CHAPTER TWO
2.0 LEGAL PROVISIONS
This chapter will establish the evolution of refugee rights as well verbatim elaborate on the legal provisions that are accessible to refugees. The synopsis of the history of refugee law shall serve the purpose of linking climate change and human rights. This chapter also presents what is found in the literature regarding legal recognition and protection of refugees. It will look at the African regional perspective on the status of refugees within the continent. Finally; this chapter will look at the juridical decisions on environmental refugees and the issues that arose.
2.1 Development of Refugee Law
The codification of international refugee law as we know it today begun in the 20th Century, however its existence can be traced back to the 16th century when ancient Greeks and Romans had specific laws jus gentium when it came to dealing with foreigners in their land these laws were meant for slaves, aliens and refugees.
Modern international refugee law is intertwined with international human rights law, as questioning the existence of international refugee without international humanitarian law is unimaginable. However, it is important to note that refugee laws do not ‘compete nor act as an alternative’ to Human rights
2.1.1 Refugee law before the 1951Convention on the Status of Refugee law
The emergence of states begun in the 16th century, early 16th century aliens were not allowed it work in foreign lands this led to poor economic life for aliens only few merchants were allowed to seek economic growth by having the ability to trade and do business in foreign territories . Towards the 19th Century, aliens were able to trade and travel through foreign territories by way of treaties created by the states. However, they were not accorded full rights such as civil and political rights. This meant that aliens could not vote however they were expected to engage in certain public duties
In the beginning of the 20th century before the 1951 Convention on the status of refugees, refugees were still considered to be aliens as there was no such provision established to define their status and protect them. The climax that saw the need for a codification on refugee law arose during the Second World War, where ‘aliens’ from Germany were returned back to the country of persecution as they were considered to be ‘enemy aliens’ . During this era international customary law was the link between the law of persons and law of nations.
This meant that they were no issuance of travel documents and their basic human rights could not be safeguarded. The law governing aliens was regulated by the law of the state receiving the aliens this was known as the ‘International minimum standard of treatment’ this required that states were to provide to aliens equally but they should not have any special treatment, therefore certain countries expelled ‘enemy aliens’. Aliens were at the mercy of the receiving state making them vulnerable and little or no rights were accorded to the aliens depending on the relationship between the sending state and the receiving state. This means that the minimum standard of treatment did not cut across all nations, for example if Kenya was at war with Tanzania and Uganda was an ally of Tanzania, Kenyan refugees could be expelled from entering Tanzania as they would become ‘enemy aliens’ otherwise termed as refoulement .
During the 2nd World war in 1946, Dr. Nansen created the Nansen certificate that acted as a travel document for refugees around Europe so as to avoid refoulement. This was later on changed by the introduction of the1948 Universal Declaration of Human Rights, the 1951 Convention relating to the status of Refugees and the 1967 Protocol relating to the status f refugees. This saw the establishment United Nations High commission of refugees (UNHCR) that acts as the protector of the above legislation with the principle of non-refoulement of refugees whom would be persecuted to their country of origin if they returned. The UNHCR in collaboration with the receiving state has the mandate to register refugees and asylum seekers.
2.1.2 Refugee law after the 1951 Convention on the Status of Refugees
The establishment of the 1951 Convention relating to the Status of Refugees and the 1967 protocol relating to the status of refugees has acted as a soluble solution to the status of refugees around the world, African states that have been under political insurgence have been able to invoke these treaties such as the democratic republic of Congo, South Sudan and Somalia. It has been some laxity by international organizations on amending the above treaties as it has been over 51 years since the last protocol was made. The 1967 protocol relating to the status of refugees was established to mend some of the geographical and temporal restrictions that were created by the 1951 Convention; this included the changing African dynamics of decolonization.
More specialized agreements have also come to pass but, dealing with specific gaps of law such as the agreement relating to refugee Seamen this agreement is tailored for men who are at sea and for whom work habitually as sea fearers or work in any capacity on a mercantile ship. This agreement is only applicable to the Governments of the Kingdom of Belgium, Denmark, Norway, Sweden, the French Republic, the Federal Republic of Germany, the United Kingdom and Northern Ireland.
After the establishments of the 1951 Convention and the 1948 Declaration, regional bodies have expounded further on the terms and definition refugees. These regional bodies include the African Union (AU) and the League of Arab states (LAS); these bodies have been a source of refugee law in Africa through Covenants, Conventions and Declarations that have been adopted.
In Africa, some countries have gone further than the established 1951 Convention and regional agreements and developed and cultivated their own ‘special’ refugee law. The Republic of Senegal through their municipal law have been able to set a criteria for scholarships, right to work, access to education and some social benefits that will be accorded to refugees.
2.2 Comparison of refugees and other persons
This section seeks to examine the different legal analogies on the status given to persons who flee their territorial boundaries and whom move within their territorial boundaries upon a calamity.
