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Chapter Two: International Refugee Law

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The international migration of people, or the circulation of human capital as Harris (2002: 90) has termed it, including the movement of asylum-seekers, is part of the wider process of globalisation.  Domestic legislation pertaining to asylum does not exist in a vacuum but within the context of international legislation.  This chapter examines the changing nature of asylum issues over the twentieth century and into the twenty-first century and the legislation which has been developed in response.  It presents a context for the development of Irish legislation detailed in chapter three.

2.1   The concept of asylum

The concept of asylum, or sanctuary, has existed for thousands of years ever since people first formed themselves into communities, and individuals who were unable to live within their structures were forced to seek refuge with others.  The revocation of the Edict of Nantes in 1685, which forced 250,000 French Protestants (the Huguenots) to flee their country, marked the beginning of the modern tradition of asylum in Europe (Mullaly 2001: 13).  The oppression and expulsion of political and religious minorities have been recurrent themes in historical asylum but in the past those seeking asylum did not require formal permission as they do today.  The development of rigid boundaries around sovereign states has barred escape routes and forced a political matrix on refugee movements (UN Centre for Human Rights 1993: 5).

Until the early years of the twentieth century and the development of an international system for protecting human rights, asylum was viewed more in terms of the right of a sovereign to confer asylum on a discretionary basis than as the right of an individual to protection.  The initial recognition of the rights of those seeking refuge was made in 1921 when the first Refugee High Commissioner for the League of Nations was appointed.  This was followed by the 1933 League of Nations Convention relating to the International Statute of Refugees and the 1938 Convention Concerning the Status of Refugees Coming from Germany, both of which offered limited protection to refugees.  The Second World War saw the establishment of the UN Relief and Rehabilitation Agency (UNHRA) followed by the International Refugee Organisation (IRO), in 1946, which resettled one million displaced European people around the world and returned 73,000 civilians to their homes (Achiron 2001: 8). 

In 1945, revulsion against the consequences of two world wars culminated in the establishment of the United Nations with the aim of saving succeeding generations from the “scourge of war, which twice in our lifetime has brought untold sorrow to mankind” (Wilkinson 2000: 6).  The UN General Assembly adopted the Universal Declaration of Human Rights in 1948, which declared the seeking of asylum to be a right in Article 14: “Everyone has the right to seek and enjoy in other countries asylum from persecution”(as quoted in Donnelly 1998: 166).

The legal institution of asylum is closely linked to the concept of the nation state and the onus on states to protect their citizens.  When a state is no longer able or willing to afford an individual that protection and "the normal bond of trust, loyalty, protection and assistance between a person and a government of his [sic] country has been broken (or does not exist)", asylum comes into play (Mullally 2001: 13).

2.2   International refugee legislation

The cornerstone of international refugee legislation is the Convention relating to the Status of Refugees signed on 28 July 1951 by 26 countries as diverse as Iraq and the United States.  The Second World War had ended six years previously but hundreds of thousands of refugees were still scattered across the European continent.  The signatories anticipated that the problem was a short-term one, so much so that the United Nations Commissioner for Refugees, the guardian of the Convention, was governed by a three-year mandate. 

The Convention’s definition of a refugee, as amended by the 1967 Protocol relating to the Status of Refugees remains paramount in contemporary refugee legislation.  Article 1A (2) defines a refugee as a person who:

“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” (UN Centre for Human Rights 1993:24).

Other conventions, such as those of the Organisation for African Unity (which comprises all African countries with the exception of Morocco) and the Organisation of American States (the countries of North, Central and South America and the Caribbean), have since extended that definition in cognisance of the particular conditions in their regions. 

2.3   The limitations of the 1951 Convention

That the refugee problem was essentially seen as one which would pass is evident in the fact that the Convention defined refugees as people who were displaced because of events occurring before 1 January 1951.  However, the years following showed that refugee movements were not merely temporary results of WWII and its aftermath (Kumin 1993: 7).  The time limit and geographical limitation to Europe were later removed by the 1967 Protocol.  The Convention then came to apply to all refugees rather than just those people forced from their homes by the Second World War (Brett and Eddison 1993: 8). 

