CHAPTER ONE

The International Legal Framework for Refugee Protection

Ever since refuge problem became a concern, the international community has been working
tirelessly to establish the legal and institutional framework at international level to protect
refugees.

Therefore, sources and historical evolution of international refuge law, the establishment of
and responsibilities and mandates of international institutions mandated to protect refugees, the
responsibilities of states under international refugee instruments and their obligations towards
international institutions mandated to protect refugees.

Besides, we shall also learn the complementarities among international refugee law,
international human rights law and international humanitarian law.

Sources of International Refuge Law

✓ As a result of their deliberations made by UNGA, the United Nations Convention

relating to the Status of Refugees was adopted on 28 July 1951.
✓ The Convention consolidates previous international instruments relating to refugees
✓ It provides the most comprehensive codification of the rights of refugees at the
international level
✓ It lays down basic minimum standards for the treatment of refugees.
✓ The Convention is to be applied without discrimination.
✓ Certain provisions of the Convention are considered so fundamental that no
reservations may be made to them.
❖ These include the definition of the term “refugee,”
❖ the so-called principle of non-refoulement.
✓ Therefore, that no Contracting State can expel and change the definition of refugee by
reservation.
✓ The emergence of new refugee situations, the need was increasingly felt to make the
provisions of the Convention applicable to such new refugees.
✓ As a result: -
❖ Protocol relating to the Status of Refugees adopted by United Nations General
Assembly in 1966.
 ✓ The objective of the 1967 Protocol was to ensure that equal status should be enjoyed
by all refugees covered by the definition in the [1951] Convention irrespective of the
dateline 1 January 1951.
✓ The 1951 Convention and the 1967 Protocol contain three types of provisions:
(i) Provisions giving the basic definition of who is (and who is not) a refugee and who,
having been a refugee, has ceased to be one.
(ii) Provisions that define the legal status of refugees and their rights and duties in their
country of refuge.
(iii) Other provisions dealing with the implementation of the instruments from the
administrative and diplomatic standpoint. Article 35 of the 1951 Convention and
✓ Article 11 of the 1967 Protocol contain an undertaking by Contracting States to
cooperate with the Office of the United Nations High Commissioner for Refugees in
the exercise of its functions and, in particular, to facilitate its duty of supervising the
application of the provisions of these instruments.
✓ In addition to international instruments, there are regional laws.
Regional instruments: -
1969 Organization of African Unity (OAU) Convention Governing the Specific
Aspects of Refugee Problems in Africa.
In 1994, the Arab Convention on Regulating Status of Refugees in the Arab
Countries was adopted by the League of Arab States (LAS).
In 1999 decided to create a common European asylum system.

International Oversight Institutions and their Mandates and Responsibilities

➢ In 1946, the UN General Assembly established the International Refugee Organization

(IRO) as a Specialized Agency of the United Nations of limited duration.
➢ Having regard to the prospective termination of the mandate of the IRO and the
continuing concerns over refugees, the United Nations General Assembly, by
Resolution 319 (IV) of 3 December 1949, decided to establish a High Commissioner’s
Office for Refugees to discharge the functions enumerated and such other functions as
the General Assembly may from time to time confer upon it.
➢ The legal foundation for UNHCR’s work is its Statute.
➢ It stipulates that the work of UNHCR shall be entirely non-political humanitarian and
social in character.
➢ The Statute was adopted by the UN General Assembly in 1950 and sets out the High
Commissioner’s functions.
➢ These include promoting the conclusion and ratification by States of international
conventions for the protection of refugees (such as the 1951 Convention and its 1967
Protocol), as well as the execution of measures, including those introduced by States,
to improve the situation of refugees and to reduce their number.
➢ The Statute also mandates UNHCR to encourage States to admit refugees to their
territory, and to obtain information from Governments concerning the number and
condition of refugees, and States’ laws and regulations regarding refugees.
➢ Over the years, the UN General Assembly and the UN Economic and Social Committee
(ECOSOC) have expanded UNHCR’s responsibilities to include functions and groups
that were not covered by the original Statute.
➢ This expansion relates to refugees who have returned home voluntarily (returnees), to
stateless people, and to internally displaced persons.
➢ UNHCR’s mandate is thus significantly broader today than when it was first
established.
➢ UNHCR has grown from a small, specialized agency to an organization of some 10,000
employees with offices in over 120 countries. Until 2003, its mandate had to be renewed
every three years by the General Assembly.
➢ In 2003, the General Assembly extended UNHCR’s mandate “until the refugee problem
is solved”.
➢ UNHCR’s mandate in relation to assistance to refugees and other people of concern,
UNHCR, 2015
➢ Note on the mandate of the High Commissioner for Refugees and his Office, UNHCR,
2013
Further information on stateless persons and IDPs can be found in:
➢ Nationality and statelessness, Handbook for Parliamentarians No. 22, IPU and
UNHCR, 2014
➢ Handbook on protection of stateless persons, UNHCR, 2014
➢ Internal displacement: Responsibility and action, Handbook for Parliamentarians No.
20, IPU and UNHCR, 2013.
➢ Handbook for the protection of internally displaced persons, Global Protection Cluster,
2010.
UNHCR’s role in providing protection and assistance to refugees

➢ UNHCR’s mandate to provide protection includes material assistance, which can often
help make it possible for a country to accept refugees, since it relieves some of the
financial burden.
➢ Effective legal protection is essential for refugees, but they must also be able to meet
their basic needs – shelter, food, water, sanitation, medical care, and education.
➢ Assistance and protection are mutually reinforcing.
➢ Over the years, UNHCR has increasingly been called upon to provide protection and
assistance in countries where there is on-going conflict.
➢ This trend started in the Balkans and the Great Lakes region of Africa in the 1990s.
➢ Today, UNHCR is involved in the UN system’s response to almost all complex
emergencies.
➢ Timely and effective humanitarian action is only possible if those who deliver aid can
do so without obstruction.
➢ In conflict situations, this requires respect by all parties for the humanitarian principles
of humanity, impartiality, neutrality and independence.
➢ Unfortunately, humanitarian principles have been flouted in countless situations. When
these principles are not fully respected, humanitarian organizations, including UNHCR,
face difficult decisions about the level of risk they are willing to assume, in an effort to
reach people in need.

UNHCR around the world

✓ Around 90 per cent of UNHCR’s staff are based in the field.

✓ Together with many partners, they live and work alongside refugees in some of the
most dangerous, desolate and remote places on earth.
✓ Their job includes providing protection and assistance in refugee camps and
settlements and in urban areas; responding to emergencies; relocating refugees
away from borders to improve safety; ensuring refugee women have a say in food
distribution and social services; reuniting separated families; visiting border
crossing points and detention centres; and advising governments on draft asylum
laws, policies and practices.
✓ Increasingly, UNHCR staff and partners are working in areas of armed conflict
where there is little or no effective government authority.
 ✓ International presence in insecure areas is in itself a form of protection and can
provide a powerful means of discouraging abuses – but it involves risks for staff.
✓ UNHCR also maintains offices in the capital cities of many countries, working
regularly with ministries in charge of foreign and interior affairs.
✓ Since refugee protection cuts across many lines of responsibility, UNHCR also
often engages with officials in charge of justice, immigration, human rights, police
and the military, education and social affairs, and with mayors and other local
authorities.
✓ UNHCR also serves as a resource to parliamentarians by making submissions to
parliamentary committees on issues related to refugee law and is available to brief
parliamentarians on specific refugee situations and on other issues of concern.

