Every day, all over the world, people make one of the most difficult decisions
in their lives: to leave their homes in search of a safer, better life.
Most people in the world have had the experience of leaving the place where they
grew up. Maybe they will only move as far as the next village or city. But for
some people, they will need to leave their country entirely sometimes for a
short time, but sometimes forever.
There are many reasons why people around the globe seek to rebuild their lives
in a different country. Some people leave home to get a job or an education.
Others are forced to flee persecution or human rights violations such as
torture. Millions flee from armed conflicts or other crises or violence. Some no
longer feel safe and might have been targeted just because of who they are or
what they do or believe for example, for their ethnicity, religion, sexuality
or political opinions.
This article aims to highlight the provisions of international law relating to
Refugees, Migrants and Asylum-seekers.
Every year millions of people are forced to abandon their homes and flee in
search of safer and better places to rebuild their lives. There are several
reasons that cause people to leave behind their entire life and move to an
unknown place, including armed conflicts, human rights violations, persecution
and several other forms of exploitation.
The need for international protection of refugee rights arose right after the
Second World War when people around the world were forced out of their homes.
This led to the formation of the United Nations High Commissioner for Refugees,
an international body that seeks to provide protection to refugees and formulate
lasting solutions to refugee problems.
Even though India does not have a framework for refugee protection and is not a
signatory to the 1951 Refugee Convention or the 1967 Protocol, the country
continues to provide a home to a large number of refugees from neighbouring
countries. In the recent past, India's concerns around security have led to a
more restrictive approach on providing asylum. However, there are still a large
number of refugees seeking asylum in the country. This brings in the need for a
national refugee protection law that protects the human rights of those who were
persecuted out of their homes.
Why Do People Leave Their Countries?
There are many reasons why it might be too difficult or dangerous for people to
stay in their own countries. For example, children, woman and men flee from
violence, war, hunger, extreme poverty, because of their sexual or gender
orientation, or from the consequences of climate change or other natural
disasters. Often people will face a combination of these difficult
People who leave their countries are not always fleeing danger. They might
believe they have a better chance of finding work in another country because
they have the education or capital to seek opportunities elsewhere. Others might
want to join relatives or friends who are already living abroad. Or they might
seek to start or finish their education in another country. There are lots of
different reasons for people to start a journey to build a life in a new
Definitions: What Exactly Is A Refugee, An Asylum-Seeker And A Migrant?
The terms "refugee", "asylum-seeker" and "migrant" are used to describe people
who are on the move, who have left their countries and have crossed borders.
The terms "migrant" and "refugee" are often used interchangeably but it is
important to distinguish between them as there is a legal difference.
Who is a refugee?
A refugee is a person who has fled their own country because they are at risk of
serious human rights violations and persecution there. The risks to their safety
and life were so great that they felt they had no choice but to leave and seek
safety outside their country because their own government cannot or will not
protect them from those dangers. Refugees have a right to international
Who is an asylum-seeker?
An asylum-seeker is a person who has left their country and is seeking
protection from persecution and serious human rights violations in another
country, but who hasn't yet been legally recognized as a refugee and is waiting
to receive a decision on their asylum claim. Seeking asylum is a human right.
This means everyone should be allowed to enter another country to seek asylum.
Who is a migrant?
There is no internationally accepted legal definition of a migrant. Like most
agencies and organizations, we at Amnesty International understand migrants to
be people staying outside their country of origin, who are not asylum-seekers or
Some migrants leave their country because they want to work, study or join
family, for example. Others feel they must leave because of poverty, political
unrest, gang violence, natural disasters or other serious circumstances that
Lots of people don't fit the legal definition of a refugee but could
nevertheless be in danger if they went home.
It is important to understand that, just because migrants do not flee
persecution, they are still entitled to have all their human rights protected
and respected, regardless of the status they have in the country they moved to.
Governments must protect all migrants from racist and xenophobic violence,
exploitation and forced labour. Migrants should never be detained or forced to
return to their countries without a legitimate reason.
