law and differs over time. The second one tests the systematic functions of refugee law and brought up new dimensions.

International Legal Instruments of Refugee Law

Through the development process of refugee law, the first studies on the issue were consisted of the treaties and arrangements made in order to define the legal status of refugees under the auspices of the League of Nations to which mostly two or more States were the parties. A small number of States were parties to those treaties and arrangements also with some reservations. This fact has reduced the scope of them and their importance in the development of refugee law. Grave human rights violations during and after the Second World War, as well as global population movements, put refugee law on the agenda of the United Nations. At the international level, the principal instruments related to refugee law consist of the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees as well as other international instruments dealing indirectly with the subject.

1951 Convention Relating to the Status of Refugees

Following the Second World War, on December 10, 1948, the UN General Assembly adopted the Universal Declaration of Human Rights. In this document, which is the cornerstone of international human rights law, the right to asylum is regulated together with other human rights. Subsequently, on July 28, 1951, the Convention Relating to the Status of Refugees was adopted by twenty-six States at the UN General Assembly and entered into force on April 22, 1954. The 1951 Convention uses significant limitations when defining the term “refugee.” The 1951 Convention gives states the authority to accept the events occurring before January 1, 1951 as events taking place in Europe and apply the obligations imposed by the 1951 Convention under this restriction. The States which have accepted the 1951 Convention with their declarations, at any time, with a notification addressed to the UN Secretary-General, agree to the terms “events occurring before January 1, 1951” as “events occurring in Europe or elsewhere” and expand their obligations in this direction. Turkey signed the 1951 Convention on August 24, 1951 and ratified it on August 29, 1961.

1967 Protocol Relating to the Status of Refugees

Over time, new developments and the rapid increase in the number of asylum seekers led to the need to review the provisions of the temporal and geographical limitations. 1967 Protocol Relating to the Status of Refugees, which was opened for signature on January 31, 1967, entered into force on October 4, 1967, emerged under the influence of the idea that persons should be granted refugee status without any limitation and removed the phrase about temporal limitation in the 1951 Convention. Another significant development in terms of the development of refugee law is the prohibition of being a party to the 1967 Protocol with a geographical limitation. Thus, the provisions of the 1967 Protocol and the obligations arising from there are applied without any restrictions by the States Parties. However, the relevant declarations of the States already Parties to the 1951 Convention also apply to the 1967 Protocol.

Defining the Basic Concepts of Refugee Law

In this chapter, the term refugee will be examined in the context of the 1951 Convention and the 1967 Protocol. The main elements of the term, alienage, well-founded fear of being persecuted and failure of state protection will also be analyzed due to the lack of definition in the mentioned legal instruments.

Defining the Refugee

According to Article 1/A-2 of the 1951 Convention, the term refugee shall apply to any person who as a result of events occurring before 1 January 1951 and 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. Although the 1967 Protocol updated the 1951 Convention by removing the temporal and geographical limitations, it does not contain any changes about the definition and the principal elements of the refugee status. According to the 1951 Convention main elements of the refugee are alienage, well-founded fear of being persecuted and failure of state protection.

Alienage

Only a person outside his State can be qualified as a refugee due to the definition in the 1951 Convention. The 1951 Convention aims to introduce international protection, determine the status of persons who cannot benefit from the protection of their State and ensure that they enjoy the rights provided by the 1951 Convention until the national protection is provided. The 1951 Convention was conceived not to relieve the suffering of all forced migrants, but rather to assist a subset comprised of persons who were “outside their own countries who lacked the protection of a Government”

Well-Founded Fear of Being Persecuted

The concept of “persecution” forms the basis of the “well- founded fear of being persecuted” element in the definition of the refugee. Persecution can be defined as injustice, torture, and distress. These acts, deemed to be cruel, must also be deliberate. Well-founded fear entails two requirements. The first criterion is that the person seeking recognition of the refugee status perceives himself/herself to stand in terror of persecution. Second, this subjective perception of risk must be consistent with the available information on conditions in the State of origin. According to the 1951 Convention, well-founded fear of being persecuted can be originated from the reasons of race, religion, nationality, membership of a particular social group or political opinion. The acts of persecution do not have to be carried out by the State officials; actions of non- state actors may also cause fear of persecution.