2.2.1Refugees Vis -á -Vis Internally Displaced Persons
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A refugee has been defined by the 1951 United Nations Convention on the Status of Refugees in Section 1 (a) as:
“A person who owing to a 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.”
While the African Union Convention for the protection and assistance of internally displaced persons (Kampala Convention) has defined an internally displaced person through Article 1 as:
“Internally Displaced Persons” means persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border”
Internal migration can occur due to violence, search for economic gain, proximity and access to basic social services degradation of environmental resource and services amongst others. For example in the Republic of Kenya during the 2007/2008 Post election violence majority of the victims were internally displaced as compared to the Dafur crisis that occurred in the Republic of South Sudan and Sudan where majority of the citizens fled to neighboring countries such as the Republic of Kenya, Uganda and Chad as the violence was widespread and not regionally concentrated as was the case in Kenya.
2.2.2 Refugees Vis -á-Vis Stateless persons
Article 1 of the United Nations Convention relating to the status of stateless persons defines a stateless person as:
“a person, who is not considered as a national by any State under the operation of its law”. .
According to UNHCR Statelessness occurs where a certain group of people have been discriminated against because of either ethnic, gender or religious affiliations. It is also occurs when there is an emergence and transfer of territory between states as was experienced in the formation of the Republic of South Sudan and when the nationality laws of a state does not recognize a person . Stateless persons have difficulty in accessing basic human rights such as education, healthcare and freedom of movement. A refugee can return home once the war or natural calamity has subsided however a stateless person is neither recognized by their country of origin nor the country of residence.
Within Western Sahel the citizens of the Self proclaimed Sahrawi republic are considered to be stateless as they are socially excluded from Algeria and they have no country of their own. Though a Convention was established on the reduction of stateless persons only 70 parties have ratified and acceded to this making harder to achieve the goal of reducing the number of stateless persons by the year 2024.
2.2.3 Refugees Vis –á-Vis Aliens
There is no presence of a singular definition of alien persons as they differ according to jurisdiction. What is common in their definition of aliens is that aliens are persons who are not national of that country.
Aliens can be categorized into 3 groups namely:
1. Illegal alien – This refers to a foreigner who is in a particular country but does not have the proper documentation for their continued stay, it can be that they entered the country legally but they have lost their status of legality mostly through expiration of visas
2. Legal Aliens- This refers to foreigners who have the correct documentation to remain in a country they can further be divided into 2 subgroups
i. Non-resident Aliens- These are foreigners who visit a country for example tourists, business people and athletes
ii. Resident aliens-These are foreigners who have permanent status to remain in a country, they can seek for employment
3. Enemy Aliens- These are foreigners whom their country of origin is an enemy of the state.
Alien law is multidimensional as it also encompasses refugee law in it. In this regard, all refugees are aliens.
2.3 Legal Provisions
International human rights law a subsidiary of Public International law sources is neither enshrined in any international law constitution nor is there presence of an international parliament unlike municipal laws. However, the Statute by the International Court of Justice Article 38 states that there are 5 sources, namely:
“(A) Treaties between States;
(b) Customary international law derived from the practice of States;
(c)General principles of law recognized by civilised nations; and, as subsidiary means for the determination of rules of international law:
(d) Judicial decisions and the writings of “the most highly qualified publicists”.
This makes the Universal Declaration of Human Rights (UDHR) the most important human rights legal document. The 1951 United Nations Convention to the status of refugees is derived from the UDHR and it seeks to protect refugees from exploitation and discrimination. Article 1 (a) of the Convention states:
“A person who owing to a 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
2.3.1 International Legal Provisions
The source of human rights in this category is derived from International Treaties, Covenants and International customary law commonly referred to as jus cogens. This refers to the practices that have through time become a law. The above three aspects become the primary source of International law.
The key International Treaties and Covenants established in dealing with human rights in respect to the status of refugees are:
1. The 1948 Universal Declaration of Human Rights
2. The 1951 United Nations Convention Relating to the Status of Refugees
3. The 1967 Protocol Relating to the Status of Refugees
4. The 2001 Declaration by States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees
5. 2015 Paris Agreement
There lack of recognition of environmental refugees by the above international legal provisions creates a lacuna in law and countries that are on the verge of disappearance such as Tuvalu and Kiribati due to rising of sea levels, the citizens upon disappearance shall become stateless persons.
The United Nations General Assembly through resolution 428 (v) established the United Nations High Commission for refugees (UNHCR) its mandate is to be non-political in nature and its work is in the humanitarian and assistance to refugees . Even though, the high commission of refugees recognizes the link between migration and climate change they can only give environmental refugees temporal relief aid in conjunction with other United Nations (UN) bodies such as the World Food Programme (WFP) and the International Organization for Migration (IOM) but they cannot be termed as refugees.
However, the International Community is currently debating on the Paris Agreement which is an agreement that was established under the United Nations Framework Convention on Climate Change (UNFCC). This agreement has only been ratified by 176 counties out of 197 parties to the convention . According to the UNHCR, the Paris agreement addresses the displacement caused by climate change by implementing three key elements:
1. The agreement recognizes that climate change as one of the world’s most pressing issue and a reference to migrants affected by Climate change. The agreements calls for parties to promote, respect and consider the migrants obligations as a solution is sort for.
