Today stances on refugees and rights. The International

Today we live in a world, where we hear about refugee crises nearly
every day, ranging from the Syrian Civil War, to the mass killings in Rohingya,
and even to the increasing risk of climate migrants. We hear about these
crises, but forget to explore and analyse the central questions surrounding
these tragedies, such as who are protecting these people at risk, where will
they end up, and how does the international human rights mechanisms help these
people. Refugee law is something that has been around in the international
community for several decades, and it is often known as a powerful human rights
mechanism. The purpose of this essay is to prove why refugee law is indeed not
the most powerful human rights mechanism, and to do this the definition of
refugee in legal terms will be reviewed along with a critique of gaps in the
refugee law, focusing on the issue of gender and refugee law, and the debate
surrounding state sovereignty versus human protection. A focal case study used
in concluding the question of the essay is the case of Minister of Immigration and Multicultural Affairs v Khawar, which
will be widely referred to in analysing the gender gap in refugee law, and
Trump’s Executive Order regarding the ban on refugees will be discussed in the
analysis of the debate surrounding state sovereignty and human protection with
regards to refugee law.

Human Rights Mechanisms and Rights of Refugees

In the deconstruction of refugee law from being recognised as the most
powerful human rights mechanism, the two important aspects to focus on here are
the United Nations and the European Union, and their stances on refugees and
rights. The International Bill of Rights is one of the most, if not the most
prominent documents which contains a series of principles of rights based on
human rights standards (UN General Assembly: 1948). While General Assembly
resolutions are non-binding, due to its constituents – The Universal
Declaration of Human rights, The International Covenant on Civil and Political
Rights, and International Covenant on Economic, Social and Cultural Rights – in
the international arena, it is a well-respected mechanism for identifying human
rights. Analysing
specific references to refugee rights, Article 14 of the Universal Declaration
of Human Rights is profound.

“Everyone has the right to seek and to enjoy in other countries asylum
from persecution. This right may not be invoked in the case of prosecutions
genuinely arising from non-political crimes or from acts contrary to the
purposes and principles of the United Nations” (United Nations, 1948; Article
14)

The analysis of the above article alongside refugee law in the following
sections will shed light on how powerful refugee law is. The second important
mechanism is referent to European Union documents on human rights –
specifically, the European Convention on Human Rights. ECHR is used widely in
making decisions with respect to asylum claims; Article 3 – prohibition of
torture or inhuman or degrading treatment or punishment (ECHR, 1953) – and
Article 8 – the right to private and family life, vis-à-vis, the right of state
to maintain immigration policy (ECHR, 1953) – of this convention is of utmost
importance in determining who is accounted for as a refugee under the accepted
definition and what rights they are entitled to.

Who is a refugee – Gender and the first glance at the case of Khawar

In the arena of global politics today, the definition of who a refugee
is, is understood from Article 1A (2) of the 1951 Refugee Convention.

“The term ‘refugee’ shall apply to any person who 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” (UNHCR, 1951).

This is the widely-used definition to refer to refugees, and examining
this definition further highlights some of the obstacles that refugee law needs
to overcome in order to be recognised as
the most powerful human rights mechanism. The
first point of criticism arises with regards to the statement of “well-founded
fear of being persecuted.” Is this a reasonable expectation for a refugee to
articulate their fear, and also how would one articulate this fear? In a plain
and simple manner, fear may be found both within the public sphere and the
private domain, thus difficulties in determining what exactly would classify as
appropriate for one to disclose their case as a refugee becomes prominent. The
case of Khawar highlights some of the concerns regarding the refugee
definition, and the first point that will be highlighted is regarding the
articulation of well-founded fear by Khawar.

Mrs Khawar and her three
daughters, originally from Pakistan, arrived in Australia in 1997, seeking
asylum upon claims that the Pakistani authorities were unable to protect her
from repeated domestic violence by her husband (Wood, 2002). Initially, the
Department of Immigration and Multicultural Affairs refused the visa
applications – a decision which was subsequently supported by The Refugee
Review Tribunal – and the main reasoning for this is due to Mrs Khawar’s
allegations occurring within familial context and related to personal factors
within her marriage (Wood, 2002). Mrs Khawar then appealed to the Federal Court
where the Tribunal’s decision was overturned, which did indeed highlight the
inconsistencies with the application of the formal refugee definition. Whilst
the overturn of the decision is seen as a success, it is important to discuss
the initial decision and the role gender plays in refugee law.

