International Legislation Governing Forced Displacement

Original Editor - Naomi O'Reilly as part of the PREP Content Development Project

Top Contributors - Naomi O'Reilly, Kim Jackson, Jess Bell, Carin Hunter, Rishika Babburu, Vidya Acharya and Kirenga Bamurange Liliane  

Introduction

Legislation can have several purposes, they can regulate, they can sanction, restrict or authorise. In the field of displaced persons, legislation are made to clarify the responsibilities for each of the countries and to ensure legal rights. Protection of the rights of citizens are each individual states responsibility. Where this does not happen, and rule of law in a state breaks down, either because a government are unable or unwilling to provide protection of the rights of its citizens, then another country has a responsibility to step in to ensure these rights are respected, which is termed 'International Protection'. The international legal framework on which this protection is built, was developed in the aftermath of the Second World War in response to mass population movements, and the potential for destabilisation as a result. International humanitarian law, refugee law and human rights law are complementary bodies of law that share a common goal, the protection of the lives, health and dignity of persons and form a complex network of complementary protections.

Humanitarian Principles

The core humanitarian principles of humanity, impartiality, independence and neutrality, originate from the work of the International Committee of Red Cross and the National Red Cross/Red Crescent Societies. They are based on International Humanitarian Law and provide the foundation for integrated and widely accepted codes of conduct, commitments and core standards that underpin the ‘humanitarian’ response. These humanitarian principles have been formally enshrined in two General Assembly resolutions. The first three principles, humanity, neutrality and impartiality, known as the humanitarian response solution, were endorsed in United Nations General Assembly Resolution 46/182 of 1991, while the fourth principle of independence was endorsed in 2004 under Resolution 58/114.

These humanitarian principles provide the fundamental foundations for humanitarian action which rehabilitation professionals working as humanitarian responders should adhere to at all times. These principles are central to establishing and maintaining access to affected people, whether in a disaster or a complex emergency, such as armed conflict. They should guide you in all your decisions.

Table 1. Core Humanitarian Principles

Humanity	Neutrality	Impartiality	Independence
Human suffering must be addressed wherever it is found. The purpose of humanitarian action is to protect life and health and ensure respect for human beings.	Humanitarian actors must not take sides in hostilities or engage in controversies of a political, racial, religious or ideological nature.	Humanitarian action must be carried out on the basis of need alone, giving priority to the most urgent cases of distress and making no adverse distinction on the basis of nationality, race, gender, religious belief, class or political opinion.	Humanitarian action must be autonomous from the political, economic, military or other objectives that any actor may hold with regard to areas where humanitarian action is being implemented.
Particular attention should be paid to the most vulnerable in the population, such as children, women, older people and people with a disability.		Rehabilitation must be provided without discrimination and guided solely based on needs, and priority must be given to those with the most urgent need.

Refugee Legislation

1951 Convention relating to the Status of Refugees

The 1951 Convention relating to the Status of Refugees, known as the Refugee Convention, is the main international instrument of refugee law, that is status and rights-based. Ratified​ by 146 State parties, it defines the term ‘refugee’ and outlines the rights of the displaced, as well as the legal obligations of States to protect them. The Convention clearly spells out who a refugee is, and the kind of legal protection, assistance and social rights they should receive from the countries who have signed the document. It contains comprehensive provisions on the obligations and rights of refugees in areas as diverse as gainful employment, labour legislation, social security, public relief and education. The Convention also defines a refugee’s obligations to host governments and certain categories or people, such as war criminals, who do not qualify for refugee status.  The provisions of the 1951 Convention shall not apply to any person with respect to whom there are serious reasons for considering that they;

• have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
• have committed a serious non-political crime outside the country of refuge prior to their admission to that country as a refugee;
• have been found guilty of acts contrary to the purposes and principles of the United Nations.

The core principle of the 1951 Convention is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom, which is now considered a rule of customary international law.

1967 Protocol relating to the Status of Refugees

The 1967 Protocol relating to the Status of Refugees is an international treaty, which should be read alongside the 1951 Convention relating to the Status of Refugees, known as the Refugee Convention. The 1951 Refugee Convention was drafted in the aftermath of World War II, and only applied to people who had been displaced as a result of events occurring before 1 January 1951 in Europe. New refugee situations arose following 1951, and these new refugees did not fall within the scope of the 1951 Refugee Convention, which led to the development of the 1967 Protocol. The 1967 Protocol aimed to provide equal status for all refugees, irrespective of their geographic location and dateline of 1 January 1951’.

Basically the 1967 Protocol removed the Refugee Convention’s geographical and temporal restrictions so that the Convention applied universally. This treaty ensures that the protections in the Refugee Convention, originally limited to post World War II Europe, are extended to all refugees.

1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa

The 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, enacted in Addis Ababa on September 10, 1969 and entered into forced on June 20, 1974, is a regional legal instrument governing refugee protection in Africa, that comprises 15 articles. It builds on the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees and influenced the 1984 Cartagena Declaration and the 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, also known as the Kampala Convention.

1984 Cartagena Declaration on Refugees

Influenced by the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, the 1984 Cartagena Declaration on Refugees, or just Cartagena Declaration, adopted in 1984 by delegates from 10 Latin-American countries: Belize, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama ... is a non-binding regional instrument in Latin-America for the protection of refugees.

The Cartagena Declaration introduced a much broader category of persons in need of international protection to be considered as refugees to include "persons who have fled their country because their lives, security 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".