UNHCR’s supervisory role

➢ UNHCR’s Statute, the 1951 Convention and its 1967 Protocol all assign UNHCR
responsibilities for supervising the implementation of international instruments on
refugees.
➢ Paragraph 8 of UNHCR’s Statute gives the High Commissioner authority to supervise
the application of international conventions for the protection of refugees.
➢ Article VIII of the OAU Refugee Convention commits States parties to cooperating
with UNHCR. In Europe, UNHCR’s supervisory responsibility is also reflected in
European Union law, which contains provisions for UNHCR to be consulted on asylum
policy matters.
➢ UNHCR’s supervisory responsibility is also reflected in the asylum laws of many
countries.
➢ Under Article 35 of the Convention and Article II of the Protocol States parties are
obliged to cooperate with UNHCR in the exercise of its functions.
➢ States parties to the 1951 How does UNHCR carry out its supervisory role?
➢ In the absence of a specific mechanism akin to the treaty bodies established for other
UN human rights instruments, UNHCR has developed a variety of ways to carry out its
supervisory role.
➢ These include:
❖ Providing technical and operational assistance and services, together with
partners;
❖ Supporting States in developing laws and policies relating to asylum;
 ❖ Promoting and monitoring compliance with international standards; •
Intervening with governments and courts, as appropriate;
❖ Organizing consultations and conferences to enhance understanding and
consensus on protection challenges, such as the High Commissioner’s
Protection Dialogues which have been held annually since 2007;
❖ Coordinating discussions/negotiations to enhance responses and solutions in
specific displacement situations;
❖ Working to enhance States’ capacity to conduct high-quality refugee status
determinations;
❖ Issuing guidelines on international protection matters and on the eligibility of
persons of specific nationalities for refugee status;
❖ Providing information and legal advice to persons of concern; and
❖ Developing and helping to implement comprehensive solutions strategies.
❖ Convention further undertake to provide information on laws, regulations, and
decrees they may adopt to ensure the application of the Convention.
UNHCR’s partnerships
UNHCR works with a wide range of partners – over 900 in 2016 – including
governments, intergovernmental and UN organizations, other international bodies, and
NGOs.

UNHCR’s partnerships with other UN agencies and intergovernmental organizations Within

the United Nations, UNHCR is one of a network of organs, funds, programmes, specialized
agencies and commissions. UNHCR’s most frequent UN sister organizations and key areas of
collaboration with respect to refugees and returnees include (in alphabetical order):

• International Labour Organization (ILO) – programmes to enhance self-reliance

and sustainable livelihoods of refugees in the contexts of integration and return, labour
mobility and migration outcomes for refugees
• International Maritime Organization (IMO) – promotion of rescue at sea, including
of
asylum-seekers and refugees, in line with States’ international obligations
• UN Children’s Fund (UNICEF) – health, nutrition, and education rights of children,
protection of unaccompanied children and reunification of refugee families separated
in flight.
• UN Counter-Terrorism Implementation Taskforce (CTITF) – collaboration in
strengthening the coordination and coherence of counterterrorism efforts of the UN
system.
• UN Development Programme (UNDP) – enhancing linkages between humanitarian
and development programmes; durable solutions including in protracted refugee
situations, integration and re-integration, Solutions Alliance
• UN Office for the Coordination of Humanitarian Affairs (OCHA) – coordination
of UN assistance in humanitarian crises that go beyond the capacity and mandate of
any single humanitarian agency
• UN Office on Drugs and Crime (UNODC) – prevention of and combatting trafficking
in refugees and other persons of concern to UNHCR and protection of victims
• UN Office of the High Commissioner for Human Rights (OHCHR) – integration
of human rights into UNHCR’s work and inclusion of people of concern into OHCHR’s
standard setting, monitoring and field implementation activities, coordination of
advocacy efforts for groups or persons of concern to both organizations, joint training,
complementary or joint interventions in individual cases
• UN Population Fund (UNPFA) – meeting reproductive health needs; prevention of
sexually transmitted diseases, including AIDS; and prevention of, and protection from,
sexual violence Checklist for parliamentarians: Role of UNHCR In order to promote
State cooperation with UNHCR, parliamentarians are encouraged to: o Support the
inclusion in legislation of an obligation for the authorities to cooperate with UNHCR,
including by sharing information and statistical data on refugees in the country, as well
as by sharing laws, regulations and decrees relating to refugees. o Support the inclusion
in legislation of provisions allowing UNHCR access to asylum-seekers and refugees
wherever they are located, including if detained or held at the border, and for asylum-
seekers and refugees to be able to access UNHCR. o Acknowledge and facilitate an
advisory role for UNHCR in national asylum procedures, including, for instance, by
notifying UNHCR of asylum applications, allowing UNHCR access to individual case
files (with the consent of the asylum-seeker concerned), facilitating opportunities for
UNHCR to be consulted by status determination authorities, and incorporating in
national legislation the right for UNHCR to submit its own recommendations on
individual cases at first instance or on appeal. o Where UNHCR has made arrangements
with an organization that is working on its behalf, ensure that cooperation is extended
 to that organization. Depending on the context, it can also be useful to include other
NGOs in this cooperation, even if they are not formally working on behalf of UNHCR.
• United Nations Programme on HIV/ AIDS (UNAIDS) bringing together the
expertise and resources of ten UN co-sponsor organizations, including UNHCR –
strengthening HIV prevention, treatment, care and support; integration of information
on AIDS and other sexually transmitted diseases in UNHCR’s health services • World
Bank – development and promotion of livelihood opportunities and self-reliance for
refugees and returnees and of concessional development financing for affected
communities
• World Food Programme (WFP) – distribution of food, including in emergencies
• World Health Organization (WHO) – improvement of the health, nutritional,
sanitary, hygienic and environmental conditions of refugees and returnees. UNHCR
works closely with other UN agencies through the “Delivering as One” initiative, which
aims at improving collaborative UN action in the areas of development, humanitarian
assistance and the environment.
• International Organization for Migration (IOM), an inter-governmental agency on
migration. In 2016 it agreed a closer legal and working relationship with the United
Nations as a related organization. IOM works in four broad areas of migration
management: migration and development, facilitating migration, regulating migration
and responding to forced migration. The cooperation between UNHCR and IOM spans
many countries and types of activities, and dates back to the founding of both
organizations in the early 1950s.

Refugee Law, Human Rights Law and Humanitarian Law Inter- play

✓ Refugee law, international humanitarian law, and human rights law are
complementary bodies of law that share a common goal, the protection of the lives,
health and dignity of persons.
✓ They form a complex network of complementary protections and it is essential that
we understand how they interact.
(I) The interplay between international human rights law and Refuge law.

In seeking to ensure humane treatment for a particularly vulnerable group of people,

international refugee law is closely related to international human rights law, which focuses on
preserving the dignity and well-being of every individual.
The two bodies of law are complementary; increasingly, human rights principles have been
applied to enhance refugee protection:

✓ In terms of the entitlements that refugees and asylum-seekers have under international
human rights law in the country of asylum;
✓ In so far as international mechanisms to monitor the proper implementation of human
rights law can be utilized by, and on behalf of, individual refugee men, women and
children;
➢ The entire international protection framework is based on human rights concepts.
➢ It aims to help those who have been forced to flee their countries because their rights
have been violated.
➢ In particular, the notion of persecution, which is at the heart of the refugee definition in
the 1951 Convention/1967 Protocol, is regularly interpreted in accordance with human
rights standards. An understanding of international human rights law is therefore vital
for securing international protection for refugees and others of concern.
➢ Since human rights law applies to everyone, including refugees, regardless of their legal
status, it is a helpful standard to use in assessing the quality of the treatment that asylum
countries offer to refugees and asylum-seekers on their territories.
➢ This is particularly important when States are not Parties to any of the refugee treaties
(the 1951 Convention, its 1967 Protocol, or the OAU refugee Convention).
➢ The prohibition under customary and treaty-based human rights law on returning a
person to a territory where he/she is at risk of torture, or cruel, inhuman or degrading
treatment or punishment, reinforces the principle of non-refoulement under refugee
law.
➢ In doing so, it offers another legal avenue for securing protection for individual
refugees, through recourse to an international complaints mechanism that is not
available under the provisions of the 1951Convention/1967 Protocol.
➢ The Human Rights Committee and the Committee against Torture have both, for
example, prevented the expulsion of individuals facing a substantial risk of torture.
➢ Similarly, at the regional level, European Court of Human Rights can direct a country
under its jurisdiction not to expel an asylum seeker to another country where he/she
might be at risk of torture or any other violation of the European Convention for the
Protection of Human Rights and Fundamental Freedoms (1950).
➢ The Inter-American Court of Human Rights has similar powers in relation to the
prohibition on torture under the American Convention on Human Rights.
➢ The promotion of human rights is also relevant in securing solutions to refugee crises.
➢ Efforts to improve the human rights situation in a refugee-producing country are
imperative if there is to be any real prospect of sustainable voluntary return and
reintegration.
➢ Thus, the principles of human rights are applicable to all phases of the cycle of
displacement which includes: the causes of displacement, determining eligibility for
international protection, ensuring adequate standards of treatment in the country of
asylum, ensuring that solutions are durable.