The Convention is very much a product of its times with its limitation of persecution to activity which could only be perpetrated by a state.  It thus offers protection solely to those who have suffered persecution that is both individualised and political (Egan, N 2000: 48).  The signatories too were all male and never envisaged that gender, civil war and environmental catastrophe in latter years would cause people to flee their homelands in great numbers.  Today most refugees have been forced on the move for reasons such as these rather than fleeing persecution for reasons of race, religion or nationality as stipulated in the 1951 Convention (Kushner & Knox 1999: 14; UN Centre for Human Rights 1993: 14).

Another limitation of the Convention is that it excludes people displaced by warfare en masse and those uprooted due to violence who have not left their home country.  As such it failed to help the people of the former Yugoslavia (Kushner & Knox 1999: 12).

2.4   Changes in the nature of asylum

Prior to the fall of the Berlin Wall in 1989 - the iconic symbol of the collapse of communism - asylum was most often granted for ideological reasons, countries of the West such as the United States were usually only too happy to accept asylum-seekers from Soviet Bloc countries as it gave them, at the very least, a propaganda victory over the enemy (Kushner & Knox 1999: 11).  The term “asylum-seeker” itself was first used in the American Political Science Review in 1959 in the context of the Cold War.  Refugees at that time were quite a different category and that expression described people displaced in large numbers by war or famine (Moss: 2001).  In the 1990s, as official unease about the increase in numbers of people seeking asylum grew, the expression ‘asylum-seeker’ came to be used more frequently.  Stephen Moss, writing in The Guardian (22 May 2001)suggests that this was because refugee is a term which evokes sympathy whereas asylum-seeker is colder and more bureaucratic.  The media quickly latched on to the nomenclature.  The term entered the online version of the Oxford English dictionary in 2001.

Since the end of the Cold War, and the consequent changes in international relations, the nature of conflict has changed considerably.  Intra-state rather than inter-state battles are the norm and ensuing civil wars have caused vast numbers of people to flee their homes.  Some are displaced within their own country’s borders, others move into neighbouring countries while others head much further afield to Europe and beyond.  One in every 120 people in the contemporary world has been forced to flee their homes (Raper & Valcarcel 2000: 17).  At the turn of the millennium it was estimated that there were 27 million refugees throughout the world and that more people than at any other point in history were outside their homeland.  (Raper & Valcarcel 2000: 10).  However, contrary to media headlines in the developed world which describe the flow of refugees into Western Europe, for example, as a deluge or flood, the vast majority of refugees stay near home.  It is the poorest countries of the world which bear the brunt of refugee influxes (Castles & Miller 1998: 91).

2.5   Regional refugee treaties

In the 1950s, when the Convention was signed, refugees were a European phenomenon caused by the Second World War.  However, as decolonisation progressed and Cold War struggles for influence spread (Kushner & Knox 1999: 10) the focus on refugees moved to Africa in the 1960s and then to Asia, and back to Europe in the 1990s.  As the focus and nature of the problem changed, other organisations developed definitions of refugees more pertinent to contemporary problems in different areas of the world.  The two primary examples are those of the Organisation for African Unity (OAU) in its 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa and the 1984 Cartagena Declaration adopted by the Organisation of American States (OAS). 

The OAU convention was developed in response to the growing number of people fleeing war and violence on the African continent from the late 1950s onwards following decolonisation and the establishment of nation states (Kushner & Knox 1999:12).  It is regarded as the most comprehensive and significant regional treaty dealing with refugees.  Of primary importance is its expanded definition of the term refugee.  African states were of the view that a “well-founded fear of persecution” was not sufficiently wide a criterion to cover all refugee situations in Africa.  The OAU instead defines a refugee as:

any person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence to seek refuge in a place outside his or her country of origin or nationality (UN Centre for Human Rights 1993: 9).

This provision recognises that people can be refugees in the country of their nationality (Dickson 2001: 23).  It widens the concept of persecution from essentially political persecution, includes reference to asylum and makes explicit the mechanism of voluntary repatriation.  In sum it represents a more liberal and innovative provision for Africa (UN Centre for Human Rights 1993: 7). 

The OAU definition was constructed at a time when the member states felt considerable sympathy for asylum-seekers who were fleeing armed struggles against colonialism, racial domination and apartheid.  In recent times, however, xenophobic sentiment has emerged within Africa.  Governments have felt compelled to take into account public opinion and there has been a growth of anti-refugee policies and practices within that continent also (Raper & Valcarcel 2000: 33).

