Today we live in a world, where we hear about refugee crises nearlyevery 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 thesecrises, but forget to explore and analyse the central questions surroundingthese tragedies, such as who are protecting these people at risk, where willthey end up, and how does the international human rights mechanisms help thesepeople. Refugee law is something that has been around in the internationalcommunity for several decades, and it is often known as a powerful human rightsmechanism. The purpose of this essay is to prove why refugee law is indeed notthe most powerful human rights mechanism, and to do this the definition ofrefugee in legal terms will be reviewed along with a critique of gaps in therefugee law, focusing on the issue of gender and refugee law, and the debatesurrounding state sovereignty versus human protection. A focal case study usedin concluding the question of the essay is the case of Minister of Immigration and Multicultural Affairs v Khawar, whichwill be widely referred to in analysing the gender gap in refugee law, andTrump’s Executive Order regarding the ban on refugees will be discussed in theanalysis of the debate surrounding state sovereignty and human protection withregards to refugee law. Human Rights Mechanisms and Rights of Refugees In the deconstruction of refugee law from being recognised as the mostpowerful human rights mechanism, the two important aspects to focus on here arethe United Nations and the European Union, and their stances on refugees andrights. The International Bill of Rights is one of the most, if not the mostprominent documents which contains a series of principles of rights based onhuman rights standards (UN General Assembly: 1948). While General Assemblyresolutions are non-binding, due to its constituents – The UniversalDeclaration of Human rights, The International Covenant on Civil and PoliticalRights, and International Covenant on Economic, Social and Cultural Rights – inthe international arena, it is a well-respected mechanism for identifying humanrights. Analysingspecific references to refugee rights, Article 14 of the Universal Declarationof Human Rights is profound.
“Everyone has the right to seek and to enjoy in other countries asylumfrom persecution. This right may not be invoked in the case of prosecutionsgenuinely arising from non-political crimes or from acts contrary to thepurposes and principles of the United Nations” (United Nations, 1948; Article14)The analysis of the above article alongside refugee law in the followingsections will shed light on how powerful refugee law is. The second importantmechanism is referent to European Union documents on human rights –specifically, the European Convention on Human Rights. ECHR is used widely inmaking decisions with respect to asylum claims; Article 3 – prohibition oftorture or inhuman or degrading treatment or punishment (ECHR, 1953) – andArticle 8 – the right to private and family life, vis-à-vis, the right of stateto maintain immigration policy (ECHR, 1953) – of this convention is of utmostimportance in determining who is accounted for as a refugee under the accepteddefinition 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 refugeeis, is understood from Article 1A (2) of the 1951 Refugee Convention. “The term ‘refugee’ shall apply to any person who owing to well-foundedfear of being persecuted for reasons of race, religion, nationality, membershipof a particular social group or political opinion, is outside the country ofhis nationality and is unable or owing to such fear, is unwilling to availhimself of the protection of that country” (UNHCR, 1951). This is the widely-used definition to refer to refugees, and examiningthis definition further highlights some of the obstacles that refugee law needsto overcome in order to be recognised asthe most powerful human rights mechanism.
Thefirst point of criticism arises with regards to the statement of “well-foundedfear of being persecuted.” Is this a reasonable expectation for a refugee toarticulate their fear, and also how would one articulate this fear? In a plainand simple manner, fear may be found both within the public sphere and theprivate domain, thus difficulties in determining what exactly would classify asappropriate for one to disclose their case as a refugee becomes prominent. Thecase of Khawar highlights some of the concerns regarding the refugeedefinition, and the first point that will be highlighted is regarding thearticulation of well-founded fear by Khawar. Mrs Khawar and her threedaughters, originally from Pakistan, arrived in Australia in 1997, seekingasylum upon claims that the Pakistani authorities were unable to protect herfrom repeated domestic violence by her husband (Wood, 2002). Initially, theDepartment of Immigration and Multicultural Affairs refused the visaapplications – a decision which was subsequently supported by The RefugeeReview Tribunal – and the main reasoning for this is due to Mrs Khawar’sallegations occurring within familial context and related to personal factorswithin her marriage (Wood, 2002). Mrs Khawar then appealed to the Federal Courtwhere the Tribunal’s decision was overturned, which did indeed highlight theinconsistencies with the application of the formal refugee definition. Whilstthe overturn of the decision is seen as a success, it is important to discussthe initial decision and the role gender plays in refugee law. The claim Mrs Khawar bringsto light – domestic violence, by her husband – and articulation of this fear ofher being persecuted is seemingly within the private domain.
Intimate partnerviolence (IPV) is domestic violence by spouses, in intimate relationships –physical, sexual, or emotional abuse – and is something that occurs in allsettings amongst all socioeconomic, religious and cultural groups (WHO, 2012). Womenoften fall victim to IPV, and Pakistan is amongst the countries where women arethe worst victims of various types of intimate partner violence (AmnestyInternational, 2002; Zakar et al., 2013). Specifically, in Pakistan, there is abelief 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 issexually unfaithful (Fikree et al., 2005).
