PROTECTION OF REFUGEE IN NON SIGNATORY STATES

Under the guidance of: Mr. Ashutosh Tripathi Assistant Professor of Law, School of Law, KIIT University, Bhubaneswar

Satya Ranjan Swain

B.A.LL.B. (Hons.) 10th Semester School of Law, KIIT University, Bhubaneswar Mob: 09438294755(BBSR), 08130074091(Del.) E-mail: satyaranjankls@gmail.com Web: http://satyaranjankls.blogspot.in

Protection of Refugees in Non Signatory States

Satya Ranjan Swain

Contents
1. 2. Introduction ............................................................................................................................. 3 Human Rights Conventions ..................................................................................................... 3 2.1. 2.2. 2.3. 2.4. 3. 4. The International Covenant on Civil and Political Rights (ICCPR) ................................ 5 The International Covenant on Economic, Social and Cultural Rights (ICESCR) .......... 5 The Convention on the Rights of the Child (CRC) .......................................................... 6 The Universal Declaration of Human Rights (UDHR) .................................................... 6

Customary International Law .................................................................................................. 7 Conclusion ............................................................................................................................... 8

Protection of Refugees in Non Signatory States

Satya Ranjan Swain

1. Introduction
The humanitarian approach of offering sanctuary to frightened strangers and the victims of persecution and violence has become not only an existing reality but also has acquired the status of international tradition. In the aftermath of World War II, the United Nations General Assembly created the Office of the United Nations High Commissioner for Refugees (UNHCR), which is mandated to protect and find durable solutions for refugees. Its activities are based on a framework of international law and standards. The 1951 Convention Relating to the Status of Refugees (herein after referred to as 1951 convention) is the foundation of international refugee law. It defines the term refugee and sets minimum standards for the treatment of persons who are found to qualify for refugee status. While Ratification of a Treaty clearly conveys in rem, the Government's express intention, that the State is willing to be bound by the Convention concerned and its undertaking to fulfill the Convention's provisions; non ratification conveys, if not otherwise, the unwillingness to be obliged to. As of 1st April 2011, there are 144 state parties to the convention1. The increasingly difficulty in reconciling the humanitarian impulses and obligations with their domestic needs and political realities often discourages the States not to sign the 1951 convention as it is rights based. Thus Non Signatory State means a State, irrespective of its respect for refugee law, has neither ratified the convention nor the 1967 Protocol.

2. Human Rights Conventions

Though the Non Signatory States are not obliged to protect and ensure the rights of the refugees, however, indirectly they are under a legal obligation to respect those rights, if they are parties to Human Rights Conventions and India is a glaring example of it. Here, an humble endeavour has been made to analyze the provisions of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights

1 http://www.unhcr.org/3b73b0d63.html accessed on 06.04.2012, Time 19:02:04.

Protection of Refugees in Non Signatory States

Satya Ranjan Swain

(ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC) individually. However, lets discuss first in particular how the human rights convention enforces the refugees Right of non refoulement. A refugees right to be protected against forcible return, or refoulement2, is set out in the 1951 Convention relating to the Status of Refugees. Article 33 of the convention states:
No Contracting State shall expel or return (refouler) 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, membership of a particular social group or political opinion.

Though technically the non signatory States are not obliged to respect the non-Refoulement principle, however, indirectly they are obliged under other conventions. Refoulement is prohibited explicitly or through interpretation by the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Art. 3), the Fourth Geneva Convention of 1949 (Art. 45, para. 4), the International Covenant on Civil and Political Rights (Art. 7), the Declaration on the Protection of All Persons from Enforced Disappearance (Art. 8).

In addition, refoulement is prohibited explicitly or through interpretation in a number of regional human rights instruments also, including: the European Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 3), the American Convention on Human Rights (Art. 22), the OAU Refugee Convention (Art. II), and the Cairo Declaration on the Protection of Refugees and Displaced Persons in the Arab World (Art. 2).

2 Article 33(1) of the 1951 Convention.

Protection of Refugees in Non Signatory States

Satya Ranjan Swain

2.1.The International Covenant on Civil and Political Rights (ICCPR)

The International Covenant on Civil and Political Rights (ICCPR) has certain provisions which are similar to that of the provisions of 1950 Convention. The States parties to the ICCPR have an obligation to ensure certain rights of the refugees as the convention mandates the protection for all. Like Article 16(1) of the 1950 convention, Article 2 of the ICCPR guarantees the right to legal recourse. The provision of right to life3, freedom from slavery and servitude 4, right to equality before the law and equal protection 5 protects not only citizens and foreigners but refugees as well.

2.2.The International Covenant on Economic, Social and Cultural Rights (ICESCR)

Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states:
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

Here, the term All peoples confers the right to self determination and right to means of subsistence to everyone including the refugees. Similarly, Art 12(2)(d) assures medical service, Art 13(2) and Art 14 guarantees right to get education to all. The right of everyone to adequate living standard6 and the right to take part in cultural life7, is also available to the refugees in the states which are party to the ICESCR.

