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  • Conceptualising protection as safety: a normative proposal

    24 February 2014

    The Statute of the Office of the United Nations High Commissioner for Refugees (UNHCR) stipulates, inter alia, that UNHCR ‘shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall under the present Statute…’ The expression ‘international protection’ also features prominently in official documents of UNHCR, and in state practice. Often referred in its short form as simply ‘protection’, it has also been used in relations to persons displaced within their countries because of conflict or those fleeing droughts, famine, or floods. What is meant by international protection? What are its conceptual content and boundaries? The Statute of UNHCR, the 1951 Convention relating to the Status of Refugees, several resolutions of the General Assembly of the United Nations on refugees and displaced persons, the official documents of UNHCR and of states parties to the 1951 Convention are silent on these central questions. While the issues of refugee rights, legal and institutional problems of protection, including protection of people at risk in conflict situations, and how the policies and practices of states and UNHCR affect refugees and other persons of concern have received attention in the literature, there has been no attempt to conceptualise international protection and ground it in the experiences of refugees and other persons of concern to UNHCR and the international community. The objective of this paper is twofold: firstly, to explain the concept of international protection of refugees and other displaced persons that currently informs – if somewhat implicitly – the work with refugees and displaced persons, tracing its historical evolution to two central formative phases, the inter-war period and the years after the end of World War II; and secondly, to propose a normative framework on the proper conceptual approach to the international protection of refugees. It is argued that a conceptualisation of the idea of international protection of refugees that provides a framework distinguishing between the means and the ends of protection is needed; in other words, a concept of international protection that transcends the idea of law and institutions as protection and that defines a vision, a goal, or an overarching objective, which mobilises law, institutions, materials, and politics as inter-related means or vehicles for fulfilling and reaching that vision and overarching objective.

  • The politics of protection

    24 February 2014

    The dramatic progress of the global relief system in recent years has meant that generally we no longer have massive causalities, as we did only a decade ago, from lack of basic food, shelter and medicines. But millions of vulnerable civilians from conflict areas continue to remain gravely at risk as humanitarian protection remains a major weakness of the international response system. The author1 argues that, despite all the efforts that have been made, the international system has been unable to substantially improve effective protection for civilian conflict victims. In this paper, the author suggests some reasons why he thinks this is so and what might be done about it. He approaches the subject by highlighting issues such as responsibility and intervention, the protection architecture with its different actors, as well as the challenges of implementation. He suggests that although the protection of civilians is fundamentally linked to political and security issues it is frequently dealt with as a separate aspect of this broader equation. There was also a need to deal more effectively with non-state actors who are party to many current conflicts. UN peacekeeping mandates and resources for civilian protection needed to be strengthened and UN protection agencies needed to be more proactive. He concludes that there has been major progress in the last decade regarding civilian protection at the international level but this has not led to more effective protection in the field. However, progress has provided an exceptional window for much more effective implementation of basic safeguards than we have seen to date.

  • Protection: the new humanitarian fig-leaf

    24 February 2014

    The human rights-based approach (HRBA) has filtered into humanitarian action over the past decade. In tangible fashion, this shift has provided guidance and standards for aid itself. Beneficiaries have become something greater than populations in need of assistance – they have become sets of individuals possessing rights. HRBA thinking thus transforms the wants/needs of people in crisis into obligations demanding a response. Given that we humanitarians are often the only ones on the ground interested in or in a position to provide such a response, the impact of HRBA has radically changed the discursive framework under which humanitarian action is performed.

  • Protection, human rights and forced migration

    24 February 2014

    The keynote address begins with a discussion on the role of the international human rights system in the protection of people who are displaced either within the borders of a country or forced to cross national borders in order to seek refuge from conflict situations. It explores the extent to which protection premised on the international human rights system has been streamlined within international mechanisms for protection. Some of the jurisprudence of human rights bodies relating to such protection is highlighted. The address then turns to the problem of non-compliance with international human rights norms by States Parties to international treaties and conventions. By implication this raises the question of the effectiveness of the current protection system in the face of impunity by governments and when fundamental political, economic and social problems inherent in conflict situations have not been resolved. A brief account of the situation in the Darfur region of Sudan is given as an example of such impunity. The last part draws attention to the challenge of providing protection in an urban setting in South Africa in the context of xenophobic attacks and the ensuing displacement of refugees, asylum seekers, economic migrants, labour migrants and undocumented migrants.

  • When ‘protection’ meets ‘humanitarian’…

    3 September 2014

    If ‘humanitarian protection’ is a much debated concept, this is due not only to some ambiguity surrounding the term ‘protection’, but also to the multiple meanings conferred upon the adjective ‘humanitarian’. This paper examines a number of contexts within which this phrase has been mainstreamed into legal and/or policy discourse, and the implications of this juxtaposition of ‘humanitarian’ and ‘protection’ with regard to (i) the legal obligations of states under international humanitarian law; (ii) the specific functions of protection-mandated agencies, in particular ICRC and UNHCR; and (iii) the responsability of the larger ‘humanitarian community’ as “protection .. grow[s] from specialized function to jargon champion” .

