Refugees and Human Rights - Essay Example

Refugees and Human Rights Helena's claim to seek asylum in Kensington According to the Convention relating to the Status of Refugees adopted during 1951, the Article 1 (A) (1) and (2) states that "any person .as a result of events occurring before 1 January 1951 and 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 the country ." (UNHCR Convention, 1951) Helena is a Titanian from Xanadu and was studying in Kensington when the war broke out between Titanian and Oberons. During the fight, her sister and female cousin were raped by local youths and home was looted and told them that their brother was traitor as he working for Oberons. It is clear that Helena was not present during the period when war broke out between two communities. And moreover there is a hint of insecurity and chances are there that she would also be meted out with same treatment if she goes to Xanadu. Under the Article 1 (A) (1) and (2), Helena has the right to claim asylum because she was present in Kensington at the time of fight and is more probably to face the wrath of local youths who have raped her sister and female cousin. It is deemed to understood that it the rape on two females were politically motivated because of the assumed connection of her brother with Oberon, which is a rival political group. Article 1 (F) (a) also states that the provisions of the Conventions will not be applicable to the person with record of crime committed against peace, humanity, or non political crimes outside the country, or is guilty of acts contrary to the purposes and principles of the United Nations. Helena is not involved in any of these mentioned above in Article 1 (F) (a) and is rightly applicable to seek asylum in Kensington because it is party to the UNHCR declaration of 1951, the 1967 Protocol and the 1950 ECHR and has agreed upon that the human beings shall enjoy fundamental rights and freedom without any discrimination and all the member states would assure refugees the widest possible exercise of these fundamental rights and extend the scope of protection. (UNHCR) Therefore, under the Convention Relating to the Status of Refugees, Helena can seek asylum in Kensington as per the Article 1 (A) (1) and (2) and Article 1 (F) (a). Helena needs to provide necessary documents and proof of future persecution in her country of origin. She should be able to satisfy the definition of 'persecution' under Article 1(A) (4). Lopez-Galarza v. I.N.S., 99 F.3d 954 (9th Cir.1996) In the above case, the petitioner Lopez Galarza was raped and subject to various types of physical abuse due to political conflict. The Unites States Court agreed upon that Lopez - Galarza had satisfied the definition of 'persecution' and can be availed asylum. (www.1.umn.edu) 2. Pyramus Case of deporting him back to Xanadu Pyramus has already been granted refugee status in Kensington. The government of Kensington has decided to deport Pyramus for his alleged fundraising activities for Titanian Liberation Movement which is considered as a terrorist organization. The Kensington government has the right to deport Pyramus as per Article 2 which states that every refugee has to conform to the laws and legislations of the country in which he/she is taking refuge for maintenance of public order, which was violated by Pyramus through fundraising activity for Titanian Liberation Movement. But as per the article 32 (1)(2)(3), the contracted states shall not expel a refugee lawfully in their territory save on grounds of national security or public order - expulsion shall only be in pursuance of a decision reached in accordance with due process of law. The refugee will be allowed to submit evidence to get cleared from the accusation only in the issues of national security and will be represented before competent authority or any other person or persons duly designated by the competent authority. The member state shall give a reasonable period to the refugee to seek legal admission into other country and during this period the contracting state has the right to apply internal measures that may be required to maintain peace in the nation. Therefore Pyramus is advised to ask for certain duration so that he can find a new destination with legal entry into other country which has been agreed upon by the member states as per Article 32 (1)(2)(3). On the other hand, where Xanadu government has asked for extradition of the Pyramus, Kensington government cannot do so as per Article 33 (1) which states '-no contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion'. (UNHCR) Basing on this statement, it is clear that Kensington government cannot expel Pyramus to Xanadu because of fundamental threats towards his freedom and life due to his involvement with the Titanian Liberation Movement. Additionally, Article 33 (2) also states that '-benefit of the provision i.e. Article 33(1) should not be claimed by a refugee, upon whom there are reasonable grounds for regarding him as a danger to national security and has been convicted by the final judgment -'. (UNHCR) Regarding this, Pyramus has denied the charges that he was present during the alleged war crimes in relation to medical experiments on Oberon prisoners and Kensington government has not convicted him for any criminal activities that have challenged national security. As the information regarding his availability during alleged war crimes is not known, he can seek asylum in other countries under the above convention and attain refugee status. Cardoza-Fonseca, 480 US 421, 94 L.Ed 2d 434 (1987) In the above, the asylum seeker was withhold from deportation under provisions of Article 2 through 34 of 1951 United Nations Convention Relating to the Status of Refugees, and Article 33.1 which states that not to deport any alien or refugee to a country where his 'life or freedom would be threatened'. 