Various instruments and sources defined a term "refugee"

INTRODUCTION

The term ‘refugee’ has been defined and varies due to the purposes, intention and context of the state or organization. The historical development of international law plays a great role in defining the term refuge. However in 1920s to 1940s the term referred to specific group of people or individual from certain areas as will be discussed herein. As time goes the meaning was developed to includes different groups as this work will explain in detail hereinafter.

First and foremost let me begin with the meaning provided in the Arrangement of 12 May 1926[1] the arrangement specifically dealt with two category of refugee, the first was the Russian pre-war or Nansen Refugees and the second is Armenian pre-war or Nansen refugees. The first one it was defined asany person of Russian origin who does not enjoy or who no longer enjoys the protection of the Government of the USSR and who has not acquired another nationality. The latter category defined as any person of Armenian origin formerly a subject of the Ottoman Empire who does not enjoy or who no longer enjoys the protection of the Government of the Turkish Republic and who has not acquired another nationality.

In the 1926 Arrangement there were three criteria to recognize that an individual is a refugee, first shall be an individual who does not enjoy or no longer enjoy protection of the governmentsecond has not acquire nationality of another nation, third s/he is outside the country of origin.[2] The purpose of adopting this convention was to issue identity certificates and to ensure recognition, travel and resettlement. It has to be noted that this arrangement was just temporally without knowing eruption of refugee from different countries. The definition adopted in the arrangement was influenced by political and social events and there was no complementary protection of the refugees.[3]

Similar approach of the arrangements was adopted in the 1928,[4] 1933,[5]1936,[6]1938[7] Arrangements and 1939 Protocol.[8] Moreover the meaning adopted by the above mentioned instruments increase some elements which are necessary to be discussed herein. Second instrument is the  1928 Arrangement[9] includes individual who have been assimilated from the Syrian or Kurdish people who does not enjoy protection of the state, who is out the state of origin and who has not change nationality are protected.[10]As we discussed in the previous arrangement individual  who have been assimilated were not protect but the 1928 Arrangement comes up with the new inception of who is the refugee.

Third instrument is the 1933 Convention[11] qualifies same qualification for one to be recognized as a refugee but it was specifically for refugees from Spanish. Also semantic used elucidate kind of development which have not been provided in the above discussed arrangement, for example above arrangements use term protection from state but the Convention uses term protection from government.[12]There is a need of an individual to establish both in law and in fact that he is the Spanish citizen and has not acquired citizenship of other nationality.[13]

Another fourth instrument is the 1938 Convention[14] maintain the requirement discussed in the first instrument as a refugee and come up with some modification. The modification based on the cause of a person to flee from Germany as state of nationality. The convention excludes from protection individuals who leave Germany for reasons of purely personal convenience.[15] The development of who is the refugee come up with different changes because the meaning provided in the 1938  Convention shows that what was provided in the previous arrangement and convention was not protecting individuals who have loss protection from state only but also those who moved from country of origin for their own whims.

In 1939 there was adoption of the protocol[16] to cover victims of Nazi persecution, it specifically target individuals who were stateless and not covered by other precious convention. The origins of individuals protected by this protocol were people from formerly constituted Austrian who does not enjoy protection from the government of German.[17]

During the league of Nation there was adoption of temporary meaning of refugees, which was influenced by the event occurred during that time. The development of the meaning of refugee changed after the adoption of the Constitution of the International Refugee Organization (IRO). Provisions of the Constitution recognize different groups of refugees named in the previous instrument and come up with new categories.[18] The Constitution covers individuals who were the victims of Nazi, fascism or regimes which oppose the United Nation, Spanish Republicans and other falangist regime, and Persons who were considered refugees before the outbreak of the second world war, for reasons of race, religion, nationality or political opinion.[19] Also the Constitution covers individual who are not in their state of origin and they are unwilling or unable to avail themselves of the protection of the Government of his country of nationality or former nationality.[20]War orphans who are outside their country of origin are recognized as refugee by the Constitution of the International Refugee Organization. The Constitution also includes exceptional individual who cannot be recognized as refugees for example war criminal, quisling and traitors, a person who assisted the enemy during the conduct of war, also assisted enemy to threat the civilian population, and criminal who are extraditable by the treaty.[21]

However the International refugee Organization was succeeded by the office of United Nation Commissioner for Refugee. The Office of High Commissioner was established following the adoption of the Statute of the Office of the United Nation High Commissioner for Refugee, the adoption of the Statute of the United Nation High Commissioner for Refugees come with further development to the meaning of Refugee.[22] The mandate of the UNHCR covers person who was considered as Refugee by the previous Arrangement and Conventions, a person who by the event occurred before 1951 has a well-founded fear of being persecuted for reason of race, religion, nationality or political opinion, if has the nationality is outside the state of nationality and unable or unwilling to avail himself to the protection of the government. If is an individual who is stateless and is out of the state of his habitual residence owing the fear to be persecuted and is unwilling and unable to avail to the protection of that country are protected by the Statute.[23] Development shows that individual protected are based on race, religion, nationality or political opinion but there is people have well-founded fear due to the place of origin like indigenous people in the world are not covered by the meaning of refugee.[24] Also there is people having a well-founded fear due to gender/sex and disabilities are not covered.

