Refugee Convention in Protecting Human Rights - Essay Example

?Discuss whether the definition of a refugee under the Refugee Convention is sufficient to protect victims of human rights abuses Introduction The life of human beings is regarded as a very precious and important asset and so it is given maximum protection in all cases of legal jurisdiction. There are a number of ways that the State and other international legal agencies fight to protect the lives of people. Commonly, protection is given to the lives of people through the enactment and enforcement of laws that guard people against harm to the body, ill-health, physical and emotional torture, diseases, and above all death1. Even though war may be seen as one of the simplest and commonest examples of scenarios whereby the lives of people are put at risk, there are actually several other means by which people dwelling in a country may be prone to threats to their lives even in the absence of war2. As a way of ensuring that people who live in their own countries are given enough and maximum protection against all forms of practices that possesses threat to their lives in their immediate environments, the Refugee Convention has been put in place to ensure that there is easy movement of all such people cross borders from their countries of residence to seek protection and shelter where they feel their lives will be better protected. The present essay analysis whether the definition of a refugee under the Refugee Convention is sufficient to protect victims of human rights abuses and subsequently protect the lives of these people. The definition and its overview According to Article 1A (2) of the Refugee Convention: A refugee is a 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.” From the definition provided, there are three major legal provisions and statues that are seen, which are cause, premise and effect3. The first of these has to do with cause, which explains the possible causes of conditions that may cause a person to be tagged with a refugee status. Generally, the definition highlights the cause of being a refugee as the presence of a well-founded fear of being persecuted. In R v SSHD4, a clearer and reflection meaning is given to what well-founded fear means when it was concluded that genuine belief cannot be a basis for one to receive any form of protection as long as fear is unfounded. This means that fear must be objective and founded5 and in case it will be subjective, it must be based on reality.6 The second provision, which is premises, defines circumstances under which well-founded fear must exist before they can be regarded as meriting for refugee status. Generally, the fact that there is a premise means that well-founded fear may exist alright but may not be a tangible reason to merit one to be a refugee7. In the definition, there are five clearly listed premises, which are ‘race, religion, nationality, membership of a particular social group or political opinion’. Race and nationality generally give a premise of reason, for which a person may suffer acts of persecution, which arises mainly because the fellow is of a race that is different from the race of some other group of people who may be executing the torture, bring about the well-founded fear. Religion also gives its up with instances where there exist forms of controlled and mobilised acts of persecution against an identified religious group for the mere fact that people who are executing persecutions refuse to accept the opinions of the other religious group. Commonly, the aftermath of elections have resulted in situations where people, mostly those in opposition tend to become enemies of those winning power and therefore suffer forms of vendetta and victimisation due to their social and political opinions. In Gomez v SSHD8 we realize that "to qualify as political the opinion in question must relate to the major power transactions taking place in that particular society”. Finally, the effect defines the interventions given to the person expressing well-founded fear and this is to become a refugee. Shortfalls of the definition in protecting victims of human rights abuses As much as the Refugee Convention may be praised for the fact that it makes key provisions in the definition given thereof, there are some major shortfall of the definition when it comes to the maximum protection of victims of human rights abuses. Commonly, critics have said that the premises given in the definition are limited and not widespread enough to include several forms and acts of human rights abuses that people commonly face9. For example it would be noted that the definition makes a sharp neglect of the premise of gender or social status, though it touches on social opinion. It would be noted that one’s gender and social status are totally different from their social opinions10. Meanwhile, there are people who have always suffered acts of core persecution not just because of the social opinions they hold but because of their gender. In Ashby v. White11, it was recalled that several people were involved in acts of social revolution against the sitting government, a reason of which selected females in the group became core enemies of the government and became subjects of constant torture and persecution. In such an instance, if the social opinion of the protestors was the only reason for persecution, the whole group of protestors would certainly have had a fair share of the persecution that came. The definition is therefore weak in covering all aspects and areas of human rights abuses12. Conclusion But for the provisions in the Refugee Convention in the form of issuance of refugee status to people who are put under various forms of human rights abuses, there is likelihood that the kind of persecution that people would have suffered would have caused their lives13. This is because cross border migration processes have always been tedious, bureaucratic and cost involving14. The processes would have actually made a lot of people who genuine distaste of the kind of fear they live in feel reluctant to seek refuge and residence outside their countries of residence. But with the provisions that make it possible for these people to become refugees, the migration processes are softened and their human rights become protected. Having made this point, it will be concluded that the definition under the Refugee Convention could be more detailed to include several groups of human rights abuse victims who express objective and well-founded fear. Further research and development on the definition would therefore be necessary to making the goal of the convention more achieving. REFERENCE LIST Alfredsson, G. and Eide, A. (eds.) The Universal Declaration of Human Rights: A Common Standard of Achievement (Martinus Nijhoff Publishers, The Hague/Boston/London, 1999). Blake, N. and Husain, R. Immigration, Asylum and Human Rights (Oxford University Press, New York, 2003). Bottigliero, I. Redress for Victims of Crimes Under International Law (Martinus Nijhoff Publishers, Leiden/Boston, 2004). Carlson, N.S. and Gisvold, G. Practical Guide to the International Covenant on Civil and Political Rights (Transnational Publishers, New York, 2003). Eide, A. et al (eds.) Economic, Social and Cultural Rights: A Textbook ((Martinus Nijhoff, Doredrecht/London, 1995). Gowlland, V. and Samson, K. (eds.) Problems and Prospects of Refugee Law (The Graduate Institute of International Studies, Geneva, 1992). Gray, C. Judicial Remedies in International Law (Clarendon Paperbacks, Oxford, 1990). Hathaway, C.J. The Rights of Refugees under International Law (Cambridge University Press, Cambridge, 2005). Kreijen, G. (ed.) State Sovereignty and International Governance (Oxford University Press, Oxford, 2004). Lauterpacht, H. International Law and Human Rights (Archon Books, Hamden, 1968). Read More