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The report is for Refugee Law had become enforceable in 22 April 1954 and followed by one amendment only in 1967

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Refugee Law

Introduction

It is almost 68 years ago when the international community poses its consent about the adherence to a comprehensive framework to ensure protection of the refugees in a foreign land. This consent happens to transform into a diplomatic conference (in Geneva, 1951) and formulated the 1951 Convention relating to the Status of Refugees. However, the people who are compelled to immigrate and seek asylums in separate states seem to encounter severe challenges which, in terms of several critics, is an inevitable by-product of the discrepancies that the postulates of the 1951 convention consists of.

In the course of evaluating the relevance of the 1951 refugee conventions, it appears imperative to present several recent statistical specimens, which might lead the studies to unveil the inherent problems that the conventions have. For instance, it has been observed that, at the end of 2010, almost 16.2 million people are coerced to leave their countries (few of them are displaced or forced to flee the state) and had to face the intricacy of displacement, as the diplomatic ambience of refugee accommodation seems to undergo a massive alteration. The complexity happens to intensify after the Arab Spring uprising along with environmental degradation and natural calamity, which eventually transforms into the reasons of fleeing one’s own state.

On the same context, human trafficking transformed into an emerging business, which catered the swelling of irregular (and invalid) immigrant influx. In the course of criticising this event as a precursor to the complexity of the modern migratory patterns, several critics confronted the definition of refugee (that the 1951 convention indoctrinated) as ambiguous and adulatory towards moral impulses. Apart from this ambiguity in definition, the critics have categorized the inherent problems of the refugee convention as follows;

1. Discrepancies in terms of interpretation and execution

2. Migration channels

3. Inequities and exile basis

4. Hypocrisy of the governments

In the context of arguing about the enforceability of the 1951 conventions, Daily Telegraph (19 April, 2011) proclaims the conventions as ‘outdated and not fit for (its) purpose’ as, according to them, it is impotent to address the blend of refugees and economic migrants and recommend circumspect opinions about the complex trends of modern migration. Furthermore, the business of human trafficking and diplomatic interests of the states seem to violate the spirit of Geneva conventions, since (as the convention suggests) it is framed upon the spirit of empathy and humanitarianism.

In this regard, the current study intends to evaluate the relevance of the 1951 Geneva conventions against the oaths that it have taken along with its ability to cope with the evolving trends of modern migration.        

Generic description of 1951 Refugee Convention

In accordance to the Article 14 of the Universal Declaration of Human Rights of 1948 that emphasizes on the rights of the people in regards of getting shelter in other countries. The refugee protection in the present era is in accordance to the United Nations conventions that are related to the status of the refugees. This convention was adopted in the year of 1951. The convention came into effect on 22 April of 1954. In this regards the focus was on the amendment of the protocol of 1967. In the context of the protocol, the lines that are related to geographical as well as temporal limits were removed from the existing conventions of 1951. The limitation that was introduced was within Europe and the fleeing event that occurred before 1st January 1951. The changes in the convention of 1951 through the protocol of 1967 were subject to increase the spread of the convention and made it universal. The focus of the convention was to provide the subsidiary protection in various areas as well as provide focus on the development of the international laws that were related to the human rights laws. The 1951 convention focused on the global instruments that were related to the refugees as well as their rights. The 1951 convention in comparison to the earlier convention focused on single definitions for refugees. The article 1 of the convention of 1951 comprises the single definition of refugee.

The main aspect of the definition is to provide protection to the people from various forms of persecution. The definition of refugee as stated in the convention of 1951 emphasizes that the person unwilling to go back to the country due to persecution that can be related to religion, nationality, being manner of social group, race as well as due to political opinion. The convention was considered the instrument that was based on the rights of the refugees and is related to fundamental principles. These principles were related to the factors of non-penalization, non-discriminatory as well as non-refoulement. The provisions that are related to the conventions were supposed to be applied without the province of any kind of discrimination. The discrimination was prohibited on the areas of race, religion, disability, sexuality as well as other areas. Moreover, the refugees were not penalised for entering or staying in the areas illegally. This motivated the factor of not following the rules that were related with the convention. The factors that were related with the seeking of asylum in the context of the convention of 1951 emphasized on prohibition of the penalties. The principle that was related to the factors of non-refoulement emphasized that no refugees can be sent back without their consent. In this regards the factors that were related to the reservations or derogations were not allowed.