(II)Interface between international humanitarian law and refugee law

➢ The relationship between international humanitarian law and refugee law is also a two-
way cross fertilization.
➢ Armed conflict and international humanitarian law are of relevance to refugee law and
refugee protection in a number of ways.
➢ First, to determine who is a refugee.
➢ Many asylum seekers are persons fleeing armed conflict and often violations of
international humanitarian law.
➢ Does this make them refugees? Not every person fleeing an armed conflict
automatically falls within the definition of the 1951 Refugee Convention, which lays
down a limited list of grounds for persecution.
➢ While there may be situations, notably in conflicts with an ethnic dimension, where
persons are fleeing because of a fear of persecution based on their “race, religion,
nationality or membership of a particular social group”, this is not always the case.
➢ Recognising that the majority of persons forced to leave their state of nationality today
are fleeing the indiscriminate effect of hostilities and the accompanying disorder,
including the destruction of homes, food stocks and means of subsistence – all
violations of international humanitarian law – but with no specific element of
persecution, subsequent regional refugee instruments, such as the 1969 OAU Refugee
Convention and the 1984 Cartagena Declaration on Refugees have expanded their
definitions to include persons fleeing armed conflict.
➢ Moreover, states that are not party to these regional instruments have developed a
variety of legislative and administrative measures, such as the notion of “temporary
protection” for example, to extend protection to persons fleeing armed conflict.
➢ A second point of interface between international humanitarian law and refugee law
is in relation to issues of exclusion.
➢ Violations of certain provisions of international humanitarian law are war
➢ crimes and their commission may exclude a particular individual from entitlement to
protection as a refuge.
➢ As far as protection is concerned international humanitarian law offers refugees who
find themselves in a state experiencing armed conflict a two–tiered protection.
➢ First, provided that they are not taking a direct part in hostilities, as civilians refugees
are entitled to protection from the effects of hostilities.
➢ Secondly, in addition to this general protection, international humanitarian law grants
refugees additional rights and protections in view of their situation as aliens in the
territory of a party to a conflict and their consequent specific vulnerabilities.
➢ If respected, international humanitarian law operates so as to prevent displacement of
civilians and to ensure their protection during displacement, should they nevertheless
have moved.
➢ Parties to a conflict are expressly prohibited from displacing civilians.
➢ This is a manifestation of the principle that the civilian population must be spared as
much as possible from the effects of hostilities.
➢ During occupation, the Fourth Geneva Convention prohibits individual or mass forcible
transfers, both within the occupied territory and beyond its borders, either into the
territory of the occupying power or as is more the case in practice, in to third states.
➢ In addition to this general protection, international humanitarian law affords refugees
further specific protection.
➢ In international armed conflicts refugees are covered by the rules applicable to aliens
in the territory of a party to a conflict generally as well as by the safeguards relating
specifically to refugees.
➢ Refugees benefit from the protections afforded by the Fourth Geneva Convention to
aliens in the territory of a party to a conflict, including:
✓ the entitlement to leave the territory in which they find themselves unless their
departure would be contarary to the national interests of the state of asylum,
 ✓ the continued entitlement to basic protections and rights to which aliens had been
entitled before the outbreak of hostilities
✓ guarantees with regards to mean of existence, if the measures of control applied to
the aliens by the party to the conflict means that they are unable to support
themselves.
➢ While recognising that the party to the conflict in whose control the aliens find
themselves may, if its security makes this absolutely necessary, intern the aliens or
place them in assigned residence, the Convention provides that these are the strictest
measures of control to which aliens may be subjected.
➢ Finally, the Fourth Convention also lays down limitations on the power of a belligerent
to transfer aliens. Of particular relevance is the rule providing that a protected person
may in no circumstances be transferred to a country where he or she may have reason
to fear persecution for his or her political opinions or religious beliefs; a very early
expression of the principle of non refoulement.
➢ In addition to the aforementioned rules for the benefit of all aliens in the territory of a
party to a conflict, the Fourth Geneva Convention contains two further provisions
expressly for the benefit of refugees.
➢ The first provides that refugees should not be treated as enemy aliens – and thus
susceptible to the measures of control - solely on the basis of their nationality.
➢ This recognises the fact refugees no longer have a link of allegiance with that state and
are thus not automatically a potential threat to their host state.
➢ The second specific provision deals with the precarious position in which refugees may
find themselves if the state which they have fled occupies their state of asylum.
➢ In such circumstances, the refugees may only be arrested, prosecuted, convicted or
deported from the occupied territory by the occupying power for offences committed
after the outbreak of hostilities, or for offences unrelated to the conflict committed
before the outbreak of hostilities which, according to the law of the now occupied state
of asylum, would have justified extradition in time of peace.
➢ The objective of this provision is to ensure that refugees are not punished for acts - such
as political offences - which may have been the cause of their departure from their state
of nationality, or for the mere fact of having sought asylum.
CHAPTER TWO

Determination of Refugee Status at the International Level: Criteria and Procedure.

Substantive Requirements (Criteria)

✓ Refugee status, on the universal level, is governed by the 1951 Convention and the 1967
Protocol relating to the Status of Refugees, the two international legal instruments that
have been adopted within the framework of the United Nations.
✓ These two international legal instruments are applicable to persons who are refugees as
therein defined.
✓ The assessment as to who is a refugee, i.e. the determination of refugee status under the
1951 Convention and the 1967 Protocol, is incumbent upon the Contracting State in
whose territory the refugee applies for recognition of refugee status.
✓ Both the 1951 Convention and the 1967 Protocol provide for co-operation between the
Contracting States and the Office of the United Nations High Commissioner for
Refugees.
✓ This co-operation extends to the determination of refugee status, according to
arrangements made in various Contracting States.

Definition of a refugee

✓ According to Article 1 A (2) of the 1951 Convention the term “refugee” shall apply to
any person who:
“As a result of events occurring before 1 January 1951 and owing to well-
founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion,
is outside the country of his nationality and
is unable or, owing to such fear, is unwilling to avail himself of the protection
of that country;
or who, not having a nationality and being outside the country of his former
habitual residence as a result of such events, is unable or, owing to such fear, is
unwilling to return to it.”

Exclusion Clauses

✓ Those applicants found to fall within Article 1F of the Convention Relating to the Status
of Refugees are excluded from refugee status.
 ✓ Article 1F provides: The provisions of this Convention shall not apply to any person
with respect to whom there are serious reasons for considering that:
❖ he has committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provision in respect of such
crimes;
❖ (b) he has committed a serious non-political crime outside the country of refuge prior
to his admission to that country as a refugee;
❖ (c) he has been guilty of acts contrary to the purposes and principles of the United
Nations.
✓ Article 1F excludes the applicant from refugee status.
✓ The exclusion clauses sought to achieve two aims.
✓ The first recognizes that refugee status has to be protected from abuse by prohibiting
its grant to undeserving cases. Due to serious transgressions committed prior to entry,
the applicant is not deserving of protection as a refugee – there is an intrinsic link
between ideas of humanity, equity and the concept of refuge.
✓ The second aim of the drafters was to ensure that those who had committed grave
crimes in the Second World War or other serious non-political crimes, or who were
guilty of acts contrary to the purposes and principles of the United Nations, did not
escape prosecution.
✓ What is the relationship between 1F and Article 33(2).

