International refugee law is a set of rules and procedures that aims to protect, first, persons seeking asylum from persecution, and second those recognized as refugees under the relevant instruments. Its legal framework provides a distinct set of guarantees for these specific groups of persons, although, inevitably, this legal protection overlaps to a certain extent with international human rights law as well as the legal regime applicable to armed conflicts under international humanitarian law.
The main sources of refugee law are treaty law, notably the 1951 Convention relating to the status of refugees (1951 Refugee Convention) and its 1967 Protocol, and customary international law. Customary international law applies to all states irrespective of whether they are a party to relevant treaties or not. Regional instruments represent a further set of protections, particularly the 1969 Organization of African Unity Convention (for Africa) and, although it is not formally legally binding, the 1984 Cartagena Declaration (for Latin America).
International legal protection of refugees centres on a person meeting the criteria for refugee status as laid down in the 1951 Refugee Convention. Under Article 1(A)2, the term “refugee” shall apply to any 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.”
Thus, according to this provision, refugees are defined by three basic characteristics:
- they are outside their country of origin or outside the country of their former habitual residence;
they are unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of being persecuted; and
the persecution feared is based on at least one of five grounds: race, religion, nationality, membership of a particular social group, or political opinion.
It is important to stress that the term “asylum seekers” refers to persons, who have applied for asylum, but whose refugee status has not yet been determined.
The obligation exists under Article 33 of the 1951 Refugee Convention not to return a refugee to a country of territory where he/she would be at risk of persecution:
“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.”
This is known as the principle of non-refoulement, which is considered part of customary international law and therefore binding on all states. The principle is also incorporated in several international human rights treaties, for example the 1984 Convention against Torture, which prohibits the forcible removal of persons to a country where there is a real risk of torture.
Internally displaced persons (IDPs) are defined in the 1998 Guiding Principles on Internal Displacement as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border”.
Internally displaced persons, who now constitute some 22 million persons, are persons whose situation is similar to that of refugees. However, there are several differences between IDPs and refugees. First, IDPs are not the subject of a treaty adopted at the universal level, although the Guiding Principles are based on binding international human rights and humanitarian law. Second, as opposed to refugees, IDPs have not crossed an international border from their country of origin. Third, the definition of IDPs in the Guiding Principles is significantly broader than the refugee definition, including those displaced by armed conflict, human rights violations and natural disasters, while the refugee definition is restricted to those with a well-founded fear of being persecuted on at least one of five grounds.
For questions or further discussion, contact Gilles Giacca at rulac (at) adh-geneva.ch
Deng, F.M., “The Global Challenge of Internal Displacement”, Journal of Law and Policy, Vol. 5, 2001.
Feller, E., Türk, V. and Nicholson, F. (eds.), Refugee Protection in International Law, UNHCR‘s Global Consultations on International Protection, Cambridge, University Press, 2003.
Goodwin-Gill, G.S. and McAdam, J., The Refugee in International Law, 3rd edition, Oxford University Press, 2007.
UNHCR, Handbook on Criteria and Procedures Determining the Status of Refugees, Geneva, 1979.
Hathaway J.C., The Rights of Refugees under International Law, Cambridge University Press, Cambridge, 2005.
Lauterpacht E. and Bethlehem, D., “The Scope and Content of the Principle of Non-refoulement”, in E. Feller, V. Türk, and F. Nicholson (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Cambridge, University Press, 2003, pp. 78–177.
Office of the UN High Commissioner for Refugees (UNHCR) website
Special Rapporteur on the Human Rights of Internally Displaced Persons
Keywords: Derecho Internacional de los Refugiados, droit international des réfugiés