3. Hermia's claim to seek asylum in Kensington The Convention relating to the Status of Refugee clearly states that human beings shall enjoy fundamental rights of rights and freedom without discrimination. Article 3 also states that all the member states shall apply the provisions of this convention to refugees without discrimination in regard to race, religion, ethnicity, nationality, or country of origin, which also apply to women and girls. According to this statement, Hermia can claim asylum in Kensington as there cannot be discrimination in any form to the refugee. International Refugee Law also states that UNHCR and member states have greatly enhanced the protection of refugee women and girls and gender related claim may be brought by them which are not limited to acts of sexual violence, family/domestic violence, coerced by family planning and female genital mutilation. According to this law, Hermia can claim on the basis of domestic violence and being exploited by her husband during war times. Hermia can claim asylum under the convention relating to the status of refugees as per article 3 which states that there cannot be any form discrimination against any human beings as all of them are entitled to fundamental rights and freedom of movement. International Refugee Law also provides legislation that women and girl can seek asylum on the grounds of domestic violence which was meted out to Hermia by her husband who criticized her for getting mixed up in men's business while she was returning home and got caught up while driving through an area of fighting between the two groups. Under the circumstances where two political parties are fighting each other, Hermia can claim asylum on grounds of domestic violence and future fear of persecution from her husband. Abused women granted refugee status in Hungary In the above case, a woman was granted refugee status after reaching Hungary with the help of smugglers which made her entry difficult. She was granted asylum based on domestic violence and social exclusion she suffered as a woman. She was granted asylum under 1951 Convention's definition of refugee. (www.unhcr-budapest.org) and also Domestic Violence Victim Granted Asylum in US (http://cgrs.uchastings.edu) 4. Humanitarian Emergency Xanadu government has asked the United Nations High Commissioner for Refugees (UNHCR) to intervene in the matter of humanitarian emergency where thousands of Titanians have left their homes because of the fight between two groups and have travelled towards North of Xanadu. As already stated, any group of persons shall be accorded the status of refugee if there is a fear of persecution either from their own nationality or country of origin. (UNHCR,1951) Helene (1995) states that there are two kinds of refugees which include refugees who are part of mass movement provoked by invasion, oppression or war and other seeks refuge by individual, both of which are covered under Article 1(A) (2) of the 1951 Convention. UNHCR sets up programmes for the refugees in the country of refuge, to accept of quota of refugees. As per the above Article 1(A) (2), UNCHR can accord refugee status to the group of people because they are fleeing the place due to continuous fighting between two groups of Xanadu with the fear of being persecuted or any other form of violence may be invoked upon them. UNHCR is the United Nations Refugee Agency created by the UN General Assembly in 1950 with charge of helping governments to find permanent solutions to refugees. Article 35 of the convention makes it explicitly clear that every member state shall cooperate with UNHCR relating to the implementation of the convention itself and to any laws, regulations or decrees that states might draw affecting the rights of refugees. Therefore UNHCR can, in consultation with the member state governments, provide rehabilitation facilities and other basic necessities to the group of people living towards the North of Xanadu. UNHCR also formulated the set of objectives called 'Agenda for Protection' that may serve as a guide to governments and humanitarian organizations, in order to strengthen the struggle of refugee protection all over the world. Further UNHCR may provide effective legal protection to the refugees apart from other basic needs like shelter, food, water, sanitation, and medical care. The UNHCR can set up rehabilitation camps and deliver the basic necessities through various projects that are designed for such purposes. The agency can also help the refugees seek asylum in other countries or to resettle in third countries. The agency also provides necessary assistance to those who are unwilling to go back to their homes for fear of extreme violence, helping them to find new homes in the present country where they are currently seeking asylum, or in the crowded developed nations or in third countries. The UNHCR agency can provide resettlement to refugees; provide them education, training so that they can settle elsewhere if not in the present place. UNHCR has a crucial role to play in the rehabilitation and development of refugees leaving under the fear of persecution in their nation. Therefore UNHCR may rehabilitate thousands of Xanadu people who have fled their homes, provide them shelter with due consultation with member state governments, provide them basic necessities, legal protection, education and give them their fundamental right to freedom. (UNHCR, 2009) A 1(a)(2) of the 1951 Convention Relating to the Status of Refugees on the face of it fails to protect women in the private sphere, where they are most at risk. Recent developments in the courts however, have taken steps to address this. Helene M et al (2009) stated that women remained 'forgotten majority' for long period on the international agenda until United Nations world conferences on women served as