3 4

Article 6 of the ICCPR. Article 8 of the ICCPR. 5 Article 3, 14 and 26 of the ICCPR. 6 Article 11 of the ICESCR. Also the right to work and just conditions of work as provided under Article 6 and 7 of the ICESCR. 7 Article 15 of the ICESCR.

Protection of Refugees in Non Signatory States

Satya Ranjan Swain

2.3.The Convention on the Rights of the Child (CRC)

The Convention on the Rights of the Child (CRC) is the first legally binding international instrument to incorporate the full range of human rightscivil, cultural, economic, political and social rights. Like the ICCPR and the ICESCR, the CRC has provisions for protecting and ensuring rights of the child in particular and 140 State8 are parties to it. The most important feature of this convention is that Article 2 of the convention made it clear that all rights apply to all children without exception. Moreover it is the obligation of the state to protect children from any form of discrimination and to take positive action to promote their rights. Article 6 of the CRC provides that every child has the inherent right to life, and the State has an obligation to ensure the childs survival and development. Similarly, the child has a right to live with his or her parents unless this is deemed to be incompatible with the childs best interests 9 . Article 13-15 confers on the child the right to freedom of expression, thought, conscience, religion and association. Similarly Article 32-38 provides for protection of child from all sorts of abuse, torture, child labour, trafficking, abduction and sexual exploitation. Article 22 provides that Special protection shall be granted to a refugee child or to a child seeking refugee status. It is the States obligation to cooperate with competent organizations which provide such protection and assistance.

2.4.The Universal Declaration of Human Rights (UDHR)

The Universal Declaration of Human Rights (UDHR) is the World War II legacy and represents the first global expression of rights to which all human beings are inherently entitled. When Nazi tyranny end all hope for protecting human rights in the modern world, the consensus within the world community was that the United Nations Charter did not sufficiently define the rights it

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en accessed on 07.04.2012. Time 20:55:19. 9 Article 9 of the CRC.

Protection of Refugees in Non Signatory States

Satya Ranjan Swain

referenced.10 A universal declaration that specified the rights of individuals was thus necessary to give effect to the Charter's provisions on human rights. Though UDHR is just a declaration and not a binding treaty however certain provisions of this declaration have become an egra omnes obligation for the States11. Right to Equality12, Freedom from discrimination13, Right to life14, Liberty and personal security15, Freedom from slavery16, Freedom from Torture17, Right to remedy by competent Tribunal18, Freedom of belief and religion19, Right to adequate living standard20, Right to education21 are some of the rights and freedoms guaranteed to everyone. Specifically Article 14 of the UDHR provides for Right to seek and enjoy Asylum in other countries from persecution.

3. Customary International Law

There are certain provisions in the 1951 convention, which has acquired the status of customary International Law or egra omnes. This means that even States that are neither party to the Refugee Convention nor the Human Rights convention must respect those provisions. The right of a refugee to access the courts of law22, the right to Non-discrimination as to race, religion or country of origin23, the right of freedom to practice their religion and freedom as regards the religious education24 has become egra omnes obligations on the State irrespective of being party to the convention. Similarly, it is widely accepted that the prohibition of refoulement is part of customary
10 11

http://www.udhr.org/Introduction/question4.htm accessed on 07.04.2012. Time 23:59:01. Imfra ch. 3 of this project paper. 12 Article 1 of the UDHR. 13 Article 2 of the UDHR. 14 Article 3 of the UDHR. 15 Article 4 of the UDHR. 16 Article 5 of the UDHR. 17 Article 6 of the UDHR. 18 Article 8 of the UDHR. 19 Article 18 of the UDHR. 20 Article 25 of the UDHR. 21 Article 26 of the UDHR. 22 Article 16(1) of the 1951 convention. 23 Article 3 of the 1951 convention. 24 Article 4 of the 1951 convention.

Protection of Refugees in Non Signatory States

Satya Ranjan Swain

international law. States have an obligation to respect this principle and when this is violated or threatens to be, United Nations High Commissioner for Refugees (UNHCR) respond by intervening with relevant authorities, and if it deems necessary, will inform the public. In some circumstances, persons facing refoulement may have recourse to relevant human rights mechanisms, such as the Committee against Torture.

4. Conclusion
The violation of Human Rights yields refugee problem. Recognition of the inherent dignity and of the equal and inalienable rights of all human being the foundation of freedom, justice and peace in the world, the 1950 convention and 1967 Protocol advocates for non-discrimination, non-penalization and non-foulement. The Convention lays down basic minimum standards for the treatment of refugees, without prejudice to states granting more favourable treatment. However, though the convention is not enforced on the non-signatory States, the International Bill of Human Rights and the customary international law principle has indirectly obligated its States parties to protect and ensure the rights of the refugees.