Redundant or Essential? How Politics Shaped the Outcome of the 1967 Protocol

The 1967 Protocol Relating to the Status of Refugees has beendescribed as an unnecessary addendum to the 1951 ConventionRelating to the Status of Refugees. However, if the 1967 Protocolwas superfluous, why did the United Nations High Commissionerfor Refugees in the early 1960s insist on its development? Thisarticle seeks to establish that the 1967 Protocol was originallyintended to encompass the broader concerns of African and Asianstates concerning refugee populations in their region. However,the political influence upon the development of internationalrefugee law radically altered the UNHCR's endeavour to makethe 1951 Convention universally accessible.     

Fear of lack of adequate medical care not well-founded fear of persecution

The Federal Court-Trial Division refused to set aside the Immigration and Refugee Board's (IRB) decision that a refugee claimant was not a Convention refugee because she had not proven a well-founded fear of persecution based on her HIV status or AIDS diagnosis. The court emphasized that the fear of a lack of adequate medical treatment, without a clear link to a ground under the United Nations Convention relating to the Status of Refugees, does not constitute a well-founded fear of persecution.     

Guidelines on International Protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked

UNHCR issues these Guidelines pursuant to its mandate, as containedin the 1950 Statute of the Office of the United Nations HighCommissioner for Refugees in conjunction with Article 35 ofthe 1951 Convention relating to the Status of Refugees and ArticleII of its 1967 Protocol. These Guidelines complement the UNHCRHandbook on Procedures and Criteria for Determining RefugeeStatus under the 1951 Convention and the 1967 Protocol relatingto the Status of Refugees (1979, re-edited, Geneva, January1992). They should additionally be read in conjunction withUNHCR's Guidelines on International Protection on gender-relatedpersecution within the context of Article 1A(2) of the 1951Convention and/or 1967 Protocol relating to the Status of Refugees(HCR/GIP/02/01) and on "membership of a particular social group"within the context of Article 1A(2) of the 1951 Convention and/orits 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/02),both of 7 May 2002. These Guidelines are intended to provide interpretative legalguidance for governments, legal practitioners, decision-makersand the judiciary, as well as for UNHCR staff carrying out refugeestatus determination in the field.     

Creating Legal Space for Refugees in India: the Milestones Crossed and the Roadmap for the Future

The whole of South Asia is devoid of any standards and normson any dimension of refugee reception, determination and protection.The fact that a quarter of the world's refugees find themselvesin a non-standardized, if not hostile, refugee regime is a situationwhich does not augur well for either the mandate of UNHCR orfor any civilized society. The South Asian nations have theirown apprehensions, real or imaginary, about the utility of CSR1951 to their situations. Because of historical mishaps, politicalignorance, unstable democracies and exaggerated concern overnational security, there is hardly any motivation for, or anyenvironment in which there is a possibility for, the enactmentof national legislation. Non-governmental agencies, in their own way, have been tryingto influence the States to accede to the Convention and, also,to promulgate national laws. The most noticeable contributionis the draft national law for India, ‘Refugees and AsylumSeekers Act’, discussed and approved by the Fourth InformalConsultations on Refugees and Migratory Movement Sessions intheir Dacca Session. The draft legislation has been under considerationby the Indian government for some time but the issue, nonetheless,remains both important and urgent. There is an almost completeabsence of discussion about it in any forum, even the media.This paper is an attempt to examine the provisions of the draftlaw, insofar as it conforms to the international standards,and to show where it is found wanting. The paper also evaluatesthe competence of the draft law to answer security considerationsafter 9/11. The paper suggests suitable amendments that maymake the enactment of national law a reality, so that the voidin the international regime of refugee protection can be filledeffectively and fast.     

Human Rights, Refugees, and The Right 'To Enjoy' Asylum

Increasingly hard-line and restrictive asylum policies and practicesof many governments call into question the scope of protectionsoffered by the 1951 Convention relating to the Status of Refugees.Has the focus on the 1951 Convention been to the detriment andsubordination of other rights and standards of treatment owedto refugees and asylum-seekers under international human rightslaw? Which standard applies in the event that there is a clashor inconsistency between the two bodies of law? In analysingthe interface between international refugee law and internationalhuman rights law, this article looks at the right to familylife and the right to work. Through this examination, contentand meaning is offered to the almost forgotten component ofthe right ‘to enjoy’ asylum in Article 14(1) ofthe Universal Declaration of Human Rights 1948.     

