Refugee Convention Research Articles

¿Las víctimas de trata pueden tener acceso a la protección internacional? Análisis de las posibilidades de refugio o de protección subsidiaria en la Unión Europea

This research responds to the need to systematise access to international protection within the framework of the European Union (EU) for victims of trafficking in human beings, given that neither the 1951 Refugee Convention, nor the 1967 New York Protocol, nor Directive 2011/95/EU deem this criminal activity justifiable cause for such protection. Granting refuge or subsidiary protection to victims of trafficking who are not nationals of an EU Member State, especially after they have been granted protection under EU law, may offer means to assist them, protect them and prevent them from being sent back to their country of origin, which would exponentially increase their risk of being exploited again by trafficking networks. A detailed analysis of eligibility for international protection in this domain shows that, in some cases, the circumstances surrounding the victims of trafficking may justify the recognition of international protection by EU Member States. Each individual case must be assessed and addressed under the established requirements, with particular attention paid to the existence of acts of prosecution and the grounds that motive these acts, as this is the aspect that poses the greatest challenges in relation to the phenomenon of human trafficking.

Managing Refugees and Super-Diversity in Malaysia

The phenomenon of super-diversity in Malaysia is inevitable, and one of the causes other than the influx of migrants is refugees. Managing refugees in Malaysia indicates the loopholes in a collection of literature and practices. This article is a research note addressing the contemporary findings on challenges in managing refugees. Also, it discusses the timeline of migration in this country, which occurred in three contexts of before, during and post-colonial periods. Although Malaysia is not a signatory to the Refugee Convention of 1951, it still hosts more than a hundred thousand refugees of various origins. Thus, the challenges demand the state to deliberately manage arising issues on security, logistical accommodation, legal aid, and health provision. Following these new challenges and current demands, the government must move forward with effective and efficient ways of learning the best practices from the developed nations to manage refugees with a paradigm shift of accepting super-diversity and refugees as a reality rather than as issues. Institutional change is necessary to review the "paper citizens" mindset into pragmatic management on new possible markets and talents for human capital and development.

Dignity Deployed: An Examination of Refugee Rights through Domestic Dignity Jurisprudence

Abstract The 1951 Convention relating to the Status of Refugees (Refugee Convention) provides protection for people with a well-founded fear of persecution who find themselves outside their country of nationality. The treaty not only sets out a legal status for those recognized as refugees by the country of asylum, but also certain civil, political, social, and economic rights throughout the refugee status determination process. Yet, despite being faced with the highest numbers of displaced people since the Second World War, States parties to the Refugee Convention routinely fail to meet the standards set out by the Convention. This article explores how domestic courts enforce treaty compliance not as a matter of international law, but rather by using the concept of constitutional dignity. The discussion examines how constitutional courts around the world have used dignity as both a substantive right and a functional standard in order to fulfil the promises of the Refugee Convention. The article concludes with an argument for dignity as a powerful tool to fill gaps in refugee protection globally.

Article III of the OAU Refugee Convention in Context: the Emergence of Subversion in the African Inter-State System

Abstract On the face of the Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, the refugee problem in Africa is explicitly a multi-dimensional humanitarian, political, and security challenge. Linking the problem of refugees in Africa to the challenge of coexistence among then newly independent African States, Article III of the OAU Convention prohibits subversion by refugees. This study examines the evolution of this prohibition in the context of the history of post-colonial transition and authoritarianism which birthed it, and whose consequences are far from extinguished; suggesting that this context provides greater clarity to the scope and function of the prohibition as an obligation founded in a duty of friendly relations owed by African states to one another. Despite this, the language of the prohibition in the OAU Convention nevertheless lends it to sovereign self-help in a global context of rising authoritarian rule.

