What Are States Obligated to Do?
At the close of World War II an estimated 60 million people were displaced, creating the origins of modern refugee law. In the aftermath of the war, the international community came together to create the Universal Declaration of Human Rights (UDHR), the 1951 Convention Relating to the Status of Refugees (1951 Convention), and then the 1967 Protocol Relating to the Status of Refugees (1967 Protocol), creating the foundation of international refugee law. These texts give displaced peoples a special status in international law by defining the term ‘refugee’ and setting out the duties and responsibilities of the 149 state signatories.
A refugee is an individual who has left his or her country of origin and is “unable or unwilling to return due to a well-founded fear of persecution based on his race, religion, nationality, political opinion, or membership in a particular social group.” Ultimately, refugees are specifically defined as peoples fleeing governments that are either unable or unwilling to protect their human rights. Since refugees are people who have fled war, violence, conflict, or persecution, it is important for international conventions to provide basic rights to life and liberty to protect these persecuted people from either going back to their circumstances or living in worse conditions than they came from. To achieve this, two principle rights are given to refugees: the right to non-refoulement and the right to acceptable conditions of stay.
The right to non-refoulement is the cornerstone of international refugee protection. It prohibits states from returning refugees to their state or expelling them to any state in which they would face persecution. Specifically, Article 33 of the 1951 Convention provides “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.” This creates the principle of welcoming refugees and protecting them from return. The standard specifically prohibits any conduct by a state that would place a refugee at risk of being returned. This is important because it disallows states from doing anything that would result in the refugee having to return to his own state, including refusal of entry at the border or removal once within the state.
By definition refugees are not protected by their own government. As a result, these conventions create rights to ensure refugees are safe and protected by the new government they are under. To protect the human rights, dignity, and standard of living of refugees, the UDHR and 1951 Convention obligate host countries to provide ‘acceptable conditions of stay.’ These conditions primarily provide the right to education and gainful employment, access to public relief and assistance, and the right to acquire property and obtain identity documents. The key feature of these rights is to prevent refugees from living in worse conditions than those that they left while allowing them to peacefully and easily integrate into the country they have arrived in, which awards them the same treatment enjoyed by any foreign national entering a territory.
Are States Meeting this Obligation?
There are now almost 26.6 million people displaced from their homes by conflict, violence, and persecution, and as simple as these protections may sound on paper, countries have continuously struggled or refused to meet the standards they have signed on to. Bangladeshi officials want to send the Rohingya refugees back to Myanmar. Italy refuses to allow boats carrying African migrants. The United States is refusing asylum seeking migrants on its Southern border. Although international law makes it clear that migrants crossing international borders searching for asylum should not be returned, discriminated against, or turned away, countries continue to defy international standards. Even though states are expected to help facilitate integration of refugees by reducing legal and administrative barriers to entry and citizenship, many states have placed more restrictions and barriers to entry as the number of people seeking refuge worldwide multiplies. European countries, for example, have a history of hostility towards asylum seeking migrants, which does nothing but make entrance and integration even more difficult to the refugees attempting to enter these countries.
States that are allowing refugees also have trouble ensuring the standard of living that is promised by the UDHR and 1951 Convention. With the influx of refugees, many governments struggle to create adequate living situations, and many refugees find themselves in poor camp conditions or even homeless. Countries like Jordan, Lebanon, and Turkey, who are receiving some of the highest number of refugees do not have the resources to provide adequate living conditions and care for such a high volume of peoples. Similarly, countries like Uganda whose governments already struggle internally, do not have the funds to create refugee camps and care for everyone who comes within their borders.
With the evidence of countries refusing to adhere to the international law of non-refoulement along with host countries struggling to provide refugees with the right to adequate living conditions and integration, it is clear that the international law obligations are not being met.
How are Attitudes Changing?
With the recent Ukrainian crisis, hostile countries are beginning to change the attitude towards refugees and asylum seeking migrants. The United Nations High Commissioner for Human Rights (UNHCR) has even noticed these changed attitudes, especially as Central European countries who previously permitted almost no refugees are now changing their policies to welcome a vast number of displaced Ukranians under refugee status. Human rights lawyers in areas like Poland are seeing the intense underlying role discrimination plays in refugee policy as they find their work “much easier now that the government is willing to help.” The different attitudes countries are having towards this new set of refugees is revealing the social injustice and discrimination that is still a key part of the world today. However, the UNHCR finds the silver lining in the fact that the Ukrainian crisis is beginning to allow the international community to shift away from negative and demeaning narratives the world has had towards refugees.
Author Biography: Sehar Jamal is a Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. candidate at The George Washington University Law School. She has a B.A. in Government and International Politics with minors in Legal Studies and Sociology from George Mason University.