The convention also focused on providing better treatment to the refugees. In this regards the convention emphasized on providing the facility of education, opportunity to work, documentation as well as travel document that was in the form of a passport. The Commissioner of the Refugees issued the passport that was provided to the refugees that became a document for them and it. However, there are clauses mentioned in the Article 1 of the convention of 1951 that focuses on not providing the facilities to the refugees that are involved in the facilities that were involved in war crime or crimes that were against the humanity. the convention also emphasized on the refugees that were involved serious crimes that were related to non political areas and being guilty of the acts that were not in accordance to the principles as well as purposes of the United Nations. The convention also did not assist the refugees that derive benefits from other agencies of the United Nations.  For example, the refugee from Palestine seeks the protection from the United Nations Relief and Works Agency. The convention also does not provide the facility to the refugees that have the status of the nationals in their country of asylum. In accordance to the convention of 1951 and the protocol of 1967, the United Nations Relief and Works Agency has the role of performing the role of observing the operations of providing the facilities to the refugees as well as the application of the instrument in the proper order. However, the convention has not included any kind of clauses that will deal with the refugees that do not deserve the facilities as well as the people who were not refugees and acted as being one to incur the benefits.                                    

Major postulates of the convention

In a fleeting tone, it can be said that the 1951 Refugee convention had become enforceable in 22 April 1954 and followed by one amendment only in 1967, which eradicated the temporal and geographic limits of the prevalent convention. The spirit of the conventions happens to be rooted in the Article 14 of the Universal Declaration of human rights, which oblige a state to acknowledge the right of every person to seek refuge from persecution in a foreign country.

Several critics have perceived the 1951 Conventions as a post-World War II instrument and suggested the spirit of formulating this convention is constrained in terms of the wandering immigrants within Europe (before 1 January, 1951). However, after the amendments introduced in the1967 protocol that obliterated such restrictions, the convention happen to present a universal coverage of associated events.

Apart from the aforementioned, the 1951 conventions claimed to provide most comprehensive codification of the instruments executed earlier (to the refugees) as it endorses a singular definition of the term refugees. Thus, this execution can be considered as a rudimentary postulate of the entire convention which refers to a refugee as a person who is incapable (or unwilling) to return to their decent and altogether petrified about the persecution in a foreign country in terms of race, religion, social membership and political opinions.

Furthermore, one of many other major features of the 1951 conventions is that the policymakers have intended to perceive it as an instrument framed upon both rights and status of a refugee. The fundamental principle that has been derived from the aforementioned statement reflects the 1951 conventions as non-penalization, non-discriminative and non-refoulement in terms of principles. These postulates can be illustrated below;

Non-penalization

In an empirical tone, the essence of this postulate is to declare that the refugees are free from penal wraths even if they are subject to the breach of immigration law.

Non-discriminative

The conventions will be enforceable irrespective of race, religion, social membership or political inclinations.  

Non-refoulment

The essence of non-refoulment happens to be so fundamental that it has not been subjected to any kind of amendment or derogation in the 1967 protocol. In an empirical tone, it prevents the state to banish a refugee against his/her will or to traffic in place with the presence of severe death threats.

Apart from that, the final columns of the postulates seem to describe the treatments of the refuges, which is beyond the dependence of the prejudices of state grants and other favours. For instance, the refugees have been endowed with full-fletched access to courts or educational institutes or workplaces. Apart from that, the provisional documents happen to come with an identity and travel document, which has been accepted as ‘Nansen Passport’, named after Fridtjof Nansen, the first commissioner for Refugees (1922) .           

Literature review

As a counter-point to all the privileges that has been provisioned by the 1951 Conventions, it is imperative to discuss the exceptions of enforceability despite satisfying the definition of a refugee. For instance, if the candidate is found to commit a heinous war crime or crime against humanity (gross violation of human rights), non-political crimes or found to be engaged in certain activities contrary to the principles of United Nations, the candidate happen to be excluded from the privileges offer by the conventions. Apart from that, the person will not be endowed with the rights and privileges if he/she seeks that from anyone except UNHCR. This category chiefly refers to the refugees from Palestine since they are the auspices of the Work Agency for Palestine Refugees in the Near East (UNRWA) or the United Nations Relief .