China’s and Japan’s winding path to the Refugee Convention: State identity transformations and the evolving international refugee regime

AbstractIn the early 1980s, the People’s Republic of China (PRC) and Japan joined the international refugee regime. This timing similarity is puzzling due to the stark differences between the PRC as a communist and authoritarian state versus Japan as a prime example of capitalist development and democratization. Moreover, although both signed the 1951 Refugee Convention and the 1967 Refugee Protocol without major reservations, neither of them has fully implemented these treaties. Discussions regarding the PRC’s and Japan’s engagement with the international refugee regime tend to start with the beginning of the Indochina refugee crisis in 1975. However, this article shows that the early decades of their interaction with the international refugee regime are of crucial importance for a full understanding of the timing and form of accession to the international refugee regime. Although the Southeast Asian refugee crisis played an important role as a trigger, it was the changing character of the international refugee regime and the transformations of state identity in both countries that set the ground for the signing of the refugee-related conventions.

The influence of international criminal law on refugee law

This article will discuss the relationship between International Criminal Law (ICL) and refugee law. The emphasis will be on the interplay between concepts developed in ICL with respect to war crimes and crimes against humanity, as well as the notion of extended liability on one hand and the exclusion provision in the 1951 Refugee Convention (Refugee Convention) on the other.

Contesting the Universality of the Refugee Convention: Decolonization and the Additional Protocol

AbstractRecent scholarship has insightfully explored the colonial roots of the UN Refugee Convention of 1951. In this work I seek to extend this line of argument by situating the adoption of the Additional Protocol of the Refugee Convention (1967) in relation to the transformations of international order following the Second World War. Contra the conventional account, this article shows that the Additional Protocol was created in no small part due to fears that the UN Refugee Convention would be unable to claim universal status due to competing ‘regional’ refugee conventions. Breaking down four meanings of ‘universal’ and drawing on archival documents of the Organization of African Unity (OAU), the Asian-African Legal Consultative Committee and the United Nations High Commission for Refugees, I explore efforts by newly independent African and Asian countries to find voice in an exclusionary international order. Reading the Bangkok Principles and OAU Convention as collective subaltern resistance against efforts to discipline newly independent states offers new insights into contemporary international struggles and brings refugee studies into productive dialogue with critical international relations.

The Time of the Migrant

The Time of the Migrant

Missing the Global Turn: Italy, the 1951 Refugee Convention, and the Belated Removal of the Geographical Limitation

Italy abolished the ‘geographical limitation’ permitted by the 1951 Refugee Convention only in 1990. Thereafter, it could award refugee status to people in flight from countries outside Europe. Why did Italy come so very late to this resolution? To answer this question, this article intercuts analysis on various different fronts: the strategies of successive national governments; the actual presence on Italian soil of people needing asylum, and the response of local communities; and Italy's location in the international setting. It demonstrates that until the end of the 1970s the Italian authorities continued to see the refugee issue as principally a problem for its internal policy. Italy remained disconnected from the global turn in policy on refugees, which many historians have placed in the period that spans the late 1950s and early 1960s. In their view, state institutions, voluntary agencies, and the international public experienced profound changes at this time in their perception of refugees, starting to see them as a problem at the global level rather than just affecting Europe. For Italy, however, this was not the case, and we therefore need to question the actual impact of the global turn delineated by the studies.

Rohingya refugees and their right to work in Malaysia

This study examines Rohingya living in Malaysia. Myanmar’s discriminatory citizenship laws have stripped nearly all Rohingya of their citizenship, making them the largest stateless ethnic group in the world. Malaysia is one of the most popular destinations for the displaced Rohingya from Myanmar. As Malaysia is not a signatory to the 1951 Refugee Convention and its 1967 Protocol, the Rohingya are not entitled to any legal protection under the existing law in their host country. This study aims to identify the challenges faced by displaced Rohingya regarding their right to work, and the response from the Malaysian government. The methodology used for this research is a multi-site case study with the case study sites being Kuala Lumpur, Selangor, Terengganu, and Pahang. After intensive fieldwork and meetings with different stakeholders, this research revealed that Malaysian people are sympathetic to the Rohingya and wish to assist them within their limited capacities. Overall, this study argues that there is no consistent government policy and a lack of coordination between the Malaysian government and international agencies working to improve the welfare of the Rohingya.

