UNIT 1

Unit 1 Subtopic 1

Concept of Refugee: Definition and Expanding Meaning

Initially, during the first half of the twentieth century, International Refugee Law was country-
specific – i.e. its instruments only targeted those persons forcibly displaced from certain states. It
is only in the aftermath of World War II, within the new United Nations context, that states have
put into place the current system for the protection of refugees. This system is universal in its
scope and composed of two pillars: the United Nations High Commissioner for Refugees
(UNHCR), created in December 1950; and the 1951 Convention relating to the Status of
Refugees (the 1951 Convention), defining those who can benefit from the refugee status and
containing the rights attached to it.

The 1951 Geneva Convention is the main international instrument of refugee law. The
Convention clearly spells out who a refugee is and the kind of legal protection, other
assistance and social rights he or she should receive from the countries who have signed the
document. The Convention also defines a refugee’s obligations to host governments and
certain categories or people, such as war criminals, who do not qualify for refugee status. The
Convention was limited to protecting mainly European refugees in the aftermath of World
War II, but another document, the 1967 Protocol, expanded the scope of the Convention as the
problem of displacement spread around the world.

According to the article 1(A)(2) of the 1951 Convention,

a refugee is defined as a person who "owning to a 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 to or, owing to such fear, is
unwilling to avail himself of the protection of that country or return there because there is a fear
of prosecution”

This provision identifies the five criteria that must all be met for a person to qualify as a refugee:

 Well-founded fear;
 Persecution;
 Reasons of race, religion, nationality, membership in a particular social group or political
opinion; Outside country of nationality/former habitual residence;
 Unable or unwilling, for fear of persecution, to seek that country’s protection or to return
there.
Well-founded fear

The person concerned must have good reason for fearing return to his/her home country. There
are both a subjective element (the person’s fear) and an objective element (external evidence
“justifying” this fear) to the well-founded fear. Generally, the former is deduced by examining an
individual’s statements and behaviour. The latter requires an assessment of the conditions in the
country of origin, among other factors. In some cases, when a person has left a country in which
human rights violations are widespread and severe, the objective evidence may be sufficient on
its own to establish a well-founded fear.

Some countries deny refugee status to asylum-seekers on the grounds that they could have found
safety in another region of their home country. This so-called “internal flight or relocation
alternative” may only be applied in certain limited circumstances where the risk of persecution
appears to be at the hands of “nonState” actors, such as guerrilla groups controlling only part of
the country. In such circumstances, it may be that there is a specific area of the country where
there is no risk of a well-founded fear of persecution and where, given the particular
circumstances of the case, the individual could reasonably be expected to establish him or herself
and could live a normal life without undue hardship.

Persecution

The core concept of persecution was deliberately not defined in the 1951 Convention, suggesting
that the drafters intended interpretations of the term to be sufficiently flexible to encompass
various and changing forms of persecution. Persecution is understood to comprise serious human
rights abuses or other serious harm often, but not always, perpetrated in a systematic or repetitive
way. Thus, death, torture, physical assault, unjustified imprisonment, and illegitimate restrictions
on political or religious activities are all examples of persecution. Discrimination will not
normally amount to persecution in itself, but particularly severe discrimination will usually
qualify as persecution on cumulative grounds. In contrast, neither natural disasters nor poor
economic conditions are considered to be persecution.

The act of persecution will often be at the hands of government officials or others under
government control. Under the 1951 Convention, persecution can also be carried out by others
perpetrators whom are generally referred to as “non-State agents”

When a government facilitates, encourages, or tolerates acts of persecution by a non-State agent,

such as a paramilitary organization, such persecution is covered by the Convention’s definition.
Similarly, when a government is unable or unwilling to offer protection against persecution
threatened by a non-State agent on one or more of the five Convention grounds, such persecution
is also covered by the Convention.
Reasons of race, religion, nationality, membership of a particular social group or political
opinion

To be a Convention refugee, a person must have a well-founded fear of persecution for one of
these reasons. In reality, these “Convention grounds” often overlap. They can also be imputed to
the individual by the persecutor.

Race is understood to cover all ethnic groupings often referred to as races.

Religion comprises any belief system held by an individual. The right to freedom of religion
under human rights instruments includes the freedom to change religion and to manifest it in
public or private, whether through teaching, practice, worship or observance, as well as the right
not to have any religion.

Nationality is not confined only to citizenship but refers also to membership of any ethnic,
religious, cultural or linguistic community.

A particular social group is a group of persons who either share a common characteristic, other
than the risk of persecution, or who are perceived as a group by society. The characteristic will
often be one which is innate, unchangeable, or which is otherwise fundamental to identity,
conscience, or the exercise of fundamental rights. In certain circumstances, for example, women
and homosexuals have been considered particular social groups.

Political opinion covers the holding or expression of views on any matter regarding the State,
government or public policy.

Outside the country of nationality/former habitual residence

A person cannot be a refugee if he/she is still within the territory of his/her home country. This
does not, however, mean that the fear of persecution must have arisen because of events that took
place while the person was still in that country. Although a refugee will usually have fled
persecution or the threat of it, the Convention definition centres on the individual’s unwillingness
or inability to return because of a well-founded fear of persecution. Someone may therefore
become a refugee after moving abroad for reasons unrelated to the Convention, if subsequent
changes in the political situation of the country of origin or in his/her personal circumstances
create a risk of persecution on return. Such individuals are often referred to as “sur place
refugees”.

The 1951 Convention provides for people without a nationality, or stateless persons, to be
considered refugees by referring to their “country of former habitual residence”, rather than to
their country of nationality.
Unable or unwilling to avail him- or herself of that country’s protection

Persecution by the authorities of the home country is often the reason why a refugee is unable to
avail himself/herself of national protection. Circumstances beyond his/her control, such as an
ongoing civil war, may also prevent him/her from seeking that country’s protection. A person
who refuses to seek the protection of his/her country of nationality or habitual residence is only a
refugee if this unwillingness is related to a well-founded fear of persecution.

Conclusion

The problem of the world's refugees is among the most complicated issue before the world
community today. Much discussion is taking, place at the United Nations as it continues to
search for more effective ways to protect- and assist these particularly vulnerable groups. While
some call for increased levels of cooperation and coordination among relief agencies, others
point to gaps in international legislation and appeal for further standard-setting in this area.
Everyone, however, agrees that the problem is both multidimensional and global. Any approach
or solution would therefore have to be comprehensive and to address all aspects of the issue,
from the causes of mass exodus to the elaboration of responses necessary to cover the range of
refugee situations from emergencies to repatriation.

Subtopic: Right of Asylum and the principle of Non-refoulement: Trends in state practice

Principle of Non-refoulement
Introduction

Through the history of mankind, for several reasons, the World has always suffered the
displacement of persons from one country to another. After World War II, the amount of people
facing persecution, lead to the signing of the 1951 Convention Relating to the Status of Refugees
(the 1951 Convention).1 In the beginning, the 1951 Convention only protected European
refugees, victims of the Great War, but this figure was extended to Non- European refugees as
well, with the signing of the 1967 Protocol relating to the Status of Refugees.2
The 1951 Convention establishes in article 33 the so-called Principle of Non-Refoulement.
According to the United Nations High Commissioner for Refugees (UNHCR), this principle is
“the cornerstone of asylum and of international refugee law” and it is considered part of the
customary international law.

The principle of non-refoulement, granting broader protection, gained generally recognised,

positive legal reinforcement at the universal level by virtue of Article 33 of the 1951 Geneva
Convention relating to the Status of Refugees, which stipulates 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.”

The words ‘in any manner whatsoever’ mean that the principle of non-refoulement applies to any
conduct by the State that would place a refugee at risk of being returned, whether directly or
indirectly, to his or her country of origin. This would include refusal of entry at the border as
well as removal from within the territory. The principle of non-refoulement applies wherever the
State exercises its authority, including beyond its borders, for example when intercepting ships
on the high seas.

All refugees are entitled to protection from refoulement – including those who have not been
formally recognized as such. This means that asylumseekers whose status has not yet been
determined by the authorities are protected from forced return.

Article 33(2) of the 1951 Convention outlines two exceptions to the principle of non-
refoulement. It permits the refoulement of a refugee if there are reasonable grounds for regarding
him or her as a danger to the security of the country where he or she is present or if, having been
convicted of a particularly serious crime, the refugee constitutes a danger to the community.
However, Article 33(2) does not release States from their obligations under international human
rights law.

