Summary
Summary Model essay on International Protection of Rights of Refugees
- Module
- Law (LA2029)
- Institution
- Queen Mary, University Of London (QMUL)
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International law on refugees, as Cornelis (Kees) Wouters believes, ‘finds itsroots in atrocities of war and conflict, in the recognition of human dignity
(preamble of the UN Charter 1945), and in the equality and inalienability of
rights of all human beings’. During the course of this paper, the reader will be
enlightened as to the steps taken by the UN General Assembly to bestow
international protection of refugees, post WW2.
It is pertinent to first define a refugee. Anyone that satisfies the criteria laid
down in the Refugee Convention (or its 1967 Protocol) can be said to be a
refugee. Due to the risk he/she’s under, a refugee cannot return to the state of
their nationality. This in turn means that a refugee’s state of nationality does
not protect the refugee.
It is cardinal to discuss a number of elements of the definition of a refugee (Art
1 of the Refugee Convention). The UNHCR handbook has explained the
‘Convention test’ as having both subjective and objective elements. The
subjectivity depends on the applicant’s own understanding of the threat they
face. This demands the credibility of the applicant to be taken into account by
the decision maker. However, objective reasons for this fear being ‘well-
founded’ must be there. This demands an assessment of applicant’s own
experiences and also that of his family or friends etc.
Lord Keith’s statement in Sivakumaran case is important for the determination
of the importance of objectivity to find a ‘well-founded fear’. He said that
‘…the requirement that an applicant's fear of persecution should be well
founded means that there has to be demonstrated a reasonable degree of
likelihood that he will be persecuted for a convention reason if returned to his
own country’. Cases like Sivakumaran (or Karanakaran case) show that the
court ultimately evaluates the applicant’s case while keeping their protection
in mind.
Another important element is that of ‘persecution’. Persecution can be said to
be linking to the violation of political and civil rights. It is an examination of low
likely it is that something will happen (past events can be relevant). The
individual’s circumstances, the credibility of ones involved, and the facts of
each case are the driving factors. Lord Rodger’s judgement in HJ(Iran) and
HJ(Cameroon), where two gay men applied for asylum for fear of being
persecuted, is important for our purposes. According to him, “in a society
where gay men are persecuted, it is quite likely that the prevailing culture will
be such that some of an applicant’s friends, relatives and colleagues would
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