Who are Refugees?

Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all who are unable to meet their basic needs on their own as ‘refugees’, and to extend to them the sorts of protections established under the United Nations Refugee Convention. Such an approach would expand the traditional refugee definition significantly. Unlike most academic commentators discussing this issue, I reject calls for an expanded refugee definition, and instead defend the core elements of the definition set out in the 1967 Protocol to the United Nations Refugee Convention. Using the tools of moral and political philosophy, I explain in this article how the group picked out by this definition has particular characteristics that make refugee protection distinctly appropriate for it. While many people in need of assistance can be helped ‘in place’, in their home countries, or by providing a form of temporary protected status to them, this is not so, I show, of convention refugees. The group picked out by the UN refugee definition is a normatively distinct group to whom we owe particular duties, duties we can only meet by granting them refuge in a safe country. Additionally, there are further practical reasons why a broader refugee definition may lead to problems. Finally, I argue that rejecting the call for a broader definition of refugees will better help us meet our duties to those in need than would an expanded definition.     

The Legal Status of Afghan Refugees in Pakistan, a Story of Eight Agreements and Two Suppressed Premises

Over 25 per cent of present day refugees enjoy asylum in Pakistan,most of them having been there for more than a quarter of acentury. Pakistan is not, however, a party to either the 1951Convention relating to the Status of Refugees or the 1967 Protocolrelating to the Status of Refugees. The legal status of theAfghan refugees it hosts is therefore not a foregone conclusion,even though they were considered to be refugees on a prima faciebasis during the first two decades of their exile in Pakistan.This article identifies the legal status of the Afghan refugeeson the basis of a series of agreements Pakistan concluded withUNHCR and also occasionally with Afghanistan. By virtue of thelast of the series of agreements, Afghan refugees can returnto Afghanistan under a UNHCR-assisted voluntary repatriationprogramme until December 2009. In view of the fact that allAfghans have been granted leave to stay in Pakistan until thesame date, many are expected to stay in Pakistan rather thanreturn with the assistance of UNHCR. Unlike the preceding agreements,the last one does not address the fate of those who will stillbe in Pakistan upon completion of the voluntary repatriationprogramme. It seems therefore imperative to identify the legalstatus and corresponding entitlements of the Afghan refugees.It is argued that the prima facie recognition of refugee statuscan be sustained on the basis of the agreements referred to.In addition it is argued that the current ‘profiling’exercise of UNHCR, even while presumably beneficial for themost vulnerable refugees, is irreconcilable with the statusand entitlements of the Afghan refugees, and the same holdstrue with respect to the usual practice of ‘screening’those refugees who have opted not to return under a voluntaryrepatriation programme. An alternative that would be reconcilableis a collective cessation of refugee status if and when thesituation in the country of origin so warrants, provided individualrefugees may contest this.     

Examining Sexual Violence in the Military Within the Context of Eritrean Asylum Claims Presented in Norway

Discussion of rape by soldiers as a form of persecution haslargely been directed towards the context of war or actual conflict.Nevertheless, there is a need for attention to be directed towardsthe phenomenon of rape within the military in the post-conflictperiod. This article discusses asylum claims presented in Norwayby Eritrean female soldiers claiming risk of persecution inthe form of sexual violence, rape, or torture within the military.First, presentation is made of the history of Eritrean women'sparticipation in the war of independence and the ensuing politicaland legislative gains won at the end of the war against Ethiopia.Review of Eritrea's report and responses to the Committee onthe Elimination of Discrimination Against Women (CEDAW) reveala state of backlash against women in the post-conflict period.Second, examination of how rape within the military and desertionmay fall under the criteria of the definition of a refugee accordingthe 1951 Convention on the Status of Refugees is pursued. Comparisonis drawn to instances of rape of women soldiers in the US andIsrael, as well as sexual violence by United Nations Missionin Ethiopia and Eritrea (UNMEE) peacekeepers, revealing commonchallenges affecting prevention and protection strategies. Third,a comparative review is conducted of evidentiary standards inorder to highlight the importance of maintaining a flexibleapproach responsive to the special circumstances of sexual violence.The Norwegian practice indicated a tendency to provide protectionfor compassionate grounds or humanitarian protection, ratherthan asylum. This resulted in non-recognition of the legitimacyof claims based on gender related persecution as requiring legalprotection under the 1951 Convention on the Status of Refugees.     