5. Cessation of refugee Status

As set forth in Article 1C of the 1951 Convention, the Convention ceases to apply to a refugee
if:

➢ because the circumstances in connection with which he has been recognized as a

refugee have ceased to exist,
➢ continue to refuse to avail himself of the protection of the country of his nationality;
➢ provided that this paragraph shall not apply to a refugee falling under Section A(1) of
this Article who is able to invoke compelling reasons arising out of previous persecution
for refusing to avail himself of the protection of the country of nationality;
➢ Being a person who has no nationality he is, because the circumstances in connection
with which he has been recognized as a refugee have ceased to exist, able to return to
the country of his former habitual residence;
 ➢ provided that this paragraph shall not apply to a refugee falling under Section A(1) of
this Article who is able to invoke compelling reasons arising out of previous persecution
for refusing to return to the country of his formal habitual residence.

Procedures for the Determination of Refugee Status

✓ Though both convention and protocols to refugee neglect the process of determination
of refugees, the UNHCR Handbook on Procedures and Criteria for Determining
Refugee Status has provided it to develop common understanding between states.
✓ These basic requirements, which reflect the special situation of the applicant for refugee
status, would ensure that the applicant is provided with certain essential guarantees, are
the following:
❖ (i) The competent official (e.g., immigration officer or border police officer) to
whom the applicant addresses himself at the border or in the territory of a
Contracting State should have clear instructions for dealing with cases which might
come within the purview of the relevant international instruments. He should be
required to act in accordance with the principle of non-refoulement and to refer such
cases to a higher authority.
❖ (ii) The applicant should receive the necessary guidance as to the procedure to be
followed.
❖ (iii) There should be a clearly identified authority-wherever possible a single central
authority with responsibility for examining requests for refugee status and taking a
decision in the first instance.
❖ (iv) The applicant should be given the necessary facilities, including the services of
a competent interpreter, for submitting his case to the authorities concerned.
Applicants should also be given the opportunity, of which they should be duly
informed, to contact a representative of UNHCR.
❖ (v) If the applicant is recognized as a refugee, he should be informed accordingly
and issued with documentation certifying his refugee status.
❖ (vi) If the applicant is not recognized, he should be given a reasonable time to appeal
for a formal reconsideration of the decision, either to the same or to a different
authority, whether administrative or judicial, according to the prevailing system.
❖ (vii) The applicant should be permitted to remain in the country pending a decision
on his initial request by the competent authority referred to in paragraph (iii) above,
unless it has been established by that authority that his request is clearly abusive.
 He should also be permitted to remain in the country while an appeal to a higher
administrative authority or to the courts is pending.
1. Burden of proof: a shared responsibility
✓ It is normally considered that the burden of proof, or the obligation to prove a claim or
allegation, lies with the applicant.
✓ In addition to the general duty to tell the truth and co-operate with the decision-making
authority a refugee applicant should be provided a reasonable opportunity to present
evidence to support his or her claim.
✓ A refugee claimant must therefore make reasonable efforts to establish the truthfulness
of his or her allegations and the accuracy of the facts on which the claim is based.
✓ The decision-maker must share the duty to ascertain and evaluate all the relevant facts.
✓ In recent years UNHCR as well as a number of states and non-governmental
organisations have made significant advances in compiling and disseminating country
of origin and related human rights information.
✓ The Handbook acknowledges that evidentiary requirements should not be applied too
strictly in view of the difficulty of proof inherent in the special situation in which an
applicant for refugee status finds him or herself.
✓ Although the burden of proof is discharged by the applicant through providing
evidence, in the end the only available evidence may be an applicant’s oral testimony.
✓ In addition to an applicant’s individual testimony, other evidence such as documents or
the testimony of witnesses who have expertise on relevant country conditions may be
considered as part of the determination procedure.
✓ In some national procedures, decision-makers commonly make use of sources of
information which are not available to a refugee applicant including reports from
diplomatic missions or fellow governments, or even in some cases reports from security
intelligence agencies.
2. The standard of proof
✓ Credibility is a key factor in establishing the validity of the refugee claim.
✓ The overall credibility of an applicant’s claim to refugee status is normally assessed
by examining a number of factors including: the reasonableness of the facts alleged;
the overall consistency and coherence of the applicant’s story; corroborative
evidence adduced by the applicant in support of his or her statements; consistency
with common knowledge or generally known facts; and the known situation in the
country of origin.
 ✓ The applicant’s demeanour or behaviour may also be a relevant consideration.
✓ Credibility is established where the applicant has presented a claim that is coherent
and plausible and does not contradict generally known facts and is therefore, may
not be absolutely credible.
✓ There are a number of factors that may tend to place credibility in doubt.
✓ factors reducing credibility may include that: the applicant has withheld
information, personal history data or submitted new information in a second
interview; the applicant is unwilling to supply information; the behaviour of the
applicant is inappropriate; the applicant has deliberately destroyed his passport or
other documentation; the professed inability of the applicant to name the transit
countries through which he or she has travelled.
✓ However, these factors may be capable of rational explanation and should be
assessed in each individual case in the broader context of refugee status
determination.
✓ This requires that an asylum seeker be provided a sufficient opportunity to explain
or help clarify any aspects of the claim which a decision-maker finds doubtful or
simply not credible.

CHAPTER THREE

Some Concepts of Underpinning Refuge Law

✓ There are concepts need discussion in detail.

✓ Those concepts are: non-refoulment, temporary and subsidiary protections, reception
and detention, family unity, safe third country, safe country of origin, internal flight
alternative and durable solutions to refuge problems.
✓ All these concepts are at the heart of international legal framework protecting refugees.
a. Non-refoulement
✓ A refugee’s right to be protected from forced return, or refoulement, is the
cornerstone of international refugee protection.
✓ It is contained in Article 33(1) of the 1951 Convention, which states: “No
Contracting State shall expel or return (‘refouler’) a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular
social group or political opinion.
 ✓ The words ‘in any manner whatsoever’ mean that the principle of non-refoulement
applies to any conduct by the State that would place a refugee at risk of being
returned, whether directly or indirectly, to his or her country of origin.
✓ This would include refusal of entry at the border as well as removal from within the
territory.
✓ The principle of non-refoulement applies wherever the State exercises its authority,
including beyond its borders, for example when intercepting ships on the high seas.
✓ All refugees are entitled to protection from refoulement – including those who have
not been formally recognized as such.
✓ This means that asylum seekers whose status has not yet been determined by the
authorities are protected from forced return.
✓ Article 33(2) of the 1951 Convention outlines two exceptions to the principle of
non-refoulement.
✓ It permits the refoulement of a refugee if there are reasonable grounds for regarding
him or her as a danger to the security of the country where he or she is present or if,
having been convicted of a particularly serious crime, the refugee constitutes a
danger to the community.
✓ However, Article 33(2) does not release States from their obligations under
international human rights law.
✓ Non-refoulement under human rights law: The prohibition of refoulement in
international refugee law is complemented by provisions in many international and
regional human rights instruments that prohibit the removal of anyone, whether a
refugee or not, to a risk of torture, or cruel, inhuman or degrading treatment or
punishment.
✓ Non-refoulement under customary law: An obligation for all States It is widely
accepted that the prohibition of refoulement is a customary law norm.
✓ Customary law is binding on all States. This means that even States that are not
party to the 1951 Convention must respect the principle of non-refoulement.

