Refugees, like prisoners, are often mistakenly thought not to have human rights. They are people who have left their homes fleeing adversity so, the people who ordinarily reside in the places where these refugees flee to; ignorantly think that these refugees have no rights. How can they have rights in a land that is not theirs? –Well, that’s the most interesting thing about human rights. The universality principle of human rights provides that human rights are universal and inalienable; they are indivisible; they are interdependent and interrelated. They are universal because every person is born with and possesses the same rights, regardless of where they live, their gender or race, or their religious, cultural or ethnic background.
As such, under international law, states are obliged to provide protection for refugees. The issue of refugees has hit the world on a scale that is unprecedented. The last refugee crisis the world had was during the second world war of 1939-1945. Today, there are refugees from Africa to Europe, from Syria to Europe, Britain and America, from within Africa Asia, from Africa to some countries within Africa. Kenya, for example, has refugees from mostly Somalia, Sudan and Ethiopia in the world’s largest refugee camp, Dadaab. The government has previously threatened to close the camp which is only operational because a court ruling declared that closing the camp was a violation of human rights and the principles of international law. Like every country in the world, Kenya also has the duty to protect the many Somalis and Sudanese in Dadaab.
There have also been discussions on how to manage Somali refugees’ movements into Kenya. The government has, for example, built a mesh wall to stop unregulated entrances into the country. There have also been talks on how to improve refugee protection. For example, Somali refugees are encouraged to apply for refugee status upon arrival so that they are well protected. This helps to reduce the possibility of being harassed by the police and also facilitates their freedom of movement in the country.
So, what are the duties of a state to refugees under international law?
Every person, under article 14 of the 1948 Universal Declaration of Human Rights, has the right to seek asylum. The challenge with this right is that first of all, it is not reiterated in the 1951 Refugee Convention which is like the most authoritative source of law on refugees, and secondly, because states are sovereign in nature and therefore reserve the right to admit foreigners into their territory, no state is duty bound, under any law, to grant asylum to any person. However, states are bound by the non-refoulment principle as defined under article 33 of the 1951 convention.
Article 33 of the 1951 convention provides thus:
“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 benefit this principle presents cannot, however, be enjoyed 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 non refoulment principle is now considered part of international customary law and it is not only a reserve of those who are recognized as refugees, but also, asylum seekers. The difference between refugees and asylum seekers will be discussed in next week’s issue.
In light of what has been going on in Europe, the building of walls and refusal of admission into the country, it has been argued that rejection of any person who seeks asylum at the boarder does not amount to refoulment, that the principle of non-refoulment only applies to refugees who are already within the territory of a given state. This argument can only be sustained if every case is determined on its facts. For example would this argument be sustainable if the rejection of a refugee at the boarder will lead to the return of the refugee to the country where he will face persecution?
There are those however, who say that the principle of non-refoulment also prohibits rejection of a refugee at the border. The basis of this argument is that international law obligations are subject to the principle of pacta sunt servanda – good faith. As such, states have a duty to admit any person who presents himself as a refugee at the border. The state may grant temporary admission to such a person as investigations are made to ascertain the status of the person, on whether he deserves protection as a refugee.
A linkage between non refoulment and admission are often made. That’s why it is said that for a refugee to seek asylum, he or she is granted temporary admission so that he or she can lodge their application for asylum. When the application for asylum has been lodged (whether at the boarder or within the state’s territory) the state in question has the duty to examine that application.
It should be noted that refugee protection is temporary. The 1951 Refugee Convention suggests that its provisions are only relevant until the fear of persecution is no more. If it is ascertained that the fear of persecution has ceased, then the state within which the refugee is resident may decide to let him remain in the country or even to remove him.
Every state has the duty to provide protection and refugee numbers.
Some states, like Kenya, have refused to commit themselves to specific obligations, like this one because of the unpredictability of refugee movements. Kenya has constantly complained about how the country is overwhelmed by the number of refugees who require protection at any given time. However, human rights activists who seek to have the 1951 Refugee Convention treated as a human rights treaty do not buy the idea that a state may abrogate some of its duties towards refugees simply because the state is overwhelmed.
It is also acceptable that there is a strong linkage between refugee law and human rights law. But then again, it is also acceptable that states draw budgets every year where they project their expenditure to run the country. No state is under any duty to donate funds to cater for refugees. If a state chooses not to strictly comply with its duties to refugees, then the state may as well as be within its right as a sovereign state. However, though it is not clearly codified as international law, protection of refugees the duty of every state, not just the hosting state. The indirect reference to the collective responsibility of all states to all refugees is in the preamble of the 1951 Refugee Convention in which state parties acknowledge that “the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem […] cannot therefore be achieved without international co-operation”
But then again, numbers are important. Numbers are important for record keeping. They help a state know how many refugees are within its borders. This even helps to differentiate states’ responsibilities according to the number of refugees within its borders. For example, when faced with a large influx in the number of people seeking refuge, a state may be justified to refuse admission if according to the numbers within its borders; it is unable to accommodate them.
The refugee-crisis is one the problems the world is facing today. Other problems like global warming, terrorism, piracy and war crimes contribute to the escalation of the refugee crisis. The biggest challenge faced by the international community in the protection of refugees is that the law on refugees does not conclusively determine the duties of states towards refugees. If a state admits refugees, it also meets challenges which other states may not be willing to help to overcome because of their own domestic issues. As such, the refugee crisis is a burden on the world.
Matters regarding state responsibility should be clearly defined. It is not easily ascertainable if a universal mode of allocation of responsibilities can be agreed upon by all states. Most importantly, for the international community, factors which exacerbate the refugee crisis should be fought relentlessly.
BY SAMALI BITALA
This article appears in our digital law newsletter, The Deuteronomy Vol 4, Issue 2 of April 14th 2017
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