Other International Instruments

States’ non-refoulement obligations with respect to refugees are also found in regional treaties,
notably the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa
and the 1969 American Convention on Human Rights. Non-refoulement provisions modelled on
Article 33(1) of the 1951 Convention have also been incorporated into extradition treaties as well
as a number of anti-terrorism conventions both at the universal and regional level. Moreover, the
principle of nonrefoulement has been re-affirmed in the 1984 Cartagena Declaration on
Refugees26 and other, important non-binding international texts, including, in particular, the
Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14
December 1967.

Non-Refoulement of Refugees Under Customary International Law

An obligation for all States It is widely accepted that the prohibition of refoulement is a
customary law norm. Customary law is binding on all States. This means that even States that are
not party to the 1951 Convention must respect the principle of non-refoulement.

Article 38(1)(b) of the Statute of the International Court of Justice lists “international custom, as
evidence of a general practice accepted as law”, as one of the sources of law which it applies
when deciding disputes in accordance with international law. For a rule to become part of
customary international law, two elements are required: consistent State practice and opinio juris,
that is, the understanding held by States that the practice at issue is obligatory due to the
existence of a rule requiring it.

UNHCR is of the view that the prohibition of refoulement of refugees, as enshrined in Article 33
of the 1951 Convention and complemented by non-refoulement obligations under international
human rights law, satisfies these criteria and constitutes a rule of customary international law. As
such, it is binding on all States, including those which have not yet become party to the 1951
Convention and/or its 1967 Protocol.
In this regard, UNHCR notes, inter alia, the practice of non-signatory States hosting large
numbers of refugees, often in mass influx situations. Moreover, exercising its supervisory
function, UNHCR has closely followed the practice of Governments in relation to the application
of the principle of non-refoulement, both by States Party to the 1951 Convention and/or 1967
Protocol and by States which have not adhered to either instrument.
In UNHCR’s experience, States have overwhelmingly indicated that they accept the principle of
non-refoulement as binding, as demonstrated, inter alia, in numerous instances where States have
responded to UNHCR’s representations by providing explanations or justifications of cases of
actual or intended refoulement, thus implicitly confirming their acceptance of the principle.

Non-Refoulement Obligations Under International Human Rights Law

International Human Rights Treaties

Non-refoulement obligations complementing the obligations under the 1951 Convention, which
preceded the major human rights treaties, have also been established under

international human rights law. More specifically, States are bound not to transfer any individual
to another country if this would result in exposing him or her to serious human rights violations,
notably arbitrary deprivation of life, or torture or other cruel, inhuman or degrading treatment or
punishment.38
An explicit non-refoulement provision is contained in Article 3 of the 1984 Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,39 which prohibits the
removal of a person to a country where there are substantial grounds for believing that he or she
would be in danger of being subjected to torture.

Obligations under the 1966 Covenant on Civil and Political Rights,as interpreted by the Human
Rights Committee, also encompass the obligation not to extradite, deport, expel or otherwise
remove a person from their territory, where there are substantial grounds for believing that there
is a real risk of irreparable harm, such as that contemplated by Articles 6 [right to life] and 7
[right to be free from torture or other cruel, inhuman or degrading treatment or punishment] of
the Covenant, either in the country to which removal is to be effected or in any country to which
the person may subsequently be removed.41 The prohibition of refoulement to a risk of serious
human rights violations, particularly torture and other forms of ill-treatment, is also firmly
established under regional human rights treaties.

Scope of the principle of non-refoulement (optional)

The prohibition of refoulement under international human rights law applies to any form of
removal or transfer of persons, regardless of their status, where there are substantial grounds for
believing that the returnee would be at risk of irreparable harm upon return on account of torture,
ill-treatment or other serious breaches of human rights obligations. As an inherent element of the
prohibition of torture and other forms of ill-treatment, the principle of non-refoulement is
characterised by its absolute nature without any exception.

In this respect, the scope of this principle under relevant human rights law treaties is broader than
that contained in international refugee law. The prohibition applies to all persons, irrespective of
their citizenship, nationality, statelessness, or migration status, and it applies wherever a State
exercises jurisdiction or effective control, even when outside of that State’s territory.

The prohibition of refoulement has been interpreted by some courts and international human
rights mechanisms to apply to a range of serious human rights violations, including torture, and
other cruel, inhuman or degrading treatment, flagrant denial of the right to a fair trial
i , risks of violations to the rights to life
ii , integrity and/or freedom of the person
iii , serious forms of sexual and gender-based violence
iv , death penalty or death row
v , female genital mutilationvi , or prolonged solitary confinement
vii , among others.

In Indian Context
India abides by this rule explicitly through various case laws. In the landmark case of Ktaer
Abbas Habib Al Qutaifi v Union of India , the Gujarat High Court upheld the principle of non-
refoulement under the wide umbrella of Article 21 of the Indian Constitution and decided not to
deport the two Iraqi nationals to their original country as long as they had a fear for their life and
liberty. Instead they were handed over to UNHCR in India. In another case, a stay order was
passed on deportation of Burmese refugees on similar grounds.

Right of Asylum

Asylum
To be granted asylum, a person must demonstrate that he or she is a “refugee,” that he or she is
not barred from asylum for any of the reasons listed in our immigration laws, and that the
decision-maker should grant asylum as a matter of discretion. 

A “refugee” is any person who is outside his or her country of nationality (or, if stateless,
outside the country of last habitual residence) and is unable or unwilling to return to that
country because of persecution or well-founded fear of persecution on account of race,
religion, nationality, political opinion, or membership in a particular social group.

This definition is based on international law, specifically the 1951 UN Convention Relating to
the Status of Refugees.  The U.S. is not a signatory to this Convention, but did sign on to its 1967
Protocol, which incorporates the Convention by reference.  The Refugee Convention requires
state parties to protect people living within their borders and prohibits them from sending people
to other countries where they would be harmed based on their race, religion, nationality,
membership in a particular social group, or political opinion.  With the Refugee Act of 1980, the
U.S. brought the refugee definition into our domestic law.  The refugee definition is found at
section 101(a)(42) of the Immigration and Nationality Act (INA). 

A person who meets the refugee definition may be granted asylum in the United States if he or
she is not barred from asylum for any of the reasons listed in section 208 of that Act and if the
adjudicator decides that he or she should be granted asylum as a matter of discretion.

The bars to asylum include the one-year filing deadline, which states that a person who needs
asylum should file the application within one year of the last arrival in the United States. 
Otherwise, the asylum-seeker must show that he or she qualifies for an exception to the filing
deadline and that he or she filed within a reasonable time given that exception.  Human Rights
First advocates for the elimination of the filing deadline from our asylum law.

Procedural Steps for Asylum

The asylum system has two parts: the U.S. Department of Homeland Security (which includes
the Asylum Office) and the U.S. Department of Justice (which includes the Immigration
Courts).  Cases that are not granted at either of those levels might go to the Board of Immigration
Appeals, the U.S. Courts of Appeal, or even to the U.S. Supreme Court.  Human Rights First
works with asylum-seekers at all levels of the system.  A person who meets the definition of a
refugee can apply for asylum in various ways, depending on that person’s immigration status at
the time they decide to apply.

Asylum Office – When a person has entered the United States, whether or not they were
inspected at the border, and our government is not taking any active steps to remove them from
the U.S., they can make what is known as an “affirmative” application for asylum.  This means
that the person will file an I-589 application by mail with the U.S. Department of Homeland
Security.  Later they will be interviewed by an officer at the local Asylum Office.  If the officer
grants the application, then the person has asylum.  He or she can then petition for their spouse
and children to join them in the United States.  They are also then on the path toward a green
card and eventual U.S. citizenship.  If the officer denies the asylum application, and the person
has no other immigration status, then they are “referred” to the Immigration Court, where a judge
will consider the asylum case. 
Immigration Court – When a person has been placed in Immigration Court proceedings before
they apply for asylum, the I-589 application should be filed directly with the immigration judge. 
This is known as a “defensive” application for asylum because the person is requesting asylum
as a defense to the government’s charge that they should be removed from the United States. 
Whether the case starts in the Asylum Office or in the Immigration Court, the judge considers
the case from the beginning.  If the immigration judge grants the application, then the person has
asylum.  He or she is then eligible for the same family-reunification and other benefits that a
person would be eligible for if granted at the Asylum Office level.  If the immigration judge
grants only withholding of removal or protection under the U.N. Convention Against Torture,
then the person may not petition for relatives but will be permitted to remain in the U.S. and to
work to support himself or herself.

Asylum applications filed by unaccompanied children (those who are under age 18) are heard at
the Asylum Office, even if the child is otherwise in proceedings in the Immigration Court.  This
is the result of the Trafficking Victims Protection Reauthorization Act (TVPRA) that went into
effect March 23, 2009 and it applies to asylum applications filed on or after that date. 