The claim Mrs Khawar brings
to light – domestic violence, by her husband – and articulation of this fear of
her being persecuted is seemingly within the private domain. Intimate partner
violence (IPV) is domestic violence by spouses, in intimate relationships –
physical, sexual, or emotional abuse – and is something that occurs in all
settings amongst all socioeconomic, religious and cultural groups (WHO, 2012). Women
often fall victim to IPV, and Pakistan is amongst the countries where women are
the worst victims of various types of intimate partner violence (Amnesty
International, 2002; Zakar et al., 2013). Specifically, in Pakistan, there is a
belief amongst men that wives deserve sarzanish
– which roughly translates to “stern warning” to show disapproval or even anger
— if she refuses sex, shows negligence in appropriate child care, or is
sexually unfaithful (Fikree et al., 2005). Prior to 2016, where the Protection
of Women Against Violence law was implemented in Pakistan, there was no
protection for women who faced domestic violence. Thus, at the time of Khawar’s
case, her claims were tabled as domestic and belonging to the private realm of
the family, and was labelled as being out of state control, hidden from the
public world of civil society.  (Wood,
2012). The police were also reluctant to assist Khawar in her home state, thus,
the decision of the Minister of Immigration and Multicultural Affairs, in
dismissing her claims to not fit the criteria of a refugee comes off as
ignoring explicitly gendered basis of fear of persecution not fitting the
traditional criteria that may be regarded as life threatening.

Gaps in Refugee Law –
Gender

Following on from the
previous section, a major gap in refugee law has been highlighted with regards
to gender. The moral content of refugee law has been developed over several
centuries, but refugee law as we know it today emerged in the 20th
century – based on the notion of asylum and protection from different kinds of
persecution (Odello, 2010). The importance highlighting gender in the
deconstruction of the perceived “most powerful human rights mechanism” –
refugee law – is due to cases such as Khawar, which puts female experiences at
risk. Gender in itself as an issue is considered relevant only to a particular
set of cases rather than as an aspect of refugee law itself (Firth and Mauth,
2013). In addition to this, current Human Rights approach is arbitrary in its
application and unsatisfactory in protecting women refugees (Firth and Mauth,
2013). A lot of this is associated with the public versus private domain, in
identifying gender related refugee cases – which we have already observed in
the Khawar case where her fear of persecution was deemed to be in the private
domain, and an unsatisfactory claim (initially) in the public domain of refugee
law.

Following on from the private
versus public discussion, there is a belief in international politics that the
state is male jurisprudentially, and this is proven in the case of Khawar where
the voice of a woman is deprived by excluding them from the public domain, and
relegating the problems to the private domestic realm (MacKinnon, 1989: 163;
Wood, 2002). Like all laws and treaties, refugee law also claims to be of
gender-neutral language; however, due to the masculine nature of states, as
well as legal language often referring to phrases such as “mankind” allows for
men to dominate women and children, where the law’s role in women’s oppression
is obscured, allowing for an implicit complicity in perpetuation of violence
against them (Wood, 2002). The gendered discrepancies in refugee law is not
explicit to just Khawar case, rather this case is used to highlight that law is
not the only way to resolve issues that could be as complex as this one –
especially international law. In many cultures (such as Pakistan), abuse is
seen to be a part of the culture, therefore human rights mechanisms have very
little impact on such deep rooted traditional beliefs (Adil, 2016). Due to this
it is rather difficult to claim gender based violence and refusal of state
protection as a plausible cause for claiming refugee status in a different
country under the terms of proving “well-founded fear of persecution.” Here we
can conclude that the definition of a refugee in cases such as Khawar are not
in favour of the victim, rather a mechanism put in place to help a selected few
who fit a certain criterion, putting lives of more vulnerable groups at risk.

State Sovereignty versus
Human Protection Debate – The Syrian Crisis Case

In today’s situation, a
disparate amount of energy and resources are spent on determining who fits the
criteria of a refugee rather than their treatment prior to asylum seeking
applications, and post-recognition as a refugee (Edwards, 2005). Further to
this, some tend to keep international refugee laws and human rights mechanisms
separate from each other, due to the complexity of the intertwining of two
major concepts – state sovereignty and human protection. Human Rights
mechanisms such as the UDHR is seen as an issue for the country of origin,
rather than the country from which one may be seeking asylum from, leading to
discrepancies in relating human rights violations such as violence against
women, to a case of refugee claims (Edwards, 2005). Issues of human protection
under international law and the principle of state sovereignty is a key problem
in refugee law – even more so in determining the powerfulness of refugee law.

One point of contradiction between
the two concepts mentioned above arises from the non-refoulement clause under
the Refugee Convention, that is, refugees should not be returned to persecution
or the threat of persecution, and that protection must be extended to all
refugees without discrimination (Refugee Convention, 1951). Non-refoulement is
a part of customary international law. Since the convention, the number of
refugees have grown exponentially due to the rise in internal inter-ethnic
conflicts within States, fuelled by socioeconomic problems and solutions to
refugee problems have become even more elusive (Feller, 2001). Today, we also
see an increasing number of refugees and asylum seekers resorting to human
rights mechanisms, due to an absence of complementary apparatus dealing with
rights of refugees on state territories of which they enter under the Refugee
Convention (Edwards, 2005). However, whilst the non-refoulement clause is
present in the convention, the increasing number of refugees have led to some
governments having resorted to closing borders or pushing refugees back to
their home states due to concerns for national security and safety of the local
population (Feller, 2001). In addition to this, due to the complexity of state
sovereignty and human protection in refugee law, many resort to being smuggled
into countries as a last resort, making areas surrounding major refugee crises
like Syria and neighbouring countries, a breeding ground for human traffickers
(Feller, 2001).  

