Special Issues in Public International Law – Atty.

RVP | Arturo
International Refugee Law is unwilling to avail himself of the protection of
I. 1951 Refugee Convention that country; or who, not having a nationality and
being outside the country of his former habitual
• Convention borne out of war
residence as a result of such events, is unable or,
• Intended to protect victims of WWI owing to such fear, is unwilling to return to it. In
the case of a person who has more than one
II. History nationality, the term “the country of his
What led States to negotiate the convention? nationality” shall mean each of the countries of
• WWI which he is a national, and a person shall not be
• League of Nations in 1921 – byproduct of WWI deemed to be lacking the protection of the country
(Similar to UN, which was byproduct of WWII) of his nationality if, without any valid reason based
• WWII – finally compelled states to convene on well-founded fear, he has not availed himself of
the protection of one of the countries of which he is
about refugees
a national.
• Diplomatic conference in Geneva
• Too restrictive under the Convention ang
• Outside of country of origin
“refugee” - resulted to Refugee Protocol
• Because of fear of persecution
• Due to race, religion, nationality, membership,
Main purpose?
political opinion
• To provide protection, not really support, to
• And State is unable (wa na jud mabuhat si
those forced to migrate due to war
State) or unwilling (State is direct source of
• Prior to Jan. 1, 1951, “refugee” must have
persecution or non-state actors) to protect
been a victim of war in Europe prior to Jan. 1,
(unable to perform parens patriae)
1951 – too restrictive
o Persecution requires active factor –
• To remove strictly restrictive crietria, Refugee
victims of climate change can’t claim
Protocol
refugee status
1. Removed geographical limitation (not just
o There is a very need for persecution
in Europe)
2. Remove temporal limitation (not only
TN: Refugee Convention is intended to provide
before Jan. 1,1951
surrogate international protection; hence, IF IT
3. Expanded definition by removing the
definition (limitations) CAN STILL BE PROVEN THAT YOUR MOTHER
STATE CAN STILL PROTECT YOU, YOU CANNOT
• Berlin Wall Case – must have crossed borders AVAIL OF REFUGEE STATUS