a catalyst toward the mobilization of women, advocating the human rights for women at all levels. US Senate reported that women and children refugees comprises for about 80% of the estimated 12 million refugees worldwide. Women are vulnerable in all circumstances. Even the main cause why most of the refuge women flee their homes is because of domestic or family violence, sexual exploitation, rape and abduction. It is reported that refugee women and girls were sexually exploited by those in charge protecting their rights. In 2001, it was reported that refugee women and girls in West Africa were sexually exploited by relief workers from International and Non Governmental organizations and also by peacekeepers. (US GAO, 2003) Martin S.F. (2004) reports that majority of the world's population lives in the least developed countries making them vulnerable to same set of problems which are usually experienced by the normal women like poverty, access to food, safe drinking water, large families, high rates of child mortality, and health issues. Therefore it is necessary that women should be provided special assistance in regard to their physical protection as well empowerment through skill training and livelihood development. The empowerment of women in any field is possible mainly through community participation which is not allowed in most of the countries like Afghanistan, Pakistan, and moreover the liberation of women became a symbol of jihad in these areas. There are numerous constraints involved for refugee women's participation in the community from the host nation showing reluctance in decision making for fear of losing control. Martin S.F (2004) further mentioned that even though much recognition is not given to gender in the refugee definition, the European Parliament in 1984 urged that women fearing cruel or inhumane treatment should be considered as 'social group' for the purpose of determining their status. Further UN High Commissioner for Refugees, in Note on Refugee Women and International Protection which was submitted to the 41st Session of Executive Committee in 1990 stated that in view of the increasing universal character of UN Convention on Elimination of All Forms of Discrimination Against Women, may justify the granting of refugee status --- it is important that decision makers involved in this process should have relevant information regarding the women seeking refugee status. Regarding the Definition in 1951 Convention, UNHCR reiterated that there is no need to amend the definition as it is widely accepted and it can influence or dictate the type of persecution. The 1951 Convention Relating to the Status of Refugees states that human being shall enjoy fundamental rights and freedoms without discrimination. The Article 3 states that contracting states shall apply the provisions of the Convention to refugees without discrimination as to race, religion, or country or origin. The above statement clearly states that there is no discrimination whatsoever in any form, although gender not specified, women and girl also are party to this convention. (UNHCR Convention) However women require additional and amended laws and legislation in order to empower them and provide them with better facilities and get them exempted in certain situations. The convention and 1967 Protocol do not specify to gender in relation to refugee definition which resulted in the refugee's to be interpreted through a framework of male experiences, leaving much of the women claims unrecognized. The recognition of gender related claims has greatly enhanced the protection of refugee women and girls, the claims mostly are encompassed but not limited to acts of sexual violence, domestic violence, coerced family planning and female genital mutilation. (www.unhcr.org) There were numerous legislations passed and amended so that priority could be given to women, even in the status of refugee and exemption is given while providing asylum. Baines E.K (1999) mentioned that refugee women were provided the same protection rights as other refugee men till 1980 when feminist investigation revealed that UNHCR policies and practices had different outcome for the men and women. During 1985, UNHCR recognized that refugee women and girls have special requirements which reflect their gender. Refugee women flee their homes fearing domestic violence, sexual violence, etc. and when these women seek asylum under the Convention which is equal to all, the protection needs of refugee women in assistance programs in refugee camps which are not met. (Meyer and Prugl, 1999) The UN Decade for Women from 1976 to 1985 acted as catalyst for shifting the consciousness toward refugee women. (Steiner et al, 2003) In order to provide some sort of sustainability to refugee women, the International Working Group on Refugee Women (IWGRW) was initiated in 1986 by the World Council of Churches and the World YWCA in Geneva, Switzerland. IWGRW organized the First International Conference on Refugee Women in 1989 which also facilitated the participation of refugee women through UNHCR. The conference set the groundwork for international and national research, policy and advocacy to empower refugee women and a practical guide was prepared to addressing the special needs of refugee women in the areas of protection, health, employment and cultural adjustment. (Helena M. et al, 2009) The General Assembly Resolutions No 35/135, OP2 & 4, 11th December 1980 states that '-states and donors providing immediate relief to refugees and displaced persons to endeavor to lessen special vulnerability of women --- by ensuring their access to emergency relief and to health programmes, - - their active participation in decision making in camps for refugees or displaced persons'. Additionally, the resolutions were passed to provide assistance to refugee and displaced