Moreover the Convention Relating to Status of Refugee[25] and the 1967 Protocol Relating to the Status of Refugees[26] has provides for the elements required by someone to be granted refugee status. Convention relating to refugee status article 1A (2)

“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”.

The requirement which have been provided under this article is well-founded fear of being persecuted on account of the ground of race, religion, nationality, membership of particular social group or political opinion. In addition to the required elements a person should be outside from his state/country and unable and unwilling to avail himself of its protection owing to such fear of persecution. The person granted refugee status under this definition are also known “convention refugee”.[27] The challenge comes to determine the meaning of the term ‘membership of a particular social group’the threshold to establish that certain individual come from social group as provided has not been enshrined. The Conventional Refugees are recognized by fulfilling four requirement as provided in the Convention one well-founded fear of being persecuted, two unwilling and unable to seek protection from the government of origin, three persecution and fear shall base on race, religion, membership of a particular social group or political opinion and nationality, four must be outside the country of origin.[28]

Conversely African Union has adopt convention to deal with the refugee problem in Africa, the Convention  a  in regional instrument there extension of the meaning to cover those people compelled to leave their country of origin on account of external aggression, occupation, foreign domination, or events seriously disturbing public order.[29] Also the African Convention on Refugee problem in Africa exclude certain group of individual from protection which includes individuals committed international crimes, an individual who committed serious non-political crime, guilty of an offence jeopardize purposes on African Union, and guilty for an offence contrary to purposes of UN.[30]

Historical backdrop of the refugee under international law prays a great role in the development of the meaning of refugee. As it starts from specific group of people to general, there was no specific criteria’s or groups which were protected by international community in general. As time goes we obtained specific group and reason for them to be granted asylum by another state. It is well established that asylum is an individual right and not discretional or privileged but due to the requirement provided one can say it is a privilege rather than a right. State practices shows that there is no uniformity of procedure of granting asylum which makes it to escalate fear among the population while they are processing for asylum.

BIBLIOGRAPHY

BOOKS

Rutinwa BSI (2011) Legal responsibilities of states in refugee situations under public international law at 126.

Goodwin-Gill GS et al (2007) The refugee in international law 3^rd Edition Oxford University Press.

JOURNALS

Beck R. J Britain and the 1933 Refugee Convention: National or State Sovereignty? 11 International Journal of Refugee Law (1999).

Mbuzukongira G, Protection of Internally Displaced Persons and International Law: the North Kivu Case TUMA LR Vol 1 No 3 2014.

Sahinkuye GM The base for the legal protection of Environmental Refugees TUMA LR Vol 1 No 3 2014.

INTERNATIONAL INSTRUMENT.

Constitution of the International Refugee Organization Adopted by the United Nations at Flushing Meadow on 15 December 1946Entry into force: 20 August 1948, in accordance with Article 18 United Nations, Treaty Series, No. 283, vol. 18, p. 3

Convention Concerning the Status of Refugees coming from Germany of 191 League of Nation Treaty Series No. 4461.

Convention relating to the Status of Refugees Adopted on 28 July 1951 Entry into force: 22 April 1954, in accordance with Article 43 United Nations, Treaty Series, No. 2545, vol. 189, p. 137.

Provisional Arrangement concerning the Status of Refugees coming from Spanish of 28 October 1933 League of Nations Treaty Series No. 3663, vol. CLIX (159).

Provisional Arrangement concerning the Status of Refugees coming from Germany of 4^th July 1936 171 League of Nation Treaty Series No 3952.

Statute of the Office of the United Nations High Commissioner for RefugeesUN General Assembly Resolution 428 (V) of 14 December 1950 Text: UN Document A/1775 (1950).

The Arrangement concerning the extension to other categories of refugees of certain measures taken in favor of Russia and Armenian Refugee of 30^th June 1928.

The Arrangement relating to the Issue of identity Certificates for Russian and Armenian Refugees of 12^th May 1926 (League of Nations Treaty Series No. 2004, Vol. LXXXIX (89).