III. Who are refugees under lex lata? IV. Refugee Protection
1. Is refugee protection permanent?
Article I – Definition of the Term “Refugee” Why would you go back to the person who hurt you vs
A. For the purposes of the present Convention, the nothing feels like home
term “refugee” shall apply to any person who: • For practical reasons and the best interest of
the international community
(1) Has been considered a refugee under the • When fear of persecution disappears, there is
Arrangements of 12 May 1926 and 30 June 1928 no need to ask for protection from the other
or under the Conventions of 28 October 1933 and State
10 February 1938, the Protocol of 14 September • Take note that an incentive to a refugee is a
1939 or the Constitution of the International disincentive to the surrogate state’s citizens
Refugee Organization; Decisions of non-eligibility
• There’s also involuntary: repatriation
taken by the International Refugee Organization
during the period of its activities shall not prevent
the status of refugee being accorded to persons Article I Section C:
who fulfil the conditions of paragraph 2 of this 1) Voluntarily re-availed himself of the protection
section; of the country or his nationality
2) Having lost his nationality, has voluntarily re-
(2) As a result of events occurring before 1 acquired it
January 1951 and owing to well-founded fear of 3) Acquired a new nationality and enjoys the
being persecuted for reasons of race, religion, protection of the country of new nationality
nationality, membership of a particular social 4) Voluntarily re-established in the country
group or political opinion, is outside the country of which he left or outside which he remained
his nationality and is unable or, owing to such fear, owing to fear of prosecution
Special Issues in Public International Law – Atty. RVP | Arturo
5) He can no longer, because of the circumstances V. Principle of non-refoulement/non-return
in connection with which he has been
recognized as a refugee have ceased to exist, Article 33 – Prohibition of Expulsion or Return
continue to refuse to avail himself of the (“Refoulement”)
protection of the country of his nationality 1) No Contracting State shall expel or return
6) Who has no nationality, because of the (“refouler”) a refugee in any manner
circumstances in connection with which he has whatsoever to the frontiers of territories
been recognized as a refugee have ceased to where his life or freedom would be threatened
exist, able to return to the country of his on account of his race, religion, nationality,
former habitual residence membership of a particular social group or
political opinion.
2) The benefit of the present provision may not,
2. What is the difference between a refugee and a however, be claimed by a refugee whom there
migrant? are reasonable grounds for regarding as a
• Migrant = economic reasons danger to the security of the country in which
• Refugee = reasons of persecution he is, or who, having been convicted by a final
• What if there is economic difficulty is coupled judgment of a particularly serious crime,
constitutes a danger to the community of that
with political persecution?
country.
3. Can someone be excluded from refugee • The only certain CIL in Refugee Convention
protection even if qualified?
Article 1 Section F Case of De Facto Refugees
1) Has committed a crime against peace, a war • Physically present but pending application
crime, or a crime against humanity, as defined • Gives rise to an obligation for the State of
in the international instruments drawn up to refuge to grant effective protection to persons
make provision in respect of such crimes falling under its de facto jurisdiction
2) He has committed a serious non-political crime • So pending determination of refugee status,
outside the country of refuge prior to his the de facto refugee cannot be returned to the
admission to that country as a refugee home/mother state
3) He has been guilty of acts contrary to the • Once arrived at border, already de facto
purposes and principles of the United Nations
refugees – one of the elements of refugee
• Threats to national security – right to self- status is crossing of border
preservation of the State
• But must be established with due process Extraterritorial Refoulement
otherwise the surrogate State can just point • Escaping responsibilities by intercepting
fingers arbitrarily refugees or by deporting them to areas outside
the State borders including the territorial sea
Those who committed: or the so-called international zones
• Crime against peace • Intercepted before reaching the borders para
• War crime di mahimong refugee
• Crime against humanity • Inter-American Court of Human Rights – this is
• Serious non-political crime outside their a violation; if the very first place the reason
country of refuge – why only non-political they did not reach the borders of the state of
crime? IT WOULD UNDERMINE DISSENT plus refuge is because of such state, not
persecution due to political opinion is a ground sanctioned by international human rights
for refugee status tribunals = it will result to absurdity and
• But there is a fine line between right to free conventions should not be interpreted so as to
speech and subversive speech; still States give rise to absurdity
must put premium to free speech, otherwise, it • What you cannot do directly, you cannot do
would cultivate a culture of fear and suppress indirectly
active citizenry
• Guilty of acts contrary to the purpose and Scope of Application of Non-Refoulement
principles of the United Naitons Policies or systems of immigration control that hardly
comply with the principle of non-refoulement:
1. First Country of Arrival Rule
Special Issues in Public International Law – Atty. RVP | Arturo
• The country which should entertain questions Article 17 – Wage-Earning Employment
of refugehood is the first country of arrival or 1) The Contracting State shall accord to refugees
responsible or examining their applications lawfully staying in their territory the most
Presumes refugees pass through multiple favorable treatment accorded to nationals of a
foreign in the same circumstances, as regards
states before reaching the state of refuge
the right to engage in wage-earning
• PREVENTS ASYLYM SHOPPING employment.