Human trafficking: the case of Burmese refugees in Thailand

With an estimated 30 protracted refugee situations around the globe, the number of refugees finding themselves in prolonged displacement is alarming. While demarcated refugee camps are a visible component of this phenomenon, the link between protracted displacement and increased risks of human trafficking is much less evident. Within refugee camps, the lack of law and order or police protection along with the presence of large numbers of helpless people create a pool of readily available supply for those who want to exploit them. This account will discuss the conditions of displacement that contribute to human trafficking risks, particularly as they relate to the protracted refugee situation of Burmese in Thailand. The case study will be followed by a number of policy and practice recommendations for the reduction of these risks.     

Justice for victims of human trafficking in Australia? Issues associated with Australia’s criminal justice response to trafficking in persons

Australia has witnessed an increase in human trafficking cases in recent years, most of which have involved women trafficked for sexual exploitation. In response, and within the framework of the United Nations Protocol to Prevent and Suppress Trafficking in Persons, especially Women and Children, Australia has introduced legislation to combat human trafficking and punish traffickers. However, the number of prosecutions of human trafficking offences in Australia has, to date, been low. Drawing on the available literature, this article sets out to explore the reasons for this, which the paper argues have largely centered on Australia’s previously restrictive visa framework for trafficking victims. The paper also explores other obstacles and barriers to successful prosecutions, such as issues associated with discrediting and attacking vulnerable witnesses, and lengthy and complex trials. The paper argues that Australia needs to increase its efforts to meet the obligations set out by the United Nations Recommended Principles and Guidelines on Human Rights and Human Trafficking, and to balance its priorities regarding prosecution and victim protection.     

论朝鲜“脱北者”的国际法地位及我国的对策

近年来,朝鲜"脱北者"问题逐渐成为地区乃至国际热点问题,中国在该问题上以遣返为主的政策也日益面临来自其他国家的压力。从1951年《关于难民地位的公约》的规定和相关国际实践来看,"脱北者"是否具有难民地位不能一概而论,而是要具体问题具体分析;我国的现有政策总体上无可非议,同时可以考虑按照国际条约,给予那些确因政治原因出逃的"脱北者"们国际法上的难民地位。此外,我国还有必要建立健全处理难民及相关问题的机制。     

Just trust me and you’ll make a fortune – relationships between offenders and victims of human trafficking

ABSTRACT

Despite the increasing amount of research on human trafficking, certain aspects of the phenomenon have remained less studied. For many years, research had focused on trafficking for sexual exploitation and men-exploiting-women cases. Recently, the body of literature has become more diverse, and different forms of trafficking have been recognised. However, the trafficking research has largely ignored the notion of intersectionality, although intersectionality has been applied in several studies, for example, on domestic violence. This article deals with the relationships between offenders and trafficked persons. The study asks what is the nature of the relationships between them. Furthermore, the intersectional approach is applied to analyse what factors make trafficked persons prone to exploitation and, on the other hand, keep them in the exploitative situation. The study also focuses on the power relations between the parties involved. The data consists of trafficking in human beings court judgments from the Finnish courts. The intersectional analysis focuses particularly on the close reading of two cases. The analysis shows that many intersecting factors are linked to the victimisation of trafficked persons. Furthermore, the exploitative relationships between offenders and trafficked persons display many features of unequal distribution of power.     