Non-refoulement and expulsion of refugees

✓ Articles 32 and 33 1951 Convention; Article II (3) 1969 OAU Convention; numerous
UNHCR Executive Committee Conclusions including Nos. 6, 7, 79, 81, 82, 94, 99, 103,
108; Article 3 CAT; Article 7 ICCPR
 ❖ National law should explicitly protect refugees and asylum-seekers from return,
in any manner whatsoever, to the frontiers of territories where their lives or
freedom would be threatened on account of their race, religion, nationality,
membership of a particular social group, or political opinion.
❖ This principle of non-refoulement is codified in Article 33 of the 1951
Convention. The same Article contains an important exception: the benefit of
non-refoulement may not be claimed by a refugee if there are reasonable
grounds for regarding that individual as a danger to the security of the country
in which he or she is, or who, having been convicted by a final judgement of a
particularly serious crime, constitutes a danger to the community of that
country.
❖ States parties to the Convention against Torture, the International Covenant on
Civil and Political Rights or to various international and regional human rights
instruments have different and additional obligations concerning the principle
60 of non-refoulement. Parliamentarians in these countries may wish to
consider consolidating these protections into one piece of legislation.
❖ In line with Article 32 of the 1951 Convention, legislation should also stipulate
that a refugee lawfully in the country may only be expelled on grounds of
national security or public order and is entitled to certain procedural safeguards
before such expulsion.
b. Temporary and Subsidiary Protections
✓ Temporary protection is best conceptualised as a practical device for meeting urgent
protection needs in situations of mass influx.
✓ Its value in ensuring protection from refoulement and basic minimum treatment in
accordance with human rights without over-burdening individual status determination
procedures has been demonstrated.
✓ Subsidiary or complementary protection refers to various types of status granted to
people whose claims under the 1951 Convention have been rejected after an individual
determination, but who have nevertheless been found to be in need of international
protection, for example, under Article3 of the Convention Against Torture.
✓ Standards of treatment vary, but beneficiaries of complementary protection are entitled
to respect for their fundamental human rights including the right to family unity and
reunification.
c. Reception and Detention
✓ Article 31 of the 1951 Convention Relating to the Status of Refugees provides as
follows:
✓ 1. The Contracting States shall not impose penalties, on account of their illegal entry or
presence, on refugees who, coming directly from a territory where their life or freedom
was threatened in the sense of Article 1, enter or are present in their territory without
authorization, provided they present themselves without delay to the authorities and
show good cause for their illegal entry or presence.
✓ 2. The Contracting States shall not apply to the movements of such refugees restrictions
other than those which are necessary and such restrictions shall only be applied until
their status in the country is regularized or they obtain admission into another country.
The Contracting States shall allow such refugees a reasonable period and all the
necessary facilities to obtain admission into another country.
d. Family Unity
✓ The family is universally recognized as the fundamental group unit of society and as
entitled to protection and assistance from society and the state.
✓ The right to family life is recognized in universal and regional as well as in many
national legal instruments.
✓ The right to family unity is inherent in the right to family life.
✓ This right applies to all human beings, regardless of their status.
✓ Few human rights instruments, however, are explicit about how and where this right is
to be affected in relation to families that have been separated across international
borders.
e. Safe Third Country, Safe Country of Origin.

Safe third country

❖ A variety of terms are used as synonyms of what has become generally known as a
safe third country.
❖ These include country of first asylum; host third country‟; country responsible for
examining the asylum application.
❖ The terms are not perfectly interchangeable, and the vocabulary has been
developing over the last decade of application and implementation of the principle.
❖ UNHCR sees a clear distinction between a „first country of asylum‟ – a place
where protection has been granted, and where the level of protection remains
 satisfactory – and a safe third country – a place with which an asylum seeker has
some connection, eg transit, and in which the State applying the principle believes
the person could have requested protection.
❖ This implies that the first country of asylum has accepted responsibility for the
protection of the individual in questions, while a safe third country has not done so.

Safe Country of Origin

❖ The concept of the „safe country of origin‟ leads to nationals of those countries
designated as safe being either automatically precluded from obtaining asylum/refugee
status or at least having it raised as a presumption against their claim, which they then
need to rebut.
❖ From the point of view of states it might be said to be a way of indicating which people
are illegal/irregular migrants with only the asylum channel as possible means of gaining
residence rights.
❖ However, as many advocates of refugee rights have pointed out, even a country which
is indeed safe for 99.999% of its residents might fail a tiny minority, who then do have
the right to seek protection in another state.
f. Internal flight alternative
✓ In many jurisdictions around the world, the possibility of an „internal flight alternative‟
(IFA) (often referred to as „internal relocation alternative‟) is invoked to deny refugee
status to persons at risk of being persecuted for a Convention reason of their country of
origin.
✓ When examining applications for refugee status, some jurisdictions apply the concept
of an internal flight or relocation alternative.
✓ This refers to a specific area of the asylum-seeker’s country of origin where there is no
risk of a well-founded fear of persecution and where, given the particular circumstances
of the case, the individual could reasonably be expected to establish him- or herself and
live a normal life.
✓ If the possibility of internal flight or relocation is to be considered in the context of
refugee status determination, a particular area must be identified and the asylum-seeker
needs to be given an adequate opportunity to respond.
✓ As part of a holistic assessment of a claim to refugee status, in which a well-founded
fear of persecution for a Convention reason has been established in one part of the
 country of origin, it is necessary to assess whether it is both relevant and reasonable for
the refugee to go to live in a specific alternate location within the country.
g. Durable Solutions to Refuge Problems and voluntary repatriations
✓ Article 34 1951 Convention; Executive Committee Conclusions Nos. 101 (LV) on
Legal safety issues in the context of voluntary repatriation of refugees, 104 (lvi) on
Local integration, No. 112 on international cooperation from a protection and
solutions perspective.
✓ It is important to put in place measures that make it possible for refugees to be self-
reliant pending a durable solution; to establish a legal framework and systems to
ensure that refugees are able to enjoy more rights as time passes; and that all
solutions, including voluntary repatriation and integration in the country of asylum,
can be carried out in safety and dignity.
✓ Voluntary repatriation, resettlement and local integration have long been
recognized as durable solutions to refuge problems. In its engagement to protect
refugees and promote durable solutions, UNHCR employs one comprehensive
approach in order to find the most appropriate solution for the individual or groups
of refugees.
✓ While voluntary repatriation n in conditions of safety and with dignity remains the
preferred solution for refugees, UNHCR is cognizant that local integration and
resettlement continue to be applied where appropriate and feasible.
✓ At the same time, it is important to note that a refugee who benefits from
resettlement or local integration may eventually choose to repatriate.

CHAPTER FOUR

Regional Refuge Protection Regimes

✓ The 1951 Convention and 1967 Protocol were designed to assure refugees the widest
possible enjoyment of their rights.
✓ In order to respond to regional specificities, States in different parts of the world have
developed regional laws and standards that complement the international refugee
protection regime.
✓ 1969 OAU Convention governing the Specific Aspects of Refugee Problems in Africa
✓ The conflicts that accompanied the end of the colonial era in Africa produced a
succession of large-scale refugee movements.
 ✓ These population displacements prompted the drafting and adoption not only of the
1967 Protocol, but also of the 1969 Organization of African Unity (OAU) Convention
Governing the Specific Aspects of Refugee Problems in Africa.
✓ The 1969 OAU Convention confirms that the 1951 Convention is “the basic and
universal instrument relating to the status of refugees”.
✓ It adopts the refugee definition found in the 1951 Convention, but also expands it to
include any person compelled to leave his or her country because of “external
aggression, occupation, foreign domination or events seriously disturbing public order
in either part or the whole of his [or her] country of origin or nationality”.
✓ This means that persons fleeing civil disturbances, widespread violence and war are
entitled to refugee status in States that are parties to the African Convention, even if
they do not have a well-founded fear of persecution for one of the reasons set out in the
1951 Convention.
✓ Of course, many people may be refugees under the terms of both Conventions.

The Legal and Institutional Framework to Protect Refugees in Europe

✓ With a view to harmonize refuge standards at a regional level, European states have
adopted a network of regional refuge standards including: Directive on minimum
standards for the qualification and status of third country nationals or stateless persons
as refugees or as persons who otherwise need international protection and the content
of the protection granted, Directive on minimum standards on procedures in Member
States for granting and withdrawing refugee status, Directive on the right to family
reunification, Directive on minimum standards for the reception of asylum-seekers,
Directive on minimum standards for giving temporary protection in the event of a mass
influx of displaced persons, Regulation establishing the criteria and mechanisms for
determining the Member State responsible for examining an asylum application
(Dublin II Regulation).