In this regard, it is imperative to present certain statistical data, which might illuminate the ability of UNHCR to function in accordance with the pledges that they have taken in terms of the 1951 conventions, though in accordance with the critics, those statistics does not contain a story, which is not well nuanced. By the virtue of the conventions, the globe have witnessed that, after the registration of the refugees (428,000 in number) in the bosom countries immediately after the signing of the Comprehensive Peace Agreement, almost 75% of the registered refugees (roughly 330,000 in number) have been able to return to Southern Sudan in 2009. In the course of describing the relevance of the convention in modern quarters, critics always exhibited their favour about the Asylum (in an industrialized world) as a potent and durable solution of the refugee crisis. For instance, in the next year of signing of the peace agreement (2010), almost 24 countries have forwarded their consent about offering resettlements, which, in accordance with some rough estimate, can benefit almost 73,000 registered refugees .

If one can consider the impact of the 1951 conventions in the immediate society, it happens to be evident that the convention has been able to shake the moral columns of diplomatic relations up. For instance, the Organization of African Unity (which will be known as the African Union later) has been able to formulate their refugee conventions (specifying the Refugee problems of Africa in 1969) and the governing countries met at Addis Adaba (the capital city of Ethiopia) to ratify the convention (on 10 September, 1969) . Thus, in conclusion, a rough estimate can be presented which reflect the positive consequence of the conventions. Apart from the gross insecurity, almost 43.7 million people have been estimated (including economic refugees and IDRs [Internally Displaced Refugees]) and registered who appears to be privileged by the assistance of UNHCR (up to 2010).

However, the state-commissioned agencies of refugee accommodation have stated that several problems which has been discerned very earlier remained persistent until now which consolidate the enquiries about redundancy of the conventions. This consistency of problems are quite scathing since it shrinks the protected space for the refugees to obtain shelter in the host country. In this regard, the case of Domestic Republic of Congo (DRC) can be highlighted where the local civilians have targeted the IDRs and, apart from destabilizing the population through threats and displacement, resorted the refugees to inhuman sexual violence that compelled them to move to Uganda. The most stark and shocking aspect of the conventions is the fact that the globe have witnessed several gross breach of the essence of refoulment which happens to be the most fundamental feature (and which have not been subjected to reform in 1967 protocol). It has been extensively observed that the refugees have been hosted to several places which are either politically hostile or consists of an environment which poses potent death threats and cause vulnerability in terms of physical safety of the refugees. The term ‘less warehousing’ seems to become rife in the immigrant discourse which indicates the ineffectiveness of the urbanisation of the refugee situations while posing the burden of insecurity among the refugees. Furthermore, the notion of refugee education happens to encounter severe challenges while suffering from non-availability of remedies. For instance, in a comprehensive study about the impact of 1951 Geneva conventions in Australia, it has been extensively referred that the aboriginals are prone to turn against the immigrants which caters a chaos and political unrest and culminated by imposing exile on the IDRs.

In the next phase of the discourse, critics and several human rights activists who have promoted the notion of asylum as the origin of a circumspect remedy of refugee crisis turn out to be bitter as the asylum system turns out to be ineffective and unresponsive eventually. For instance, it has become almost invariable for an African refugee to have an asylum in a desolate place or isolated province with minimum access to the basic amenities and minimum opportunities availing the low quality state aid . The situation gets even worse when the procedural warranties are delayed after the promises of availing such relief from state.

The asylum systems happen to face severe confrontation from the human rights activists as they have accused as hostile to the children. In most of the cases, the child applicants have not been taken into account seriously and flagrant negligence has been seen in terms of automatic repatriation of the children or ensures them with an established and safe resort. Furthermore, the child applicants happen to be subjected to several mock experiments (such as Phallometry) in the guise of testing their sexual orientation. Besides that, the unreasonable detention of the asylum-seekers happens to intensify the hardship of the refugee individuals without having any significant impact as a deterrent.

Thus, it is evident that the challenges that this convention have encountered can be categorized into several empirical categories, which can be illustrated as follows;

 Scope and definition

As several critics have suggested that the discrepancy, which the 1951 conventions have inherently possessed, it is true that it has restricted the scope of the same. For instance, in terms of definition and scope, several human rights activists have embraced the Convention Governing and Specific Aspects of Refugee problems in Africa [which has been adopted by the Organisation of African Unity (1969) and Cartagena Declaration on Refugees (1984) later] more as compared to 1951 Conventions    

Mass movements

Mass movements refer to the migration across borders, in the aftermath of conflicts or wars transforms into a challenge for the conventions. Apart from that, the bloated influx of the refugees happens to degrade the valuation and refugee status of an individual, which is also another origin of problems.  

Mixed Migration Flows

Mixed migrations refer to the practice to go across the borders with same or different objectives and happen to create acute challenges for the state in the course of addressing their individual risks.