Non-Formal Education for Displaced Rohingya Children in Selangor: Issues and Challenges

The fear of persecution in Myanmar have led to thousands of Rohingya people fled the country and seek asylum in neighboring countries including Malaysia. The Rohingya have been seeking refugee status in Malaysia since the 1980s. Currently Malaysia hosts the largest number of Rohingya refugees among the ASEAN countries. However, as Malaysia is not the signatory party of the 1951 Refugee Convention, there are no specific regulations that protects the rights for the displaced Rohingya. From a legal point of view, the displaced Rohingya cannot enjoy refugee rights due to the absence of effective domestic law. The Rohingya children are also facing challenges in getting their right to education especially in formal education as they are not the nationals of Malaysia. According to the Malaysian law, only the nationals of Malaysia are given the access to enter the public schools. Although Malaysia ratified the Convention on the Rights of the Child, the Rohingya children rights to education are still being deprived. The purpose of this study is to examine how the Non-Governmental Organizations (NGOs) played a major role to provide non-formal education for the displaced Rohingya children in Selangor. It should be noted that UNHCR has collaboration with the local NGOs to conduct non-formal education for the children. After intensive field work and meeting with different stakeholders, this paper forwarded that it has been a big challenge for NGOs to work with the Rohingya children education especially lack of infrastructure, funding, less skilled teaching staffs and limited access to public examination.

Self-perceived mental health and factors associated with the mental health of Hong Kong's asylum-seekers and refugees – A mixed methods study

RationaleThe 21st century has seen vast flows of displaced people. In the year 2020 alone, an estimated 11.2 million were forcibly displaced as a result of persecution, conflict or generalized violence. The torment and fear of war, persecution and threat to life, whether in the home country, during the process of fleeing, or in the post-migration host country, can be extremely traumatic to these marginalized populations. Hong Kong is not a signatory to the 1951 UN Refugee Convention, but the territory has signed the 1967 UN(CAT) which requires the former colony to allow people who flee for their lives to have their cases processed in Hong Kong. Currently there are around 14,000 cases in Hong Kong, some of whom have been in Hong Kong for more than a decade, waiting for their claims to be processed, living on meagre government subsidies and with no right to work. ObjectivesThe paper examines the mental health of asylum-seekers and refugees in Hong Kong and the factors associating with their mental health. MethodA sequential mixed methods approach was conducted among asylum-seekers and refugees in Hong Kong between October 2019 and mid-2020. It comprised a pilot quantitative survey conducted with 47 participants, and follow-up qualitative interviews with 16 of the 47 participants. Survey results were analyzed using statistical measures while the qualitative in-depth interviews were thematically analyzed to identify emergent patterns and categories. ResultsResults from the quantitative data identify 52.2% of the asylum-seekers taking part as having symptomatic anxiety, 55.3% as having symptomatic depression and 54.3% as having overall problems. Qualitative results show that asylum-seekers and refugees cited lack of work and poverty as key factors affecting their mental health and well-being. Fear of being sent home was expressed by respondents who were married or having children for the fear of being separated from each other.

Planetary Ethics: Rereading Seyla Benhabib in the Age of Climate Refugees

In the Anthropocene, humans are drastically impacting the Earth system. Though the numbers are disputed, millions of climate refugees might soon appear worldwide due to, for example, rising sea levels. To better tackle these intertwined ecological and migrational crises, I expand on Seyla Benhabib’s theoretical legacy by discerning within it a multidimensional framework containing mutually intersecting moral, legal, and political dimensions. Within this framework, I argue, Benhabib approaches the issue of climate refugees from three different yet supplementary discourses. From her engagement with discourses on cosmopolitanism and global justice, she endorses reforming the Refugee Convention to include climate refugees. From her contribution to discourses on human rights and human dignity, Benhabib opens the door for a human right to the environment to better protect climate refugees. Against the backdrop of her longstanding work to reformulate a feminist and critical-theoretical discourse ethics, I argue, Benhabib puts forward an ecocentric planetary ethics that embraces climate refugees and the rest of nature. In all, I conclude that Benhabib’s legacy demonstrates the need for a multidimensional approach to climate refugees in times of ecocrisis.