The countries of Latin America have a long tradition of asylum.  The Montevideo Treaty on International Criminal Law, signed in 1889, was the first regional instrument that dealt with asylum.  It was followed by the Caracas Convention on Territorial Asylum signed in 1954.  In the 1980s, civil war in Central America resulted in massive exoduses of almost one million people which posed serious economic and social problems for the countries towards which this massive flow was directed.  In 1984 the ‘host’ countries adopted the Cartagena Declaration on Refugees that includes a definition of refugees similar to that of the OAU:

“persons who have fled their country because their lives, safety 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 “ (UN Centre for Human Rights 1993: 9)

2.6   Economic migration

The provisions of the 1951 Convention do not include flight motivated by economic deprivation, instead this is regulated by domestic immigration law.  However, as Nuala Egan posits (2000: 49), it is not always possible to neatly delineate political and economic motivation for movement.  Political unrest is both cause and effect of the economic hardship that displaces people.  Authorities determining refugee status are thus left with the difficult task of determining whether a person has had to flee because of factors recognised as persecution under the Geneva Convention or whether the state in question has simply failed to meet the subsistence needs of the applicant.

2.7   The principle of non-refoulement

The core principle of all international refugee law is that of non-refoulement.  This is set out in Article 33 of the 1951 Convention and provides that states which are signatory to the Convention should not return a failed asylum-seeker to a state where his or her life or freedom would be threatened on account of his or her race, religion, nationality, political opinion or membership of a social group.  This principle provides some protection for those who fall outside the scope of the narrow interpretation of the Convention definition of a refugee.  It is supplemented by international human rights law, in particular, Article 3 of the 1950 European Convention on Human Rights (Egan, S 2000: 197), which came into force in 1953 and was ratified by Ireland in the same year (with one reservation re free legal assistance), and by Article 3(1) of the 1984 UN Convention Against Torture

Some states have developed various complementary forms of protection to try to enhance the 1951 Convention.  In Ireland, for example, an unsuccessful refugee claimant may apply for leave to remain in the State on "humanitarian grounds".  Though this extends some degree of protection to those who are declared to be outside the state’s interpretation of a refugee it means that they are left vulnerable to the whim of the state.  The EU states in particular are seeking to harmonise these forms of protection. 

2.8   Manifestly unfounded claims

Recognising that the Geneva Convention has limitations in its protection of refugees is particularly important when it comes to the use of accelerated procedures for "manifestly unfounded" claims.  The concept of "manifestly unfounded" asylum claims can be traced back to developments within the UNHCR in response to increasing numbers of people seeking the protection of international refugee law. 

As early as 1983, the UNHCR acknowledged that a limited category of asylum claims could be processed through accelerated determination procedures.  The category of claims to which such provisions could apply were those that were "so obviously without foundation as not to merit full examination at every level of the procedure" (Egan, N 2000: 72).  A manifestly unfounded claim was defined as:

"clearly fraudulent or not related to the criteria for granting of refugee status laid down in the 1951…Convention … nor to any other criteria justifying the grant of asylum"(Mullally 2001: 14).  

However, the Committee also urged that adequate procedural safeguards be put in place to protect the fundamental human right to seek asylum and guard against refoulement.  It may be that a claim for recognition of refugee status does not fall within the scope of the Convention, but this does not necessarily mean that the applicant is not in need of protection.  In a speech to the Stockholm International Forum on Combating Intolerance in January 2001 the UN Secretary General, Kofi Annan, expressed his concern that Europe in particular was losing sight of its duty to protect refugees under international law: “a bogus asylum-seeker is not equivalent to a criminal; and … an unsuccessful asylum application is not equivalent to a bogus one"(Mullally 2001: 14).

The Convention allows refugees freedom to practise religion and educate their children in a religious manner; access to courts; elementary education and public assistance.  In terms of housing and jobs it states that refugees should be treated at least as favourably as other nationals of a foreign country (UN Centre for Human Rights 1993: 41).  It also outlines the obligations of refugees towards their hosts in Article 2:

“the refugee has duties to the country where he (sic) finds himself and must conform to the laws and regulations and measures taken for the maintenance of public order” (UN Centre for Human Rights 1993: 27).

