May 27, 2024
Home » THE RIGHT TO ASLYLUM: REFUGEE PROTECTION AND INTERNATIONAL LAW
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This article has been written by  Gopika Kalidas Naduvilath, a fifth-year law student pursuing BBA LLB (Hons) at Alliance University, Bangalore.

Introduction

The world landscape has been transformed by a record level of human mobility due to conflict, persecution and the environment. In the face of these challenges, the right to asylum has become a core element of international law. The article examines the concept of asylum, how it is regulated by law and the challenges to provide effective protection for refugees at the international level. The crucial right to asylum is an essential aspect of human rights that holds weight within international law. This fundamental principle grants individuals the freedom to escape persecution and danger in their home country by seeking refuge elsewhere. Specifically, asylum seekers are those who have fled their homeland due to a legitimate fear of mistreatment based on factors such as race, religion, nationality, political beliefs, or societal affiliation.

MEANING OF ASYLUM AND REFUGEES

Asylum is a fundamental right, in line with International Law. Its main objective is to protect individuals who leave their home countries for reasons of unfounded fear of persecution on grounds of race, religion, nationality, or membership in a specific societal group or political category. Asylum seekers are persons who have left their country, seeking protection from persecution and serious human rights violations in another country, but who have not yet been legally recognized as refugees and are awaiting a decision on their asylum application. It is a person’s right to seek asylum. That’s why everyone should be allowed to enter another country if they want asylum.[1]

A refugee is a person who has fled their own country because they are at risk of serious human rights violations and persecution there. The danger to their lives was so great that they could not or would not escape from the country, feeling no option but to leave and seek safety elsewhere. They cannot or will not be protected from these dangers by their government. Refugees are covered by the right of international protection. The United Nations Convention relating to the Status of Refugees, as amended by its 1967 Protocol (the Refugee Convention), defines a refugee as a person who is outside their own country and is unable or unwilling to return due to a well-founded fear of being persecuted because of their race, religion, nationality, membership of a particular social group or political opinion.[2] The right to asylum is based on humanitarian principles and enshrines a commitment to protect people’s dignity in the face of difficulties.

LEGAL FRAMEWORK

It’s a centuries-old idea to give refuge to those who need it. From ancient civilizations offering refuge to persecuted peoples to the development of medieval concepts of asylum, the concept has evolved. Modern understanding of asylum based on international law has evolved since World War II, when the United Nations was established and it became clear that there is an urgent need to set up a coherent framework for protecting refugees.

The right to seek asylum is enshrined in a number of international instruments, including the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention Relating to the Status of Refugees (Refugee Convention), and the Protocol Relating to the Status of Refugees (Refugee Protocol).

Modern refugee law, like international human rights law, has its origins in the aftermath of World War II and in the refugee crisis of the interwar years that preceded it. Article 14(1) of the UDHR, which was adopted in 1948, guarantees the right to seek and enjoy asylum in other countries.

A basic element in the protection of refugees around the world is the Convention Relating to the Status of Refugees1951, which was the first international agreement for refugee protection, and the Protocol Relating to the Status of Refugees 1967, expanded the scope of international refugee law beyond that of European refugees. These legal instruments define the rights of refugees and Member States’ obligations to provide asylum. The Convention on the Status of Refugees defines a refugee and sets out his or her rights and protection to which he or she should have recourse, in particular the principle of nonrefoulement prohibiting their return to countries where they would be at risk of persecution. In 1950, in order to protect refugees and to assist them in their return, resettlement or integration, the United Nations established an agency, UNHCR, to further the mandate of the Convention and the subsequent Protocol.

The principle of non-refoulement, which prevents states from deporting refugees to a country where they may face persecution or harm, is also recognized by the Convention. Article 33(1) of the Refugee Convention states that “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.”[3] The principle has been widely recognized as the cornerstone of protection for refugees, which is regarded as a common international legal standard binding on all States. Further, there are several obligations on States under international law to protect the right to seek asylum as follows: –

  • Non-refoulement– Under the principle of non-refoulement, States are prohibited from returning asylum seekers to countries where they are subject to persecution or other serious harm.
  • Non-discrimination– Member States must ensure the rights of asylum seekers in order to avoid discrimination on grounds of race, religion, nationality, membership in a specific social group or political views. This includes making sure asylum seekers have access to essential services such as health care, education and employment.
  • Access to asylum procedures– It is for the States to ensure that asylum seekers have access to fair and effective asylum procedures. The provision of legal assistance and interpretation services, where necessary, shall include ensuring that asylum seekers may enter the country to submit their applications.

CHALLENGES OF REFUGEE PROTECTION

Despite the existence of a robust legislative framework, protecting refugees faces numerous challenges. An important issue is the uneven application and interpretation of international law in Member States. Some countries may impose strict asylum policies, which makes it harder for refugees to be protected. There is also a persistent problem of burden sharing between countries, with some regions having a high number of refugees within their borders. Moreover, the rise of xenophobia and anti-immigrant sentiments in various parts of the world poses a threat to the rights and well-being of refugees. The politicization of asylum issues can lead to restrictive policies and undermine the spirit of international cooperation needed to address the global refugee crisis effectively.