2. The agreement also calls for parties to protect people, to build resilience communities as well as the importance of safeguarding peoples livelihoods. The safeguard should be made by addressing the access to water, food, energy and creation of livelihood opportunities within their home countries.
3. Finally, a taskforce should be established on displacement through the Warsaw International Mechanism (WIM)
2.3.2 Regional Legal Provisions
In this section, this paper will deal with treaties and conventions that have been established within the African Continent as this paper seeks to address the issues of environmental refugees in Africa.
The key codified regional agreements relating to the status of refugees are:
1. The 1966 Bangkok Principles on Status and Treatment of Refugees adopted at the Asian-African Legal Consultative Committee
2. The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa
3. The1986 African charter on Human and peoples’ rights
4. The 1994 Arab Convention on regulating status of refugees in the Arab Counties
5. The 2009 A.U Convention for the protection and Assistance of internally displaced persons in Africa (Kampala Convention)
The 1986 African Charter on Human and peoples’ rights contains the basic human rights that every African should be accorded. In contrast the 2009 Kampala Convention, only deals with the rights that are accorded to internally displaced persons within Africa.
The African Union has further expounded on the term refugee from the conventional 1951 Convention Relating to the Status of Refugees definition. The definition is found in Article 1(2) of the 1966 Bangkok Principles on Status and Treatment of Refugees and Article 1 (2) of the 1969 OAU (Organization of African Unity) Convention Governing the Specific Aspects of Refugee Problems in Africa. They are defined as:
“”Refugee” shall also apply to every person, who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality”
In addition, the 1994 Arab Convention on regulating status of refugees in the Arab Countries was established by the (LAS) League of Arab Nations. The Republic of Algeria, Mauritania and the Kingdom of Morocco of the Western Sahel region are signatories to this convention. Article 1 (b) of the Convention defines a refugee as:
‘Any person who unwillingly takes refuge in a country other than his country of origin or his habitual place of residence because of sustained aggression against, occupation and foreign domination of such country or because of the occurrence of natural disasters or grave events resulting in major disruption of public order in the whole country or any part thereof.’
The inclusion of natural disasters in its definition by the above Convention creates an avenue for the environmental refugees to receive temporal status. However, even though environmental refugees have been included in Africa’s regional laws their protection is yet to be safeguarded until a subsidiary legislation or a specialized agreement has been ratified to specifically deal with environmental refugees, the recent case of the auctioning of a Kenyan Maasai’s livestock by the Tanzanian Government during the 2017 Horn of Africa drought indicates that more needs to be done by the African Union in solving future epidemics this area.
2.4 The Concept of Persecution
When determining whether a person is liable for refugee status, the alien has to prove that he would be persecuted if he would return to his country of origin; this is per the definition of Article 1 of the1951 Convention relating to the status of refugees. The Convention however does not define the term but instead gives 5 ways in which the concept of persecution can be established these are; race, religion, nationality, social group and political opinion.
Some have argued that the term persecution may include the plight of environmental refugees, as was the foundation of Mr Teitiota’s argument in Teitiota Vs The Chief Executive of the Ministry of Business, Innovation and Employment Where a Kiribati man’s quest for a refugee status visa in New Zealand on the basis of persecution caused by climate change in his native country was denied. The Immigration and Protection Tribunal (IPT) an independent body that deals with immigration appeals in New Zealand examined the term persecution under international refuge law and New Zealand law as the failure of a state in controlling and reducing human rights violations perpetuated by the state or its own agents. The High Court was particularly clear that even though the refugee convention did not extend to include environmental refugees harm feared does not amount to persecution. The Supreme Court reaffirmed the position taken by the lower courts by stating that Mr Teitiota did not face ‘serious harm’ and that he had shown no evidence that the Government of Kiribati was not taking sufficient steps in protecting its citizens from environmental degradation.
The main assertions that can be deduced from the above case are:
• What is the nature of the applicants Persecution
• Who is persecuting the applicant
• Where is the persecution occurring
When it comes to the first assertion on the type of persecution, it refers to the reasons why the applicant is seeking refugee status, for example is the applicant liable to an infliction of harm or harassment, discrimination due to their; race, religion, nationality, social group and political opinion and is the applicant being forced to abide to societal norms?
The second assertion, the applicant must show clearly exactly who is persecuting them, is it the government or is it a belligerent group that the government is unable to control. In the case of a belligerent group the applicant must show that the government was unable to provide security to the said applicant.
The third assertion is on the re-occurrence on the nature of persecution. It seeks to answer is the nature of persecution a constant threat and is the threat widespread and can the applicant be able to reasonably relocate within the country.
In conclusion, when an applicant does not satisfy the above 3 assertions, then their quest of seeking refugee status can be easily denied as in the case above.
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