Cases which are denied in the Immigration Court may be appealed to the Board of Immigration
Appeals.  If the case is not granted at that level, the asylum-seeker may file a petition for review
which brings it to the U.S. Court of Appeals in the circuit where the immigration judge denied
the case.  When asylum cases of genuine refugees are granted at the lower levels, the system
works most effectively.  Judges at the appellate courts are then available to spend their time on
the many other types of cases that they have to decide.  Pro bono representation of asylum-
seekers can help to ensure that cases are well-prepared and properly decided in the first instance.

Asylum in International Law

There are few declarations that provide the ‘Right to Asylum’ like the Universal Declaration of
Human Rights(UHDR), the Vienna Declaration on Human Rights and Programme of Action and
the Convention on Political Asylum which was concluded by the Seventh International
Conference of American States in 1933. 

 Article 14 of the Universal Declaration of Human Rights provides the right to an
individual to seek asylum in any country to protect them from persecution. Provided as
per clause 2 of Article 14 that any individual who has a criminal record of anything
which is not acceptable as per the principles of the United Nations, cannot seek asylum
and in case of non-political reasons, the asylum can be denied. It is considered as the
fundamental law. However, India is not a party to it. 
 Article 33(1) 1951 Refugee Convention prohibits the expulsion or return of refugees and
asylum-seekers if their life or freedom is in danger based on their race, religion,
membership of a social group, political opinion, or nationality.
 New York Declaration for Refugees and Migrants  by the UN General Assembly in 2016
also reaffirms the ‘right to seek asylum’ and freedom of an individual to leave or return to
their country.
  Article 18 of the Charter of Fundamental Rights of the European Union also provides that
as per the rules of the Geneva Convention(28 July 1951) and 1967’s protocol, the right to
Asylum is guaranteed.
 In 1993, the Vienna Declaration and Programme of Action also reaffirmed the right to
seek and enjoy asylum in other countries and the right to return to their own country.
 However, the articulation of the law of the right to asylum signifies that it is not the right
of an individual, but rather is a right of the state to grant asylum. It depends on the
discretion of the State whether it grants the asylum or not. The decision of the state must
be respected by all the other states. States have to take into account their economic status
before granting asylum as it is the duty of the state to ensure its economic stability. 
 Various countries have provided the right to asylum in their Constitutions to the people
who have fled from persecution, for example- Constitution of France, Article 10 of the
Italian Constitution, Article 31 of Yugoslavia Constitution, etc. 

In India

In India, there is no specific law related to asylum-seekers. They are categorized as ‘foreigners’
under various acts like Registration of Foreigners Act,1939, Foreigners Order, 1948, Passport
Act,1920 and The Foreigners Act, 1946. India is not even a party to the Universal Declaration of
Human Rights(UDHR). Still, India has provided asylum in certain cases, the main one being the
asylum provided to Dalai Lama and his followers in 1955 despite being highly criticized by the
China government. India had the power to do so by exercising its sovereign power. 

UNIT 2

TOPIC 1- WOMEN AND MIGRATION

INTRODUCTION-

Each year, countless women and children flee violence at home and take an uncertain journey in the
hope of finding safety in a new country. While many escape conflict zones or generalized human-rights
abuses, some also run from more intimate forms of violence—namely, sexual and domestic violence
perpetrated by men. Half or more of women surveyed reported experiencing sexual assault during the
journey, and many take birth control to avoid becoming pregnant from rape.

Gender-based violence is defined as “violence that is directed against a person on the basis of gender or
sex,” according to the UN High Commissioner for Refugees (UNHCR). Survivors experience a range of
physical and psychosocial effects, including injury, sexually transmitted diseases, depression, post-
traumatic stress disorder, social stigma, rejection, and isolation.

While gender violence is not uncommon among female migrants, individual cases of trauma and
experiences accessing support vary considerably.

MIGRATION AND WOMEN-

Migration is implicitly related to gender, since it impacts women and men differently, as well as different
groups of women and men during the displacement process.

• However, neither a gender-based approach nor the particularities relating to women migrants are
usually present in migration studies and analyses.

• Migration is entrenching a new globalized sexual division of labour, in which there is a demand for
female and migrant labour in receiving countries, specifically in domestic and care work, within the
service sector and the sex industry.

• Through migration it is possible that women as well as men develop a different skillset or earn
differential wages, part of which may be sent to their country of origin in the form of remittances, also
through varying methods and percentages.

• Migration may also reinforce gender stereotypes that limit women’s autonomy, as well as their lack of
power in decision-making processes, and their vulnerability to the systematic violation of their human
rights. women migrant workers’ human rights.

MIGRANT WOMEN AND THEIR EXPLOITATION-

The rise of gender-based violence stemming from conflict is correlated with the changing nature of
conflict itself. Rape is used as a deliberate military strategy to disrupt communities and instill fear, and in
ethnic conflicts as a tool for both “cleansing” and social control. Modern conflicts disrupt traditional
social structures, leading to an increased risk of gender violence. Ethnic differences, socioeconomic
discrimination, and group rivalries can aggravate these risks. Lack of economic opportunity in societies
where males are traditionally the providers can also lead to increased violence at home.

Instances of rape are particularly common in conflict zones. More than 20,000 Muslim women were
raped during the Bosnian War in the early 1990s, while an estimated 250,000 to 500,000 women were
raped during the 1994 Rwandan genocide, according to UNHCR. These figures are likely to be
underreported, due to the stigma often assigned to survivors.

Even as they flee conflict zones, women and children remain at risk. Smugglers often target women and
girls traveling alone by attempting to coerce those with limited financial resources into exchanging sex
for a place on a boat. Nearly half of the migrant women and children surveyed in Libya for a 2017
UNICEF study reported sexual violence and abuse on their journey, often at multiple times or locations.
The snapshot survey also found a growing number of female refugees take birth-control shots to
prevent pregnancy due to rape, and one-third of respondents reported their abuser wore uniform.

Refugee girls face the additional risk of early and forced marriage, often because their families cannot
support them. In 2013, 25 percent of Syrian refugee children in Jordan reported being forced into
marriage, and 48 percent of these marriages involved a spouse ten or more years older.

The rising numbers of Central American women and girls making the journey to the United States in
recent years, driven largely by violence and poverty in El Salvador, Guatemala, and Honduras, face many
of the same risks as asylum seekers in other parts of the world. A significant share experience sexual or
physical abuse by smugglers, migrants, or even government officials: Between 60 percent and 80
percent of female migrants traveling through Mexico are raped along the way, according to estimates
from a study by Amnesty International. Women migrating from Central America to the United States
also take contraception to prevent pregnancy in the event of rape, indicating they are fully aware of the
risk of assault—yet still choose to undertake the journey.
In 2013, El Salvador had the highest rate of gender-motivated killing of women in the world, with
Guatemala coming in third and Honduras seventh.

Women often do not report the abuse to police, believing the process to be futile. In a UNHCR survey of
women who had demonstrated to U.S. officials a credible fear of being returned to their native country,
40 percent of those who said they experienced sexual assaults, rapes, physical attacks, and threats did
not report them to police. 10 percent reported the police themselves were the perpetrators.

Key recommendations for women’s protection and empowerment in displacement context:

Following are the recommendations, so that every woman on the move is entitled to the same rights
that should be guaranteed for every woman, everywhere:

 Collect gender-sensitive and disaggregated data to design adequate responses for women.

 Provide access to sexual and reproductive care and deliver basic materials, such as period
supplies for women and girls and breast pumps and bottles for mothers.

 Guarantee access to a safe livelihood.

 Prevent and respond to sexual and other forms of gender-based violence: offer psycho-social
support to violence survivors; provide preventive trainings on gender equality and women’s
empowerment for women and girls and for men and boys; and guarantee accountability for the
perpetrators.

 Combat xenophobia and promote multidimensional integration (language, culture, work,

transportation, and technology).

 Offer professional trainings for women and make sure girls are attending school.

 Include migrant women and other minorities in migration policy and program-making.

 Support and multiply personalized integration programs to address specific needs.

 Give women the legal right to work to prevent abuse and exploitation at the work place, and
ratify the International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families.

 Engage in partnership with the private sector to educate them on different cultural norms, to
fight xenophobia in the hiring process, to create job opportunities for migrants and refugees,
 and to build a safe and inclusive work environment for women from different cultural and
religious backgrounds.

