Forced Migrations & International Legal Framework

Being one of the most vulnerable groups, refugees and internally displaced persons need to have an effective legal protection. But are they actually protected? 

On an international level migration is legally governed by the international migration law (IML). IML is not covered by any one legal instrument or norm but is an umbrella term which covers a variety of principles and rules from different branches of international law (human rights law, humanitarian law, labour law, refugee law etc.) that together regulate the international obligations of States with regard to migrants (International Organization for Migration 2013a).

As far as the treaty law is considered, the following treaties can be used to govern the area of refugees and internally displaced persons:

Fourth Geneva Convention, 1949 (art. 44, 45, 49, 70); Protocol I additional to the Geneva Conventions, 1977 (art. 73, 85) ; Protocol II additional to the Geneva Conventions, 1977 (art. 17) ; Rome statute of the International Criminal Court, 1998 (art. 8(2)(b)(viii), 8(2)(e)(viii) ; Convention and Protocol Relating to the Status of Refugees, 1951 and 1967;  Convention governing the specific aspects of refugee problems in Africa, 1974; Guiding principles on internal displacement (ICRC 2013).

Legal status of refugees and internally displaced persons is not the same, although a lot of scholars expose the fact that refugees and internally displaced persons often find themselves in similar situation. Let’s have a look at the differences and their legal statuses.

Refugees

Refugees enjoy the protection afforded them by refugee law and the mandate of the Office of the United Nations High Commissioner for Refugees (UNHCR). If they are in a State involved in an armed conflict, refugees are also protected by international humanitarian law and they also receive special protection under the Fourth Geneva Convention and Additional Protocol I (ICRC 2004).

The legal status of refugees is being governed by the United Nations Convention Relating to the Status of Refugees.[1] In Art. 1, the Convention defines a refugee - it is a person

owing to 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.

Türk (2007, 151-1) exposes the most important provisions of the Convention. One of the most important principles in the practice of managing the situation of refugees is the »non-refoulment« principle which means that no one shall expel or return a refugee  against his or her will to a territory where his or her life or freedom could be under a threat. Also the Convention (1951, 13)¹ states that the non-refoulment principle is »so fundamental that no reservations or derogations may be made to it«.

An important United Nations (UN) mechanism is The Office of the United Nations High Commissioner for Refugees (UNHCR). It was established on December 14, 1950 by the United Nations General Assembly and is mandated to lead and co-ordinate international action to protect refugees and resolve refugee problems worldwide (UNHCR 2013a).

How to determine whether a person should be granted the status of a refugee? The Convention Relating to the Status of Refugees mentioned above does not expressly provide for how such procedures ought to be organized and function. The problem arises because in Latin America, the Middle East, and Africa, few states have adopted any such procedures. Consequently the responsibility often falls to the UNHCR to determine status and subsequently to make recommendations to the respective governments (Reid 2005).

Legal status of Internally Displaced Persons

IDPs are protected by various bodies of law, principally national law, human rights law and, if they are in a State undergoing armed conflict, international humanitarian law. If they are in a State which is involved in an armed conflict, they are considered civilians provided they do not take an active part in the hostilities (ICRC 2004).

Before 1980s the internally displaced persons (IDPs) have not been a significant matter of concern for the international community and there still does not exist an international body mandated to protect IDPs (Reid 2005).

The difference between refugees and IDPs is that IDPs have not crossed an international border to find sanctuary but have remained inside their home countries. IDPs are among the world’s most vulnerable people. The problem is that even if they have fled for similar reasons as refugees, IDPs legally remain under the protection of their own government which is an issue because it is often the case that the government is the cause of their flight (UNHCR 2013b). “As a result of the lack of an international organization mandated to protect and assist IDPs, much of the responsibility has fallen to the UNHCR,” (Reid 2005).

In 1998, Francis Deng, UN Special Representative of the UN Secretary-General on IDPs presented the Guiding Principles on Internal Displacement. Although these principles are not binding in law, they have gained significant recognition within the UN, among states and non-governmental organizations and within regional bodies (Reid 2005).

