AMITY LAW SCHOOL

ASSIGNMENT OF INTERNATIONAL HUMANITARIAN LAW

TOPIC - Concept and principles of Refugee protection

Presented by – Deepali Gupta

Course – BBA.LLB (H)

Sem – 8, Enroll – A90821518073

Submitted to – Dr. Malay Adhikari

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 ACKNOWLEDGEMENT

The final outcome of this project required research work. I am extremely privileged to have
got this all along the completion of the project. All that i have done is only due to such
supervision and assistance and would not forget to thank them. I respect and thank my
professor for providing an opportunity to work on IHL subject and giving us all support and
guidance which made me complete the project duly. I am extremely thankful to him for
providing support and guidance.

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 INTRODUCTION
What is Refugee Protection?

Protection is commonly defined as “all activities aimed at obtaining full respect for the rights
of the individual in accordance with the letter and spirit of the relevant bodies of law, namely
human rights law, international humanitarian law and refugee law”. Hence, it is correct to
assume that protection covers all activities and projects implemented by the different agents
working with refugees, and this does not only include legal protection such as provision of
refugee documents, but also everyday tasks such as casework and recreational activities. But
let’s see first how protection of refugees came about as a concept.
In fact, protection is primarily the responsibility of states and its agents. In the case of a state
or government that is unwilling or unable to protect its own citizens for any given reason,
these individuals have the right to seek asylum elsewhere, which is stipulated in the 1951
Geneva Convention’s definition of a refugee. The 1951 Refugee Convention and the 1967
Protocol are at the cornerstone of the international legal framework for refugee protection as
they establish the main principles on which refugee protection is based – such as the Principle
of non-refoulement and the principle of Non-discrimination.

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 What is Legal Protection of Refugees?
Legal protection of refugees does not start when the individuals receive the legal refugee
status. It starts from the moment the person arrives at the borders of the potential country of
asylum. This is when we talk about the principle of non-refoulement, which stipulates that no
potential asylum seeker is to be returned to their country of origin or to a third country where
their lives might be in danger, and that everyone has the right to seek asylum.

The fundamental principle of non-refoulement

It plays a very important role in the international refugee protection system. It prohibits the
return of a person (including by non-admission to the border) to a State where his life and
safety might be in danger. To some degree, non-refoulement involves the admission of the
person who is still an asylum seeker on the territory of the State to which he is seeking
refuge. No protection can really be conceived without this territorial or geographical
dimension, which gives legal protection its meaning. Non-refoulement is in a way the very
foundation of the protection system. It is included in Article 33 of the Convention of 28 July
1951. If the restrictive interpretation is possible, and has even been used often, it is clear that
the principle of non-refoulement must be applicable to the asylum seeker even before he
receives a positive decision of eligibility. This is how it is understood by the Office of the
High Commissioner.

Article 33 – Prohibition of expulsion or return (“refoulement”)

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.
 Now that the individual is safe and admitted into the territory of their potential
country of asylum, legal protection starts from the moment of receiving these
individuals and registering them with the relevant authorities, be it the government
or UNHCR in some cases. Access to registration as an asylum seeker is one of the
first instruments of legal protection as it guarantees that the individual is under the
responsibility of the registering authority, which means not only that they would not
be returned to their country while their file is being processed but also that they are
now legally staying on the territory.

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  Legal protection continues through the phase of Refugee Status Determination, where
the relevant authority uses international refugee law instruments to decide whether or
not the asylum seeker should be granted the refugee status, depending on the reasons
why they left their country.
 By going through status determination processes and potentially being recognized as a
refugee, individuals are legally protected by being granted legal documents that are
issued from their country of asylum and are valid for a certain period of time, usually
not less than one year at a time. This procedure guarantees therefore the freedom of
movement of refugees in the country of asylum, apart from the fact that it gives them
access to any sort of social contracts, legal procedures and aspects of everyday life
that the local community usually enjoys.

Physical Protection
The next type of protection is physical protection which, as the name indicates, focuses on
the physical needs of refugees and asylum seekers. Physical protection covers all sorts of
accommodation and sheltering to start with. Depending on the context, the situation and the
country of asylum, accommodation of refugees can be done in camps, shelters, urban areas,
host families…etc. The main idea is that persons of concern are safe and are accommodated
in a secured place. This also encloses other sorts of physical needs like food and sanitation. In
order to fulfill physical protection minimum standards, refugees need to be provided with
adequate food, sanitation, hygienic products and any non-food items that are needed in a
specific context or emergency.