CONTEMPORARY ISSUES OF ASYLUM

Over the past years, new challenges have tested the resilience of the international asylum system. The displacement of communities has increased as a result of climate change, creating an increasingly complex link between environmental law and refugee law. There is still a need to recognise climate refugees and develop appropriate legal mechanisms for dealing with their specific situation.

Moreover, the digital age has transformed the asylum landscape and technology plays a double role in it. On the other hand, it facilitates information exchange and allows refugees to network with support networks. On the contrary, when governments are using technologies to enforce and monitor borders there is a concern of privacy and possible data misuse. Moreover, questions such as the lack of recognition of asylum seekers, inadequate asylum procedures, hostility and so on.

REFUGEE PROTECTION IN ARMED CONFLICTS

Armed conflicts continue to be a major driver of forced displacement, with millions seeking asylum in the wake of violence and persecution and also revolves around the principle of non-refoulement. In particular, the international community needs to respond proportionately to the specific challenges created by displacement caused by conflict, in particular the large scale displacement that requires the humanitarian needs of refugees. Ensuring the safety of refugees in conflict zones, addressing the root causes of displacement, and holding perpetrators of persecution accountable are crucial components of a comprehensive approach to refugee protection in times of war.

HUMANITARIAN RESPONSE AND ASYLUM

The effectiveness of refugee protection efforts is dependent on a properly humane response in the field. It is essential that NGOs play a key role in providing assistance to refugees as well as defending their rights. Governments, NGOs and the business community need to work together in order to develop an effective and flexible asylum system which can cope with evolving challenges. Sates also required to work towards protection, healthcare, evacuation, emergency aid etc.

There is a link between humanitarian response and asylum in addressing the immediate needs of the displaced population. Humanitarian organisations work closely with governments and international organizations in order to set up refugee camps, assist them or guarantee the delivery of essential services. Migration mechanisms rely on an effective humanitarian response to meet the initial needs of applicants and refugees. The main factor in ensuring the effectiveness of asylum procedures is humanitarian efforts to ensure a favorable environment for those who have been displaced. At the same time, humanitarian responses are supported by legal frameworks such as asylum, which offer long-term solutions and protection for those who cannot return to their home countries. Humanitarian response and asylum are interlinked parts of a broad approach to the issue of Forced Migration. While humanitarian responses focus on short-term needs, asylum mechanisms are a legal basis for the permanent protection of asylum seekers.

THE ROLE OF DIPLOMACY IN REFUGEE PROTECTION

In addition to conflict resolution, peacekeeping operations, human rights advocates, humanitarian assistance, etc., the root causes of displacement should be addressed, and effective protection for refugees guaranteed. There is a need to cooperate in the field of diplomacy and transnational cooperation. In foreign policy efforts, conflict resolution, human rights protection, and promotion of stable and inclusive governance structures can be addressed. Global initiatives, such as the Comprehensive Refugee Response Framework CRRFF, seek to enhance international cooperation and sharing of burdens in addressing the refugee crisis.

EXAMPLES OF ASYLUM SEEKERS AND REFUGEES

As of mid-2023, there were 36.4 million refugees and nearly 5.4 asylum seekers. Alsaadi Gaddadi, the Dalai Lama, Karl Marx, and others are some of those who have applied for asylum. Due to various reasons, a lot of diplomats are also seeking refuge. Some of the largest refugee crises are the ones happening in Syria, Afghanistan, Ukraine, Sudan, and Somalia. the Rohingya refugees from Myanmar is also a huge issue.[4]

CONCLUSION

Reflecting the difficult realities of millions of people around the world, asylum and refugee issues are complex and diverse. The cornerstone of international human rights law is the right to asylum, which can be traced back to humanity’s commitment to protect vulnerable individuals in times of need. Despite the challenges of conflict, climate change and technological progress, the international community has a responsibility to provide shelter for those fleeing persecution. Through cooperation efforts, legislative frameworks and diplomatic initiatives, the global community can work to ensure that asylum rights remain a truly effective means of protecting refugees throughout the world. In dealing with the complexity of asylum and refugee situations, the international community must continue to work together in order to achieve sustainable solutions. This includes efforts to prevent conflicts, promote peace and tackle the root causes of displacement. Furthermore, ensuring that legal frameworks are implemented effectively and granting refugees access to basic services as well as support for host communities is one of the key elements of a uniform and fair approach to refugee protection. There is a need for sympathy, empathy and commitment to ensuring that all people are accorded fundamental dignity and rights regardless of their origin or status within the field of asylum and refugee protection. Without collective action based on a strong respect for human rights and international law, the global community cannot effectively address the challenges faced by those seeking asylum or refuge.


[1] https://help.unhcr.org/faq/how-can-we-help-you/rights-and-duties/

[2] https://help.unhcr.org/faq/how-can-we-help-you/rights-and-duties/

[3] https://www.unhcr.org/sites/default/files/legacy-pdf/4ca34be29.pdf

[4] https://www.concern.net/news/largest-refugee-crises


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