The Legal and Institutional Framework to Protect Refugees in Africa

✓ The OAU Convention Governing the Specific Aspects of Refugee Problems in

Africa was adopted in 1969 and came into force in 1974.
✓ The convention has proven to be one of the worlds most flexible and innovative
refugee instruments.
✓ In the years following its adoption, Africa has continued to be wracked by conflicts
and civil strife leading to the displacement of millions of people.
✓ In face of these mass exoduses, the OAU Convention has provided a wide ambit of
protection. 2. Genesis of the OAU Refugee Convention When draft work began on
the OAU Convention in 1964, Africa was in the throes of decolonization.
✓ As early as 1957, a surge of independence movements would see much of the
✓ continent enter into anti-colonial struggles leading to the displacement of hundreds
of thousands of people.
✓ Between 1963 and 1966, the number of refugees in Africa nearly doubled, from
300,000 to 700,000 people. These massive displacements were not unprecedented,
but placed a particular burden on the fragile order developing on the continent. This
burden was only compounded by Africa’s continued exclusion from an
international refugee regime limited to “events occurring in Europe prior to 1951.”
✓ The historical climate of decolonization has led some to speculate about the motives
prompting the OAU Convention’s creation. Most prominent is a thesis that sees the
OAU Convention as an effort to “Africanise” the refugee definition because of
alleged deficiencies in the 1951 refugee definition. Some even maintain that “in
Africa, the need for a more inclusive definition was noted from the inception of the
1951 Convention.”
✓ The record actually suggests that this thesis is the first in a series of unsupported
assumptions about the OAU Convention. Rather than playing a central role in the
drafting process, the refugee definition was a minor part of three broader objectives.
Chief among these was the desire to balance Africa’s traditional hospitality toward
strangers with the need to ensure security and peaceful relations among OAU
member states.
✓ Much of this concern was based on the fact that mass population movements could
prompt interstate conflict, particularly if exiles used host countries as bases of
operation for subversive activities. Early on, these fears were translated into drafts
which were far more limited in terms of legal guarantees than the 1951 Convention.
✓ The UNHCR was highly critical of the first two drafts – the Kampala and Leopold
drafts - “for being more rigid than the 1951 Convention.”
✓ When the Convention was adopted in 1969, the important role of security and
subversion became obvious: throughout the Convention, frequent reference is made
 to refugees as a potential “source of friction”, of “discord” and “the “grant of asylum
to refugees is a peaceful and humanitarian act.”
✓ The OAU Convention explicitly prohibits subversive activities and obliges host
states to settle refugees away from borders.
✓ Security was the core preoccupation and as Okoth-Obbo remarks, the success of the
Convention may be largely measured by its attempt to “depoliticize and cohere the
grant of asylum in particular, and the refugee question more generally, in the context
of international relations and state security politics.”
✓ The framers‟ second objective was to create an effective regional complement to
the 1951 Convention.
✓ While the tendency has been to focus on the OAU Convention’s controversial
aspects, it was never intended to supplant the 1951 Convention.
✓ Instead, the drafters were more intent on filling the conspicuous gap left by the 1951
Convention’s temporal and geographic limitations. Most of the early drafts simply
replicated the 1951 Convention.
✓ The Addis Ababa draft of 1965 confirms that: “In all matters relating to the status,
condition and treatment of refugees Member states shall, save as hereinafter
provided, apply the provisions of the convention relation to the status of Refugees
signed in Geneva on 28 July 1951, irrespective of the dateline and of any
geographical limitation.”
✓ The complementary character is firmly established in the OAU Convention’s
statement that it “shall be the effective regional complement in Africa of the 1951
United Nations Convention on the status of Refugees.”
✓ The drafters‟ final objective was to create a convention that would meet the specific
needs of African refugees. It is the extended definition which gives clearest voice
to this goal.

The Legal and Institutional Framework to Protect Refugees in America

➢ Cartagena Declaration on Refugees (1984) was adopted in the wake of the civil war-
related refugee crises that affected Central America in the 1980s by government
representatives, distinguished academics and lawyers from the region.
➢ Although the Declaration is not legally binding, it has been repeatedly endorsed by
Central and Latin American States.
 ➢ Its broad refugee definition has been incorporated in the legislation by almost all
countries in the Central American and Caribbean region and in a number of Latin
American countries.
➢ Indeed, its importance as a regional protection tool has been recognized in numerous
resolutions of the United Nations General Assembly and of the Organization of
American States.
➢ The Cartagena Declaration contains a set of principles and criteria guiding the States
signatories to it on the treatment of refugees in the Central American Region.
➢ The Latin American positions and perspectives in relation to the determination of
refugee status are to be found in the Declaration.
➢ Its provisions also include durable solutions to the refugee problem which have been
put into practice in Central America.
➢ Account was taken in the Cartagena Declaration of the legislative antecedents and
existing practice within the region concerning the right to asylum as well as protection
of human rights and of civilian populations in wartime.
➢ Particularly noteworthy in this regard is the 1889 Montevideo Treaty on International
Penal Law enshrining respect for the right to asylum, The Inter- American Charter on
Human Rights and the 1949 Geneva Conventions.
➢ The Cartagena Declaration found an inspiring influence in the provisions of the 1969
OAU Convention from which it borrows in particular the concept of refugee.
➢ Above all it takes into consideration the notion of refugee contemplated in the 1951
Convention relating to the Status of Refugees and its 1967 Protocol.