Nuala Egan argues (2000: 44) that, despite the common concern voiced by the international community over the refugees displaced by the Second World War, states re-asserted their self-interest and sovereign authority at vital points in the process of negotiating the 1951 Convention.  This was expressed in their unwillingness to cede their authority to determine the procedures for the determination of refugee status.  Thus the Convention does not impose any common or procedural or substantive regime, it merely sets out minimum standards for the treatment and definition of refugees.  In addition the United Nations High Commission for Refugees has little power to enforce the obligations of contracting parties to the Convention. 

States also rejected the creation of a “right to asylum” in the negotiations over the Convention hence they still have the authority to deport even those people recognised as refugees.  The state, therefore, remains the final arbiter of refugees’ fate, with its right to grant asylum as opposed to the right of an individual to asylum.  Refugees are thus subject to decisions by states with their own political agendas rather than simply acting out of humanitarian interest (Kushner & Knox 1999: 12).  The modern system of refugee rights was essentially conceived out of enlightened self-interest (Achiron 2001: 8).

2.9   The European Union and asylum-seekers

Until the early 1980s the number of people seeking asylum in Europe remained reasonably stable at around 100,000 annually.  Approximately 70 percent of these were from Eastern Europe.  In 1986, however, the number rose to 200,000, in 1989 to 316,900 and then to 695,500 in 1992.  The number began to drop as European countries imposed zero immigration policies and the emphasis of states moved from the protection of refugees to concentrating on excluding them (Cullen 2000: 10).  Despite the constant references of many politicians in EU countries to there being a refugee ‘crisis’, the European figures are puny in a global context.  Only five percent of the world’s asylum-seekers try to find sanctuary in Europe; poor countries with a fraction of the wealth of EU States put up the rest (Cullen: 22 May 2000).

The majority of those seeking refuge in the EU come from Africa, Asia and the Middle East.  As the prospects for regular migration to Western Europe are virtually nil, many would-be migrants seek to gain entry through the asylum process.  The fact that would-be refugees are coming from geographically and culturally distant areas has resulted in an “unprecented challenge to the legal machinery and conscience of receiving countries” (Kushner & Knox 1999: 11).  The drawing up of the legislative ramparts by the EU has been dubbed the ‘Fortress Europe’ approach by the news media.  The consequences, however, spread beyond Europe:

“There are some indications that Europe is losing sight of its duty to protect refugees under international law as set out in the 1951 Convention.  This risks having enormous impact on other regions which look to Europe as an example” (Teloken 1998: 8). 

In addition it is made clear to those countries aspiring to EU membership that they can afford no perceived laxity in their approach to border controls.

The past 15 to 20 years have been characterised internationally by the emergence of an atmosphere hostile to asylum-seekers and refugees alike.  High-profile examples include the United States’ treatment of Haitian boatpeople during the 1980s when 20,000 sea borne people were prevented from landing and their boats driven back to open sea (Harris 2002: 23) and Australia’s standoff with the captain of the container ship Tampa, during which Australia refused to allow the ship, carrying asylum-seekers who had already been shipwrecked, from landing. 

Trinity College law lecturer Nuala Egan argues (2000: 45) that this trend of hostility has been particularly pronounced among the EU Member States, which have worked together since the mid-1980s to develop restrictive asylum policies and practices.  She traces this back to the revival of the European ideal of closer integration, firstly under the Single European Act, which paved the way for the abolition of internal borders and latterly the Maastricht and Amsterdam schemes designed to create a European entity akin to a nation State, complete with EU citizenship.  This notion is used to exclude non-EU citizens.  The EU maintains the “deceitful façade of homage”, as Egan describes it, to the humanitarian ideals of international refugee law, yet its aim is clear:

“it is sought, by co-operation at inter-governmental level, to develop policies designed to reduce the number of asylum-seekers arriving at the external borders of the European Union, and, furthermore, to erode the level of permanent protection on offer to those who do manage to reach the Union territories”  (Egan, N 2000: 45).