CONCLUSION-
Trauma among refugees and asylum seekers is undeniable, and the vulnerability of women and
unaccompanied girls heightens the risk of further abuse at all stages of the journey.

UNIT 2

TOPIC 3- REFUGEE PROTECTION IN INDIA

INTRODUCTION-

Who is a refugee?

Any person who is 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 unwilling to avail protection of that country.

The criteria to determine the refugee status of a person is based on the person’s state of mind which is
supported by objective elements. There are lacunae in this definition because it does not include the
contemporary problems related to refugee protection. The definition fails to include people seeking
refuge due to environmental disasters, people displaced internally due to hostility, internal disturbances
and civil wars or people having different sexual orientations.

India is home to many refugees. Whenever India is faced with humanitarian crisis of dealing with
refugees it has done as any mature democratic republic would do. It has tried to balance the national
security issue with that of the need of asylum seekers.

India continues and will continue to be the host country since times immemorial for a large number of
refuges not only from neighboring countries but from other parts as well due to its geographic location,
democratic government, religious tolerant society and goodwill. India though is not a signatory of the
1951 Refugee convention but it has ratified a number of other human rights treaties which imposes
obligations to provide protection to refugees.

Some of the conventions enlisted are UN Declaration on Territorial Asylum 1967, Universal Declaration
of Human Right 1948(Art.14), International Convention on Civil and Political Rights (ICCPR Art.13),
Convention on the Elimination of Discrimination against Women (CEDAW), International Convention on
Economic Social and Cultural Rights (ICESCR) and Convention against Torture and Cruel Inhuman or
degrading Treatment or Punishment (CAT). These treaties impose a positive duty on India to provide
protection to refugees as long as they fear persecution at the hands of their govt. No treaty, convention
or law can be compartmentalized and excluded to respect the human rights of refugees
HISTORY OF REFUGEES IN INDIA-

Pre-Independence
India is one of the few countries to experience the refugee situation in the last half century. Indian
history is evident by large-scale migration of people from different countries. These migrations had
taken place in 2 ways: “Hindukush Mountains in the West and the Patkoi range in the East”.

Post-Independence
The first twenty-five years of India was spent on accepting the responsibility of 20 million refugees. This
was due to the partition of India and Pakistan. As a result, India had to confront a task by providing relief
to the displaced persons from West Pakistan. “At the initial stage, 160 relief camps were organized and
the total expenditure incurred was Rs. 60 crores approximately.” There were many steps taken by the
government of India to overcome with the refugee problem. The most important step that had been
passed by the government was the Rehabilitation Financial Administration Act, 1948.  
Another instance was in 1959 when Dalai Lama and his followers approached India as refugees and
India provided them a Political Asylum. The year of 1971 saw many refugees travelling from East
Pakistan to India. In 1983 and 1986 India had refugees coming in from Sri Lanka and Bangladesh
respectively. At the end of 1992, India has hosted 2,000,000 migrants and 237,000 displaced
persons. India always has some or the other Refugees coming in throughout its history.

STATUS OF REFUGEES IN INDIA-

India has been home to refugees for centuries. It has invariably been a receiving country and in the
process, enlarging its multi-cultural and multi-ethnic fabric. In keeping with its secular policies, India has
been the home to refugees belonging to all religions and sects. India has received refugees not only
from some of its neighbouring countries but distant countries like Afghanistan, Iran, Iraq, Somalia, Sudan
and Uganda.

INTERPLAY OF HUMAN RIGHTS LAW, REFUGEE LAW & INTERNATIONAL HUMANITARIAN LAW

Refugee law and Human Rights law are complimentary co-existing and overlapping with each other as
their main aim is to protect the life, dignity and liberty of each individual and there is no exception to
this cardinal principle.

Article 21 of the Constitution focuses on protection of human rights of all individuals including non
citizens. The importance given to human rights by India determines the quality of life of its refugees
because we have not ratified the Convention.

The Principle of Non-Refoulement which prohibits forceful repatriation is described under both refugee
and human rights law. A strong human rights mechanism in the host nation determines what solutions
will be offered during refugee crisis; it governs how well or unwell the refugees will be treated and what
kind of rights will they get. Humanitarian Law deals with conflicts and Refugee law deals with people
fleeing from conflicts.

In other words, refugee law comes into picture to protect the distressed during armed conflicts because
of the indiscriminate killing and destruction of property of civilians. These people have no choice but to
flee out of fear or persecution because they no longer enjoy protection from the parent govt. Therefore
both IHL and refugee law work hand in hand. It can be reasonably concluded that all three laws there
are applicable inter-dependently and there are no water- tight compartments. A majority of the laws,
principles and rules are “borrowed” from each other.

PROTECTION OF REFUGESS IN INDIA-

PRINCIPLE OF NON-REFOULEMENT

According to this principle, no country shall deport, expel or forcefully return the refugee back to his
original territory against his will or if there is a reasonable threat to his life, liberty and freedom. This
definition is not absolute; it is subjected to the scrutiny of “national security” and “public order”.

India abides by this rule explicitly through various case laws. In the landmark case of Ktaer Abbas Habib
Al Qutaifi v Union of India , the Gujarat High Court upheld the principle of non- refoulement under the
wide umbrella of Article 21 of the Indian Constitution and decided not to deport the two Iraqi nationals
to their original country as long as they had a fear for their life and liberty. Instead they were handed
over to UNHCR in India. In another case, a stay order was passed on deportation of Burmese refugees on
similar grounds.

This principle comes into force as soon as the refugee is unwilling to go back to the parent country
because he fears “threat to life”. Yet there have been mass violations of this principle, where despite the
threat; State passes an erroneous order for deportation citing unjustifiable and frivolous reasons. In
most cases, it is up to the whims and fancies of the govt. whether to keep a refugee to throw him back
into his country where he cannot escape death and torture. In these cases, individual criminal
responsibility should be imposed and the persons should be impeached. One of the criticisms that
despite being a customary international law and of utmost importance, non-refoulement principle is
frequently violated by the western countries and still manages to escape with clean hands. This principle
has lesser legal implications and is more moral in nature. Proper “enforcement” and “implementation”
is the need of the hour.

REASONS GIVEN BY INDIA FOR NON RATIFICATION OF THE CONVENTION

It is needless to mention that there is a lot of criticism and pressure on India to ratify the Refugee
Convention, 1951 or the 1967 Protocol since India hosts refugees from everywhere. Despite the
international pressure, India continues to be a non signatory. India’s reluctance to sign the convention
stems from the reasoning that it is eurocentric and addresses only the refugee issues that existed post
Second World War. India has its unique problems due to its geo-politics and colourful history with
neighbouring nations, therefore ratification of a universal refugee convention is not politically viable. It
will hamper diplomatic relations and India wants to maintain healthy relations with all its neighbouring
countries. Moreover ratification will mean greater obligations imposed on India to provide more rights
and privileges to its refugees. This is not possible for a poor and a developing country like India which
struggles to provide basic amenities to its own population. We have been facing the problem of
infiltration and terrorism from our neighbours ever since partition which the Western nations fail to
 acknowledge or even consider as a problem. The policy makers believe that if India ratifies the
convention, this problem will increase manifold and there will be no legal mechanism to distinguish
between an infiltrator and a genuine refugee.

It is also contended that the convention was drafted way back in 1951 and the protocol in 1967; most of
the provisions are outdated as they fail to accommodate the contemporary challenges. A large number
of people migrate to India in search of opportunities which increase the burden on the economy. Thus,
the policy reviewers and framers believe that by ratifying the convention, the problem of migrant
workers will increase as they will try to misuse the convention and try to wrongfully avail the status of
refugees for better opportunities. There is also “fear of the unknown” which means that India is
unaware of the consequences that will follow post ratification.

Due to these reasons which have been debated over and over again, India does not agree to ratify the
convention. Whether India should ratify the Convention or not is still a contentious issue.

CONSTITUTIONAL PROVISION TO REFUGEES IN INDIA

Constitution of India are applicable to the refugees when they are in India. The most important Article is
Article 21 which deals with Right to Life and personal liberty, it applies to everyone irrespective of
whether they are a citizen of India. Many judgements have been given based on Article 21 on refugees.  

Article 14 guarantees the person right to equality before the law.  Article 5, 6, 7, 8, 9, 10,11,12, 20,
22,25-28, 32, 226 also available for non-citizens of India including Refugees.