  • Responsibility to protect

    24 February 2014

    In 2005, UN Secretary-General Kofi Annan declared that world leaders at the United Nations World Summit had unanimously pledged, “to act if another Rwanda looms.” Specifically, they agreed that states have a responsibility to protect their own populations from genocide, war crimes, ethnic cleansing and crimes against humanity. They also concluded that if a state is manifestly failing to protect its population, the international community has a responsibility to protect, including through the use of force should peaceful means prove ineffective. Their adoption of the responsibility to protect (R2P) offered a vision of a new international norm premised on state responsibility and nonindifference towards populations at risk of mass atrocities. This July, the General Assembly debated R2P for the first time since 2005. Member states signaled their enduring commitment to the goal, as well as some of the political and practical challenges that lie ahead. The successful debate marked another milestone in making this vision a reality even if R2P in many ways remains an emerging norm. The task ahead is to consolidate the achievements to date and instantiate the norm, thereby filling gaps in capacity, will and imagination and moving from rhetoric to saving lives. This paper examines the political evolution of R2P, and recommends strategies to ensure that practices and policies are put in place that will prevent and halt mass atrocity crimes.

  • An overview of refugee status determination and the rights of refugees in Kenya

    24 February 2014

    This paper details the workings of Refugee Status Determination (RSD) and the protection of refugee rights in Kenya, beginning with a broad outlook on the development of refugee law in Kenya and then critiquing the current laws and practices in place that affect the success or failure of RSD and the protection of refugee rights.

  • Refugee status determination and rights in Malawi

    24 February 2014

    Malawi has been both a producer and recipient of refugees from its neighbours in the last three decades. In the early 1960s and 1970s, followers of the Jehova’s witness religion were forced to flee the country, mostly into Zambia after their religious beliefs clashed with the ruling Malawi Congress Party ideologies. Scores of people also left Malawi fleeing political persecution to neighbouring countries during the same period of one party rule under the Malawi Congress Party. On the other hand, Malawi has been receiving refugees from Mozambique, initially during the struggle against Portuguese colonial rule, and hosted over one million Mozambican refugees between the 1980s and early 1990s when the Frelimo government and Renamo opposition movement were engaged in a highly destructive civil war. The influx of Mozambican refugees is believed to have forced Malawi to rush the process of ratifying the relevant international refugee instruments as well as drafting the Refugee Act, which came into force in 1989. Currently, Malawi continues to receive refugees, mainly from the Great Lakes region and the horn of Africa, and issues of refugee rights which were relevant during that period when it hosted over a million refugees remain important. This paper highlights the situation of refugee rights in Malawi, including the refugee status determination (RSD) mechanisms and process. The first part of the paper presents an introduction including country background and a brief overview of the legal system. Section two focuses on the refugee conventions and international human rights instruments that Malawi has ratified. The section also discusses the impact of international law on the domestic legal system. The domestic refugee framework is discussed in full detail in section three. The section highlights the provisions of the 1989 Refugee Act as well as RSD mechanisms. It also discusses the impact of reservations to international instruments and the outdated Refugee Act on the enjoyment of rights by people who seek protection in Malawi. Section four submits recommendations and conclusions.

  • Refugee status determination in South Africa

    24 February 2014

    This paper outlines the situation in which the asylum system operates in South Africa and its connection to the immigration system. It raises certain challenges within the asylum system and recommends policy changes, which could be used to address these challenges.

  • Refugee status determination and refugee rights in Tanzania

    24 February 2014

    Tanzania gained its independence from British colonial rule on 9 December 1961. Since her independence, Tanzania has been an independent territory having a common law legal system similar to the British one, which has been undergoing modifications from time to time to suit local circumstances. In addition, Tanzania is a dualist state, meaning that all international instruments to which Tanzania accedes must necessarily be ratified1 by the parliament to form part of the domestic legal system. Under the Constitution of the United Republic of Tanzania of 1977 (hereinafter, the Constitution), the rule of law concept is clearly reflected in the principle of separation of powers.2 Whereas, the fundamental principles reflected in this concept are the supremacy of parliament, independence of the judiciary and observance of human rights by the executive. These are the bases that form the three pillars of the state, i.e., the executive, the legislature and the judiciary. In practice, however, the executive is de facto more powerful as compared to the rest, which, more often than not, makes the executive override the powers of the legislature and the judiciary. Nevertheless, the judiciary enjoys enormous powers that are guaranteed by the Constitution. And, in practice, the judiciary has been at the forefront of defending the fundamental rights and freedoms enshrined in the Bill of Rights, as part of guaranteeing the right to access to justice. The right of access to justice is a fundamental right, which is also part and parcel of the rule of law.