Refugees and migrants are legally distinct. According to the 1951 Convention
Relating to the Status of Refugees ('Refugee Convention') and the 1967 Protocol
Relating to the Status of Refugees ('Protocol'), a refugee is a person who flees
across an international border because of a well-founded fear of being
persecuted in her country of origin on account of her race, religion,
nationality, membership of a particular social group, or political
The Refugee Convention's definition is the most popular one in use
around the world but broader descriptions also exist. For instance, the
African Union's 1969 Convention Governing the Specific Aspects of Refugee
Problems in Africa ('OAU Convention') recognises that a person fleeing external
aggression, occupation, foreign domination, or serious disturbances of public
order, is also a refugee. And, in 1984, a group of Central and South American
governments adopted the non-binding Cartagena Declaration on Refugees and the
Protection of People Fleeing Armed Conflict and Other Situations of Violence in
Latin America ('Cartagena Declaration') which further included people fleeing
threats to their lives, safety, or freedom due to generalised violence, foreign
aggression, internal conflicts, and massive human rights violations.
other hand, migrants are a far broader category of people who leave their places
of habitual residence to live elsewhere. This happens most often within a
country as migrants move to follow better prospects, usually to large
cities. However, significant numbers of migrants also cross international
Because there is no formal legal definition of a migrant, the term
accurately describes high-income professionals moving between two advanced
economies, people leaving impoverished areas, as well as people fleeing
persecution. So, all refugees are migrants in the sense that refugees move
away from their places of habitual residence, but not all migrants are
refugees. The distinction between the two is important because refugees, not
migrants, are protected by international refugee law.
International refugee law and Human Rights of the refugees
International legislations on refugee law
Internationally applying law governs the interests of forcibly displaced persons
and ensures them with proper protection and support in the foreign country. The
important legal frameworks for refugees can be studied under three main heads:
International Refugee Law
- International refugee law;
- International human rights law;
- International humanitarian law.
The core instruments of the international refugee law are the 1951 Convention
relating to the Status of Refugees and the 1967 Protocol.
1951 Convention relating to the Status of Refugees
The 1951 convention lays down the foundation for the international refugee law
and was formulated in the aftermath of World War 2. It lays down the meaning and
scope of the term "refugee", sets out several duties of the refugees in the host
country and the responsibilities of the states towards them. It also establishes
one of the key principles to ensure that the refugees are not forced back to
their home country where there is considerable danger to their life or basic
The convention was made in the context of the events during the second world war
and due to this, the definition of the refugees was temporal and geographically
limited as being applicable to the events in Europe before 1 January 1951.
However, over the years, there arose a need for a universal instrument to ensure
the protection of the refugees. This led to amendments and the adoption of the
The protocol aimed at removing the limitations present in the 1951 convention
but remained integrally related to the convention. It redefined the application
of the term refugees, thus overcoming the time and space-related limitations.
The protocol ensures the application of the core content of the 1951 convention
to all persons falling within the revised definition of a refugee.
International Human Right Law
1948 Universal declaration of human rights
The international refugee law does not operate in isolation and must be in
compliance with several basic rights guaranteed under the declaration of human
rights. Article 14(1) specifically provides the right to seek and enjoy asylum
in other countries.
In addition to stating the basic rights that are applicable to all humans,
including refugees, the human rights law also specifies the states obligation to
respect, protect and fulfil the rights of their citizens.
International Humanitarian Law
Geneva Conventions of 1949 and the Additional Protocols agreed in 1977
A large number of refugees are displaced in the midst of internal conflicts or
war-like situations. The principles of the International Humanitarian Law which
deal with the laws of war or armed conflict are applicable to protect them.
A major part of this law is covered in the Geneva Conventions of 1949 and
Additional Protocols of 1977. These ensure protection for those people who do
not take part in fighting or are not in a position to fight. This is applicable
to a wide range of persons from sick and wounded soldiers to civilians of the
countries. This limits the effect of the conflict on the members who are not
Human rights and refugees
Importance to protect rights of refugees
As discussed, the international refugee law and the human rights law work
conjointly. This ensures that the rights of the refugees are not violated by the
home country or the foreign country they are forced to cohabit in.
The refugees are forced to leave behind their homes, livelihood and move to a
new place, which leaves them in a vulnerable and unstable position. In such a
state, it becomes more important to ensure that their human rights are restored
and protected. It is also important that the host country recognizes and upholds
The rights which need to be protected
Principle of Non-refoulement
The principle of non-refoulement is stated under Article 33(1) of the 1951
convention. This basic principle refers to the obligation of the states
to not forcibly return or expel a refugee to a territory that endangers or poses
a threat to their life or freedom.
However, just like all the other principles, this principle has certain
exceptions that have been stated under Article 33(2), under which a refugee can
be made to return to their home country. The exception can be valid if there
exists a sufficiently serious danger to the security of the host country or to
its community due to the refugee.
Principle of non-discrimination
The principle of non-discrimination is one of the core principles of all
international laws. Any discrimination on the basis of sex, religion, language,
political opinion and so on is strictly prohibited. Article 3 of the 1951
convention upholds this principle while obliging the states to apply all
provisions following the principle of non-discrimination.
