History of the Development of the Institutional Framework on Refugees

History of the Development of the Institutional Framework on Refugees

The legal framework for the protection of refugees deals with the standard for their protection. These standards are designed to be applied to the specific context of the protection of refugees and for part of the larger international standard.

In common parlance “a refugee” means a person who is in need of protection having fled from his country of origin to another where he hopes to find succor. The flight might be occasioned by incidences of war and resolutions and attendant oppression, flight from the consequences of natural disaster.[1]

However, today, the meaning of who a refugee is, has undergone a radical change. The rationale behind the concept of international protection for refugees is that no one ought to be stateless. Thus a refugee was conceived of as a person who has lost the protection of his country or state. The concept thus came into being that those who have been denied the protection of their states are deserving of international protection which may be given by another state.[2]

The League of Nations was the first international body to cater for the interest of refugees. In 1921, the League of Nations appointed Dr. fritdjorf Nansen as the first high commissioner for Russian refugees who were victims of Russian civil war. Protection of refugees during that era was exemplified in the various international refugee protection arrangement or accord made between 11921 and 1938.

Some of these arrangements include; the 1926 arrangement relating to the identity certificates of Russians and Armenian refugees made on 12th may 1926. Also arrangement relating to the identity certificates of Assyrian, Assyria-Chaldean and assimilated refugees and Armenian refugees made on 30th June 1928 and the1936 arrangement made for the identity certificate of Germans made on 4th July 1936.

On the 10th February 1938, the first convention ever known as the German convention on refugee protection which was adopted to cater for persons fleeing from Germany was later extended by the provision of article 1 to cater for all other stateless persons who were not covered by the previous arrangements on refugees.

A protocol was added to that convention on the 14th of September 1939. A common denominator in the recognition of refugees during this period is that refugees were defined by the political events which endangered them and not simply on their need for international protection.

The international refugee commission (IRC) was created with the specific mandate to cater for the protection of refugees spurned by the Second World War. Subsequently the United Nations high commission for refugees (UNHCR) was created in 1949 through the statue of the UNHCR. The UNJCR was saddled with the task of providing international protection for refugees and to seek permanent solutions to their problems.[3]

At its inception, the UNHCR based its activities on the legal framework already established by the 1948 universal declaration of human rights (UDHR) and UNHCR statute. The UDHR proclaims the basic rights of equality of all persons before the law. It also provides for an individual’s right to seek and enjoy asylum from persecution in other countries.[4]  Even though the UDHR provided for the right to seek asylum it does not match such right with a correlated duty on the part of the host country not to expel, return the refugee to its home state. The UDHR did not provide for the fundamental and basic right of non refoulement.

Institutional Framework

The United Nations High Commissioner for Refugees (UNHCR)

There is no single International agency that has a specific and comprehensive mandate to provide assistance to and protection of refugees. Notwithstanding this shortcoming programmes of protection and assistance relevant to refugees currently exist in the international system. Within the United Nations system, the role of UNHCR is the most pertinent to the protection needs of refugees.

UNHCR is charged with the obligation, non-discretionary functions, of providing international protection to, and seeking permanent solution to the problem of refugees. UNHCR actions are firmly based on and guided by, universal refugees’ protection principles and international human right standards which reinforce the legitimacy of these actions and are essential to the attainment of refugee safety.

Article 1 on the status of the office states that the main task of the High Commissioner is to provide international protection to refugee and to seek durable solution to refugees’ problem by assisting government to facilitate their voluntary repatriation of refugees or their integration within new national communities.

The High Commissioner’s functions are qualified as ‘entirely non political and ‘humanitarian and social’. A number of international instruments establish and define basic standards for the treatment of refugees. The most important are the 1951 United Nations convention relating to the status of refugees and its 1967 protocol relating to the status of refugees.

The 1951 convention which was drafted as a result of recommendation by the United Nations commission on human right was a landmark in setting standards and from which the derivative functions of UNHCR emerges for the treatment or refugees. Article 34 concerns the naturalization and assimilation of refugees. Other provisions deal with such rights as access to courts, education, social security, housing and freedom of movement.

To ensure that the refugee granted asylum does not contravene the laws of the host country to which the refugee is subject to, the UNHCR carries out enlightenment programmes to educate them at these laws, what their duties and obligations are to host countries, ” how to seek redress when their rights are infringed upon and general enlightenment so as to conform to measure taken for the maintenance of public peace and order. _’ An important function of the UNHCR in facilitating the assimilation of refugees is the concretization of the refugees right to freedom of movement as stated in Article 26 of Convention.

Roles of UNHCR

The Office of the United Nations High Commissioner (UNHCR) was established by the General Assembly[5] as a subsidiary organization to be concerned with refugee protection. The main role of the UNHCR, as outlined in the UNHCR Statute, is to provide “international protection” for refugees and “to seek permanent solutions to the problem of refugees by assisting governments, in cooperation with NGOs and other international organizations, to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities.”[6]

Indeed, according to the general principles of international law, States are obliged to protect all the individuals living within their national boundaries.[7] The prime responsibility for the protection of refugees thus lies with the country in which the refugees are present. The role of the UNHCR is, therefore, complementary to the protection that States are supposed to accord to the refugees involved.[8]

Although the principal mandate of the UNHCR is to provide international protection, it can expand to in country protection as well. This is particularly true when the UNHCR becomes involved in the voluntary repatriation of refugees or when it assists refugee groups, where there are also mixed populations or people who are in refugee-like conditions.[9] Normally the traditional mandate of the UNHCR is limited to refugees as defined by the Convention and does not extend to internally-displaced persons or other displaced persons that do not fall within the definition of refugee.