2.10    EU refugee policy

A plethora of agreements, treaties, policies and directives guide EU members’ treatment of refugees and asylum-seekers.  The Dublin Convention was signed in June 1990, but did not come into force until 1 September 1997.  The Convention enforces first country applications, which means that if any person requests asylum in an EU country, which is not the first EU country they arrived in, they will be returned to that first country.  This is to prevent asylum-seekers ‘shopping around’ as it has been termed.  Conditions for refugees, both legal and social, vary widely within Europe.  People seeking asylum have often come so far and invested so much that it is entirely reasonable for them to look for the best prospects for safety.  For example, France and Germany do not recognise non-state persecution such as armed opposition groups so they would not be safe countries for many seeking asylum.  In addition there are differences in social conditions.  Some countries are more likely to detain asylum-seekers while some grant residency permits to those who do not fulfil the 1951 definition but whom it would be inhuman to deport (IRC 2000: 42). 

The signing of the Maastricht Treaty in 1992 established the European Union which included giving EU justice and home affairs ministers the power to establish a framework for asylum policy throughout Europe.  The first three non-binding Resolutions and Conclusions (the London Resolutions), signed 10 months later, permitted states to refuse asylum to those applying who had come via a ‘safe’ third country on the grounds that they could have made an application for asylum there; the concept of a list of ‘safe countries of origin’ was developed which included putting in place different treatment for those asylum applicants deemed to have come from countries where there is no genuine risk of persecution.  Since then a number of readmission agreements have been signed between EU countries and states in Eastern Europe and North Africa (Cullen 2000: 14). 

Ireland has a series of bilateral deportation agreements, passed by the Dail in March 2002, with Romania, Bulgaria, Poland and Nigeria (The Irish Time: 5 April 2002).  Such ‘white lists’, as they are known, presume that no one returned to these countries after fleeing would be in danger (Egan, N. 2000: 63).  However, by focussing on the general conditions of a country the individualised nature of the refugee concept is ignored. 

“While the purported basis for inclusion in such lists is the safety of the countries in question, it is difficult to allay the suspicion that political motivations often underpin inclusion” (Egan, N. 2000: 63). 

A proposal for the establishment of an EU-wide white list was abandoned.  The rejection was made on the basis, though, that the majority of delegates voiced misgivings over diplomatic and economic issues rather than humanitarian concerns. 

The London Resolutions also created a ‘manifestly unfounded’ category that gives states considerable grounds for rejecting applications on grounds such as asylum-seekers being in possession of insufficient details to substantiate her or his application.  Appeal possibilities are limited. 

The Resolution on Minimum Guarantees for Asylum Procedures, in June 1995, introduced a number of safeguards for asylum-seekers such as preventing removal from the country of application during appeal and requiring that applicants should be fully informed about their rights and duties and the process itself in a language they understood.  However, states are still permitted to set aside these conditions in certain circumstances, thereby reducing the strength of the safeguards for asylum-seekers. 

In 1996 a non-binding Joint Position Statement permitted states to adopt a restrictive interpretation of the refugee definition so as to rule out ‘non-state’ persecution.  The German Federal Administrative Court subsequently ruled that people who had fled the Taleban could not qualify for refugee status because the Taleban did not constitute a recognised government (Teloken 1998:9). 

Following the entry into force of the Amsterdam Treaty of 1997 asylum and immigration issues have moved from the Third to the First pillar within the EU.  Binding measures re harmonisation of social assistance for asylum-seekers, temporary protection of refugees in the event of any mass influx, and burden sharing among member states have followed.  The Eurodac database has been established for the comparison of fingerprints to facilitate the application of the Dublin Convention.

The Tampere European Council meeting of 1999 sought the development of a Council Directive laying down minimum standards for the qualification and status of third country nationals and stateless persons as refugees, in accordance with the 1951 Convention relating to the status of refugees and the 1967 protocol, or as persons who otherwise need international protection.  A proposal for a Council Directive was issued in September 2001.  This document affirms that

“the Geneva Convention and Protocol provide the cornerstone of the international legal regime for the protection of refugees” and that “minimum standards …should be laid down to guide the competent national bodies of Member States in the application of the Geneva Convention” (ECRE: September 2001).

This has been welcomed by European refugee support groups but they have warned that the adoption of a common definition should precede a final agreement on common standards for asylum procedures and reception conditions (ECRE: 2001).  Work on this is continuing.

This chapter has outlined the international context of refugee movement and legal approaches to guide the asylum process, including that of the EU.  The following chapter discusses the Irish policy response within this context.

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