Topic No. 07 REFUGEES ESSAY

The below mentioned response to the question is concerned solely with the ideology of “refugees and asylum seekers”. Furthermore, it is believed that several organizations, including both “media houses and international bodies”, are operating to deal with the abuse of refugees' rights. People, who might be influenced when refugees' rights are abused, are provided shelter by the legal principles given by the “International Constitution”. The substantive discussion presented in this answer pertains to the implications of the 1951 Convention and its 1967 Protocols. Furthermore, the concentration of this answer shall also be moved toward the issue of relocating peoples who aren’t findable.

The 1951 Convention has laid down the most fundamental source for the explanation of those legal principles which are responsible for protecting refugees’ rights. The aftermath of “World War II” lies in the basis of all these refugee rights’ acts. People who got displaced or lost their country during the times of world war had no support for their rights and they were treated like animals. The “League of Nations Convention” relating to the “International Status of Refugees of 1933” and the Convention concerning the “Status of Refugees” coming from Germany of 1938 both have some great significance because they are historical agreements addressing the rights and protections of refugees during tumultuous periods in history. During those hard time, people who got lost had two organizations by their backs i.e. “UNRRA and IRO”. The rights of refugees were not guaranteed to individuals who became displaced from their countries prior to January 1st, 1951. As a response to the events of the 1950s and 1960s, there had been notable development in the laws dealing with the rights of refugees to ensure a broader interpretation of the legal system. It was considered necessary due to the large-scale violations during that period. The legal developments were in fact made possible by enactment of optional protocols.

It is believed that among the objectives of 1951 Convention, the most important was to get rid of “Refoulement”. The laws have now made it clear for the member states that don’t return a refugee to where he might be persecuted. However, it must be noted that the rule of non-refoulement doesn’t offer absolute protection for the refugee’s rights. Previously discussed provision can only be implemented in some particular conditions; it is relevant only to those people who got displaced and as of now are physically located within the territorial jurisdiction of the concerned nation. However, this provision has also been not able to deal with people who were located at the borders or the people who are still in the procedure of getting protection outside the jurisdiction. In order to consider someone a refugee or deny someone from being a refugee the standard relies upon compliance with existing legal standards. The moment a person gets recognized as a refugee as per the standards that were laid out initially, he/she will also be regarded as a refugee in light of the 1951 convention. Once a person has been regarded as a refugee he will get all the support that a person gets by the virtue of conventional law. Convention's scope doesn’t encompass situations involving individuals looking for asylum and for numerous reasons such as there isn’t any treaty body to look after the conditions that are concerned with refugees. All the issues that are concerned with protecting the rights belonging to the refugees are dealt with by the local authorities because of such “legal fiasco”. As per the previously discussed legal complications, the member states have the permission to interpret conventional law in accordance with their concerned social, economic, cultural, and political conditions, while still upholding the overarching principle of "good faith" within International Law. However, the member states are hesitant to permit the entry of migrants because of the concerns about the excessive burden it may impose. Therefore, the international community has been striving to maintain balance amidst these challenges. The explanation of the first article of the convention paves the way for determining refugee status. It has been

argued upon earlier that when determining whether an individual is a refugee or not, the provisions of the previously mentioned article are used but there haven't been any particular limitations on the legal obligation of determination, as outlined in the arrangements made on "May 12, 1926, and June 30, 1928".

Law dealing with the "determination of refugees" has been formulated under two determining factors, namely the "subjective and objective formulation".While considering someone a refugee or denying someone, the basic and the most fundamental thing is "“Well-founded fear of persecution”. However, it lacks certainty as both of these words “well founded fear” and “persecution” have not been interpreted clearly in the convention’s provisions.These requirements are established based on various conditions that vary for each person. By relying upon the objective reasons, one can prove the element of “fear”. And as far as we are concerned with the determination of this “fear”, it can be established in the light of “provisions of the multi-factorial approach test”. In accordance with this legal principle, the “element of fear” can be determined on the basis of several elements such as “personal beliefs, family background, and memberships in political, religious, social, and cultural organizations”. Furthermore, the essence of this debate lies in the assertion that member states are compelled to meet a criteria in order to determine whether an individual qualifies as a refugee or not.