women. (www.un.org) The General Assembly passed a resolution in 35/135, OP 3 on 11th December 1980 urging the international community to provide urgent and adequate assistance to all refugee and displaced women - providing asylum and rehabilitation. Apart from this, a resolution was also passed to provide legal, humanitarian and other assistance to refugee women and children and their families who are victims of racial segregation or apartheid in 41/123, OP 2 (b) of 4th December 1986. The Guidelines on the Protection of Refugee Women was prepared in order to assist the staff on UNHCR and its implementing partners to identify the specific protection issues, problems and risks facing refugee women. The key issues that are addressed within these guidelines are prevention of attacks on refugee women in crossing the border, promoting participation of refugee women in planning and implementation of assistance services, physical organization and ensure greater protection, ensuring that single refugee women and women headed household gains access to food, shelter, healthcare, clean water, firewood, etc, access to registration documents, reunification of families, prevention of attack on refugee women in camps, income generation and skill training camps, recruitment and training staff, etc. The Guidelines also lays emphasis on protection the women and girls from the outright rape and sexual exploitation in the asylum country as well and also from military related violence and avoiding forced recruitment into military operations. There are instances when the above key issues are not addressed, the refugee women seeking asylum in the country may be forced into prostitution. (www.unhcr.org) UNHCR's Guidelines on the Protection of Refugee Women is an important tool in raising awareness of UNHCR staff and other implementing partners about the protection of women and girls in particular problems. The guidelines mention that if interests of women need to be protected, then it is necessary that gender equality is promoted through recognition in the current social, economic, political and cultural systems. UNHCR under the influence of UN wider developments for the upliftment and empowerment of women and girls has also worked to promote and protect the rights of women and girls to achieve gender equality through gender mainstreaming and targeted actions for empowerment in response to gender analysis. UNHCR is also implementing various activities and programmes which are aimed at empowerment of refugee women and girls. UNHCR conducts awareness programmes creating a space for women and girls so that they can participate in the decision making and planning process in the camp management and peace processes, formulation of certain initiatives to prevent and respond to sexual and gender based violence (SGBV), providing equal access to education, health and other services and working towards achieving a shift in power relations between women and men, girl and boys towards equality, including in the traditional roles inside homes. Apart from the UNHCR has also designed five points based policy 'Five Commitments to Refugee Women' which includes all the aforementioned programmes for the betterment of the role of refugee women in society. (www.unhcr.org) Martin S.F (2004) highlighted number of steps that should be taken by UNHCR and NGOs which can be helpful to improve the legal protection of refugee women mentioned hereunder Provide legal security to refugee women under political, social, economic, cultural and civil rights with regard to relevant International legal instruments such Convention on the Elimination of All Forms of Discrimination against Women. Grant refugee status to the women fearing persecution or severe discrimination on the basis of gender to be a social group as agreed upon in the Convention on the Elimination of All Forms of Discrimination against Women. Awareness among the refuge women about their rights and benefits to which they are entitled under the convention Ensuring immigration officials have access to information regarding the refugee women's country of origin To provide training to asylum officers so that they could effectively perform interviews and assess the claims of refugee women. Most importantly employ women as interviewers and interpreters for the purpose of determining status. Though UNHCR's statute does not specify any particular responsibilities in relation to the protection of refugee women and girls, Executive Committee adopted various conclusions and Agenda for Protection has special focus on meeting the protection needs of refugee women and children. Moreover the work of UNHCR is guided by International Law which also includes International Refugee Law, International Human Rights Law and International Humanitarian Law. Baine E.K. (1999) mentioned that Ann Howarth Wiles from Canada was appointed as Senior Coordinator dealing and coordinating related to refugee women under UNHCR programs. The job included assessing the effectiveness of existing protection and assistance measures in preventing physical violence, rape, exploitation and discrimination against refugee women. The UNHCR policies on refugee women and guidelines on protection provided an important framework for the staff in Mexico while they were working with refugee women during 1991. In the process of empowering refugee women, it was observed by the field staffs that as all the projects of UNHCR are mostly targeted towards men, a gap is increasing between women and men if the same is not implemented for women which further results in dependence and subordination. Initially women faced strong resistance from men, in the form of domestic violence because most of the men felt that their masculinity was threatened when their wives challenged traditional boundaries. Further it was found that some refugee women