INTERNATIONAL LAW OF REFUGEES International refugee protection is as necessary today as it was over fifty years ago when the

refugee convention was adopted. Since end of cold war of cold war, simmering tensions of interethnic often exploited by populist politicians have erupted into conflict and strife.

The deliberate targeting of civilians & their enforced flight have become methods of warfare as well as the very objective of some conflicts. Longstanding conflicts not resolved by the end of cold war have acquired a life of their own often fuelled by plunder of valuable natural resources and or illicit trade in small arms-Conditions of safe return have proved chimerical. States with large refugee populations have had to cope with sudden surge in population and the accompanying strain on infrastructure- This is especially so in Africa.

A number of countries have for instance revisited their asylum systems from a security angle and have in the process tightened procedures & introduced substantial modifications eg by broadening grounds for detention or reviewing claims for the purpose of detecting potential risks. In some instances the Convention has been used to exclude certain individuals from refugee status and or to expel them.

The growth of irregular migration including the smuggling & trafficking of people also present a further challenge. Are victims of violence and persecution by militias, paramilitary groups, separatists rebels, bandits, mafia, violent husbands entitled to protection as refugees in another state? To what extent can the notion of persecution and the particular social group ground in the 1951 Convention refugee definition reasonably be extended to protect women from gender related violence e.g. Rape and FGM, trafficking and domestic violence?

Xenophobia and intolerance towards foreigners and in particular towards refugees and asylum seekers have increased in recent years and present a major problem. Security concerns since September 11, 2001 and ensuing global war on terror dominate international discourse on major issues including migration and treatment of refugees- The concern has overshadowed the legitimate protection of individual interests.

In traditional international law states were considered as the only subjects of International Law but in contemporary International Law individuals have to some degree become subject of International Law- In the traditional sense therefore,the connection between the individual and international law is the state.

The state has the right to protect its nationals. This right exists beyond the states territory. States also have a duty to treat nationals of other states in accordance with international law. If the state fails to do so then it is answerable to the state whose nationals are injured. The state protection is done through diplomatic protection. Diplomatic protection entails taking up claims on behalf of its nationals, improvement of standard of treatment of its national. It also entails provision of consular services. This includes availing documents of nationality such as passports.

But for the refugee the link with the state is broken as refugees are stateless and do not enjoy the protection of their state of nationality hence need to protect refugees in International Law. The forms of state protection outlined above are not available to refugees. They lack a state. The statelessness of a refugee thus created a problem in traditional International Law as a refugee had no status in International Law.-This anomaly had to be corrected through creation of certain legal status for refugees.

International protection required creation of treaties which set down standards for treatment for refugees and establishment of an International Refugee Agency to oversee implementation of treaties concerning refugees. International Refugee Agency promotes ratification and application of treaties concerning refugees-At times IRAs perform quasi consular activities. Legal protection is essential for refugees as it integrates them into new communities. Refugees require legal status in order to settle down and enjoy rights such as work, travel, access to justice system etc.

Legal protective functions is carried at four levels. Universal level protection consist of promoting conclusion and ratification of treaties concerning refugees and their implementation. Regional level protection consists of maintaining contacts with regional bodies in order to encourage regional states to ratify treaties affecting refugees. National level assisting government in preparing refugee legislation and their implementation. Individual level certifying eligibility of refugees as refugees and also certificate to personal status of the refugee. It also involves intervention on behalf of the individual. This function is done prominently by UNHCR.

INTERNATIONAL LAW CONCERNING REFUGEES 1951 Convention relating to the status of refugees is the basic convention on refugees. It is very comprehensive and forms bulk of the work for UNHCR. It explains rights and duties of refugees vis--vis the state. Convention also provides minimum treatment which should be afforded to refugees. In some cases refugees are afforded higher treatment than that which is given to other aliens.

Where refugees are received like any other immigrants then the Convention does not become relevant. 1951 convention contains a much more general definition of refuges and contains broader rights of refuges and higher standard of treatment for refugees. The convention also created a formal line between the treaty and formal organization i.e. UNHCR. The convention is clear on who would be accorded refuges status i.e. the decision rests with the state. Although the agent of the Refugee agency can participate but the state has final decision. UNHCR however has final say as to who shall be accorded refugee status for the purpose of its operation and application of its mandate. UNHCR has the final say on who shall be accorded international protection.

Admission The immediate need of a refugee is asylum. States which admit refuges directly are known as state of first asylum. Subsequent states are known as second asylum or resettlement state. Grant or refusal of asylum is the prerogative of the state. Individuals have a right to enjoy asylum but not a right to be granted asylum.

Principle of non-refoulment provides that once a refugee has managed to cross the frontier into the territory of a neighbouring state, whether the crossing is legal or illegal he cannot be returned to the country he is fleeing from or kicked out. The convention does not allow any reservation to this provision (Art 33). The refugee also cannot be punished for entry into that country illegally.

A refugee may only be expelled on certain grounds. National security In pursuit of a decision of a court of law. After giving the refugee the chance to defend himself.

Personal status of a refugee is important as it enables proper relation to the authorities. In ordinary cases the personal status is determined by nationality but for refugees they are stateless. Hence personal status of a refugee shall be determined by the country of asylum. Documentation: Ordinarily nationals can receive certain documents from the government refugees are disadvantaged as they have no access to the state of their nationality hence the convention mandates the asylum state to do this.

Travel documents asylum state are mandated to issue travel document to refuges in their territory. Refugees are also entitled to more substantive rights. The convention however provides that refugees should be treated in the same way as the nationals of the asylum state. e.g. right to education, access to medical facilities and other basic necessities.

African convention on refugees came about as a result of need to remove tension between states over refugees. There was a fear that politically conscious refugees could continue with political activities from their countries of asylum e.g plan to overthrow their home governments or even engage in political activities within the country of their asylum. (e.g. Tutsis exiled in Uganda are believed to have been deeply involved in NRM activities in Uganda) The OAU conventions is meant supplement the 1951 convention. It must not supersede or conflict with it.

1951 Convention originally did not address refugees in Africa as it required refugees to be as a result of events prior to 1951. By this time most African States were not in existence but this was resolved by the 1967 protocol. 1969 OAU convention contains additional special provisions unique to the African situation.-The convention resolved suspicion among African states on account of grant of asylum.

The OAU convention added other category of persons to the definition of a refugee. It is broader than 1951 convention and this sometimes bring conflict because a person may be considered as refugee under 1969 convention while not so under the 1951 Convention. The1951 Convention did not cover those fleeing from violence or war. People fleeing armed conflicts were unattended victims and were generally deemed to return at the end of the war.

1969 convention recognized the right to asylum. Most people consider this feature innovative. It contains unqualified requirement that no refugee shall be turned away at the frontier. Conventions therefore accords the individual right to asylum which under customary International Law was a preserve of the state.