Prior to 2016, where the Protectionof Women Against Violence law was implemented in Pakistan, there was noprotection for women who faced domestic violence. Thus, at the time of Khawar’scase, her claims were tabled as domestic and belonging to the private realm ofthe family, and was labelled as being out of state control, hidden from thepublic 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, indismissing her claims to not fit the criteria of a refugee comes off asignoring explicitly gendered basis of fear of persecution not fitting thetraditional criteria that may be regarded as life threatening.Gaps in Refugee Law –GenderFollowing on from theprevious section, a major gap in refugee law has been highlighted with regardsto gender. The moral content of refugee law has been developed over severalcenturies, but refugee law as we know it today emerged in the 20thcentury – based on the notion of asylum and protection from different kinds ofpersecution (Odello, 2010).
The importance highlighting gender in thedeconstruction of the perceived “most powerful human rights mechanism” –refugee law – is due to cases such as Khawar, which puts female experiences atrisk. Gender in itself as an issue is considered relevant only to a particularset 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 itsapplication and unsatisfactory in protecting women refugees (Firth and Mauth,2013). A lot of this is associated with the public versus private domain, inidentifying gender related refugee cases – which we have already observed inthe Khawar case where her fear of persecution was deemed to be in the privatedomain, and an unsatisfactory claim (initially) in the public domain of refugeelaw. Following on from the privateversus public discussion, there is a belief in international politics that thestate is male jurisprudentially, and this is proven in the case of Khawar wherethe voice of a woman is deprived by excluding them from the public domain, andrelegating the problems to the private domestic realm (MacKinnon, 1989: 163;Wood, 2002).
Like all laws and treaties, refugee law also claims to be ofgender-neutral language; however, due to the masculine nature of states, aswell as legal language often referring to phrases such as “mankind” allows formen to dominate women and children, where the law’s role in women’s oppressionis obscured, allowing for an implicit complicity in perpetuation of violenceagainst them (Wood, 2002). The gendered discrepancies in refugee law is notexplicit to just Khawar case, rather this case is used to highlight that law isnot the only way to resolve issues that could be as complex as this one –especially international law. In many cultures (such as Pakistan), abuse isseen to be a part of the culture, therefore human rights mechanisms have verylittle impact on such deep rooted traditional beliefs (Adil, 2016). Due to thisit is rather difficult to claim gender based violence and refusal of stateprotection as a plausible cause for claiming refugee status in a differentcountry under the terms of proving “well-founded fear of persecution.” Here wecan conclude that the definition of a refugee in cases such as Khawar are notin favour of the victim, rather a mechanism put in place to help a selected fewwho fit a certain criterion, putting lives of more vulnerable groups at risk. State Sovereignty versusHuman Protection Debate – The Syrian Crisis CaseIn today’s situation, adisparate amount of energy and resources are spent on determining who fits thecriteria of a refugee rather than their treatment prior to asylum seekingapplications, and post-recognition as a refugee (Edwards, 2005). Further tothis, some tend to keep international refugee laws and human rights mechanismsseparate from each other, due to the complexity of the intertwining of twomajor concepts – state sovereignty and human protection. Human Rightsmechanisms 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 todiscrepancies in relating human rights violations such as violence againstwomen, to a case of refugee claims (Edwards, 2005).
Issues of human protectionunder international law and the principle of state sovereignty is a key problemin refugee law – even more so in determining the powerfulness of refugee law. One point of contradiction betweenthe two concepts mentioned above arises from the non-refoulement clause underthe Refugee Convention, that is, refugees should not be returned to persecutionor the threat of persecution, and that protection must be extended to allrefugees without discrimination (Refugee Convention, 1951). Non-refoulement isa part of customary international law. Since the convention, the number ofrefugees have grown exponentially due to the rise in internal inter-ethnicconflicts within States, fuelled by socioeconomic problems and solutions torefugee problems have become even more elusive (Feller, 2001).