Afghan Refugees in Pakistan and Syrian Refugees in European Union: A Comparative Analysis

Displaced persons are Refugees, cross borders under coercion by force, leave motherland and difficult to return safely to home of parents. Root word is ‘refuge’ from which ‘refugee’ is derived, it means hiding and shelter from danger. Pakistan is not signatory of Refugee Convention 1951 but member of the United Nations (UN). Afghan refugees are living in Pakistan for approximately four decades, the Government of Pakistan provides favorable treatment and atmosphere to Afghan Refugees in Pakistan. Resultantly, Pakistan has been suffering terrorism, political instability, and economic dropdown though after left of Unites States of America (USA) in 2021, many more Afghan Refugees are expected to migrate to Pakistan. International Community is required to work and ensure peace and stability in Afghanistan in order to ensure returning back of Afghan Refugees to their parent’s home safely and work for stability and peace of Afghanistan and the region so that they live there peacefully. According to Universal Declaration of Human Rights’ (UDHR) article 14: everybody has freedom and right to enjoy, seek asylum from persecution in other countries. Asylum right not invoked if (i) genuinely arising prosecutions from non-political crimes, or (ii) acts repugnant to principles and purposes of United Nations, and Convention Relating to Status of Refugee signed in 1951 under United Nations High Commissioner for Refugees (UNHCR). There are 145 signatories currently to Refugee Convention 1951 but Pakistan has not yet acceded to Refugee Convention 1951. According to Refugee Convention 1951 preamble: freedom under fundamental rights enjoyed by human beings under Charter of the UN and UDHR without discrimination. The UN has assured efforts to expand freedom under fundamental rights to refugees. Communitarian Critique research methodology is deployed to help understand issues of refugees. Qualitative methodology is used while conducting this research, an analytical and comparative methods to analyze and compare Government of Pakistan’s treatment of Afghan refugees in Pakistan approximately for 4 decades as compare to Syrian Refugees’ treatment by European Union (EU). The largest populated migrants refugee country of the world for 4 decades is Pakistan, approximately 5 million Afghan nationals migrated to Pakistan during Cold War and approximately around 1.3 million still living in Pakistan and they are not willing to go back to Afghanistan specially after withdrawal of USA in 2021. The International Community is required, requested, and suggested to wish, help, and endeavor to build up economies of Afghanistan and Pakistan and try to strengthen stability and peace so that remaining Afghan nationals who are living as refugees in Pakistan can go back to their motherland safely, happily, and live there peacefully.

Four Challenges, Three Identities and a Double Movement in Asylum Law: Queering the ‘Particular Social Group’ after Mx M

ABSTRACT This article examines the construction of identity and the ‘particular social group’ (PSG) under the 1951 Refugee Convention. In particular, it analyses the ways in which the identity of a non-binary asylum claimant is discussed in the Mx M case in the UK, and what the implications of this might be for the project of queering the PSG. The article identifies four central challenges for queering and navigating the PSG, informed by Judith Butler’s notion of a ‘double movement’. These are the demand for recognition; the threat of erasure and/or misrepresentation; the contestation of universal, objective and/or essentialist categories; and the inseparability of violence from resistance. The article argues that strategic flexibility offers the greatest potential for individual claimants and for the wider project of queering the PSG, rather than trying to resolve the challenges by consistently adopting any single approach to PSG construction.