Ongoing Protection: Case Management

Protection does not stop at the door of the refugee camp or at the legal document stamped by
UNHCR. It is actually an ongoing process as we are working with extremely vulnerable
people every single day. Indeed, casework is one of the most known ways of protection of
refugees as case workers follow on a day-to-day basis issues of refugees and work on finding
efficient solutions. This can be related to all sorts of protection issues like Gender-Based
Violence, Child Protection, Health issues, education.1

1
https://www.humanrightscareers.com/magazine/what-is-refugee-protection/#:~:text=Protection%20is
%20commonly%20defined%20as,refugee%20law%E2%80%9D%20(Source)

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 Durable Solutions
The refugee situation is supposedly temporary, based on the international legal framework.
This means that the event that contributed to the displacement of refugees might disappear on
the short or long run; and refugees would then be able to return to their country of origin.

One of the essential functions of UNHCR is “to seek permanent solutions to the problem of
refugees, by assisting Governments and, subject to the approval of the Governments
concerned, private organizations to facilitate the voluntary repatriation of such refugees, or
their assimilation into new national communities”. Durable solutions aim at “empowering
refugees, especially women, and strengthening their productive capacities and self-reliance”.

The first of these solutions is:

1. “ Voluntary repatriation” in the country of origin. This implies the cessation of

refugee status. It is therefore the reintegration of the individual to his home nation-
state. This solution is put forward by UNHCR as the best for the refugee in the case
of cessation of the reasons that led to his/her displacement in the first place.
2. When voluntary return is not possible, and in the case where the host country offers
the possibility of “local integration”, it is therefore assimilation to the host country
that is proposed, either by remaining a refugee (thus deprived of citizenship rights) or
by taking the nationality of the host country. This is the second option that is being
considered by UNHCR. Refugees are then caught in a legal process of granting them
rights that are more and more similar to those of the nationals of the host country.
Over time, this process should lead to permanent resident status and, in some cases,
the nationality of the country of asylum. We should not forget, however, that access
to nationality is a discretionary right of states.
3. The third solution is resettlement in a third country or the continuation of migration
and access to citizenship in this third country. It is considered both as a last resort
solution, when the other two have failed, and as a means to achieve a more equitable
burden-sharing of refugees. UNHCR recommends to host countries cases that it
considers to be in need of special protection.

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 International framework for refugee protection

Section II of the Refugee Law presents the international framework for refugee protection.
This section focuses exclusively on universal norms. Although both universal and regional
laws and practices may be important in any single case, the legal norms developed at the
regional level differ significantly from one area of the globe to another. Therefore, The
Refugee Law Reader has elected to address world-wide legal obligations in Section II and to
examine regional norms in the separate sections concerning Africa, Asia, Europe, and the
Americas.
The international legal norms concerning refugee protection derive from the well-known
sources of international law: international conventions, international custom, and generalized
principles found in major legal systems around the world. In addition to identifying these
bases of international legal protection of refugees, Section II highlights soft law as well as
subsidiary sources such as judicial decisions and the writings of scholars and other experts.
The organization of Section II proceeds according to the following logic.

The first portion of Section II surveys the overarching principles and concepts of refugee
protection. The focus is on customary international legal norms, which apply to all states
whether or not they are Contracting Parties to any pertinent treaties, on soft law, and on
certain provisions from international human rights conventions.

The second, and by far the most extensive, portion of Section II focuses on the 1951 Geneva
Convention relating to the Status of Refugees and its 1967 Protocol. Today there are more
than 140 State Parties, making these treaty obligations applicable in many parts of the world
and a wellspring of jurisprudential development.

The third portion of Section II turns to other universal protection that pertains to refugees and
asylum seekers. In particular, it examines the concepts of temporary protection and
complementary or humanitarian protection, which many states employ in their responses to
the displacement of people. It also examines universal instruments of human rights and
humanitarian protection, which are relevant to everyone, including the displaced. Lastly,
Section II turns to the topic of internally displaced persons. Although they generally do not
fall within the legal framework of refugee protection, and should enjoy rights as nationals in

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their own countries, many individuals displaced within their own country fear the same
persecution as those who have crossed borders. The similarities between their situation and
that of many refugees make it imperative to address their plight.2

2
https://www.refugeelawreader.org/en/ii-international-framework-for-refugee-protection.html

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 CONCLUSION

As a conclusion, it is crucial to remember that refugee protection is a very vast field of work
in which humanitarian workers can use their skills and achieve their potential by simply
abiding by the 1951 Refugee Convention and all the other legal instruments used in working
with refugees.