CHAPTER FIVE

The Legal and Institutional Framework to Protect Refuges in Ethiopia

The Status and Importance of International and Regional Refugee Instruments in

Ethiopia

✓ Ethiopia signed the 1951 Convention relating to the Status of Refugees on 10 Nov 1969
and its 1967 Protocol in Nov 1969.
✓ It is a party to the convention with reservations to its article 8(that obliges states to exempt
refugees from measures which may be taken against the person, property or interests of
nationals of a foreign State), article 9 (that allows states, in time of war or other grave and
exceptional circumstances, to take provisional measures which it considers to be essential
 to the national security in the case of a particular person, pending a determination by the
Contracting State that that person is in fact a refugee and that the continuance of such
measures is necessary in his case in the interests of national security),article 17(2)( that
prohibits states to impose restrictive measures that may be imposed on aliens or the
employment of aliens for the protection of the national labour market, to refugees) and
article 22(that obliges states to accord to refugees the same treatment as is accorded to
nationals with respect to elementary education ).
✓ Regionally, Ethiopia is also a party to the 1969 Convention governing the Specific Aspects
of Refugee Problems in Africa (African Refugee Convention). Besides these refuge-
specific instruments, Ethiopia is also a party to most of international and regional human
rights and humanitarian law instruments such as International Covenant on Civil and
Political Rights, International Covenant on Economic, Social and Cultural Rights,
International Convention on Torture, Inhuman and Degrading treatment, The Convention
on the Rights of the Child, The Convention on the Elimination of Discrimination against
Women, the 1949 Geneva Conventions and, the African Charter on Human and Peoples
Rights, thereby reinforcing protection for refugees.
✓ More importantly, the fact that Ethiopia has committed itself to these refuge instruments
both at international and regional level demonstrates the desire of the country to assume
the shared responsibility of protecting those who are in a danger of persecution.
✓ Apparently, being a party to these regional and international treaties imposes obligation on
Ethiopia to respect and protect them.
✓ This again means that Ethiopia should undertake various measures at a national level which
may include: domesticating these instruments so that they can be enforced in Ethiopia,
adopting refuge legislations at a national level, establishing or designating the necessary
institutions to handle refuge matters etc.
✓ The current Ethiopian constitution under its article 9(4) expressly provides that „all
international agreements ratified by Ethiopia are an integral part of the law of the land‟.
✓ Once the executive branch of the government negotiates and signs international treaties,
they are expected to be presented before the House of Peoples Representatives for
ratification.
✓ In the normal course of things, after some level of deliberations, theses instruments should
be adopted which make them part of the law of the land.
✓ The same proviso of the constitution also provides that „the constitution is the supreme law
of the land. Any law, customary practice or a decision of an organ of state or a public
official which contravenes this constitution shall be of no effect. ‟
✓ From this one could suggest that international and regional refuge conventions are
subordinate to the constitution and the latter prevails in case the two conflict each other.
✓ On the other hand, Chapter three of the constitution gives a catalogue of human rights.
✓ Article 13 of this chapter of the constitution provides that „the fundamental rights and
freedoms specified in this chapter shall be interpreted in a manner conforming to the
principles of the Universal Declaration of Human Rights, International Covenant on
Human Rights and International instruments adopted by Ethiopia.
✓ It is clear, therefore, that the constitution demands the long list of human rights under
chapter three to be interpreted in conformity with international human rights instruments
adopted by Ethiopia.
✓ This means that international human rights instruments including refuge-specific human
rights are to be taken as a guideline to establish the meaning and content of the rights given
in chapter three of the constitution.
✓ From this, again, one could suggest that as far as chapter three rights of the constitution are
concerned, the constitution is subordinate to the adopted international human rights
instruments, particularly where the issue of interpretation comes up.
✓ Substantiating this line of argument, Article 27 of the Vienna Convention on the Law of
Treaties provides that “A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty”.
✓ It is; therefore, clear that a domestic law including a constitution can not be a justification
for failing to live up to the expectations of international agreements.
✓ As a corollary, for a state party to perform its international obligations under a treaty, its
national laws should be made and interpreted in such a way that they do not go against
these international commitments.
✓ The expression of article 13 of the constitution that the human rights provisions of the
constitution should be interpreted in compliance with international human rights
instruments is a keen indication of the enormous interest of Ethiopia to respect these
instruments and its internal laws should not serve as an impediment to that end.
✓ Teleological interpretation of the constitution based on its overall object and purpose also
adds credence to this far-reaching understanding of article 13 of the constitution.
✓ In sum, it is more tenable to take a position that the human rights provided in the
constitution that applies to refugees and the refuge proclamation should be interpreted in
light of the refuge convention, the OAU refuge convention and the international and
regional human rights instruments Ethiopia is a party to. Doing in the otherwise would
expose Ethiopia to a possible violation of its commitments at a regional and international
level.

Ethiopian Legal and Institutional framework on the Protection of Refugees

Legal Standards

✓ It is shown above that Ethiopia is a party to the 1951 international refuge convention
and its additional 1967 protocol.
✓ At a regional level, it is a party to the OAU refuge convention of 1969.
✓ Furthermore, Ethiopia is also a party to a number of international and regional human
rights instruments which are meant to protect every individual including refugee.
✓ It is shown in previous chapters that all refuge instruments are nothing but a restatement
of refuge-specific human rights and, refuge law is a segment of the complex network
of human rights law and the two are meant to complement each other.
✓ It is also show above that the 1995 Constitution made adopted international agreements
an integral part of the law of the land and gave the executive and legislative branches
specific authority to provide asylum.
✓ What is more, most of the rights provided under chapter three of the constitution are
couched in a language which goes as „every person‟, which may well include aliens
including refugees. If this understanding is tenable, refugees could benefit from most
of those human rights in the constitution.
✓ On the other hand, one could also note that some of the rights in the constitution seem
to be limited to only Ethiopian nationals as these provisions employ the phrase „every
Ethiopian‟.
✓ Such provisions of the constitution include: article 40(the right to ownership of
property, article 41(regarding economic, social and cultural rights) and article 42(right
to work) The constitution in its article 32 also expressly provides non- national
including refugees the freedom of movement within Ethiopia and the freedom to choose
residence in the following words: "any ... foreign national lawfully in Ethiopia has,
within the national territory, the right to liberty of movement and freedom to choose his
 residence, as well as the freedom to leave the country at any time he wishes," but the
same proviso seems to have reserved the right of re-entry to nationals.
✓ As a significant step towards enhancement of refuge protection, as granted by the
refugee Convention, Ethiopia has recently adopted a proclamation (2004) that
specifically deals with refuges.
✓ Being a national refuge-specific instrument, the proclamation regulates a fairly wide
areas related to refuges in almost same language the refugee convention provides.
✓ Apart from this, unlike many contemporary national refuge instruments, the
proclamation does not provide for concepts such as internal flight alternative, safe
country of origin, safe third country, subsidiary and temporary protection.
✓ The adoption of this proclamation highlights Ethiopian’s commitment to implement its
international and regional obligations.
✓ Its adoption facilitates the grant of asylum and the protection of refugees. To this effect,
the preamble part of the proclamation reads: „it is desirous to enact national legislation
for the effective implementation of the aforesaid international legal instruments,
establish a legislative and management framework for the reception of refugees, ensure
their protection, and promote durable solutions whenever condition permit‟
✓ The proclamation also provides for institutions such as the Security, and Immigration,
and Refugee Affairs Authority's (SIRAA) and the Appeal Hearing Council to deal with
refuge applications and other refuge related matters.