The Definition and the Rights of Refugees in the Refugee Convention and The European Union Law

The Definition and the Rights of Refugees in the Refugee Convention and The European Union Law

Studi Perbandingan Penanganan Pengungsi Luar Negeri Di Indonesia, Australia, Dan Thailand

Indonesia specifically addresses the refugee issues in Presidential Regulation No. 125 of 2016 on the Handling of Foreign Refugees. The handling of refugee status in Indonesia is handed over to UNHCR considering that Indonesia is not a party to the 1951 Refugee Convention or the 1967 Protocol. Besides Indonesia, Australia and Thailand are also not parties to the convention. Therefore it is important to see a comparative study of policies between countries. This study also aims to find out whether Presidential Decree No. 125 of 2016 can resolve the problem of refugees in Indonesia and what is the policy comparison between Indonesia, Australia and Thailand. The research method used is normative legal research with a statutory approach. The results of the study concluded that Presidential Decree No. 125 of 2016 has adequately accommodated arrangements for overseas refugees, but there are still several provisions that have multiple interpretations, such as arrangements regarding "foreigners", Rudenim arrangements, and the principle of "local integration" that has not been regulated. The implementation in Australia is firmer compared to Thailand and Indonesia. Australia itself emphasizes forced repatriation if it is detected as threatening the country's sovereignty. Meanwhile, Thailand provides access to foreign refugees to submit applications so they can live and settle.

Climate Change-Related Displacement and the Determination of Refugee Status under the 1951 Refugee Convention

Climate change and climate-driven migration are two of the defining challenges of the twenty-first century, and there is no legal framework for protecting those displaced across national borders for climate-related reasons. The 1951 Refugee Convention hardly applies to human mobility in the context of climate change. This paper was written in the hopes of initiating a discussion concerning an alternative perspective through which persons fleeing natural disasters linked to climate change may satisfy the eligibility conditions for recognition of refugee status. Expanding the definition of refugee as defined in the Convention by including the notion of vulnerability to climate disasters that are caused by the underlying socio-economic conditions in the claimant’s home country and the role of discrimination in causing differential exposure to the climate-related disasters in legal definitions might open the door for the availability of refugee status for persons fleeing in the context of climate change. This paper proposes the adoption of a reformed human rights-based interpretation, particularly with regard to the individual nature of refugee status determination. Recalibrating the Convention to facilitate climate-induced migration could reduce political tension and social unrest in receiving countries.

Između pravne tvrđave i neizvesnosti - uporedna analiza zakonskog okvira o izbeglicama u Mađarskoj i Indoneziji

This study compares the legal frameworks of Hungary and Indonesia in dealing with the massive influx of refugees in their respective countries. While Hungary has successfully reduced the number of asylum seekers through a " fortress" approach using its Asylum Act of 2007, Indonesia's legal framework, as seen in Presidential Regulation 125/2016, lacks the procedures for converting asylum seekers into refugees. This is compounded by the absence of a refugee status determination process in Indonesia, making it challenging to provide assistance to increasing numbers of asylum seekers entering the state yearly. To address this problem, Indonesia must first make national legal changes that reflect its sociopolitical realities before ratifying the 1951 Refugee Convention and the 1967 Protocols. In contrast, Hungary's legal framework, while effective in reducing the number of asylum seekers, has been criticized for being restrictive and failing to respect human rights.

Indonesian Legal Policy in Treating International Refugees Based on Human Rights Approach

Indonesia is one of the countries that is often a transit point for immigrants who want to seek asylum in other countries. This illegal arrival is certainly very detrimental to Indonesia. This is because the arrival of these refugees is considered a threat to national security and resilience. The trend of the number of refugees that continues to increase every year has caused various problems in handling foreign refugees in Indonesia. Indonesia did not ratify the 1951 Refugee Convention and the 1967 Protocol, but on the basis of human rights. As a transit country, Indonesia is experiencing a build-up of refugee flows due to the uncertain timing of the status granting process from UNHCR and moreover third countries limit the acceptance of refugees. However, Indonesia continues to provide various forms of assistance in dealing with the problems faced by refugees. The government has also issued several regulations including Presidential Decree Number 125 of 2016 and other technical regulations. Indonesia also collaborates with non-governmental institutions, such as academics, humanitarian activists, and faith and charity-based organizations. This collaboration has implications for the existence of asylum seekers and refugees in Indonesia. It is hoped that with this regulation and cooperation, it can provide legal certainty regarding solutions to refugee problems in Indonesia.