Treatment given to the Asylum people were divided into three heads-
 National Treatment
 Treatment that is accorded to foreigners
 Special Treatment
1. National Treatment: The national treatment to the asylum people is same as the citizens of India. There
are certain Articles in the Constitution of India, which takes care of the Fundamental Rights of all people
in India. The rights such as equal protection to law under article 14, religious freedom under article 25,
the right to life and personal liberty under article 21, right to social security and educational rights are
guaranteed in Part III of the Indian Constitution.
2. Treatment that is accorded to foreigners: – Under this head, there are rights which are related to the
housing problems, movements, etc. the rights which are provided under this treatment are: right to
employment or profession under article 17, freedom of residence and movement under article 26, right
to housing under article 21, right to form association under article 15 and right to property under article
13 of the 1951 Refugee Convention.
3. Special treatment: – This treatment includes the identity and travel document under article 28,
exemption from penalties under article 3(1) of the 1951 Refugee Convention.
In the case of Louis De Raedt vs. Union of India, the court held that the fundamental rights to life,
liberty, dignity are available to non-citizens of India. 

LAWS FOR REFUGEES IN INDIA

 India does not have specific laws regarding to the Refugees. However, India does have the  Refugee and
Asylum (Protection) Bill of 2009. But the main legislation that supports Refugees and Asylum is the
Foreigners Act of 1946.

The laws related to refugees are:

 Citizenship Act, 1955
 Extradition Act, 1962
 Foreigners Act, 1946
 Illegal Migrant (Determination by Tribunals) Act, 1983
 India Penal Code Act, 1860
 Passport (Entry into India) Act, 1920
 Passport Act, 1967
 Protection of Human Rights Act, 1993
 Registration of Foreigners Act, 1939
 Immigrants (Expulsion from Assam) Act, 1950
 Administration of Evacuee Property Act, 1950

ROLE OF JUDICIARY FOR THE PROTECTION OF REFUGEES

Judiciary plays a vital role in protecting refugees, many cases gave landmark judgements regarding
refugees. The judiciary has made it easy with the concepts of Social Action Litigation and Public Interest
Litigation. When any of the refugees are detained or arrested by the Indian authorities, there would
always be a danger of refoulment, repatriate or deportation. Those refugees who are arrested for the
illegal stay can be detained illegally under administrative order without charges. The Foreigners Act
vests an absolute and unfettered discretion in the Central Government to expel foreigners from India.
The Supreme Court of India in Hans Muller of Nuremburg vs. Superintendent, Presidency gave “absolute
and unfettered” power to the Government to throw out foreigners. The said judgment was again upheld
by the Supreme Court in Louis De Raedt & Ors. vs. Union of India. In the same judgment, Supreme Court
also held that foreigners have the right to be heard.
In the judgment of Ktaer Abbas Habib Al Qutaifi vs. Union of India the High Court of Gujarat held that
the principle of non-refoulment avoids ejection of a displaced person where his life or freedom would
be undermined by virtue of his race, religion, nationality, enrolment of a specific social gathering or
political conclusion. Its application ensures life and freedom of a person irrespectively of his nationality.
Non-Refoulment and Right to refugee Status: In Malavika Karelkar vs. Union of India, the deportation
order issued against 21 Burmese refugees were stayed by the SC and allowed them to seek refugee
status under UNHCR.

UNHCR AND NHRC IN INDIA

UNHCR in India is participating very actively as the number of cases regarding refugees is increasing day
by day. If some refugee goes back to his country after being a refugee in India, UNHCR watches if the
person is going back voluntarily. It performs the function of determination of refugee along with
providing resources to them. UNHCR got involved since the issue of Tibetan refugees and the
Bangladesh crisis in 1971. UNHCR works to help refugees become self-sufficient with assistance and
income-generating activates with the help of NGO’s. The main role of UNHCR in India is to make sure
that the refugees are not forced to go back to their country from which they have fled until the issue
rests in their country.
NHRC i.e., National Human Rights Commission in 1994, gave directions to Tamil Nadu Government to
provide medical help to Sri Lankan refugees. In 1995, it filed a PIL on Arunachal Pradesh Government
regarding the government not supporting Chakmas, and got the decision of the court ordering the
government to provide necessary help to the group. It gets involved in all the refugee issues in India and
provides some or the other help required.

CONCLUSION

In the whole world, though there are a number of conventions and laws governing refugees, the
refugees still keep facing problems. When a country as big as India doesn’t have a Refugee Law, we can
understand that many countries have the same face and are on the same boat. If UNHCR and NHRC
work together, there will be much more development in the field of Refugee Law. There is definitely a
need for India to set up a Law regarding Refugees, as in the future there may be many more issues due
to various reasons. Whenever UNHCR tries to do something regarding refugees NGO’s should actively
help them. Though protection to refugees is given under various articles of the Constitution, there needs
to be a uniform Law that give equal rights to all the refugees. India continues to take the humanitarian
view of the problem of the refugees. Considering the security issues due to which India is not a signatory
to the 1951 Convention, it should give due consideration to the same. It should also take care that the
refugee law is not mistreated and mis-utilized by persons who come to seek opportunities. Many
judgements in India support the refugees. India has done a very good work regarding refugees, but
needs to do much more.

Unit 3

Subtopic: Structure and Mandate of UNHCR: Durable solutions, IDPs and Humanitarian

United Nations High Commissioner for Refugees (UNHCR)

Structure
The United Nations High Commissioner for Refugees (UNHCR) is a subsidiary organ of the UN
General Assembly, which created it in 1949. It began operating in 1951, and its headquarters are
in Geneva. The agency currently has a national and international staff of more than 7,190
working in 123 countries. The High Commissioner is currently Mr. Antonio Guterres, who took
up the position on 15 June 2005 and was reelected in April 2010. The High Commissioner is
elected by the UN General Assembly to a five-year term, on nomination by the UN Secretary-
General (Art. 13 of UNHCR Statute). Each year, the High Commissioner reports to the General
Assembly, which usually adopts a resolution in support of UNHCR.
The Executive Committee (ExCom) is composed of representatives of the fifty-four States that
are members of the UN Economic and Social Council (ECOSOC). It meets every year in
October and produces “conclusions” that establish the framework for UNHCR’s activities.
Since the ExCom (elected by the UN General Assembly) represents the community of States in
the exercise of its functions, States that are not party to the 1951 Convention Relating to the
Status of Refugees (known as the Refugee Convention) are hence not excluded from UNHCR.
For instance, India is a member of the ExCom but is not a party to the Refugee Convention. In
fact, it is acknowledged that all Member States of the UN recognize and accept UNHCR’s
mandate.
The organization is divided into several departments (international protection, operational
support, finances, inspection and evaluation, human resources), as well as regional divisions.

Mandate
UNHCR’s goal is to guarantee the fundamental rules accepted by all States concerning the right
of individuals to flee their country and seek asylum in another. To this end, it helps States face
the administrative, legal, diplomatic, financial, and human problems that are caused by the
refugee phenomenon.
UNHCR has several functions:

 To promote the rights of refugees and to monitor the implementation of the Refugee
Convention by its States Parties;
 To protect refugees by working with States on the examination of administrative and
legal problems related to the granting of refugee status and to the defense of the right of
asylum.

UNHCR also works with governments to search for durable solutions for refugees. Being a
refugee is a transitory condition for an individual. To protect such individuals or groups of
individuals, States must grant them a stable and lasting legal status. To this effect, UNHCR
favors various forms of voluntary repatriation, integration into the State of asylum, and third
country resettlement.

 To provide material assistance: international solidarity—in the form of interstate

cooperation and support, but also with the support of intergovernmental and
nongovernmental organizations—is necessary so as to allow for a sharing of the financial
and other burdens that refugees may represent for the host State. Concretely, this support
translates into assistance programs for refugees that are run by UNHCR. States contribute
financially to these programs on a voluntary basis.
 To provide “good offices” services to governments to help them solve problems resulting
from population movements that are slightly outside UNHCR’s mandate and especially
to provide assistance to groups outside its mandate (e.g., internally displaced persons),
when requested to do so by the UN Secretary-General or the General Assembly.
Legal Basis of UNHCR’s Mandate
UNHCR’s mandate is based on:

 the Statute of the Office of the United Nations High Commissioner for Refugees, adopted
by the UN General Assembly on 14 December 1950 (Resolution 428 [V]), creating
UNHCR;
 the 1951 Refugee Convention, which entered into force in 1954, currently has 145
Member States (as of April 2013), and establishes UNHCR’s mandate to monitor the
implementation of the Convention (under Art. 35 of the Refugee Convention);
 specific requests made by the UN General Assembly (Art. 9 of UNHCR Statute) or by
the Secretary-General (General Assembly Resolution 48/116 of 20 December 1993), on
the basis of which UNHCR’s mandate may be extended on an ad hoc basis to help States
face specific refugee problems.