were discovering ways to negotiate workloads and responsibilities with men in their communities. The UNHCR is striving hard to bring the refugee women in the mainstream without any discrimination. The Progress Report on Refugee Women by UN High Commissioner for Refugees states that the policy seeks to mainstream refugee women in all programme and project activities, through the integration of refugee women at all levels of participation in planning, implementation and monitoring of the programmes. The UNHCR Policy on Refugee Women is considered to be wide enough to enable the inclusion of Beijing Platform for Action and ECOSOC recommendations of 1997. The Progress Report also states that the strategic needs of refugee women would include the capacity building necessary to equip them with sustainable skills to enable access to available resources and services. There is a significant progress in projects that have been promoting the strategic needs of refugee women such as encouraging girls education, education and skills training of refugee women, awareness about their rights, entrepreneurial skills developments, training on income generation activities, etc. People Oriented Planning (POP) training programme are also conducted effectively to UNHCR staff and implementing partners including NGOs with a framework on gender analysis in policy development and needs assessment. However, the report states that humanitarian aid agencies including UNHCR staff have always faced the dilemmas of uncertainties about interfering with the traditional and cultural practices of the refugee community. It is also further noted that refugee women are not militarized like men. The report also states the proper investments in women through supporting their activities for peaceful resolution of conflict and their work toward conflict prevention and peace building would pay dividends in long term. Education among children is prevalent and gender gap seems to be disappearing slowly. The Progress Report on Refugee Women concludes that during the past few years, there has been a proliferation of guidelines, checklists, training programmes and awareness campaigns for the better protection and assistance of refugee women. (www.unhcr.org) During the 21st Meeting of Refugee Women, UNHCR Standing Committee, the NGO stated that though there has been a considerable progress in developing refugee status determining procedures in Turkey, which include separation of women's claim from men's claim, training legal officers, government officers, guards and migration officials. (Women's Refuge Commission, 2001) After the Convention Relating to the Status of Refugees in 1951, which did not specifically addressed the women issue, there were numerous resolutions passed in UN General Assembly urging the member states to formulate polices and legal framework for the empowerment and protection of women. UNHCR also prepared the Guidelines on the Protection of Refugee Women so that any women seeking asylum fearing persecution or any form of violence shall be considered as 'social group' and granted refugee status along with all the benefits under UNHCR. References 1. Helene Lambert (1995) Seeking Asylum: Comparative Law and Practice in Selected European Countries, Vol. 37, International Studies in Human Rights, Martinus Nijhoff Publishers. 2. Thematic Compilation of General Assembly & Economic and Social Council Resolutions - Women, UNHCR, 2003. http://www.unhcr.org. 3. UNHCR Handbook for the Protection of Women and Girls: Chapter 6 - The International and Regional Legal Framework, 2008. http://www.unhcr.org 4. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), Human Rights Library, University of Minnesota. http://www1.umn.edu/humanrts/refugee/cardoza_v_ins-1987.html 5. Protecting Refugees and the Role of UNHCR, UNHCR, March 2009, http://www.unhcr.org 6. Convention Relating to the Status of Refugees, UNHCR, http://www.unhcr.org 7. General Assembly Resolutions, Women, www.unhcr.org 8. UNHCR Policy on Refugee Women and Guidelines on their Protection - An Assessment of Ten Years of Implementation, An Independent Assessment by the Women's Commission for Refugee Women and Children, May 2002, USA. www.womenscommission.org 9. Guidelines on Protection of Refugee Women, UNHCR, Geneva, July 1991. www.unhcr.org 10. UN High Commissioner for Refugees,Progress Report on Refugee Women, 25 May 1998,SC/1998/INF.1, http://www.unhcr.org/refworld/docid/49997afa0.html 11. Women's Refugee Commission, Statement: Meeting of Refugee Women, UNHCR Standing Committee, 21st Meeting, NGO Statement of Refugee Women, June 2001, http://www.womensrefugeecommission.org/press-room/573 12. Helene Moussa, Maroussia Hajdukowski-ahmed,Nazilla Khanlou,(2009) Not Born a Refugee Woman: Contesting Identities, Rethinking Practices, Berghahn Books 13. Niklaus Steiner, Mark Gibney, Gil Loescher (2003) Problems of protection: the UNHCR, refugees, and human rights, Routledge, UK 14. Mary K. Meyer, Elisabeth Prgl (1999) Gender politics in global governance, Rowman & Littlefield, 15. Martin, S.F. (2004) Refugee Women, Ed. 2, Lexington Books, Maryland. 16. Humanitarian assistance protecting refugee women and girls remains a significant challenge : report to the Ranking Minority Member, Committee on Foreign Relations, U.S. Senate, DIANE Publishing, US 17. Lopez-Galarza v. I.N.S., 99 F.3d 954 (9th Cir.1996), Human Rights Library, University of Minnesota, http://www1.umn.edu/humanrts/refugee/Lopez-Galarza_v_INS.htm 18. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), Human Rights Library, University of Minnesota, http://www1.umn.edu/humanrts/refugee/cardoza_v_ins-1987.html 19. Abused women granted refugee status in Hungary, UNHCR, http://www.unhcr-budapest.org/ 20. Domestic Violence Victim Granted Asylum in US, The Associated Press, 2009 http://cgrs.uchastings.edu Read More