The Convention Governing the Specific Aspects of Refugees Problem in Africa

The Protocol on the Convention relating to the Status of Refugees was taken note of with approval by the Economic and Social Council in resolution 1186 (XLI) of 18 November 1966 and was taken note of by the General Assembly in resolution 2198 (XXI) of 16 December 1966 entry into force 4 October 1967.

The Protocol to the Convention Concerning the Status of Refugees coming from Germany of 14 September 1939 League of Nations Treaty SeriesNo. 4634, Vol. CXCVIII (198).

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[1]The Arrangement relating to the Issue of identity Certificates for Russian and Armenian Refugees of 12^th May 1926 (League of Nations Treaty Series No. 2004, Vol. LXXXIX (89).

[2] Beck R. J Britain and the 1933 Refugee Convention: National or State Sovereignty? 11 International Journal of Refugee Law (1999) at pg 597.

[3]Goodwin-Gill GS et al (2007) The refugee in international law 3^rd Edition Oxford University Press at pg 17.

[4] The Arrangement concerning the extension to other categories of refugees of certain measures taken in favor of Russia and Armenian Refugee of 30^th June 1928.

[5]Provisional Arrangement concerning the Status of Refugees coming from Spanish of 28 October 1933 League of Nations Treaty Series No. 3663, vol. CLIX (159).

[6]Provisional Arrangement concerning the Status of Refugees coming from Germany of 4^th July 1936 171 League of Nation Treaty Series No 3952.

[7]Convention Concerning the Status of Refugees coming from Germany of 191 League of Nation Treaty Series No. 4461.

[8]The Protocol to the Convention Concerning the Status of Refugees coming from Germany of 14 September 1939League of Nations Treaty SeriesNo. 4634, Vol. CXCVIII (198).

[9]The Arrangement concerning the extension to other categories of refugees of certain measures taken in favor of Russia and Armenian Refugee of 30^th June 1928.

[10] Ibid Article 1 and 2.

[11]Provisional Arrangement concerning the Status of Refugees coming from Spanish of 28 October 1933 League of Nations Treaty SeriesNo. 3663, vol. CLIX (159).

[12]Ibid Article 1

[13]Ibid Article 2

[14]Convention Concerning the Status of Refugees coming from Germany of 191 League of Nation Treaty Series No. 4461.

[15]Ibid Article 1 (2).

[16]The Protocol to the Convention Concerning the Status of Refugees coming from Germany of 14 September 1939 League of Nations Treaty SeriesNo. 4634, Vol. CXCVIII (198).

[17]Ibid Article 1 and 2.

[18]Constitution of the International Refugee Organization Adopted by the United Nations at Flushing Meadow on 15 December 1946Entry into force: 20 August 1948, in accordance with Article 18 United Nations, Treaty Series, No. 283, vol. 18, p. 3

[19]Refugees and Displaced Persons within the Meaning of the Resolution Adopted by the Economic and Social Council of the United Nations on 16 February 1946 Paragraph 1.

[20] See Annexure 1 to the Constitution of the International Refugee Organization of 15 December 1946 Part I paragraph 2.

[21] The Constitution of International Refugee Organization Annexture I Part II on the Person who will not be the Concern of the Organization.

[22]Statute of the Office of the United Nations High Commissioner for RefugeesUN General Assembly Resolution 428 (V) of 14 December 1950 Text: UN Document A/1775 (1950).

[23] Ibid Article 6 A (i) and (ii).

[24]Sahinkuye GM The base for the legal protection of Environmental Refugees TUMA LR Vol1 No 3 2014 at pg 77.

[25] Adopted on July 28 1951 by the United Nation Conference of Plenipotentiaries on the Status of Refugee and stateless person Convened under General Assembly Resolution No 429 (v) of 14 December 1950 entered into force on April 22 1954 (hereinafter ‘the 1951 Convention’).

[26] The Protocol was taken note of with approval by the Economic and Social Council in resolution 1186 (XLI) of 18 November 1966 and was taken note of by the General Assembly in resolution 2198 (XXI) of 16 December 1966 entry into force 4 October 1967 (herein after ‘the 1967 Protocol’)

[27]Rutinwa BSI (2011) Legal responsibilities of states in refugee situations under public international law at 126.

[28]Mbuzukongira G, Protection of Internally Displaced Persons and International Law: the North Kivu Case TUMA LRVol 1 No 3 2014 at pg 59.

[29] Article 1 of the Convention Governing the Specific Aspects of Refugees Problem in Africa.

[30] the Convention Governing the Specific Aspects of Refugees Problem in Africa Article 1 (5).