Human Rights: REFUGEES

By Dewmabel R. Baconawa

Human rights are rights inherent to all human beings, whatever

our nationality, place of residence, sex, national or ethnic origin,
colour, religion, language, or any other status. Those are rights which
a person should have in order to be a human being and by which
every person should enjoy to lead an honourable life. Human rights
entail both rights and obligations. States assume obligations and
duties under international law to respect, to protect and to fulfill
human rights. The obligation to respect means that States must
refrain from interfering with or curtailing the enjoyment of human
rights. The obligation to protect requires States to protect individuals
and groups against human rights abuses. The obligation to fulfill
means that States must take positive action to facilitate the
enjoyment of basic human rights. At the individual level, while we are
entitled our human rights, we should also respect the human rights of
others.
Human Rights are the basic human needs and demands. They
are necessary for the all round development of a human being.
Hence it is expected that every civilized state will incorporate these
rights in its Constitution and try to ensure that its citizens enjoy them.
We are all equally entitled to our human rights without discrimination.
All individuals should enjoy these rights without any distinction of
race, religion, caste, colour or sex. These laws have been given a
proper place in the constitutions of almost all the democratic
countries of the world. Even refugees are entitled to the enjoyment of
those rights but they have mostly been the targets of violent attacks
and intimidation, largely because they were perceived as different
from the communities in which they had temporarily settled. Refugee
crises have increasingly become a problem in todays modern day
society. There are several reasons that have contributed to this
situation namely global inequalities, people fleeing persecution and
regimes, people fleeing from violence and outbreak of wars.
Refugees are a special class of migrants who under
international law deserve specific protection by their host state.
According to Article 1 of the 1951 UN Convention, as modified by the
1967 Protocol, a refugee is defined as a person who owing to wellfounded 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. This definition implies that several qualifying conditions

apply to be considered a refugee: (1) presence outside home

country; (2) well-founded fear of persecution (being at risk of harm
is insufficient reason in the absence of discriminatory persecution);
(3) incapacity to enjoy the protection of ones own state from the
persecution feared. The definition of refugees was actually intended
to exclude internally displaced persons, economic migrants, victims
of natural disasters, and persons fleeing violent conflict but not
subject to discrimination amounting to persecution.
International humanitarian law provides that victims of armed
conflict, whether displaced or not, should be respected, protected
against the effects of war, and provided with impartial assistance.
Because many refugees find themselves in the midst of international
or internal armed conflict, refugee law is often closely linked to
humanitarian law
It is the responsibility of States to protect their citizens. When
governments are unwilling or unable to protect their citizens,
individuals may suffer such serious violations of their rights that they
are forced to leave their homes, and often even their families, to seek
safety in another country. Since, by definition, the governments of
their home countries no longer protect the basic rights of refugees,
the international community then steps in to ensure that those basic
rights are respected. In the aftermath of World War II, the United
Nations General Assembly created the Office of the United Nations
High Commissioner for Refugees (UNHCR). UNHCR is mandated to
protect and find durable solutions for refugees. Its activities are based
on a framework of international law and standards that includes the
1948 Universal Declaration of Human Rights and the four Geneva
Conventions (1949) on international humanitarian law, as well as an
array of international and regional treaties and declarations, both
binding and nonbinding, that specifically address the needs of
refugees. Refugee law and international human rights law are closely
intertwined; refugees are fleeing governments that are either unable
or unwilling to protect their basic human rights. Additionally, in cases
where the fear of persecution or threat to life or safety arises in the
context of an armed conflict, refugee law also intersects with
international humanitarian law.
Refugees are entitled to two partially overlapping sets of rights: those
rights accorded to them as individuals and guaranteed under
international human rights standards and national law, and specific
rights related to their status as refugees. The following are the rights
that refugees may enjoy during their stay in the host country:
NON-REFOULEMENT