Means of Action
The legal mechanisms at UNHCR’s disposal vary, depending on whether a given mission comes
under the framework of its Statute, the Refugee Convention, or an ad hoc extension of its
mandate.
During the first years of its existence, UNHCR was not an operational agency. It did not carry
out material relief actions directly for refugees—its contribution was limited to giving financial
support to private organizations that carried out such tasks. Thus, its contribution to the
protection of refugees focused on negotiating and obtaining legal guarantees to their benefit and
facilitating administrative formalities. With the growth in the number of refugees, UNHCR
turned into an operational agency that is now present in more than 110 countries.

Legal Means Provided by UNHCR’s Statute

UNHCR has a double mission: it is accountable to both States and individual refugees.
UNHCR’s Mission with Regard to States
It must ensure and coordinate States’ defense of the right of asylum and their financial burden-
sharing aimed at alleviating the problems of refugees.
Resolution 428 (V), adopted by the General Assembly on 14 December 1950, established
UNHCR’s Statute and set forth the commitments undertaken by governments to cooperate with
the organization on refugee issues. Governments are invited to:

 participate in the drafting of international conventions relating to the protection of

refugees, ratify them, and adopt the appropriate measures to implement them;
 implement measures aimed at improving the situation of refugees and reducing the
number of those who require protection, by concluding special agreements with UNHCR;
  encourage the admission of refugees onto their territory, without excluding those in the
most destitute categories;
 support the efforts of UNHCR to assist in the voluntary repatriation of refugees;
 favor the integration of refugees within new national communities, namely by facilitating
their naturalization;
 deliver travel and other documents that would normally be provided by the refugees’
national authorities;
 authorize refugees to transfer their assets, especially those necessary for their
resettlement;
 provide UNHCR with information concerning the number and conditions of refugees in
their territories and the laws and regulations concerning them.

UNHCR’s Mission with Regard to the Protection of Refugees

Article 8 of UNHCR’s Statute states that “the High Commissioner shall provide for the
protection of refugees falling under the competence of his Office.” Originally, UNHCR’s
mandate only extended to individuals who met the definition of a refugee contained in the
Statute and repeated in the 1951 Refugee Convention. It was progressively expanded to include
other persons (in particular, war refugees) by successive UN General Assembly resolutions. The
organization’s mandate over internally displaced persons (IDPs) remains ad hoc, meaning that it
is subject to a vote by the General Assembly, or at the request of the Secretary-General, and to
the approval of States concerned.
UNHCR can ensure the protection of refugees by:

1. Promoting the conclusion and ratification of international conventions for the protection
of refugees, supervising their application and proposing amendments thereto
2. promoting through special agreements with governments the execution of any measures
calculated to improve the situation of refugees and to reduce the number requiring
protection;
3. assisting governmental and private efforts to promote voluntary repatriation or
assimilation within new national communities;
4. promoting the admission of refugees, not excluding those in the most destitute categories,
to the territories of States;
5. endeavoring to obtain permission for refugees to transfer their assets and especially those
necessary for their resettlement;
6. obtaining from governments information concerning the number and conditions of
refugees in their territories and the laws and regulations concerning them;
7. keeping in close touch with the governments and inter-governmental organizations
concerned;
8. establishing contact in such manner as [it] may think best with private organizations
dealing with refugee questions;
9. facilitating the coordination of the efforts of private organizations concerned with the
welfare of refugees. (Art. 8 of UNHCR Statute)
 Durable solutions

A durable solution for refugees is one that ends the cycle of displacement by resolving their
plight so that they can lead normal lives. Seeking and providing durable solutions to the
problems of refugees constitutes an essential element of international protection, and the search
for durable solutions has been a central part of UNHCR’s mandate since its inception.

The three durable solutions are:

Voluntary repatriation, in which refugees return in safety and with dignity to their country of
origin and re-avail themselves of national protection; (Short mein aaye toh ye pointer se ho
jayega aur long mein toh sabka full length bhi h voluntary ka full length subtopic 2 mein h)

 Is the preferred solution for the majority of refugees;

 Involves voluntary return in safety and with dignity to the country of origin;
 Depends primarily on the efforts of the country of origin to create conditions of physical,
legal, and material safety conducive to return, with restoration of full national protection
as the end result;
 Involves UNHCR in differing roles – promotion, facilitation, or assistance – depending
on the extent to which the basic conditions for return have been satisfied;
 Requires, for sustainability, the cooperation of UNHCR, the governments of the country
of asylum and origin, and other United Nations agencies, to ensure a seamless transition
between repatriation, reintegration, rehabilitation, and reconstruction

Local integration, in which refugees legally, economically and socially integrate in the host
country, availing themselves of the national protection of the host government; (short mein aaye)

 Involves the country of asylum providing permanent residence;

 Sees a gradual increase in the economic, legal, social, and cultural integration of the
refugee into the local community;
 Depends on the initiative of the country of asylum, with UNHCR bringing together the
government and other actors, such as donor countries and United Nations agencies.

(For full answer)

In local integration, the country of asylum offers refugees permanent residence with the
possibility of eventual citizenship. Its potential as a durable solution is recognized in both the
1951 Convention and UNHCR’s Statute. Although in certain countries naturalization of
recognized refugees after a period of time is standard practice, many States have concerns about
allowing refugees to stay indefinitely on their soil. They fear the impact on scarce resources, the
risk of security problems, and potential antagonism towards refugees. They may also be
concerned about controlling migration.

Yet voluntary repatriation cannot, by itself, answer all refugee problems. Local integration can
be a permanent solution for many refugees; it can also provide some benefits to the host country:

 Refugees may bring with them skills that can be of assistance to the country of asylum;
 Their presence may attract resources from the international community that might not
otherwise be available to the local population;
 Ethnic, cultural, or linguistic links with the local community can increase the chances of
successful local integration;
 There are numerous situations, in industrialized countries but also in developing
countries, in which large numbers of refugees have settled peacefully in the country of
asylum and are able to support themselves.

Local integration is a gradual process that takes place on three levels:

 Legal: refugees are granted a progressively wider range of rights, similar to those enjoyed
by citizens, leading eventually to permanent residence and perhaps citizenship;
 Economic: refugees become gradually less dependent on aid from the country of asylum
or on humanitarian assistance and are increasingly self-reliant so that they can support
themselves and contribute to the local economy;
 Social and cultural: interaction between refugees and the local community allows
refugees to participate in the social life of their new country without fear of
discrimination or hostility.

Even when local integration is not being pursued as a durable solution, promoting self-reliance
among refugees can help to achieve the other two durable solutions. The commitment to local
integration comes from the government of the country of asylum. UNHCR can facilitate the
process and bring together a range of actors, including donor States and other United Nations
agencies, to design and implement coordinated programmes to assist the refugees’ integration.

Resettlement, in which refugees are selected and transferred from the country of refuge to a third
State which has agreed to admit them as refugees with permanent residence status. (for short
note)

 Is the transfer of a refugee from the country of asylum to a third State willing to admit
him/her on a permanent basis and resettle him/her there;
  Is primarily a protection tool, with priority given to those with immediate and serious
protection problems;
 Also contributes to international burden- and responsibility-sharing in relation to
refugees;
 Can play a strategic role as a durable solution in resolving refugee situations, particularly
through the use of group resettlement;
 Must be administered by UNHCR and governments transparently and fairly, taking into
account UNHCR’s resettlement criteria.

(full length)

Resettlement involves the permanent movement of refugees to a third country. Although

comparatively small numbers of refugees benefit from resettlement, as acknowledged in ExCom
Conclusion No. 90 (LII) 2001, it nevertheless serves three equally important functions.
Resettlement is:

 A protection tool for individual refugees whose life, liberty, safety, health, or other
fundamental rights are at risk in the country of asylum;
 A durable solution for larger numbers or groups of refugees;
 A mechanism for burden- and responsibility-sharing among States.

As a protection tool, precedence is given to resettling those individuals with specific and
immediate protection problems, such as people at risk of refoulement or physical attack, sexual
violence. Individuals who have been tortured or who have a pressing need for medical or
psychological care are also considered for resettlement if they are not in a country with adequate
facilities to assist them. For the large numbers of refugees whose protection needs stem from the
lack of a long-term solution in the country of asylum or origin, however, resettlement often takes
lower priority and, given the limited number of places, may not always be achievable.