It is thus a basic right of the refugees to not be discriminated against in the
host country. All provisions must be applied in a fair manner and as per this
principle. The application of this principle extends to all rights from granting
the status of a refugee to the treatment and care given to them in the host
Right to family life
The family is recognized as a fundamental group unit of the society and is thus
entitled to be protected from separation or breakage. When refugees are forced
to leave their homes in a state of fear and chaos, often many members of the
families get separated from each other. This increases their risks to violence
and exploitation, which makes them entitled to protection by the state.
The Conference of Plenipotentiaries that adopted the 1951 Convention reaffirmed
the "essential right" of family unity for refugees. The right to family unity
has been read into the right to family life, which is a basic right for all
refugees. Family reunification in asylums is thus, an important right that all
refugees are entitled to.
Basic rights to be guaranteed by the host country
Right to work
This is a socio-economic right that all refugees are entitled to. It enables the
refugees to earn a living for themselves and improve their standards of living.
In addition, this also reduces the dependence of the refugees on the state and
thus, the burden of the state. It also contributes to a more cohesive society by
improving contact between refugees and the local community.
Right to education
Education is an essential requirement in order to enable the realization of
other rights. Non-discriminatory education is a fundamental right that protects
refugee children from illiteracy, abuse, exploitation, child labour and other
evils. It also enables them to find better work and reduce their reliance on the
state for a livelihood.
Freedom of Movement
Freedom of movement within the host country is a key right recognized under
Article 26 of the 1951 convention which gives refugees the right to choose their
place of residence within the territory and to move freely within the State.
This ensures that the state does not impose discriminatory restrictions that
apply only to the refugees to confine them to a certain area.
Right to access basic facilities
The refugees also have the right to access several facilities to ensure social
welfare and proper health. They have a right to a standard of living adequate
for their health and well-being. This right extends to their right to access the
courts in case of violation of their rights and be treated in a
non-discriminatory manner before the court. However, in reality, many refugees
are often unable to access these facilities due to several challenges such as
poverty, marginalization and discrimination.
Why Should Governments Welcome Refugees, Asylum-Seekers And Migrants?
- We want to live in a world where people who are in grave danger have the
opportunity to rebuild their lives in safety.
- In a globalized world, sharing global responsibility for global issues is the
fair thing to do.
- Host communities benefit from the tremendous energy and drive to start new
lives, which these people bring.
- Welcoming people from other countries strengthens host communities by making
them more diverse and flexible in our fast-changing world.
Some of the most inspiring and influential people in the arts, science, politics
and technology have been refugees, asylum-seekers and migrants. They were
allowed to rebuild their lives in a new country and they thrived as members of a
- Convention Relating to the Status of Refugees, July 28, 1951, 189
U.N.T.S. 137, Art. 1(A)(2); Protocol Relating to the Status of Refugees,
January 31, 1967, 606 U.N.T.S. 267, Art. 1(2).
- Jane McAdam, The Refugee Convention as a Rights Blueprint for Persons in
Need of International Protection (UNHCR Research Paper, Paper No. 125,
2006), available at http:// www.unhcr.org/research/RESEARCH/44b7b7162.pdf;
International Justice Resource Center, Asylum & The Rights of Refugees,
available at http://www.ijrcenter.org/refugee-law/ (Last visited on October
- Convention Governing the Specific Aspects of Refugee Problems in Africa,
September 10, 1969, 1001 U.N.T.S. 45 ('OAU Convention'), Art. 1(2)
- Cartagena Declaration, November 22, 1984, in Inter-American Commission
on Human Rights, Annual Report 1984-85, 190-193, OAS Doc. OEA/Ser.L/V/II.66,
doc.10, rev. 1.
- Martin Bell & Elin Charles Edwards, Cross-National Comparisons of
Internal Migration: An Update on Global Patterns and Trends 14-15 (Technical
Paper, UN Department of Economic and Social Affairs Paper No. 1, 2013),
available at http://www.un.org/en/development/desa/ population/publications/pdf/technical/TP2013-1.pdf
(Last visited on November 13, 2016).
- UN Department of Economic and Social Affairs, International Migration
Report 2015, UN Doc. ST/ESA/SER.A/384 (September 2016), available at http://www.un.org/en/development/
(Last visited on November 13, 2016).
- International Organization for Migration, Key Migration Terms, available
at http://www.iom. int/key-migration-terms (Last visited on October 13,