2. Safe Third Country Rule

3. The right to housing
• Premised on a distinct connection – if you have Article 21 – Housing
family members in other states, they will bring As regards housing, the Contracting States, in so
you there far as the matter is regulated by laws or
• Member States may send applicants to third regulations or is subject to the control of public
countries with which the applicant has a authorities, shall accord to refugees lawfully
connection or which the applicant had staying in their territory treatment as favorable as
transited through where he could have applied possible and, in any event, not less favorable than
for asylum that accorded to aliens generally in the same
• May be invoked by the States which are first circumstances.
country of arrival
• Cultural nexus = Darwin for the win 4. The right to education
• Contentious; why give the right? Because it is
3. Safe Country of Origin Rule a completely different new world which is
• Even prior to evaluating the application, there inconsistent with their way of life. Problem?
is a presumption that the home state is a safe Indoctrination happens – they are made to
country of origin accept certain principles which are
• Designation of countries where there is a inconsistent with their country of origin
presumption of no risk of persecution
• There is a predetermined list Article 22 – Public Education
1) The Contracting States shall accord to refugees
the same treatment as is accorded to nationals
Why not compliant with non-refoulement? It will lead with respect to elementary education.
to international pingpong – refugee will still end up in 2) The Contracting States shall accord to refugees
the country where they first landed foot in; worse, they treatment as favorable as possible, and in any
would merely go back to country of origin. event, not less favorable than that accorded to
aliens generally in the circumstances, with
VI. Rights under the Refugee Convention respect to education other than elementary
1. Exemption from penalties for illegal entry into the education and, in particular, as regards access
territory of a contracting State to studies, the recognition of foreign school
• Why? De facto refugee naman – when the certificates, diplomas and degrees, the
remission of fees and charges and the award of
reason for the law ceases, the law ceases; a
scholarships.
necessary consequence of refugee application

Article 31 – Refugees Unlawfully in the Country of 5. Right to public relief and assistance
Refuge • Problem? Volunteers try to indoctrinate and
1) The Contracting States shall not impose put a price tag to relief operations
penalties, on account of their illegal entry or
presence, on refugees who, coming directly Article 23 – Public Relief
from a territory where their life or freedom The Contracting States shall accord to refugees
was threatened in the sense Artciel I, enter or lawfully staying in their territory the same
are present in their territory, without treatment with respect to public relief and
authorization, provided they present assistance as is accorded to their nationals.
themselves without delay to the authorities
and show good cause for their illegal entry or 6. Right to freedom of religion and free access to
presence. courts
Article 4 – Religion
2. The right to work The Contracting States shall accord to refugees
• To assimilate them into the community; and to within their territories treatment at least as
sustain themselves favourable as that accorded to their nationals with
respect to freedom to practice their religion and
Special Issues in Public International Law – Atty. RVP | Arturo
freedom as regards the religious education of their
children.

Article 16 – Access to Courts

1) A refugee shall have free access to the courts of
law on the territory of all Contracting States.
2) A refugee shall enjoy in the Contracting State
in which he has his habitual residence the
same treatment as a national in matters
pertaining to the access to the Courts,
including legal assistance and exemption from
caution judicatum solvi.
3) A refugee shall be accorded in the matters
referred to in paragraph 2 in countries other
than that in which he has his habitual
residence the treatment granted to a national
of the country of his habitual residence.

7. Freedom of movement within the territory

Article 26 – Freedom of Movement
Each Contracting State shall accord to refugees
lawfully in its territory the right to choose their
place of residence to move freely within its
territory, subject to any regulations applicable to
aliens generally in the same circumstances.

8. The right to be issued identity and travel

documents
Article 27 – Identity Papers
The Contracting State shall issue identity papers to
any refugee in their territory who does not possess
a valid travel document.

Article 28 – Travel Documents

1) The Contracting States shall issue to refugees
lawfully staying in their territory travel
documents for the purpose of travel outside
their territory, unless compelling reasons of
national security or public order otherwise
require, and the provisions of the Schedule to
this Convention shall apply with respect to
such documents. The Contracting States may
issue such a travel document to any other
refugee in their territory; they shall in
particular give sympathetic consideration to
the issue of such a travel document to refugees
in their territory who are unable to obtain a
travel document from the country of their
lawful residence.
2) Travel documents issued to refugees under
previous international agreements by parties
thereto shall be recognized and treated by the
Contracting States in the same way as if they
had been issued pursuant to this article.