The traditional focus on the protection function of resettlement, which concentrates on the needs
of an individual, has tended to mask its strategic use as a durable solution. Resettlement of
groups or categories of people can be part of a comprehensive response to a refugee situation.
For example, when voluntary repatriation or local integration is not an option for a particular
ethnic group because of a continuing risk of persecution that applies only to them and not to their
compatriots, collective resettlement of that group may be appropriate. Not only would
resettlement address the long-term protection needs of the individuals concerned, it could also
improve the integration prospects of those allowed to stay permanently in the country of asylum,
thus facilitating a sustainable solution for all those in the refugee population.

By its very nature, resettlement is a form of burden- and responsibility-sharing, whereby the
strain on the country of asylum is eased by other States offering permanent sanctuary for some of
the refugee population. One of the goals of the Agenda for Protection is to increase the number
of resettlement countries and to improve the ability of resettlement programmes to deal with
unexpected refugee emergencies.

To qualify for resettlement, an individual must meet the resettlement criteria of both UNHCR
and the potential country of destination. UNHCR’s criteria reflect the function of resettlement as
a protection tool. In order to improve its efficiency, UNHCR works with resettlement States to
refine and harmonize resettlement criteria and processes. Given that resettlement is often highly
prized by refugees, it is important that its management is transparent, to prevent corruption and
to reduce the risk of resettlement becoming a pull-factor for new arrivals. UNHCR staff
members with resettlement responsibilities thus have obligations as individuals to act
accountably and professionally.
 Internally displaced persons

Intro

Like refugees, internally displaced persons have been forced to flee their homes; but rather than
crossing into another country, they seek protection elsewhere within their country of origin or
residence. The movement of both refugees and internally displaced persons is often caused by a
poor human rights situation or a conflict in a particular part of the country. Persons can also
become displaced within their countries because of ecological or natural disasters, such as
drought or hurricanes. The number of internally displaced persons around the world has risen
sharply in the last decade, and is now estimated to be more than 25 million.

There is, in fact, no international treaty that defines an internally displaced person or that governs
the treatment of internally displaced persons, largely because they are nationals or other residents
who remain within the territory of their country of origin. On occasion in the past, UNHCR has
been authorized by the General Assembly to give assistance to a specific group of internally
displaced persons, on an exceptional basis. The Office also was authorized to provide assistance
to IDPs who were in areas to which returnees had repatriated. Unlike with respect to stateless
persons, however, UNHCR was not given a broad mandate for IDPs.

Traditionally, internally displaced persons have been considered the responsibility of the
government of the country concerned; indeed, any involvement by other States or organizations
has been seen as unjustified interference in the affairs of the concerned country. Given that
internal displacement is often the result of repressive government policies, this has meant that the
human rights of millions of internally displaced persons are unprotected. In recent years, the
growing recognition of this humanitarian problem and a changing attitude towards the concept of
State sovereignty has led to an acknowledgment of the need for greater international action on
behalf of internally displaced persons.

At the request of the Office of the United Nations High Commissioner for Human Rights, a
Special Representative of the United Nations Secretary-General on Internally Displaced Persons,
Dr. Francis Deng, was appointed in 1992. The Special Representative focuses on four main
areas: the development of a normative framework; the promotion of effective institutional
frameworks at the international, regional and national levels; country missions; and on-going
research into specific issues of concern. He stepped down in 2004 and Walter Kälin was
appointed as Representative of the Secretary-General on the Human Rights of Internally
Displaced Persons.
Legal framework

Drawing on relevant principles of international human rights law, humanitarian law, and refugee
law, the Special Representative headed the process that led to the formulation of the Guiding
Principles on Internal Displacement (1998). These define the internally displaced 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.”

Although the Guiding Principles are not legally binding, many of the principles reflect States’
obligations under international treaties and customary law. They are therefore the most
authoritative statement that sets out the standards to be applied by governments and other
relevant actors, such as UNHCR, in responding to the plight of internally displaced persons.

Inter-agency cooperation

Although the Special Representative is responsible for identifying the needs of internally
displaced persons and the principles governing their treatment, he does not have any operational
mandate. Primary responsibility for their protection remains with the government of the country
affected. Rather than creating a new United Nations organization to work on behalf of internally
displaced persons, or giving such a mandate to an existing body, a broad range of humanitarian,
human rights and development actors now respond to the needs of internally displaced persons,
in accordance with their mandates and expertise. This collaborative approach has been put into
operation both at United Nations Headquarters and in the field:

 The Secretary-General of the United Nations requested that the Emergency Relief
Coordinator, who is also the head of OCHA, provide field support in situations
concerning internally displaced persons (including negotiating access to such
populations, advocating for protection and assistance on their behalf, mobilizing
resources, and operating a global information system on internally displaced persons);
 The Working Group of the United Nations Inter-Agency Standing Committee, chaired by
the Emergency Relief Coordinator, held consultations on the division of responsibilities
among the various actors involved and agreed common policies to be adopted in
humanitarian efforts for internally displaced persons;
 The Emergency Relief Coordinator established an inter-agency Internal Displacement
Unit within OCHA to promote systemwide improvements in the international response to
internal displacement and to provide targeted support to country-specific situations;
 Regular consultations are held among focal points on internal displacement within the
framework of the Senior Inter-Agency Network on Internal Displacement, which
functions as an advisory and consultative body on related issues; § Responsibility for the
 coordination of protection and assistance activities was given to the United Nations
Resident Coordinator and/or Humanitarian Coordinator, who closely consults with inter-
agency country teams.

UNHCR’s role

Although UNHCR’s involvement with internally displaced persons has varied over the years, the
organization participates in the interagency efforts described above. Its policy, based on the
interagency collaborative approach and conditions set by the United Nations General Assembly
in various resolutions, is to protect and assist internally displaced persons only where:

 That assistance has been requested/authorized by the United Nations Secretary-General;

 There is consent/acquiescence on the part of the national authorities in the State where
the displaced persons are located;
 Adequate resources are available;
 Policy considerations, such as the impact on protection operations for refugees, the
degree to which other agencies can carry out necessary functions, and the importance of
the situation to the international community, have been adequately considered;
 Operational considerations, such as staff security and access to the displaced persons,
have been addressed.

Humanitarian Assistance

Underlining all humanitarian action are the principles of humanity, impartiality, neutrality and
independence. These principles, derived from international humanitarian law, have been taken
up by the United Nations in General Assembly Resolutions 46/182 and 58/114. Their global
recognition and relevance is further underscored by the Code of Conduct for the International
Red Cross and Red Crescent Movement and Non-Governmental Organizations in Disaster
Relief and the Core Humanitarian Standard on Quality and Accountability.

Because UNHCR's mandate is non-political, humanitarian and social, the organization is

guided by humanitarian principles in its response to all humanitarian crises, whether caused by
conflict, violence or natural disasters. UNHCR also adheres to other internationally recognized
principles that complement "principled humanitarianism." The principle of "do no harm," for
instance, obliges UNHCR to prevent and mitigate any negative impact of its actions on
affected populations. Equally important is UNHCR's commitment to rights-based and
community-based approaches that include efforts to engage and empower persons of concern
in decisions that affect their lives.

Ultimately, States have the primary responsibility to protect and assist persons in their
 territories who are affected by disasters, armed conflicts or violence. Humanitarian action is
designed to complement and support States in fulfilling those responsibilities; it should neither
undermine nor supplement state responsibility.

Relevance for emergency operations

Humanitarian principles have practical operational relevance, especially in situations of open

armed conflict and hostility that characterizes many emergencies. Consistent adherence to
humanitarian principles can enable organizations like UNHCR to distinguish themselves from
other actors and potentially:

o Gain and maintain access and proximity to affected populations, including persons of concern
to UNHCR;
o Mitigate risks to affected populations, staff, partners and assets;
o Promote the rights and dignity of affected populations;
o Establish a principled engagement with authorities and also, where appropriate, with non-State
parties to a conflict.

Description and guidance

The principal motivation of humanitarian action is to save lives and alleviate suffering in a
manner that respects and restores personal dignity. Accordingly, humanity is the principal
driver for any response to a crisis, whether caused by conflict, violence or natural or man-made
disaster.

At the same time, humanitarian actors distinguish themselves from other actors responding to a
crisis by their impartiality. This means that humanitarian action is based solely on need, with
priority given to the most urgent cases irrespective of race, nationality, gender, religious belief,
political opinion or class.

The neutrality of humanitarian action is further upheld when humanitarian actors refrain from
taking sides in hostilities or engaging in political, racial, religious or ideological controversies.
At the same time, independence requires humanitarian actors to be autonomous. They are not
to be subject to control or subordination by political, economic, military or other non-
humanitarian objectives.