Adjudicating Fear of Witchcraft Claims in Refugee Law

In refugee applications involving witchcraft‐related violence (WRV), those accused of witchcraft are largely women, and those fearing witchcraft are more often men. This is one of two interrelated articles reporting on cases where claimants feared harm from witchcraft or occult practices. It argues that WRV is a manifestation of gender‐related harm, one which exposes major failings in the application of refugee jurisprudence. Systemic inattention to the meaning and application of the Convention ground of religion, combined with gender insensitivity in analysis, meant that claims were frequently reconfigured by decision makers as personal grudges. The fear of witchcraft cases pose an acute ontological challenge to refugee status determination, as the claimed harm falls outside what is understood to be objective, verifiable, or Convention‐related. Male applicants struggled to make their claims comprehensible as a result of the feminized and ‘irrational’ characterization of witchcraft fears and beliefs.     

Out of Africa: The human trade between Libya and Lampedusa

Smuggling and trafficking in persons is ipso facto illegal. Is this criminal activity organised or diffuse? Recent objective indicators show that between 2000-2005 the reported incidence of people trafficking and smuggling from North Africa to Europe has escalated. The article examines the nature of criminality involved in people smuggling and trafficking with specific reference to the sea route between Libya and the Italian island of Lampedusa, 180 miles north of the Libyan coast. In 2006 almost 19,000 illegal migrants arrived on this small island. Recent major operations conducted by the Italian anti-mafia unit and the state police suggest transnational criminal organisation of the trade. The networks involved in this trade, however, do not conform to mafia-like hierarchical organisations but rather smaller, more complex and fluid criminal networks. The article aims to cast light on how people are smuggled and trafficked. The background to the rise in illegal immigration from Libya is sketched underlining the ‘push’ and ‘pull’ factors involved in the human trade. The article’s chief objective is to provide a greater understanding of the mechanisms and processes involved in smuggling/trafficking. A better knowledge of the processes involved is vital if domestic, regional and international authorities and bodies are to counter the practice and/or to formalise it.     

The future of claims to resist removal by non-nationals suffering from HIV/AIDS

The focus of this article is to consider the difficulties facing non-nationals suffering HIV/AIDS to resist removal to their countries of origin where there is no or inadequate medical treatment. The link between HIV/AIDS and migration will be explored illustrating the vulnerability of displaced people to the virus. The current UK legal position for those attempting to resist removal in such circumstances will be explored. The article will explore two potential avenues that may prevent removal of non-nationals with HIV/AIDS to countries with limited access to the necessary treatment. In the first instance consideration of Article 3 European Convention on Human Rights (ECHR) will be made with particular emphasis on mother and child claims. The second argument will examine the potential for refugee claims under Article 1A (2) Refugee Convention 1951 where an applicant may be able to demonstrate a well-founded fear of persecution because of membership to a particular social group. The authors will particularly emphasise the argument that in certain countries sufferers will experience ostracism and victimisation where its severity may amount to treatment contrary to Article 3 ECHR and persecution under the Refugee Convention. Vanessa Bettinson and Dr Alwyn Jones, senior lecturers, De Montfort University. The authors would like to thank Professor Tony Barnett at London School of Economics for his useful and invaluable thoughts and comments. We would also like to thank our colleague Gavin Dingwall and the students in our 2006/07 Immigration and Refugee Law seminars for their very helpful feedback.     

Crimes of the State: The Persecution and Protection of Refugees

When refugees arrive at the borders and on the shores of the Global North they are increasingly criminalised and subject to a range of law and order type rhetoric and practices. This paper outlines an alternative criminological engagement with the condition of refugeehood that shifts the focus from the refugee to the practices of the state. First, it splices definitions of state crime with the highly legalistic refugee definition to offer alternative conceptualisations of persecution in the determination of who is accorded the legal status of refugee. Second, it applies state crime frameworks to the increasingly restrictive and punitive refugee policies of countries in the Global North. It concludes by locating theorisations of state crime within the broader project of reconceptualising notions of sovereignty.Sharon Pickering BA(Melb), MA(Soton), PhD(Melb) lectures in Criminal Justice and Criminology at Monash University Australia. She has worked with refugees and written on forced migration issues for the past five years including her recent book Refugees and State Crime (2005 Institute of Criminology Monograph Series/Federation Press).     