One of those is the right to non-refoulement which

prohibits a state on the forced return of a refugee 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.
Non-refoulement is universally acknowledged as a human right.
It is expressly stated in human rights treaties such as Article 3
of the Convention against Torture and Article 22(8) of the
American Convention on Human Rights. This principle is also a
part of so-called jus cogens. Thus (as a part of customary
and treaty law), all countries are legally bound by the
prohibition of returning refugees in any manner whatsoever to
countries or territories where their lives or freedom may be
threatened because of their race, religion, nationality,
membership of a particular social group or political opinion,
which is the cornerstone of international protection. It is
embodied in Article 33 (1) of the 1951 Convention. The
principle of non-refoulement as contained in the 1951
Convention is not an unqualified principle. There are
three exceptions to it.
First, the benefit of the principle may not be claimed by a
refugee who may pose a danger to the security of the country in
which he or she is present.
Second, the principle does not apply to a person who, having
been convicted by a final judgment of a particularly serious
crime constitutes a danger to the community of that country.
Third, the benefit of the convention is to be denied to any
person suspected of committing a crime against peace, a war
crime, or a crime against humanity, a serious non-political crime
outside the country of refuge, or acts contrary to the purposes
and principle of the United Nations (Articles 33 (2) and 1 (F) of
the 1951 Convention).

FREEDOM OF MOVEMENT

At the regional level, the rights to seek asylum and

freedom of movement are closely related, since the inability to

return to ones country is the basis of an asylum claim while the

ability to leave ones country is a prerequisite for claiming
refugee status under the 1951 Convention. Freedom of
movement, however, is also a key right for refugees within their
host country. Article 26 of the 1951 Convention provides that
States shall afford refugees the right to choose their place of
residence within the territory and to move freely within the
State.
RIGHT TO LIBERTY AND SECURITY OF THE PERSON

The right to liberty and security of the person is important

in the context of how asylum seekers are treated within the
intended country of refuge.
RIGHT TO FAMILY LIFE

The family is seen as the natural and fundamental group

unit of society and is entitled to protection by society and the
State. In respect of this right, a number of countries provide for
the granting of derivative status to dependent relatives. Thus,
where an individual is granted asylum, his or her dependent
relatives will also receive protection through him or her.
However, should that individuals refugee status be terminated,
the status of dependent relatives will also be terminated.
OTHER RIGHTS

The 1951 Convention also protects other rights of

refugees, such as the rights to education, access to justice,
employment and other fundamental freedoms and privileges
similarly enshrined in international and regional human rights
treaties. In their enjoyment of some rights, such as access to
the courts, refugees are to be afforded the same treatment as
nationals while with others, such as wage-earning employment
and property rights, refugees are to be afforded the same
treatment as foreign nationals. 1951 Convention, art. 16
(refugees are to be granted equal access to the courts), art. 17
(refugees are to be afforded the same access to wage-earning
employment as foreign nationals), art. 13 (refugees are to be
afforded the same rights to moveable and immoveable property
as foreign nationals).

The United Nations High Commissioner for Refugees (UNHCR)

was created in 1951 to assist in the international protection of
refugees. The organizations primary objective is to ensure that all
persons can exercise the right to seek asylum and find safe refuge in
another state, and to return home voluntarily. One of the agencys
pressing tasks is to encourage governments to adopt fair and flexible
processes to promote just and effective refugee law. When UNHCR
was first established, material aspects of refugee relief were seen to
be the responsibility of the government that had granted asylum. As
many of the worlds more recent major refugee flows have occurred
in less developed countries, however, UNHCR has acquired the
additional role of coordinating material assistance for refugees and
returnees. Although this was not UNHCR's original mandate,
coordination of material assistance has become one of its principal
functions
alongside
protection
and
the
promotion
of
solutions. The International Organization of Migration (IOM) assists
with the return of rejected asylum seekers and refugees referred by
UNHCR.

International law recognizes the right to seek asylum, but does

not oblige states to provide it. Nations at times offer 'temporary
protection' when they face a sudden mass influx of people and their
regular asylum systems would be overwhelmed. In such
circumstances people can be speedily admitted to safe countries, but
without any guarantee of permanent asylum. Thus 'temporary
protection' is helpful to both governments and asylum seekers in
specific circumstances. Yet it only complements and does not
substitute for the wider protection measures offered by the Refugee
Convention.