Three different international law sources are establishing the obligations of states towards refugees under international law: treaty law, customary international law, and case law of international and national courts. “Soft refugee law” may be a fourth but informal source and includes the conclusions of the executive committee, as well as the guidelines of the UNHCR.
State obligation starts with addressing root causes of forced displacement, strengthening the rule of law, and providing citizens with security, justice, and equal opportunities are crucial to breaking the circle of violence, abuse, and discrimination that can lead to displacement.
Beyond the act of just receiving refugees is that the equally important obligation in keeping with the international treaty requirements for the receiving state to make sure they provided fair treatment and protection. Refugees are particularly disadvantaged and thus liable to many policies and actions which tend to violate and deprive them of basic human rights. During this regard, protection has been earmarked as a core responsibility that the international community bears towards refugees.
In a bid to appreciate the obligation of states under the convention, it is apposite to ask certain questions: what is the obligation owed? And to whom is the obligation owed? In this paper, the obligations of states under the Convention is categorised into 2:
- Obligations to protect the rights of refugees
- Obligation to the international community
The 1951 convention contains rights of refugees that imposes obligation on states to protect. A discussion of refugee rights cannot be isolated from the context in which refugees live. Some refugees are formally granted asylum or are resettled, and have extensive access to rights, often on a par with citizens in their host countries.
Other refugees spend years or even decades in refugee camps or informal settlements, in both rural and urban areas, with limited rights, no formal recognition of their status and little prospect of a durable solution to their plight.
In Articles 3 to 34, the Convention enumerates the rights of refugees. Some of these rights apply as soon as a refugee or asylum seeker is present in a state or otherwise comes under its jurisdiction. Others apply when an asylum application has been granted, or after a certain period of residence. General human rights law applies to refugees.
Some of the rights of refugees include freedom to practice their religion, right to acquire movable and immovable property, artistic rights and patent rights, right of association, right to engage in wage earning employment, freedom of movement within the territory.
Non-discrimination is a core principle of international law and the foundation of all human rights treaties. Discrimination is prohibited, whether on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 3 of the 1951 Convention obliges States parties to apply its provisions without discrimination as to race, religion or country of origin. Article II of the OAU Refugee Convention uses the same wording, and further specifies that there should be no discrimination on the ground of membership of a particular social group.
Refugees are duty bound to obey the laws of their host countries and where they are in breach of their laws, they are not immune from prosecution by the country. Article 16 of the 1951 Convention stipulates that refugees are entitled to have access to the courts and to treatment on a par with nationals as regards legal assistance.
The judiciary of any receiving state has an important obligation in the protection of refugees’ rights and asylum seekers. The judiciary is vested with the power to interpret laws, treaties and it is pertinent they discharge such duty with all sense of independence. In addition, the non-governmental International Association of Refugee Law Judges (IARLJ) helps foster understanding among the judiciary of the obligations created by the Convention and other relevant instruments it provides a forum for exchanging information, sharing best practices and developing consistent approaches to the interpretation and application of refugee law.
The IARLJ encourages the use of the judicial process to adjudicate the rights of asylum seekers and refugees and helps develop understanding of judicial independence in the context of refugee law, especially in emerging democracies and developing countries.
Article 28 obliges states to issue travel documents to refugees lawfully staying in their territory (known as Convention travel documents or CTDs). A Schedule to the Convention sets the form for the document, prescribes various conditions for issue, provides for “returnability” and for the recognition of CTDs issued by other states.
The 1951 Convention, under Article 31(1), prohibits the imposition of penalties for illegal entry or presence on refugees who, coming directly from a territory where they fear persecution, enter or are present without authorization, provided they present themselves without delay to the authorities and show good cause for their unauthorized entry or presence.
Article 31(1) of the 1951 Convention applies to refugees and asylum-seekers alike. For Article 31(1) to be effective, it must apply to any person who claims to be in need of international protection and until she or he is found not to be so, having been issued a final decision following a fair procedure. The word ‘penalties’ has a broad meaning and is not limited to criminal penalties, but includes any administrative sanction or procedural detriment imposed on a person seeking international protection.
Furthermore, States are obliged not to expel a refugee lawfully in their territory, save on grounds of national security or public order. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law.
Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose, before competent authority or a person or persons specially designated by the competent authority. The receiving States shall allow such a refugee a reasonable period within which to seek legal admission into another country.
To boot the principle of non-refoulement has won the battle of ideas in international law and it has emerged to provide protection to refugees by prohibiting states from returning refugees to the frontier where they may be subjected to persecution.
This principle of non-refoulement applies to all refugees who are already on the territory. The principle of non-refoulement has been the milestones in international protections of refugees which provide the prohibition of expulsion or returns of a refugee to any country where he or she might be tortured or face persecution or other ill-treatment.
States are responsible for ensuring protection from refoulement to all persons who are within its jurisdiction, including when on the state’s territory. The term ‘territory’ includes a state’s land territory and territorial waters as well as its de jure border entry points, including transit areas or “international” zones at airports.
A state’s responsibility to protect persons from refoulement is regardless of whether the person has entered the country in a legal sense and has passed immigration control, was authorized to enter, or is located in the transit areas or “international” zone of an airport.
It is not possible for states to divest themselves of their non-refoulement obligations through the provisions of their domestic (immigration or border control) laws and excising parts of their territory for asylum-related purposes. By virtue of Article 27 of the 1969 Vienna Convention on the Law of Treaties, it is an established principle of international law that a state may not invoke its legislation as a basis or justification for failure to perform its international legal obligations.
The 1951 Refugee Convention identifies non–refoulement provision in Article 33(1): ‘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 principle of non-refoulement constitutes an indispensable condition of refugee protection. Therefore, the significance of the obligation not to expel a refugee to a territory where he or she would be in danger of persecution has been clarified; and non-derogable nature of the principle of non-refoulement has been stated in many Conclusions of the Executive Committee of UNHRC and under Article 42(1) of the Convention.
Notwithstanding the principle of non-refoulement in Article 33 (1), it is apposite to state that the Refugee Convention is the only instrument among others which does not provide an absolute and unconditional protection to non-refoulement, thus the convention permits for exceptions and derogations.
Article 33(2) of the Refugee Convention could be presented as an exception to the principle of non-refoulement as it limits the protection of refugees from refoulement on two grounds: First, if there are reasonable grounds to believe that a person is able to threaten the security of the country where he lives, he or she may not be able to claim to benefit the non-refoulement provision.
Second, if the refugee has been convicted by a final judgment of a particularly serious crime and because of his or her past offences or the likelihood of subsequent offences, the refugee constitutes a danger to the community of that country.
Under these circumstances, states may determine individually the application of this provision taking into account the refugee contains one of these conditions provided under Article 33(2) of the 1951 Convention.
Under the European Convention, the refugees and asylum seekers are presented more protection against refoulement than the Refugee Convention. Even though the European Convention for Protection of Human Rights and Fundamental Freedoms does not involve any wordings with regard to non-refoulement principle, the protection of refugees and asylum seekers from refoulement is provided implicitly under Article 3 of the European Convention. It states: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’.
With regard to Article 3, the European Court of Human Rights and its Commission have built a body of case law through their judgments and decisions that will serve the protection of persons by prohibiting the removal of them to their home country where they face human rights violations.
Under the first inter-state complaint (Ireland v. United Kingdom), the European Court pointed out the unconditional character of Article 3 and torture and inhuman or degrading treatment have been prohibited on an absolute ground. Besides this, it has been stated that Article 3 cannot be subject to derogation even if there is public emergency posing a threat to the security of nations.
Obligation to International Community
States are under obligation to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, provide them in the appropriate form with information and statistical data requested concerning:
(a) The condition of refugees, (b) The implementation of this Convention, and; (c) Laws, regulations and decrees which are, or may hereafter be, in force relating to refugees. Furthermore, States shall communicate to the Secretary-General of the United Nations the laws and regulations which they may adopt to ensure the application of this Convention.
Where an obligation is imposed on a person or state, there is certainly a corresponding duty expected from the person whom the obligation is owed. The receiving states are imposed with certain obligations under the Convention; similarly, the Convention imposes a corresponding duty on refugees. Article 2 of the Convention provides that ‘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