Legal Framework for the protection of refugees

Legal Framework for the protection of 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 form part of the larger international standard.

The conceptual basis is linked to the broader framework expressed in the 1951 United Nations convention dealing with the status of refugees which established certain general obligations for states or refugees and contains civil, economic and social rights for the refugee on an integrated basis.

The UNHCR has a clear understanding that international protection for refugees’ means defending their legal rights to admission and non-refoulement. Furthermore, it seeks to give refugees who lawfully reside on the territory of a foreign state a status close to that of its nationals.

Thus refugee protection also means defending the rights, security and welfare of refugees, particularly their personal security against acts of violence and mistreatment. Indeed, refugee protection entails an unrestricted human right competence to ensure dignity and integrity. Because refugees are outside their national territory and lack the protection of their government, international law substitutes its own protection for that which the country of origin cannot or will not provide.

The legal sources are categorized into international and municipal sources. At the international level, the principal sources of existing standards for the protection of refugee as well as the foundations for the articulation of further standards are found in international human right law, international humanitarian law, which comprises the four Geneva Conventions of 1949 and the additional protocols of 1977 an international refugee law embodied principally in the 1951 convention relating to the status of refugees and the 1967 protocol by analogy. These cover the minimum standards of human existence and dignity; physical safeguard, respect for ones integrity and the family as the fundamental social unit.

1951 Convention Relating to Status of Refugees and Protocol 1967

Protection is the core responsibility that the international community owes to refugees population. It is because protection is unavailable in their own countries that refugees flee to others for succor. The main instrument for the protection of these refugees in Africa is the 1951 United Nations convention relating to the status of refugees as amended by its 1967 protocol.

At the regional level the standards are contained in the 1969 OAU Convention governing the specific aspects of refugee problem in Africa which has been described by some as the most progression treaty regime on refugee in the world. These instrument provide protection specific to refugees such as ensuring that refugees are not prosecuted for illegal entry or returned to a country when they would be at risk and so on..

It must however not be forgotten that refugees are entitled to the protection of all these rights embodied in various human rights instruments except where the terms of such provisions clearly exclude refugees or non-citizen[1]. The responsibility for the protection of refugees is that of the office of the UNHCR which was established in 1951 by the general assembly to provide international protection to refugees and seek permanent solutions to their problems.

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The personal status of a refugee shall be governed by the law of his domicile or if he has no domicile by the law of the country of his residence. Rights previously acquired by a refuge are independent on personal status, more particularly rights attaching to marriage shall be respected by the contracting state, subject to compliance, if this be necessary, with the formality required by the law of the state, provided that the right in question is one which would have been recognized by the law of that state had he not been a refugee. The following legal instrument 1951 convention and 1967 protocol provided for the following on the protection of refugees.

  1. Expulsion: the contracting state shall not expel a refugee lawfully in their territory saves 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[2]. Also except where compelling reasons of national security otherwise required, 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(s) specially designated by the competent authority. The contracting states shall allow such a refugee a reasonable period within which to seek legal admission into another country.

Furthermore article 33 (1) of 1951 convention[3] provides- no contracting state shall expel or return 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 or membership of a particular social group or political opinion. (2) the benefit of the present provision may not however be claimed by a refugee whom there are reasonable grounds for regarding as a danger to security of the country in which he is or who having been convicted by a final judgment of a particular serious crime which constitutes a danger to the community of that country. This above stated provision was reiterated in section 1 (1) & (2) of NCRA

  1. Gainful employment: in this case, the contracting states shall accord refugees lawfully staying in their t territory the most favourable treatment accorded nationals of a foreign country in the same circumstances as regards the right to engage in wage earning employment. In any case, restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market shall not be applied to a refugee[4].

Furthermore, the contracting states shall accord to a refugee lawfully in their territory treatment as favourable as possible and in any event, not less generally in the same circumstances as regards the rights to engage on his own account in agriculture, industry, handicrafts and to establish commercial and industrial companies[5].

  1. Voluntary repatriation: protection also involves the search for appropriate and lasting solutions for the plight of refugees. In some cases, the appropriate solution may be local integration and to this end article 34 of 1951[6] convention provides that the host government should as far as possible facilitate the assimilation and naturalization of refugees. However, especially in respect of large scale dislocation of people, the most appropriate solution in long term may often be their return to their countries of origin.

Indeed the goal of most refugees is to return home once the conditions of peace and stability have been re-established[7]. Further article V of 1969 OAU[8] (1) provides- the essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will. (2) The country of asylum, in collaboration with country of origin shall make adequate arrangement for the safe return of refugees who request repatriation.

 

[1] The right to vote or stand for public office, for instance is usually restricted to citizens, article 25 of international covenant on civil and political rights (ICCPR)

[2] Article 12(1) 1951 convention

[3] Article 33 1951  Convention relating to the status of refugees

[4]  Article 17 1951  Convention relating to the status of refugees

[5]  Article 18 1951  Convention relating to the status of refugees

[6]  Article 34 1951  Convention relating to the status of refugees

[7] UNHCR Global Trend 2012 Report

[8] Article V of organization of Africa unity convention governing the specific aspects of refugee problems in Africa 1969

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