The Syrian crisis which began
in 2011 has forced over a third of its residents to leave and more than two
million of them have become refugees in neighbouring countries (Arnaud, 2012;
UNHCR, 2017). The conflict between the government of Bashar al-Assad and
various other forces have led to Syrians fleeing to neighbouring countries such
as Lebanon, Jordan, Iraq, Egypt, and Turkey, as well as various Western
countries such as Germany, Sweden, United Kingdom, and the United States of
America (Ostrand, 2015). The seriousness of the Syrian Refugee crisis was brought
to attention of the rest of world by the powerful photograph of three-year-old
Syrian boy Alan Kurdi’s body washed up on a beach near Turkey’s resort of
Bodrum, trying to get to Greece. This led to various calls out from NGOs such
as Save the Children to pressure the EU to come together to tackle the refugee
crisis (Smith, 2015). Whilst the neighbouring countries to Syria with little
resources accepted a large influx of refugees to their borders, the more
developed countries were more hesitant to allow refugees, often placing quotas
on the intake.

One crucial point of this was
the Executive Order signed by President Donald Trump “Protecting the Nation
from Foreign Terrorist Entry into the United States” on the 27th of
January which denied entry to refugees, prioritising some religions over others
as a part of this (Gilbert, 2017). President Trump had made several references
to the tragedies of 9/11 in supporting the executive order, even though no
refugees were involved in the acts committed, claiming at a swearing-in
ceremony at the Pentagon for Secretary of Defense James Mattis; “We do not want
to admit into our country the very threats we are fighting overseas” (Frej and
Foley, 2017). However, analysing the definition, there is no way to claim that
refugee movements are planned movements, as they do not follow a pattern. In
addition to this, as per the Refugee Convention, people who have committed war
crimes, crimes against humanity, crimes against peace, or even serious
non-political crimes are excluded from protection and as such terrorists would
never qualify for refugee status (Refugee Convention, 1951; Gilbert, 2017). The
executive order discriminated against refugees from Syria, Iraq, Iran, Libya,
Somalia, Sudan, and Yemen – all which are predominantly Muslim (Gilbert, 2017).

In addition to this, the initial order prioritised refugees who fled on grounds
of religious persecution so long as they came from a minority population from
their home state – so Christian minorities from Syria were to be considered, but
this is a clear discrimination against a certain social group, violating the
Refugee Convention again (Gilbert, 2017). This executive order from the US was
one attempt at imposing blanket bans on refugees, trying to close the borders.

As international treaties and
laws are only binding up to the point of non-interference with state
sovereignty, there is little impact that international refugee law can actually
do in circumstances such as the one mentioned prior. While atrocities are
taking place against groups of people, violating their human rights, and then
these people having to flee countries and take refuge, there is little that
refugee law actually does in terms of human protection. Ensuring legal,
physical, and psychological protection to the refugee population is vital and
the lack of basic security provides a basic breeding ground for organised crime
as well as recruitment of fighters (Berti, 2015). This brings us back to the
gender gap in refugee law, where the vulnerable group in refugee crises such as
the Syrian one, lead to women and children often being subjected to sexual and
verbal harassment in the countries in which they are seeking asylum, and even
being trafficked as sex workers, due to the lack of basic protection (Berti,
2015). The restrictive asylum policies and practices from individual
governments brings into question the scope of protection that the 1951
Convention relating to Status of Refugees offers (Edwards, 2005). Whilst it is
customary for the United Nations High Commissioner for Refugees to analyse
refugee law as part of the international human rights framework, it does not
always stress the necessity of it, rather, merely suggesting helpful guidance
to States to set their own domestic standards regarding refugees, leading to
the questioning of the relevance of the 1951 Convention (Edwards, 2005). Major
criticisms reveal that refugee law is merely inefficient, complex, and
difficult to apply due to changing priorities within the world and the human
rights mechanisms are often resorted to in order to fill the gaps that refugee
law has such as issues with the definition (well-founded fear of persecution,
and social group), to ensure protection (Edwards, 2005).

Conclusion: Is refugee law
the most powerful human rights mechanism?

Whilst the 1951 Convention on
the Status of Refugees has proven to be a milestone in the establishment of
Refugee Law, the protection it offers in terms of human rights is rather inadequate.

Firstly, analysing the definition provided by the Convention on Refugees
identified some major gaps within the definition itself – establishing
well-founded fear – which led to the discussion of what kinds of acts or
violations can be regarded to cause fear of persecution. The case of Khawar highlighted
discrepancies regarding gender based violence and how these are often
overlooked as cause for persecution due to its existence in the private domain.

Analysis of the Khawar case showed how female experiences are often put at risk
due to the public versus private domain discussion in refugee law and highlighted
the importance of incorporating gender into refugee law. In addition to this, the
discussion of state sovereignty versus human protection further highlighted
issues linked to certain social groups being discriminated against due to refugee
law not being adequately binding. As they are only binding up to the point
where it does not interfere with state sovereignty, refugee law is not as
powerful as it may seem on paper. Thus, while it sets certain standards on
human rights and refugee protection, refugee law is not the most powerful human
rights mechanism. 

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