Negotiating Durable Solutions for Refugees: A Critical Space for Semiotic Analysis

Despite the proliferation of specialised agencies designed to reduce the prevalence of refugees worldwide, the number of individuals fleeing persecution is increasing year on year as endemic violence in countries such as Iraq, Somalia and the Syrian Arab Republic continues. As a result, media broadcasts and political dialogues are saturated with discussions about these “persons of concern”. Fundamental questions nonetheless remain unanswered about what meaning these actors attribute to the label ‘refugee’ and what intent, other than paucity of knowledge, might be driving the term’s use or manipulation. Though this is evidently important in the public arena, where incorrect conflations fuel mistrust and misunderstandings, the ramifications of these divergent understandings at the level of multi-lateral politics have yet to be critically explored. This article applies Barthes’ theory of the multiple orders of the sign to address this. Using the case study of the negotiations preceding the invocation of the Cessation Clause for Rwandan refugees, it illustrates how the word refugee is susceptible to numerous, simultaneous understandings, and discusses the implications of these manifold interpretations for how durable solutions are envisaged and negotiated in the refugee regime. In the case of Rwandan refugees in Uganda, this has meant that over a decade of stalemated discussions between the Governments of Uganda and Rwanda and the United Nations High Commissioner for Refugees over their future have been broken by a series of bilateral concessions that, whilst diminishing the political significance attached to this protracted caseload, have failed to address the continuing precarity of their situation. By conceptualising the word refugee as a sign according to the Saussurean model of semiotics, this paper therefore argues that despite the term’s established legal-normative definition, its inherent malleability makes it susceptible to processes of political instrumentalisation. This elevates the refugee as a rhetorical figure above the refugee as a physical-legal body entitled to certain forms of assistance.     

Victims,sex workers and perpetrators: gray areas in the trafficking of nigerian women

Some Nigerian women entrepreneurs of the Italian sex market were trafficked women in the past who made a career in the trafficking hierarchy and its organized crime groups. The female mobility towards the organizational side of the trafficking offense represents the most striking characteristic of the Nigerian trade industry: in fact, the trafficking victims are driven by their persecutors to take an active part in the trafficking offenses over time. This criminal modus operandi explains why several difficulties arise in defining sharp dividing lines between trafficking victims and trafficking perpetrators. Facing such a distinctive issue, this paper wants to highlight the multiple roles that women hold in the trafficking industry by focusing on: a) the gray areas in the Nigerian trade industry; b) the intermediate roles that individuals hold within the victim/offender model; c) the female vertical mobility in the trafficking hierarchy. Thanks to such an analysis, the author wants to overcome dominant binary approaches (mostly based on the victim/perpetrator dichotomy) in the analysis of Nigerian trade industry.     

Regulating forced labour and combating human trafficking: the relevance of historical definitions in a contemporary perspective

Forced labour has been regulated since 1930 on the basis of the ILO Convention on Forced Labour, and since 1957 on the basis of the ILO Abolition of Forced Labour Convention. In 2000 forced labour was included as one form of exploitation covered by the UN Trafficking Protocol, which situated trafficking into a context of transnational organised crime. In 2014 the ILO adopted a Protocol on Forced Labour, making a link between trafficking and forced labour. The aim of this article is to explore how forced labour came to be regulated and defined in these four treaties. The 1930 ILO Convention came about in a specific historical and political context, yet the 1930 definition remains in use even though the interpretation of forced labour, particularly as it relates to trafficking, has changed. This article focuses on the issue of trafficking for the purpose of forced labour within the context of migration and labour exploitation, and discusses the relevance of historical definitions of forced labour in the current discourse that sees human trafficking mainly as a security threat. It argues that a rigid interpretation of forced labour is not always useful in understanding forms of labour exploitation, at least in a contemporary European migratory perspective. The article calls for a broad interpretation of forced labour, which takes into account also subtle forms of control and coercion.     

试论中国反贩运人口法律制度的完善

贩运人口是一种现代形式的奴役,严重侵害被贩运者的人权,危害社会和谐稳定。虽然有证据证明,中国的贩运人口情况很严重和需要加大对反贩运人口的法学研究,但是如何发展反贩运人口法律,仍然缺少系统的分析和严谨的论述。面对严峻的贩运人口犯罪形势,有必要完善反贩运人口法律制度,为打击贩运人口提供更为良好的法治环境。