International Legislation Governing Forced Displacement
Introduction[edit | edit source]
Legislation can have several purposes, they can regulate, they can sanction, restrict or authorise. In the field of displaced persons, legislation is made to clarify the responsibilities for each of the countries and to ensure legal rights. Protection of the rights of citizens are each individual state's responsibility. Where this does not happen, and rule of law in a state breaks down, either because a government is 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[edit | edit source]
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.
|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.|
International Human Rights Law[edit | edit source]
The Universal Declaration of Human Rights, adopted in 1948, is generally agreed to be the foundation of international human rights law. It represents the universal recognition that basic rights and fundamental freedoms are inherent to all human beings, inalienable and equally applicable to everyone, and that every one of us is born free and equal in dignity and rights. Whatever our nationality, place of residence, gender, national or ethnic origin, colour, religion, language, or any other status, the international community on December 10 1948 made a commitment to upholding dignity and justice for all of us. Together with the International Covenant on Civil and Political Rights and its two Optional Protocols, and the International Covenant on Economic, Social and Cultural Rights, form the so - called International Bill of Human Rights. Human rights law governs the obligations of States towards citizens and other individuals within their jurisdiction. Human rights law enshrines the highest of human ideals, that every human being has a set of rights and freedoms, and as such cannot be taken away by States and apply at all time
According to the United Nations the commitment outlined in the UDHR in 1948 has been translated into law, in the forms of treaties, customary international law, general principles, regional agreements and domestic law, through which human rights are expressed and guaranteed and has inspired more than 80 international human rights treaties and declarations, regional human rights conventions, domestic human rights bills, and constitutional provisions, which together constitute a comprehensive legally binding system for the promotion and protection of human rights.
The nine core international human rights treaties covered set international standards for the protection and promotion of human rights to which States can subscribe by becoming a party. These treaties are:
- The International Convention on the Elimination of All Forms of Racial Discrimination;
- The International Covenant on Economic, Social and Cultural Rights;
- The International Covenant on Civil and Political Rights;
- The Convention on the Elimination of All Forms of Discrimination against Women;
- The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
- The Convention on the Rights of the Child;
- The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families;
- The Convention on the Rights of Persons with Disabilities;
- The International Convention for the Protection of All Persons from Enforced Disappearance.
International Humanitarian Law[edit | edit source]
International humanitarian law, also known as the law of war or the law of armed conflict, rooted in the rules of ancient civilisations and religions, is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare and only applies to armed conflict, and does not cover internal tensions or disturbances or acts or terror. 
A major part of international humanitarian law is contained in the four Geneva Conventions of 1949, which have since been supplemented by two further agreements: the Additional Protocols of 1977 relating to the protection of victims of armed conflicts. Other agreements, which make up international humanitarian law, prohibit the use of certain weapons and military tactics and protect certain categories of people and goods and include: 
- 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, plus its two protocols;
- 1972 Biological Weapons Convention;
- 1980 Conventional Weapons Convention and its five protocols;
- 1993 Chemical Weapons Convention;
- 1997 Ottawa Convention on anti-personnel mines;
- 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.
International humanitarian law protects those who do not take part in the fighting, such as civilians and medical and religious military personnel, as well as those who have ceased to take part, such as wounded, shipwrecked and sick combatants, and prisoners of war. 
Refugee Law[edit | edit source]
1951 Convention relating to the Status of Refugees[edit | edit source]
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-refoulment, 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[edit | edit source]
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[edit | edit source]
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 force 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[edit | edit source]
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 generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order".
Dublin Regulation[edit | edit source]
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 Liechtenstein 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 disrupting 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[edit | edit source]
The United Nations General Assembly unanimously adopted the New York Declaration for Refugees and Migrants on September 19, 2016, which reaffirms 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[edit | edit source]
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[edit | edit source]
On 17 December 2018, following more than two years of extensive consultations led by UNHCR with Member States, international organisations, 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 organisations, 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 Law[edit | edit source]
Like all human beings, internally displaced persons enjoy human rights that are articulated by international human rights instruments and customary law. In situations of armed conflict, moreover, they enjoy the same rights as other civilians to the various protections provided by international humanitarian law. It is the Governments of the states where internally displaced persons are found that have the primary responsibility for their assistance and protection with the international community playing a complimentary role with no single agency or organisation designated as the global lead on protection and assistance of internally displaced persons.
2004 United Nations Guiding Principles on Internal Displacement[edit | edit source]
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[edit | edit source]
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.
Statelessness Law[edit | edit source]
The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are the key international conventions addressing statelessness. They are complemented by international human rights treaties and provisions relevant to the right to a nationality.
1954 Convention relating to the Status of Stateless Persons[edit | edit source]
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[edit | edit source]
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: 
- Measures to avoid statelessness among children
- Measures to avoid statelessness due to loss or renunciation of nationality
- Measures to avoid statelessness due to deprivation of nationality
- Measures to avoid statelessness in the context of State succession
Human Trafficking and People Smuggling Law[edit | edit source]
Human trafficking and migrant smuggling are global and widespread crimes that use men, women and children for profit. The organised networks or individuals behind these lucrative crimes take advantage of people who are vulnerable, desperate or simply seeking a better life. The United Nations Convention against Transnational Organised Crime, adopted by General Assembly resolution 55/25 of 15 November 2000, is the main international instrument in the fight against transnational organised crime, supplemented by three Protocols, which target specific areas and manifestations of organised crime. Two of these protocols focused on prevention of human trafficking and people smuggling.
Protocol to Prevent, Suppress and Punish Trafficking in Persons[edit | edit source]
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime, was adopted by the United Nations in November 2000 as part of the United Nations Convention against Transnational Organised Crime, and entered into force on 25 December 2003. It is the first legally binding instrument with an internationally recognized definition of human trafficking and provides a tool for the identification of victims, and detection of all forms of exploitation, which constitute human trafficking.
“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
Protocol against the Smuggling of Migrants by Land, Sea and Air[edit | edit source]
The Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime, was adopted by the United Nations in November 2000 as part of the United Nations Convention against Transnational Organised Crime and entered into force on 28 January 2004. It is the first legally binding instrument with an internationally recognized definition of people smuggling and provides a tool for the identification of victims, and detection of all forms of exploitation, which constitute people smuggling.
“Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident;
Known as the Smuggling Protocol, it aims to prevent and combat the smuggling of migrants, the reduction of the power and influence of organised criminal groups that abuse migrants through people smuggling, while protecting the rights of smuggled migrants. It emphasises the need for humane treatment, and the need for comprehensive international approaches to combating people smuggling, including socio-economic measures that address the root causes of migration.
Unlike human trafficking, people smuggling is typically characterised by some level of consent between the individual and smuggler that terminates upon arrival at the final destination. In many situations, however smuggled individuals are subject to threats, abuse, exploitation and torture, and even death at the hands of smugglers, with extreme human rights abuses common. The criminalisation of smuggling of migrants promoted by the Smuggling of Migrants Protocol does not aim at criminalising the migrants themselves, but aims to criminalise and prosecute those who smuggle others for gain.
Conclusion[edit | edit source]
International humanitarian law, human rights law and laws governing displacement including refugee, internal displacement, human trafficking and human smuggling legislation 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.
References[edit | edit source]
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