Today, we alsosee an increasing number of refugees and asylum seekers resorting to humanrights mechanisms, due to an absence of complementary apparatus dealing withrights of refugees on state territories of which they enter under the RefugeeConvention (Edwards, 2005). However, whilst the non-refoulement clause ispresent in the convention, the increasing number of refugees have led to somegovernments having resorted to closing borders or pushing refugees back totheir home states due to concerns for national security and safety of the localpopulation (Feller, 2001). In addition to this, due to the complexity of statesovereignty and human protection in refugee law, many resort to being smuggledinto countries as a last resort, making areas surrounding major refugee criseslike Syria and neighbouring countries, a breeding ground for human traffickers(Feller, 2001). The Syrian crisis which beganin 2011 has forced over a third of its residents to leave and more than twomillion of them have become refugees in neighbouring countries (Arnaud, 2012;UNHCR, 2017). The conflict between the government of Bashar al-Assad andvarious other forces have led to Syrians fleeing to neighbouring countries suchas Lebanon, Jordan, Iraq, Egypt, and Turkey, as well as various Westerncountries such as Germany, Sweden, United Kingdom, and the United States ofAmerica (Ostrand, 2015). The seriousness of the Syrian Refugee crisis was broughtto attention of the rest of world by the powerful photograph of three-year-oldSyrian boy Alan Kurdi’s body washed up on a beach near Turkey’s resort ofBodrum, trying to get to Greece. This led to various calls out from NGOs suchas Save the Children to pressure the EU to come together to tackle the refugeecrisis (Smith, 2015).
Whilst the neighbouring countries to Syria with littleresources accepted a large influx of refugees to their borders, the moredeveloped countries were more hesitant to allow refugees, often placing quotason the intake. One crucial point of this wasthe Executive Order signed by President Donald Trump “Protecting the Nationfrom Foreign Terrorist Entry into the United States” on the 27th ofJanuary which denied entry to refugees, prioritising some religions over othersas a part of this (Gilbert, 2017). President Trump had made several referencesto the tragedies of 9/11 in supporting the executive order, even though norefugees were involved in the acts committed, claiming at a swearing-inceremony at the Pentagon for Secretary of Defense James Mattis; “We do not wantto admit into our country the very threats we are fighting overseas” (Frej andFoley, 2017). However, analysing the definition, there is no way to claim thatrefugee movements are planned movements, as they do not follow a pattern. Inaddition to this, as per the Refugee Convention, people who have committed warcrimes, crimes against humanity, crimes against peace, or even seriousnon-political crimes are excluded from protection and as such terrorists wouldnever qualify for refugee status (Refugee Convention, 1951; Gilbert, 2017). Theexecutive 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 groundsof religious persecution so long as they came from a minority population fromtheir home state – so Christian minorities from Syria were to be considered, butthis is a clear discrimination against a certain social group, violating theRefugee Convention again (Gilbert, 2017).
This executive order from the US wasone attempt at imposing blanket bans on refugees, trying to close the borders. As international treaties andlaws are only binding up to the point of non-interference with statesovereignty, there is little impact that international refugee law can actuallydo in circumstances such as the one mentioned prior. While atrocities aretaking place against groups of people, violating their human rights, and thenthese people having to flee countries and take refuge, there is little thatrefugee law actually does in terms of human protection. Ensuring legal,physical, and psychological protection to the refugee population is vital andthe lack of basic security provides a basic breeding ground for organised crimeas well as recruitment of fighters (Berti, 2015). This brings us back to thegender gap in refugee law, where the vulnerable group in refugee crises such asthe Syrian one, lead to women and children often being subjected to sexual andverbal harassment in the countries in which they are seeking asylum, and evenbeing trafficked as sex workers, due to the lack of basic protection (Berti,2015). The restrictive asylum policies and practices from individualgovernments brings into question the scope of protection that the 1951Convention relating to Status of Refugees offers (Edwards, 2005).
Whilst it iscustomary for the United Nations High Commissioner for Refugees to analyserefugee law as part of the international human rights framework, it does notalways stress the necessity of it, rather, merely suggesting helpful guidanceto States to set their own domestic standards regarding refugees, leading tothe questioning of the relevance of the 1951 Convention (Edwards, 2005). Majorcriticisms reveal that refugee law is merely inefficient, complex, anddifficult to apply due to changing priorities within the world and the humanrights mechanisms are often resorted to in order to fill the gaps that refugeelaw has such as issues with the definition (well-founded fear of persecution,and social group), to ensure protection (Edwards, 2005). Conclusion: Is refugee lawthe most powerful human rights mechanism?Whilst the 1951 Convention onthe Status of Refugees has proven to be a milestone in the establishment ofRefugee Law, the protection it offers in terms of human rights is rather inadequate.Firstly, analysing the definition provided by the Convention on Refugeesidentified some major gaps within the definition itself – establishingwell-founded fear – which led to the discussion of what kinds of acts orviolations can be regarded to cause fear of persecution. The case of Khawar highlighteddiscrepancies regarding gender based violence and how these are oftenoverlooked 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 riskdue to the public versus private domain discussion in refugee law and highlightedthe importance of incorporating gender into refugee law. In addition to this, thediscussion of state sovereignty versus human protection further highlightedissues linked to certain social groups being discriminated against due to refugeelaw not being adequately binding. As they are only binding up to the pointwhere it does not interfere with state sovereignty, refugee law is not aspowerful as it may seem on paper.
Thus, while it sets certain standards onhuman rights and refugee protection, refugee law is not the most powerful humanrights mechanism.