Failure of State Protection

Refugee law is not simply a system designed to enable persons to escape the risk of serious harm. It is principally concerned with providing a remedy to a fundamental breakdown in the relationship between an individual and his/her State. A person who is outside the country of his/her nationality and has a well-founded fear of being persecuted must unable to avail himself of the protection of that country to have the refugee status under 1951 Convention. Being unable to avail himself/herself of such protection implies circumstances that are beyond the will of the person concerned. There may be, for example, a state of war, civil war or other grave disturbance, which prevents the country of nationality from extending protection or makes such protection ineffective. In the case of Stateless refugees, the “country of nationality” is replaced by “the country of former habitual residence”, and the expression “unwilling to avail himself/herself of the protection...” is replaced by the words “unwilling to return to it”. In the case of a Stateless refugee, the question of “availment of protection” of the country of former habitual residence does not, of course, arise. Moreover, once a Stateless person has abandoned the country of his/her former habitual residence for the reasons indicated in the definition, s/he is usually unable to return. It will be noted that not all Stateless persons are refugees. They must be outside the country of their former habitual residence for the reasons indicated in the definition. Where these reasons do not exist, the Stateless person is not a refugee.

The Principle of Non-Refoulement

Article 33 of the 1951 Convention contains the principle of non-refoulement which may not be the subject of a reservation and is required to be applied in emergency situations and to include every individual who fits the definition in Article 1/A of the Convention.

According to this principle, “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”.

The essential element in refugee law is to provide international protection to the people concerned until the conditions forcing asylum seekers to leave their country terminated and national protection is provided. The principle of non-refoulement is the most important of complementary forms of protection granted to asylum seekers in international human rights law in the fulfillment of this fundamental aim of refugee law. According to the principle of non-refoulement, an asylum seeker cannot be returned to a country where his/her life and freedom are deemed to be endangered. If the person is facing persecution in the country in which he or she is forced to return, the obligation for government officials on the border not to refuse is an essential part of the principle of non-refoulement.

The principle of non-refoulement is not absolute. The exception is regulated in the second paragraph of Article

33 of the 1951 Convention. According to the second paragraph; “The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” The provision constituting an exception to the principle of non-refoulement does not affect the State’s unexceptional obligation of nonrefoulement in the context of international human rights law, as the principle of non- refoulement is a non-derogable right in the frame of international refugee law without any restriction. According to Article 42/1 of the 1951 Convention, no reservation is permitted for Article 33.

Loss of the Refugee Status

Once a person’s status as a refugee has been determined, it is maintained unless s/he comes within the terms of one of the cessation clauses. This strict approach towards the determination of refugee status results from the need to provide refugees with the assurance that their status will not be subject to constant review in the light of temporary changes. The cessation clauses regulated in the 1951 Convention can be categorized into four sets of circumstances in which refugee status may be lost. These are, voluntary acts of the individual, change of circumstances, protection accorded by international agencies and criminals or other undeserving cases. The cessation clauses are negative in character and exhaustively enumerated. They should, therefore, be interpreted restrictively and no other reasons may be adduced by way of analogy to justify the withdrawal of refugee status.

The loss of refugee status by the individual’s actions indicates that a well-founded fear of persecution is no longer exists or that international protection is no longer required. These clauses are regulated in the 1951 Convention under Article 1/C: “This Convention shall cease to apply to any person falling under the terms of Section A if: a) He has voluntarily re-availed himself of the protection of the country of his nationality; or b) Having lost his nationality, he has voluntarily re-acquired it; or c) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or d) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution.”

The United Nations High Commissioner for Refugees (UNHCR)

The UN General Assembly established the High Commissioner for Refugees on December 14, 1950, by its Resolution 428 to “provide international protection for refugees and seek permanent solutions to their problems” as a subsidiary organ under Article 22 of the UN Charter. The relationship of the two organizations is laid down in the Statute, which declares that UNHCR acts, not at the direction of the UN Secretary-General, but under the authority of the General Assembly.

According to the Statute of the Office of the United Nations High Commissioner for Refugees adopted by the General Assembly Resolution 428, principal functions of the UNCHR is regulated in Article 8 as follows: a) Promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto; b) Promoting through special agreements with Governments the execution of any measures calculated to improve the situation of refugees and to reduce the number requiring protection; c) Assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities; d) Promoting the admission of refugees, not excluding those in the most destitute categories, to the territories of States; e) Endeavoring to obtain permission for refugees to transfer their assets and especially those necessary for their resettlement; f) Obtaining from Governments information concerning the number and conditions of refugees in their territories and the laws and regulations concerning them; g) Keeping in close touch with the Governments and inter-governmental organizations concerned; h) Establishing contact in such manner as he may think best with private organizations dealing with refugee questions; i) Facilitating the co- ordination of the efforts of private organizations concerned with the welfare of refugees.

