Refugee law


Refugee law is the branch of international law which deals with the rights and duties States have vis-a-vis refugees. There are differences of opinion among international law scholars as to the relationship between refugee law and international human rights law or humanitarian law. The discussion forms part of a larger debate on the fragmentation of international law. While some scholars conceive each branch as a self-contained regime distinct from other branches, others regard the three branches as forming a larger normative system that seeks to protect the rights of all human beings at all time. The proponents of the latter conception view this holistic regime as including norms only applicable to certain situations such as armed conflict and military occupation or to certain groups of people including refugees, children, and prisoners of war.
Definition of refugee
According to the original 1951 Refugee Convention and 1967 Protocol, refugee children were legally indistinguishable from adult refugees. Although the Convention on the Rights of the Child was not specific to the rights of refugee minors, it was used as the legal blueprint for handling refugee minor cases, where a minor was defined as any person under the age of 18. In 1988, the United Nations High Commissioner for Refugees Guidelines on Refugee Children were published, specifically designed to address the needs of refugee children, officially granting them internationally recognized human rights.
In 1989, however, the UN signed an additional treaty, the Convention on the Rights of the Child, which defined the rights of children and bound its signatories to upholding those rights by international law. Although the treaty is not specific to the rights of refugee minors, in particular, it was used as the legal blueprint for handling refugee minor cases, where a minor was defined as any person under the age of 18. In particular, it extends the protection of refugee children by allowing participating nations the capacity to recognize children who do not fall under the strict guidelines of the Convention definition but still should not be sent back to their countries of origin. It also extends the principle of nonrefoulement to prohibit the return of a child to their country "where there are grounds for believing that there is a real risk of irreparable harm to the child."
There is a variety of definitions as to who is regarded as a refugee, usually defined for the purpose of a particular instrument. The variation of definitions regarding refugees has made it difficult to create a concrete and single vision of what constitutes a refugee following the original refugee convention.
Article 1 of the Convention as amended by the 1967 Protocol defines a refugee as:
"A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

The 1967 Protocol removed the temporal restrictions, which restricted refugee status to those whose circumstances had come about "as a result of events occurring before 1 January 1951", and the geographic restrictions which gave States party to the Convention the option of interpreting this as "events occurring in Europe" or "events occurring in Europe or elsewhere". However, it also gave those States which had previously ratified the 1951 Convention and chosen to use the geographically restricted definition the option to retain that restriction.
The Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa adopted a regional treaty based on the Convention, adding to the definition that a refugee is
Any person compelled to leave his/her country owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality

In 1984, a group of Latin American governments adopted the Cartagena Declaration, which like the OAU Convention, added more objectivity based on significant consideration to the 1951 Convention. The Cartegena Declaration determine that a 'refugee' includes:
Persons who flee their countries because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.
Additionally, US Law draws an important distinction between "refugees" and "asylees". A refugee must meet the definition of a refugee, as outlined in the 1951 Convention and be of "special humanitarian concern to the United States." Refugee status can only be obtained from outside the US. If an individual who meets the definition of a refugee, and is seeking admission in a port of entry is already in the US, they are eligible to apply for asylum status.
The term displaced person has come to be synonymous with refugees due to a substantial amount of overlap in their legal definitions. However, they are legally distinct, and convey subtle differences. In general, a displaced person refers to "one who has not crossed a national border and thus does not qualify for formal refugee status."

U.S. refugee law

Various regions and countries have different variations of refugee law. They all stem from the 1951 Convention and the 1967 Protocol which relates to refugee status. The United States became a party to this protocol in 1968.
Despite playing an active role in the drafting of the Convention on the Rights of the Child, the United States has yet to ratify the treaty, making it the only nation in the UN that is not party to it. See also: U.S. ratification of the Convention on the Rights of the Child
Although the aftermath of World War II brought forth a refugee crisis, the large influx and resettlement of Indochinese refugees led to the passage of the Refugee Act of 1980. This law incorporated the International Convention's definitions of a refugee into U.S. law. The law also created the legal basis for the admission of refugees into the U.S. An important aspect of this law is how an individual goes about applying for status. A person may meet the definition of refugee but may not be granted refugee status. If the individual is inside of the U.S. with a different status or no status, they are granted the status of asylee but not refugee.
In order to be considered a refugee in the U.S., an individual must:
The first step of being granted this status is to receive a referral to the U.S. Refugee Admissions Program. The person is allowed to include their spouse, child, or other family members when applying for refugee status. After the person is referred, a U.S. Citizenship and Immigration Services officer located abroad will conduct an interview to determine refugee resettlement eligibility inside the U.S. If the person is approved as a refugee, they will then be provided with many forms of assistance. These include a loan for travel, advice for travel, a medical exam, and a culture orientation. After the refugee is resettled, they are eligible for medical and cash assistance. The Office of Refugee Resettlement has a program called the Cash and Medical Assistance Program which completely reimburses the assistance in which states provide refugees. The refugee is eligible for this cash and medical assistance up to eight months after their arrival date.

Refugee status determination

The burden of refugee status determination falls primarily on the state. However, in cases where states are either unwilling or unable, the UNHCR assumes responsibility. In 2013, the UNHCR managed RSD in over 50 countries and worked in parallel with national governments in 20 countries. In the period from 1997 to 2001, the number of RSD applications submitted to the UNHCR nearly doubled.
RSD provides protection for refugees through promoting non-refoulement, resettlement assistance, and direct assistance.

Human rights and refugee law

Human rights are rights a person is guaranteed on the basis only that they were born as a human being. The following are universal human rights that are most relevant to refugees:
Refugee law and international human rights law are closely connected in content but differ in their function. The main difference of their function is the way in which international refugee law considers state sovereignty while international human rights law do not. One of the main aspects of international refugee law is non-refoulement which is the basic idea that a country cannot send back a person to their country of origin if they will face endangerment upon return. In this case, a certain level of sovereignty is taken away from a country. This basic right of non-refoulement conflicts with the basic right of sovereign state to expel any undocumented aliens.