Three months ago the “African Union Convention for the Protection And Assistance Of Internally Displaced Persons in Africa” or the so called “Kampala Convention” entered into force. This is “the first international treaty for the protection and assistance of people displaced within their own countries across an entire continent and it imposes on States the obligation to protect and assist persons displaced /…/” (ICRC 2012). The Kampala Convention was preceded by an equally significant subregional agreement, the Great Lakes Pact of 2006. They are both binding legal treaties on internal displacement and they reinforce and strengthen the status of the 1998 Guiding Principles on Internal Displacement (World Disasters Report 2012, 28). Among other obligations, parties to the convention have bound themselves to “refrain from, prohibit and prevent arbitrary displacement of populations; /…/, respect and ensure respect for the principles of humanity and human dignity of internally displaced persons; /…/; respect and ensure respect and protection of the human rights of internally displaced persons, including humane treatment, non- discrimination, equality and equal protection of law” (Kampala Convention 2009, Art. 1)[2].

»As with refugees, there must be a determination of when IDP status ceases to be applicable. /…/ The common assumption, and the one that parallels the logic behind voluntary repatriation, is that once an individual voluntarily returns home, they are no longer considered to be an IDP,« (Reid 2005).

There is obviously still a lot of open questions and dilemmas in the area of protecting forced migrants that need to be resolved. International Federation of Red Cross and Red Crescent in its World Disasters Report (2012, 67-8) recommends that states should address shrinking protection space, integrate protection and livelihoods support and adapt ICRC’s protection mode. How states and international community actually respond and confront with the issue of forced migrants, will be analyzed in the next coming article.  

 Tamara Kajtazović

References

ICRC. 2004. How does humanitarian law protect refugees and internally displaced persons? Available via: http://www.icrc.org/eng/resources/documents/misc/5kzlzb.htm (March 19^th 2013).

ICRC. 2012. ICRC welcomes entry into force of Kampala Convention for displaced persons. Available via: http://www.icrc.org/eng/resources/documents/news-release/2012/12-05-kampala-convention-entry-into-force.htm (March 19^th 2013).

ICRC. 2013. Refugees & displaced persons. Available via: http://www.icrc.org/eng/war-and-law/protected-persons/refugees-displaced-persons/index.jsp (March 18^th 2013).

International Organization for Migration. 2013a. Migration Law. Available via: http://www .iom.int/cms/en/sites/iom/home/what-we-do/migration-law.html (March 18^th 2013).

Kampala Convention - African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. 2009. Adopted in October 2009, entered in force on December 6, 2012. Available via: http://www.unhcr.org/4ae9bede9.html (March 20th 2013).

Reid, Claire. 2005. Forced Migration: International Law and Legal Instruments. Available via: http://www.forcedmigration.org/research-resources/expert-guides/international-law-and-legal-instruments (March 18^th 2013).

Türk, Danilo. 2007. Temelji mednarodnega prava. Ljubljana: Založba GV.

UNHCR. 2013a. About Us: Office of the United Nations High Commissioner for Refugees. Available via: http://www.unhcr.org/pages/49c3646c2.html (March 18^th 2013).

UNHCR. 2013b. Internally Displaced People. Available via: http://ww w.unhcr.org/pages/49c3646c146.html (March 19^th 2013).

United Nations Convention Relating to the Status of Refugees. 1951. Adopted on 28 July 1951 in Geneva, effective since 22 April 1954. Available via: http://www.unhcr.org/3b66c2aa10.html (March 18^th 2013).

World Disasters Report. 2012. Available via: http://www.ifrc.org/PageFiles/99703/1216800-WDR%202012-EN-LR.pdf#page=18 (March 17^th 2012).

---

[1] United Nations Convention Relating to the Status of Refugees. 1951. Adopted on 28 July 1951 in Geneva, entered in force on 22 April 1954.

[2] Kampala Convention - African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. 2009. Adopted in October 2009, entered in force on December 6, 2012.