UNHCR is the primary international institution under the UN dealing with the refugee issue, but it is not the only one. UNRWA was set up as a subsidiary organ of the General Assembly, to assist those who had left Palestine as a result of the conflict. The assistance is mainly in the fields of relief, health and education.

Current Developments in Migration and Refugee Law

Migration is a constantly changing concept. The most recent example of this issue is the irregular migration by sea. The mentioned concept has changed the practices of migration as well as bringing the situation of asylum seekers in the sea to the fore. The rise of the number of migrants entering the EU by using the Eastern Mediterranean route from Turkey to Greece caused the signing of the Agreement between the EU and the Republic of Turkey on the Readmission of Persons Residing Without Authorization on December 16, 2013. It was followed by a Statement signed by the same States on March 18, 2016, including additional action points to the Readmission Agreement. The most recent development for the refugee law is the affirmation of the Global Compact on Refugees by the UN General Assembly on December 17, 2018. Despite the lack of the international treaty statute and binding force, it has a significant potential to shape the refugee law in the ongoing process.

Irregular Immigration by Sea

Irregular immigration by sea as a contemporary issue has unique features concerning international refugee law. Migrant smuggling by sea, one of the current threats against maritime security identified by the UN, constitutes the vast amount of irregular immigration activities occurring by sea. Migrant smuggling by sea is separated from other threats to maritime security because both its subjects and victims consist of individuals. The specified activity, beyond being perceived as against the sovereignty of States, should be assessed in the form of a concept that eliminates the security of the individual.

As pointed out by the UNHCR, there is a concern that immigration control measures at sea (so-called interception at sea) do not distinguish between refugees and irregular migrants. In the absence of adequate safeguards, this may sometimes result in situations of danger against the principle of non-refoulement as in the case of refugees in need of international protection being turned back.

As the identification of asylum seekers and processing their applications are activities which normally cannot be carried out on ships, the obligation of the intercepting State is to disembark the refugees in a State where they can exercise the right to fair and efficient asylum procedures, normally the intercepting State itself. Therefore, special attention has been paid by the Security Council to the rights of refugees while combating the migrant smuggling by sea. In the Security Council Resolution 2240, it is highlighted that the intention for authorization of the member States to combat against the mentioned activity on the high seas off the coast of Libya is not to undermine the human rights of individuals or prevent them from seeking protection under international human rights law and international refugee law.

Following the Agreement between the EU and the Republic of Turkey on the Readmission of Persons Residing Without Authorization on 16 December 2013 and the closure of the so-called Western Balkans route, the Central Mediterranean again became the primary entry point to Europe but fewer migrants are arriving Italy from Egypt and Turkey.

The Agreement Between the EU and the Republic of Turkey on the Readmission of Persons Residing Without Authorization

Turkey and EU signed the Agreement on Readmission of Persons Residing without Authorization on 16 December 2013 and the Agreement entered into force on 1 October 2014. The primary purpose of the Readmission Agreement is to strengthen the co-operation between the parties in order to combat contemporary irregular immigration. The scope of the Readmission Agreement contains the readmission of irregular immigrants who are nationals of Turkey or one of the member States of the EU, third- country nationals and stateless persons. The main objective of the Agreement is the transfer and admission of persons who have been found illegally entering, being present in or residing in the contracting parties. During this process, Turkey and the member states of the EU have to respect the rights of persons who apply for asylum. The liability of Turkey to readmit, all third-country nationals or stateless persons who do not fulfill the conditions in force for entry to, presence in or residence on the territory of one of the member States of the EU, become applicable three years after the date of the Agreement’s entry into force. Due to the extent of the ongoing refugee crisis, Turkey and the EU reached an agreement and signed a Statement on March 18, 2016, including additional action points to the Readmission Agreement. According to this Statement, all new irregular migrants crossing from Turkey into Greek islands as from March 20, 2016 will be returned to Turkey. In return, for every Syrian being returned to Turkey from the Greek islands, another Syrian will be resettled from Turkey to the EU.

The Global Compact on Refugees

After 18 months of extensive consultations with the UN Member States, experts, civil society and refugees, the UNHCR presented the Global Compact on Refugees as part of his 2018 annual report to the General Assembly. The Compact was affirmed by the member States of the UN General Assembly on December 17, 2018 in the annual resolution on the work of UNHCR. As the Compact is not an international treaty, it is not binding under international law for now. The Global Compact on Refugees aims to strengthen the international response to large movements of refugees under the guiding principles of humanity, international solidarity and burden and responsibility sharing. Its four key objectives are to ease the pressure on host countries, to enhance refugee self- reliance, to expand access to third-country solutions and to support conditions in countries of origin for return in safety and dignity.