‘Principled humanitarianism' is a commitment to meet the assistance and protection needs of

affected populations in a way that is distinct and separate from political and other motivations.
Humanitarian actors therefore need to be familiar with and apply the above principles, in
particular in situations of armed conflict.
During an armed conflict, when multiple actors are involved, adherence to humanitarian
principles requires a clear division of labour between humanitarian and other actors, notably
those in the political and military realms. Military actors can include the armed forces of the
host State, but also international and regional forces, armed non-State actors, and UN peace
operations. By affirming complementary roles, humanitarian actors can maximise the
protection of civilians. By way of example, most UN peace operations have a mandate to
protect civilians. This role can lead them to patrol high risk areas, provide security to refugee
or IDP camps, clear areas of mines or unexploded remnants of war, or facilitate voluntary
return. UNHCR or the Protection Cluster should work to complement such efforts, for example
by provided updated protection analysis. Further guidance on coordination between
humanitarian and military actors can be found in the Entry on civil-military coordination. For
guidance on UNHCR's work in and near armed conflict situations, which can involve dealing
with a UN presence that has a protection of civilians mandate, please see Protection of
Civilians – UNHCR's role in the Tool Kit on Protection in Armed Conflict.
Role of the UNHCR: Problems in Refugee Protection and Voluntary Repatriation

Intro mein UNHCR ka thoda mention karke phir ye point wise likh dena

Problems in Refugee Protection

Key challenge for UNHCR is to ensure refugee protection in migration-focused responses to

mixed population movements. Faced with restrictive policies and obstacles to entry into territory,
asylum-seekers and refugees have been resorting increasingly to illegal means, often using the
same routes and smugglers as those migrating for other reasons. While illegal migration is a
legitimate concern for States, policies to combat it should distinguish between those seeking
better economic conditions and individuals in need of — and entitled to — international
protection. The Office fears that increasing numbers of asylum-seekers and refugees are being
treated as if they were illegal migrants, and in the process their right to international protection is
violated.

UNHCR aims to create an environment where those in need of international protection can be
identified and given protection. The Office is committed to increasing its capacity in relevant
countries to provide practical support to States, providing country-of-origin information, building
national capacities and using its good offices to foster collaborative partnerships or to obtain
resettlement in appropriate cases.

Providing solutions

Recent years have witnessed renewed efforts to reach durable solutions. Still, the majority of
today’s refugees remain in situations of protracted displacement. The three classic durable
solutions are voluntary repatriation, local integration in the country of first asylum and
resettlement in a third country. UNHCR will prioritize the use of each solution according to the
particular circumstances and needs of refugees in each case. While they all present different
challenges, ensuring the sustainability of returns and promoting a more strategic use of
resettlement will be very high on UNHCR’s agenda in 2007.

Ensuring the sustainability of returns

In any operation, the promotion of return comes only after minimum conditions are met and
UNHCR is able to verify that people will be safe following their repatriation. But this is just the
beginning. The hope and enthusiasm that returning refugees bring back home has to be matched
by adequate conditions for them to create livelihoods and sustain their families. Many refugees
go back to countries which have been devastated by war, without adequate infrastructure or
services. Reconstruction and development assistance are thus crucial. Acknowledging this need,
some years ago, UNHCR launched an integrated approach combining repatriation, reintegration,
rehabilitation and reconstruction in countries of origin. As a member of the UN Development
Group, the Office has engaged in fruitful cooperation with UNDP, ILO and other development-
oriented agencies. The establishment of the UN Peacebuilding Commission presents further
opportunities, and UNHCR has already seconded staff to the Commission and become involved
in pilot programmes.

Improving the security of refugees and humanitarian workers

Threats to the physical security of refugees and others of concern have grown in recent years.
They emanate from armed criminals, state and non-state armed actors, local populations and
even elements within the refugee community itself. At the same time, the “humanitarian space”
for aid workers has also been shrinking, and staff of humanitarian agencies have increasingly
become the target of violent attack.

To counter violence against refugees and others of concern, UNHCR usually establishes refugee
camps at a significant distance from volatile borders, and has on occasion requested the
assistance of UN peacekeepers and national police and armed forces to separate combatants from
civilian elements. The Office also constantly strives to provide safe access to food, water and
firewood and to train local police and refugee leaders on security issues. Some of these measures
call for assistance from UN peacekeepers and collaboration with other agencies. UNHCR has
also undertaken a review of its own security policies, and sought to implement measures to
enhance staff security. Interaction with the UN Department of Safety and Security will remain
vital to ensure that security arrangements for UNHCR staff and partners are in place.

Still, measures taken by humanitarian agencies alone will not be sufficient to ensure the physical
security of those affected by conflict as well as the humanitarian staff protecting and assisting
them. Effective responses only come about when there is the political will backed up by
sufficient resources. Sometimes, sadly, this happens too late – or not at all.
 Voluntary Repatriation

Voluntary repatriation is the preferred solution, but it is not always easy to achieve. Often the
basic requirements for return – safety and the restoration of national protection – are not in place.
Without these conditions, return may not be sustainable and the refugees concerned may move
back to the country of asylum. Creating conditions conducive to voluntary repatriation is a major
challenge, primarily for the country of origin but also for the international community, whose
support is often crucial. This is particularly true in post-conflict situations, where the expense,
effort, and time required to establish peace, ensure respect for human rights, rebuild
infrastructure, restore normal political, economic and social life, rehabilitate the judicial system,
and foster long-term stability is daunting, to say the least.

This difficult reality is weighed against the desire of many countries of asylum for voluntary
repatriation to take place as soon as possible, particularly when they have been hosting refugees
for a long time. The States concerned may have seen a decline in international support for their
protection efforts, raising fears about a long-term strain on their resources. With its mandate for
identifying durable solutions, UNHCR must often work to temper unrealistically high
expectations from States about the potential for voluntary repatriation when the necessary
conditions do not appear to be in place. Unfortunately, refugees often find themselves in a
precarious position, caught between inadequate protection and assistance in the country of
asylum and continuing insecurity in their country of origin.

UNHCR’s responsibilities in relation to voluntary repatriation derive from its Statute. States are
obliged to cooperate with the organization’s voluntary repatriation activities under the provision
on general cooperation in the 1951 Convention. The degree of UNHCR’s involvement in
repatriation movements depends on the extent to which the core components outlined above have
been satisfied. Thus UNHCR may:

 Promote large-scale voluntary repatriation when the conditions are considered conducive
to return in safety and with dignity;
 Facilitate the voluntary repatriation of individuals upon the specific and fully informed
request of refugees, even when conditions are not fully conducive for most refugees to
return;
 Provide assistance in the country of origin to those who have returned in an organized
manner and to those who return spontaneously, if UNHCR has access to them.

UNHCR’s activities in relation to voluntary repatriation include:

  Dissemination of information about conditions in the country of origin and conducting
interviews to ensure the men and women returning have made a free and informed
decision to do so;
 Concluding tripartite repatriation agreements with the country of origin and the country
of asylum, setting out the modalities for repatriation, including the guarantee of
admission for returnees;
 Supplying, when necessary, documentation for returnees and facilitating transport to take
them home;
 Providing immediate material or financial support, as necessary, to enable return and
reestablishment during the initial stage;
 Monitoring returnees to ensure that they enjoy the full protection of their government;
 Participating in efforts aimed at ensuring successful reintegration.

Most reintegration activities implemented by UNHCR and other humanitarian actors have been
in the form of emergency relief provided during the initial stages of return. Few activities had
any connection with longer-term development efforts to ensure the sustainability of return.
UNHCR now works with other United Nations agencies and bilateral development agencies to
create a smoother transition from repatriation, to reintegration, rehabilitation, and reconstruction
(known as the “4Rs”).

UNHCR takes the lead on repatriation activities, while other United Nations agencies and the
World Bank are more closely involved from the beginning so their subsequent development
tasks will be more successful. This strategy aims to incorporate the needs of returnees into
national development plans so their economic opportunities will be increased in the medium and
long term.

Sometimes an ongoing civil war can leave various provinces unscathed and under the control of
a relatively effective local administration, even while other parts of the country remain in
turmoil. Although repatriation to these calmer regions may seem desirable to countries of asylum
and, perhaps, to some individual refugees, this option should be pursued with extreme caution.
Stability in these areas is unlikely to be sustained for long if there is no improvement across the
country. In addition, a sudden influx of returnees into a fragile, localized peace may, in fact,
trigger instability. The return of large numbers of people to parts of the country other than their
original place of residence may cause tensions with the local population and may result in more
displacement.