Now in this portion of our response to the question, we are going to analyze the discussion concerned with the ideology of persecution. There exists a close connection between the legal notion of “persecution” and some specified grounds such as “ethnicity, religious beliefs, nationality and membership of social groups”. These factors are mentioned in the convention’s provisions. In accordance with the legal discoveries made by “ De Schutter " it has been laid down that it is necessary that every person must have their civil and political rights. In his findings, he went on to focus upon the fact that when persecution has been done with civil and political rights, there exists a greater chance of a “conclusive determination of persecution”. When we are concerned with the meaning and interpretation of social groups’ membership we have various legal suggestions in this regard. To solve issues of such nature, there had been various methods introduced by the member states to do so. In order to put forward authentic legal interpretations of the terms “well-founded” and “fear”,the COA gave several integrations during the earlier cases of “R v Secretary of state for the home department and Ex Parte Sivakumatran”. Additionally, the court has acknowledged that the standard of proof for persecution is a "reasonable degree of likelihood”. It suggests that if the probability of persecution is established, then the requirement for persecution shall be assumed. This requirement for establishing persecution has been considered a “stringent test” by several scholars. A similar legal approach was relied upon during the case “HJ (Iran)” by “Lord Rodger".

Since there exists some situations in which the status of being a refugee might be taken away and therefore this specific approach cannot be considered incorrect. The conditions mentioned in the question are concerned with the cases in which it has been decided by the refugee to take refuge within the boundaries of his/her native country, where he has “habitual residency” and has citizenship. We are now aware of alleged crimes such as the “war crimes and crimes against humanity”, these crimes violate the rules laid out by the “United Nations Charter”.Even though the discussion above presumed that there isn't a treaty body under the convention overseeing how member states implement convention laws. Conscientious analysis, as established by the convention or practiced by various states, couldn't succeed in effectively benefiting the refugees and needs prominent changes in it.

This portion of the answer is concerned with the steps which have been taken by the international legal system to ensure that the people who got displaced within the boundaries of

their own country are protected and their rights are preserved. Since the people who got displaced within the boundaries of their own state have no need to travel across countries therefore they are outside the scope of the refugees' categorization. In this situation, what a person needs is assistance on a humanitarian basis. As per various statistical reports, it is said that during a calendar year there are thousands of people who are displaced from their native towns and habitual residence while staying within their country's boundaries due to natural disasters. In this case, a considerable amount of hesitancy has been expressed by "IPHR". However, it's important to note that a particular document, known as the "UN Guiding Principles on Internal Displacement 1998," has been issued. It's crucial to recognize that the nature of the above mentioned document is "non-binding". Therefore, there exists a necessity for the application of a comprehensive legal system along with a procedural protocol to deal with the challenges encountered by Internally Displaced Persons (IDPs).

One of the most important features of the 1951 Convention is the ban on refoulement. It is to be noted that due to the "Principle of Refoulement" all the member countries have been restricted from sending a refugee back to the country where he has a fear of being persecuted. Since, the above mentioned rule is only applicable for those people who have been displaced and are situated inside the boundaries of the state therefore this principles's application is not broad but rather limited. To obtain protection under the "conventional laws," an individual must meet a "contemporary legal threshold" to be recognized as a refugee according to the 1951 convention. Anyone who demonstrates eligibility based on "contemporary standards" shall be regarded as a refugee.

The "Refugee Convention" has been unsuccessful when concerned with issues that were somehow connected with asylum seekers e.g. it should be noted that for the prevention of such challenges no treaty was ever formed. As a result of the failures of the constitution and the judiciary, the national authorities of each state were held responsible for the protection of "refugee's associated rights". It should be noted that, while supporting the universal obligation of "good faith" in international law, the member states have been granted the authority to do amendments in the "conventional law" while keeping in view their respective "social, economic, cultural, and political circumstances" as a result of the aforementioned legal blunders. Slowly yet continuously, the member states are showing hesitancy while letting migrants enter their country due to the danger of "massive burden". In order to protect the rights of the individuals who lost their homes, there have been a lot of attempts from the "International Community" to maintain a balance among "Territorial integrity principle and Doctrine of responsibility". The policy that is to be adopted while considering a person refugee has been laid out in the first article of Convention. In order to establish whether a person is a refugee or not, the standards are recognized based on criteria such as "contemporary standards," which may include arguments raised in 1926 on May 12th and in 1928 on June 30th, among others, without being limited to these specific instances.In order to identify the status of a refugee, the "subjective and objective interpretations" are employed. The basic standard for the determination of refugee status is the "Well-founded fear of persecution". Regarding this, no proper justification or clarification has been given by the Convention. The standard of "well-founded fear" relies on the specific condition of each individual. Therefore, a subjective examination for each person is highly necessary to evaluate whether they experience a "well-founded fear" or not. As per the convention regulating laws, conclusions that are made upon the basis of the current status of affairs in the refugee's state or where the refugee was previously located are usually held immaterial. Zone concerned with the refugees is becoming increasingly enigmatic, and the campaign's concept and goal are being threatened due to subjective interpretations affecting the rights associated with refugees. A new prerequisite has been introduced as per which the refugees or asylum seekers are required to substantiate their apprehensions of "fear and terror"