Dublin Regulation

The Dublin regime was originally established by the Dublin Convention, which was signed in Dublin, Ireland on 15 June 1990, and first came into force on 1 September 1997. This was followed by the Dublin II Regulation, adopted in 2003, as an agreement between the European Union, Iceland, Norway and Lichtenstein that determines which Member State is responsible for the examination of an application for asylum, submitted by persons seeking international protection under the 1951 Geneva Refugee Convention and the European Union Qualification Directive, within the European Union. In essence the Dublin Regulation provides the legal basis and procedural rules for establishing the criteria and mechanisms for determining the state responsible for examining an application for international protection made in one of the participating states by a third country national or a stateless person, based on a range of criteria. The criteria for establishing responsibility run, in hierarchical order, from family considerations, to recent possession of visa or residence permit in a Member State, to whether the applicant has entered EU irregularly, or regularly.

The objective of the Dublin Regulation is to ensure quick access to asylum procedures and the examination of an application on the merits by a single, clearly determined Member State. One of the aims of the Regulation is to ensure that an individual does not make multiple applications for asylum in several member states. Under the Dublin Regulation, families and relatives who are separated across different European countries can be reunited during their asylum claim. Unaccompanied children can apply to join a parent, legal guardian or sibling, aunt, uncle or grandparent who is living in Europe. Adults can apply to join their family members (spouse/partner or children) in another country if the family member is an asylum seeker or refugee, or has been granted subsidiary protection.

In recent years this arrangement has given some European countries a far larger responsibility for handling migrants and refugees than other countries, the result being that a large number of migrants and refugees are not getting the support and help that they are entitled to. A review in 2008 found that in the absence of harmonisation, “the Dublin system is unfair both to asylum seekers and to certain Member States”, exerting increased pressures on the external border regions of the EU and harshly disrupts the lives of those fleeing to Europe for protection. This led to further reform with adoption of the  Dublin III Regulation (No. 604/2013) in June 2013, replacing the Dublin II Regulation.

In September 2020, the European Union suggested a new European migration governance system to replace the Dublin Regulation, that will have common structures on asylum and return and it will have a new strong solidarity mechanism.

2016 New York Declaration for Refugees and Migrants

The United Nations General Assembly unanimously adopted the New York Declaration for Refugees and Migrants on September 19, 2016, which reaffirm the importance of the international refugee regime and contains a wide range of commitments by Member States to strengthen and enhance mechanisms to protect people on the move.

2018 Edinburgh Declaration on Migration, Ethnicity, Race and Health

In May 2018, the 1st World Congress on Migration, Ethnicity, Race and Health was held in Edinburgh where over 50 countries participated.  The congress resulted in The Edinburgh Declaration. Researchers and health care personnel made a declaration to integrate dialogue on issues related to migration, ethnicity, race, indigenous and Roma people.

2018 Global Compact on Refugees

On 17 December 2018, following more than two years of extensive consultations led by UNHCR with Member States, international organizations, refugees, civil society, the private sector, and experts, the United Nations General Assembly affirmed the Global Compact on Refugees,

The Global Compact on Refugees is a framework for more predictable and equitable responsibility-sharing, recognizing that a sustainable solution to displaced persons cannot be achieved without international cooperation, and provides a blueprint for governments, international organizations, and other stakeholders to ensure that host communities get the support they need and that refugees can lead productive lives. The four key objectives are to

• Ease the pressures on host countries;
• Enhance refugee self-reliance;
• Expand access to third-country solutions;
• Support conditions in countries of origin for return in safety and dignity.

Internal Displacement Legislation

2004 United Nations Guiding Principles on Internal Displacement

The United Nations Guiding Principles on Internal Displacement address the specific needs of internally displaced persons worldwide. They identify rights and guarantees relevant to the protection of persons from forced displacement and to their protection and assistance during displacement as well as during return or resettlement and reintegration, and are consistent with and reflect international human rights and humanitarian law, as well as refugee law.

2009 African Union Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africa

The 2009 African Union Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africa is a treaty of the African Union that addresses internal displacement caused by armed conflict, natural disasters and large-scale development projects in Africa.

1954 Convention relating to the Status of Stateless Persons

The 1954 Convention relating to the Status of Stateless Persons, adopted on 28 September 1954 and entered into force on 6 June 1960, provided the definition of a stateless person as someone “who is not considered as a national by any State under operation of its law.” and with that the foundation of the international legal framework to address statelessness.

This Convention outlined minimum standards of treatment, which required that stateless persons have the same rights as citizens of a state with respect to freedom of religion and education of their children, and provided that stateless persons right of association, and right to employment and to housing, should at a minimum be the same treatment as for other non-nationals.

1961 Convention on the Reduction of Statelessness

The 1961 Convention on the Reduction of Statelessness, adopted on 30 August 1961 and entered into force on 13 December 1975, is the leading international instrument that sets rules for the conferral and non-withdrawal of citizenship to prevent new cases of statelessness and complements the 1954 Convention relating to the Status of Stateless Persons. It includes 10 articles which provide safeguards to be implemented by States in order to prevent and reduce statelessness in four main areas:

1. Measures to avoid statelessness among children
2. Measures to avoid statelessness due to loss or renunciation of nationality
3. Measures to avoid statelessness due to deprivation of nationality
4. Measures to avoid statelessness in the context of State succession

Conclusion

International humanitarian law, refugee law and human rights law are complementary bodies of law that share a common goal, the protection of the lives, health and dignity of persons and form a complex network of complementary protections. There are legislative differences between countries on the process for asylum seekers and refugees, and as a health care professional you should be aware of the legislations in the country where you work. The Asylum Information Database (AIDA) is provides updated information on the legislations and situation within different countries.

Resources

1954 Convention relating to the Status of Stateless Persons, UNHCR 1954

1961 Convention on the Reduction of Statelessness, UNHCR 1961