However, the role of the UNHCR, in accordance with paragraph 9 of the Statute, may be expanded by the General Assembly and the Economic and Social Council (ECOSOC).[10] The Secretary-General[11] and the Security Council may also ask the UNHCR to become involved in situations,[12]which are not normally within the traditional mandate of the UNHCR.[13] 

However, from the beginning, the role of the UNHCR has evolved dramatically because the character of conflicts and political dynamics have changed dramatically; that is, within the Cold War era, the recognition of persecution, or provision of asylum, was mainly used as a means to illustrate the failure of “Communist regimes.”[14] Today, however, with the changes in the current political climate, repatriation is considered to be the most viable solution to refugee crises.

Given the fact that today the most distinctive feature of the refugee problem is the ever-increasing reluctance of potential asylum and resettlement countries to fulfill their international obligations, it should not be surprising that repatriation has been heavily emphasized as the paramount solution to this problem. Currently the UNHCR is highly involved in conflict-torn countries, providing assistance and protection, to the extent possible, to internally displaced persons (IDPs) and to other displaced persons.

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National Emergency Relief Agency

A national institution that also has some dealing with refugee in Nigeria is the National Emergency Relief Agency It provides material assistance to refugees of Nigeria origin repatriated from other countries while concerning itself mainly with providing succor for victims of internal displacement resulting from civil disturbances, natural and environment causes. It offers material assistance to repatriated Nigerians regardless of the causes of displacement”

From its nomenclature, it is obvious that the Nigeria views the issue of repatriation as a grave situation that requires immediate attention employing the means of providing material assistance to the people affected. This, however, does not preclude providing for refugees of non Nigerian origin that may find themselves within the borders of Nigeria.

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The Agency was brought into being by the National Emergency Relief Agency Act of 1976. (National Emergency Relief Act)[15]Under section 2 of this act, it is to perform the function of organizing, providing and co-coordinating emergency relief for victims of national disasters throughout the federation and matters incidental thereto.

The Organization of Africa Unity

The growing number of refugees fleeing from wars and internal conflicts in Africa starting in the late 1950s, led to the adoption of what is generally considered the most comprehensive and significant treaty dealing with refugees. The O.A.U, on the 10th of September 1969 adopted OAU Convention governing the specific aspects of refugee problems in Africa.

The primary importance of this convention is its expanded definition of the term refugee. The convention complements rather than duplicates the 1951 convention. The convention makes a distinction between the refugee who seeks to live a peaceful and normal life and a person fleeing his country for the sole purpose of subverting his State of origin from outside.

The OAU Commission set up to handle refugee problems enforces the distinction in catering for refugees. The standards employed by the commission, takes into consideration the standards set by the United Nations Universal Declaration of Human Rights They take into cognizance the historical specificity of the African reality. The commission ensures the protection of the rights of refugees by liaising with member states and structures of the UNHCR

In conjunction with the UNHCR, the commission seeks a place for refugees, enforce the prohibition of subversive activities by refugees, it also procures travel documents in cooperation with national authorities on refugees and office of the UNHCR. The commission also arranges the voluntary repatriation of refugees when the situation that the refugee is fleeing from returns to normalcy.

 

[1] G.S Goodwin-Gill and M.C-Adam j, The Refugee International Law (Oxford University Press, Inc. New York 2007)  p.16

[2] ibid

[3]  Feller Erika: the evolution of the international refugee protection regime’ <https://www.law.wustl.edu/journal/5/p129% 20 Feller PDF> Accessed 12th December,2018

[4] Article 14(1) UDHR

[5]Statute of the Office of the United Nations High Commissioner for Refugees of 1950, U.N.G.A. Res. 428 (V) (Dec. 14, 1950)[hereinafter the “UNHCR Statute”] available at http://www.unhchr.ch/html/menu3/b/o_unhcr.htm.

[6]G S. Goodwin-Gill, The Refugee in International Law  (Oxford Univ. Press, 1996).

[7] Myron Weiner, ‘Ethics, National Sovereignty and the Control of Immigration’ [1996]  International Migration Review 171, 172-73

[8] Antonio Fortin, ‘The Meaning of ‘Protection’ in the Refugee Definition’ [2000] (12) International Journal of Refugee Law 569

[9] Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. (Apr. 11) available at http://www.icj-cij.org/docket/files/4/ 1835.pdf accessed 18th March 2019

[10] In 1957, the General Assembly first authorized the High Commissioner to ‘use its good offices’ to assist people who did not fall within the Refugee Convention’s refugee definition. U.N. G.A. Res. 1167 (XII), Chinese Refugees in Hong Kong (Nov. 26, 1957) With regards to internally displaced persons, the first reference to the expansion of the UNHCR’s mandate came in 1972. U.N. G.A. Res. 2958 (XXVII), Assistance To Sudanese Refugees Returning From Abroad, (Dec. 12, 1972;

[11] UNCHR Statute, supra note 2, paras. 17 and 18.

[12] U.N.Sec. Council Res. 688 (Apr. 5, 1991).

[13] E.D. Mooney, Presence, Ergo Protection? UNPROFOR, UNHCR and the ICRC in Croatia and Bosnia and Herzegovina [1995] (7) International Journal of Refugee Law 407, 419

[14] K. E. Mahoney and Paul Mahoney, Human Rights in the Twenty-First Century: A Global Challenge (eds., vol. II, London 1993)

[15] Cap 257, LFN1990

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