with "objective reasons". As a result, it is deducted that the evaluation of fear must be according to the objective standards. Moreover, a "multi-factorial approach" is considered highly important for assessment. However, the factors like "personal beliefs, familial history, and affiliations with political, religious, social, and cultural organizations" all are considered related aspects. This leads to the fact that the qualification for refugee status is quite challenging and hard. Consequently, member states are bound by minimum legal obligations. In case an individual meets the prescribed standards to be considered a refugee, the member states are mandated to provide their assistance to the one who is eligible. However, in cases not a single individual but more than two people are displaced, these standards are not applicable. Analyzing each case at the personal level within such scenarios poses a great deal of difficulties..

Persecution

Now as we move further examinations and critical analysis will shed light on the ambiguity revolving around the concept of "persecution". As stated by the convention, factors like "religion, ethnicity, and affiliation with any social or political groups" should be involved when dealing with "Persecution". The factors listed by the convention, in accordance with what "De Schutter" said, must be somehow related to the "civil and political rights of an individual". He went on to say that as far as his ideas are concerned the persecution is more likely to be established if it is linked to "civil and political rights". Regarding the "membership or affiliation of social groups" aspect, there are diverse perspectives. Consequently, when concerned with these issues various standards have been established by different member states. The COA while dealing with the case "R v Secretary of State for the Home Department, Ex Parte Sivakumaran" laid down a number of suggestions and instructions in order to enlighten the "well-founded fear and persecution" factors. The persecution, in the light of Convention, has to be established on the basis of the factors mentioned earlier. The judges while determining whether the standards for persecution are met or not, they concluded "reasonable degree of likelihood" test. Hence, the requirement of persecution will be satisfied once the standard of likelihood of persecution is met and this situation was considered a"stringent test" by several scholars. This approach is also supported in the case of "HJ (Iran)" as per "Lord Rodger's" point of view.

It is crucial to recognize all specific situations where a refugee's identity is at risk of being lost. Examples of such events include the refugees getting protection from no other state but their own national country. There hasn't been any convention-based treaty established for the implementation, execution, supervision, and monitoring of Conventional laws. Furthermore, it is necessary to reconsider the "stringent test" established under the convention, as it doesn't seem to provide any benefit in matters related to refugees, despite being widely practiced by various member states.

"Internally Displaced Persons"

Now we shall move on to discuss how "Internally Displaced Persons or the IDPs" are going to be protected by international law. There remains clear cut differences between these two terms the refugees and the IDPs, this is due to the fact that the latter one doesn't involve crossing borders. Due to this reason, "Humanitarian Support" should be given to these helpless displaced people. Furthermore, statistical reports reveal that a certain portion of the population becomes displaced while being within their own country's boundaries due to natural disasters such as "floods and earthquakes". When concerned with events of such nature, IPHR expressed hesitation. To deal with issues regarding the "Internally Displaced Persons", a highly

developed legal system combined with a number of principles should be applied but rather only a non-binding document titled “UN Guiding Principles on Internal Displacement 1998” was passed.

In view of G.S.Goodwin, it is stated that “laws concerned with the refugees are regarded as a highly critical feature of IPHR as well as these refugee laws have influence upon the “state’s interest, public law, and human rights violations”. With each coming day, we observe more and more violations in the refugees’ section of each country’s law. One of the basic reasons behind this is the failure of the system to effectively implement these laws. A major reason is that most of the states consider this a common matter and look for the economical and financial benefits while ignoring the refugees at all. Furthermore, there are many countries on the face of Earth which are going through hard times from a long time but the international community instead of helping them prefers to sit back and watch them suffer. Laws that are concerned with the refugees are not implemented effectively by any developed mechanism which results in failure to deal with the refugee population, the reason is simple these laws are nothing but a few words written together under the title of “refugee law” and placed near the bin.

While sharing his views on the refugee law, “G.S. Goodwin” went on to say that the laws which are concerned with the refugees play an essential role in the preservation of human rights. But that’s not all, the state and even the public are affected by this as well.