General Observation of the Proclamation 1110/2019

✓ The Refugee Proclamation No. 1110/2019 is considered a milestone, historic and model
law on guaranteeing refugee protection and reflecting the latest developments; hence it
is called one of most progressive‟ refugee law in Africa.
✓ The reason behind the adoption of Proclamation No. 1110/2019 was to replace the first
Refugee Proclamation No. 409/2004 and to redeem its failure to incorporate local
integration and resettlement as part of a durable solution, lack of exhaustiveness on the
right of refugees, failure to incorporate refugees right to movement and right to work,
to include the developments of Refugees right and protection and majorly it is because
of the need to implement the nine pledges Ethiopia made at the summit held in New
York to improve the protection of Refugees through Comprehensive Refugee Response
Framework (CRRF).
✓ Refugee Proclamation No 1110/2019 has five parts: the first part deals with the
definition of the terms and the scope of application of the law; the second part deals
with the general principles and the criteria for identifying a person as a refugee; the
third part deals with procedure and steps which should be taken for the determination
of refugee status; the fourth part deals with rights and duties of asylum seekers and
Refugees in detail; and the last part, the fifth part, is about miscellaneous provisions.
(a) Definition of Refugees (Article 2(7), Article 5 and 21)
✓ Refugee Proclamation No. 1110/2019 defines refugee in the same way as the 1951
Refugee Convention and the Refugee Protocol and also includes the unique futures of
the OAU Refugee Convention.
✓ Anyone who is forced to flee from his habitual residence because of external
aggression, occupation, foreign domination or events seriously disturbing public order
in either part or the whole of his country of origin or nationality‖ can be considered a
refugee in Ethiopia.
b. Non- Refoulement
✓ Article 11 of the proclamation provides for the protection against refoulment in the
following words: No person shall be refused entry in to Ethiopia or expelled or returned
from Ethiopia to any other country or be subject to any similar measure if as a result of
such refusal, expulsion or turn or any other measure, such person is compelled to return
to or remain in a country where:
a) the may be subject to persecution or torture on account of his race, religion,
nationality', membership of a particular social group or political opinion: or
b) his life, physical integrity or liberty would be threatened on account of external
aggression, occupation, foreign domination of events seriously disturbing public order
in part or whole of the country. As with the 1951 convention, the proclamation, in
addition, provides for grounds of exception in the following words:
✓ 2) The benefit of this provision may not, however, be claimed by a refugee whom there
are serious reasons for regarding as a danger to the national security, or who having
been convicted by a final judgment of a particularly serious crime, constitute a danger
to the community.
✓ Clearly, this provision of the proclamation is nothing more than a direct copy of the
relevant provisions of the 1951 convention and the 1969 OAU Convention.
Accordingly, one should refer to the rather lengthy discussion on non-refoulement
 under chapter three of this material so as to be able to better understand what it means
under the proclamation.
✓ It is also worth noting that unlike the 1951 convention, the Ethiopian proclamation
provides for expulsion clause under its article 10 stating that a „refugee who is lawfully
resident in Ethiopia shall not be expelled except on the ground of national security and
public order‟.
✓ This clause authorizes the concerned authority to expel a refuge on the grounds of
national security and public order.
✓ While it is understandable that a refuge is not protected under the convention against
refoulement in certain exceptional situations, and same is adopted by the proclamation
under the non-refoulement clause, providing for another clause on expulsion might be
criticized as a move to make the exception go wider.
✓ Furthermore, any restriction to the protection against refoulment should be limited to
those exceptional convention reasons.
c. Exclusion from Refuge Status
✓ Ethiopian Proclamation, under article 7, provides for grounds for excluding asylum
seekers from refuge status.
✓ The grounds of exclusion given in the proclamation are similar to the grounds given
under the convention except that the proclamation provides for one more grounds of
exclusion under its sub article 1-3.
✓ This sub article provides that a person shall not be considered a refuge if; 4) having
more than one nationality, he has not availed himself of the protection of one of the
countries of which he is a national and has no valid reason, for not having availed
himself of its protection. One could argue that this sub article is either unnecessary
addition to the provision or perhaps misplaced.
✓ What is provided under this sub article is a component of the definition of refuge under
the 1951 convention as well as the proclamation.
✓ Having a dual nationality and a refusal to avail oneself of that protection ,without good
reason, is and should be an element of a refuge determination process and hence should
not be raised at exclusion stage.
✓ This is because a person shall not be deemed to be lacking the protection of the country
of his nationality if, without any valid reason based on well-founded fear, he has not
availed himself of the protection of one of the countries of which he is a national.”
 ✓ Such part of the definition of a refuge is intended to deny from refugee status all persons
with dual or multiple nationality who can avail themselves of the protection of at least
one of the countries of which they are nationals.
✓ Wherever available, national protection takes precedence over international protection.
d. Family Unity
✓ The Ethiopian proclamation, as with the other international and regional refugee
instruments, recognizes family unity under its article 14.
✓ As was discussed in the previous chapters, it is part of states humanitarian obligation to
allow and facilitate the family members of the asylum seeker and refugee join the latter
in a country where the asylum is sought.
✓ The proclamation does not limit the right of family unity only to refugees. It rather
equally recognizes the right of family unity of asylum seekers.
✓ The family members of both asylum seekers and refuges have the right to enter Ethiopia
with a view to reunite with the asylum seeker and refugee.
✓ The family members of the asylum seeker enjoy same measure of rights the asylum
seeker enjoys and if the asylum seeker is found not to deserve refuge status, they also
loose protection unless otherwise, of course, they are given refuge status on their right.
✓ Family members of the refuge are entitled to the same measure of rights a refuge is
entitled to under the proclamation.
✓ Interestingly enough, in order for them to enjoy those rights, they need not have to apply
for refuge status and need not necessarily have a refuge status themselves.
✓ The family of asylum seekers and refugees, however, has the right not an obligation to
apply for refuge status.
✓ Though the proclamation does not provide the details of how Ethiopia would facilitate
family reunification, the fact that the proclamation recognizes family unity both for
asylum seekers and refugees alike and that they are entitled to same rights the refuge
has without they having been required to have a refuge status is an extremely positive
gesture of humanitarianism and is in line with its commitment under the convention.
e. Procedure for the determination of refuge status

We have seen in the previous chapters that the procedure for the application and determination
of refuge status should be fair. The asylum seeker should be given the opportunity and time to
lodge his application before a designated authority and the right to a fair hearing. These
obligations have been duly recognized by international and regional refuge instruments.
Similarly, the Ethiopian refuge proclamation extends procedural protections to asylum seekers
in its provisions 15ff. The Proclamation, under its article 15, requires asylum seekers to apply
for asylum both at the frontier and within Ethiopia in 30 days time.

They can report either at the nearest police stations or the office of the authority.

The police station receiving the application shall, as soon as possible forward the application
to the Authority.

The applicant shall fill relevant forms and vouch for the truth of the statement therein.

Having received the application, the Authority shall provide the applicant with identity card
attesting to his status as asylum seeker pending refuge status determination.

Interestingly enough, unlike the refugee convention which allows for a possibility of detaining
asylum seekers who are inside the country illegally, the proclamation prohibits both detention
and criminal prosecution against a person who has applied or is about to apply for refuge status
on the account of his illegal entry and presence in the country.

Seen even from the standard provided by the refugee convention point of view, the
proclamation is a step ahead as it categorically prohibits detention and prosecution of any sort
for unlawful entry or presence.

According to the 2008 world refuge survey, „there were no reports that Ethiopia detained
refugees or asylum seekers for illegal entry, presence, work, or movement, but the Government
kept several Eritreans in detention on national security grounds, allowing the International
Committee of the Red Cross (ICRC) to visit them.‟

Having received the application of the asylum seekers and issued an asylum seeker with an
identity card, the Security, and Immigration, and Refugee Affairs Authority (SIRAA)
determines the refuge status of the applicant.

In deciding asylum application, the SIRAA shall ensure that every applicant is given
reasonable time to present his case; ensure the presence of qualified interpreter during all the
stages of the hearing; cause the person concerned to be notified of its decision and the reason
thereof in writing; decide on every application or case referred to it within reasonable period
of time; and invite the United Nations High Commissioner for Refugees to participate as an
observer.
Apart from these procedural guarantees the proclamation does not provide for a right to legal
aid, an essential component of fair hearing.

But one would only hope that an asylum seeker shall be given a free legal aid at least in
circumstances where this looks imperative to establish the truth. Any asylum-seeker, who is
aggrieved by the decision of the SIRAA, may within thirty days of being notified of such a
decision, appeal in writing to the Appeal Hearing Council. This organ, hearing the appeal of
the asylum seeker, follows same procedure the SIRAA follows to reach its decision.

If the Appeal Hearing Council affirms the decision of the SIRAA, as the proclamation stands
now, that would be the end of the matter and the asylum seeker may have to leave as our
proclamation does not seem to have recognized, at least explicitly, the so called subsidiary or
complimentary protection. While it has been an important factor of a fair refuge determination
procedure, the fact that the proclamation does not provide for a judicial review by ordinary
courts is regrettable.

f. Rights and Obligations of Asylum-seekers and Refugees

✓ Several states subject asylum seekers and refugees to different standards of treatment
such as alien, preferred nation’s nationals and as nationals.
✓ The contemporary understanding of the refugee convention, however, means that
refugees should be entitled more or less to the same measure of rights nationals are
entitled to.
✓ In other words, discriminatory treatment between nationals and refugees is
increasingly becoming unacceptable.
✓ The Ethiopian refuge proclamation, under its article 22, provides that a refuge shall be
permitted to remain within Ethiopia, issued with identity card and travel document to
travel outside of Ethiopia.
✓ In practice, the Government and UNHCR jointly adjudicated refugees' written
applications for international travel documents for educational, work-related, or urgent
personal reasons.
✓ The proclamation has also reaffirmed that refugees are entitled to the rights recognized
under both the refuge convention and the OAU refuge convention.
✓ Notwithstanding the above, the proclamation under its sub article 2 provides that the
Head of the Authority may designate places and areas in Ethiopia within which
recognized refugees, persons who have applied for recognition as refugees, and family
 members thereof shall live, provided that the areas designated shall be located at a
reasonable distance from the border of their country of origin or of former habitual
residence.
✓ As shown before, the 1995 Constitution also provides that „any ... foreign national
lawfully in Ethiopia has, within the national territory, the right to liberty of movement
and freedom to choose his residence, as well as the freedom to leave the country at any
time he wishes, ‟ but reserved the right of re-entry to nationals.

Institutions for protection of refugees in Ethiopia

✓ Agency
✓ UNHCR
✓ Disaster risk management