Credibility

In the course of arguing about the refugee convention of 1951 and its gradual transformation into an institution, Guy Goodwin Gill has said that the policymakers have failed to anticipate the process of the determination of a refugee . 

Access to the claims of protection

In terms of the recent complication of the migration policies such as EU border controls, visas, carrier sanctions, interceptions of the high seas and liaison of abroad carriers, it is evident that it is utopic to abide by the Article 14.1 of the Universal Declaration of Human Rights proclamations.     

Impact on the modern refugee crisis

In the course of evaluating the impact of 1951 conventions, the declaration of Goodwin Will happens to obtain adequate veracity when he said that the policymakers have failed to anticipate the process of refugee determination. The rigid endorsement of a singular definition of the term refugee happens to encourage the business of human trafficking while enhancing illicit immigration with no prior necessity for protection. Furthermore, this encouraged the flow of blended refugees (mixed migration) which have endowed the community with added vulnerability; especially making the children vulnerable to exploitation.

The 1951 conventions seem to lose prominence as the discourse of migration as it eventually incorporated several burdens including diplomatic complexity. Averting the post-Arab spring or the DRC refugee crisis aside, it is evident that the unrest in Middle East is enough to reconfigure the global definition of politics and diplomacy while posing the situations of the asylums and the refugee camps on the same frame .

In this segment, several critics have perceived the dynamics of migration in such a way that they have considered it as a trustworthy index of the economic situation of that country. According to the critics, this can be termed as grey zone, which suggests that if the refugees are forced to displace or spend the life in the fear of persecution, it is a clear indication that the economy of that country is dire.       

Is 1951 refugee convention still valid?

In the course of answering this question, several ground zero level representatives have suggested that the convention is more than 60 years old and does not represent the era on which live in. However, some of the critics of this convention seem to suggest that the convention happens to dominate the understanding that we have about migratory policies and the sense of migration that we have endorsed once. For instance, after the enforceability of the conventions, it has been seen the aspect of cumulative global action remained anachronistic. On the same note, the migratory circumstances are not the same as compared to the socio-political scenario of the world after 6 years of the end of World War II .

In terms of compliance with the aspects of human rights, it has been observed that the refugee questions are already subsumed into the cesspool of Cold War politics. For instance, take the instance of the definition of the term refugee where one of the fundamental characteristics of the refugees is bound to have a well-founded fear of being prosecuted. Thus, with the risk of resonating with some of the cynical critics, it can be said that the 1951 Conventions embed the intention to cater the border politics and the diplomatic interests of the countries. This statement can be further defended by citing the attitude of Soviet Bloc to cater the causes of refugee convention by simply designating them as ‘traitors’.

A starkly contrasting scenario can be seen in the contemporary domain of migratory discourse has been observed where the asylum-seekers are displaced not because of political reasons but because of economic hardship and conflict. Thus, it is also evident that they fail to fit in the purpose of ‘well-founded fear of being prosecuted’ . As described by Gil Loescher; ‘the 21st century refugees do no flee totalitarianism but insecurity and poverty.’

The UNHCR and the World Politics by Gil Loescher can be considered as the magnum opus in terms of migratory discourse, which documents that among the 233,436 refugees in the duration between 1956 to 1968, only 925 immigrants are from non-communist countries. In the text, it has been immaculately figured out that the West have accepted the influx of these migrants not because of moral impetus or obligation of the international law but to endow the petit geopolitical game with intensity (the designation of migrants as traitors by the Soviet Bloc can also be justified with this) .

Thus, the policymakers should keep in mind that the political foundation of refugee frameworks have ceased to exist after the end of the Cold War. This can be considered as the main reason that the 1951 conventions have been considered as archaic. 

Conclusion

In the light of the previous discussion, several insights can be synopsized over here, which might assist the future policymakers to formulate the refugee conventions with circumspection. The ideas can be narrowed down as follows;

1. Removal of the classical movement of the refugees driven by fear of persecution since that was nothing but the imprint of the socio-political scenario of the Cold War era

2. Considering the bulk-influx situations where, in most of the cases, the displacement has been provoked by the threat of civil disobedience and associated conflicts

3. Consider the intra-border displacement, which is chiefly provoked by the natural catastrophes and fabricated problems

4. considering the mixed movements while acknowledging the distinct genealogy of the migrants (such as IDRs, economic refugees and others)

It is evident that these cases are not that easy to distinguish while coping with the confusion catered by the 1951 conventions. Furthermore, critical analyses can be encouraged regarding the drawbacks of the 1951 convention, which might suggest other prudent remedies in the course of reforming the prevalent convention.

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