SECTION 3 PERSPECTIVES OF SPECIFIC GROUPS
REFUGEES AND ESC RIGHTS
The Purpose of Module 7
The purpose of this module is to summarize international, regional and domestic standards related to the ESC rights of refugees.
The vast majority of the worlds estimated 14.1 million refugees are in developing countries. As of the end of 1999, The Middle East hosted the largest number of refugees (5.8 million), followed by Africa (3.1 million). Women and children make up more than 80 percent of the refugees. The ten countries that produced the greatest number of refugees in 1999 were: Palestine, Afghanistan, Iraq, Sierra Leone, Somalia, Sudan, Yugoslavia, Angola, Croatia, and Eritrea. 
Human rights are not solely the rights of citizens or nationals. Refugees, too, are entitled to the protections offered by human rights law, including those in the area of ESC rights. This module concentrates on the protection of refugees in their countries of refuge (or host states), but it also considers the role of ESC rights abuses in causing refugees to flee. It addresses the question of protection of the ESC rights of refugees while they are in flight to countries of refuge and on their return to their countries of origin.
In considering the position of refugees in host countries, the module highlights some of the legal rights and protections available in relation to refugees ESC rights. In particular, it will consider
Refugees and Host Countries
Like all other persons, refugees are entitled to an adequate standard of living, adequate food and housing, as well as physical and mental health. However, refugees primary need is for safetyphysical safetythat they are unable to obtain in their country of origin. Thus the primary obligation of states under the refugee conventions is not to return (refoule) refugees to countries where they will be in danger of persecution.  The grant of refugee status is thus often described as being an international substitute for the protection that should come from a persons state of nationality or habitual residence.
Because they have had to flee and because of the reasons for their flight, refugees frequently arrive in the host country traumatized and in need of medical treatment, and without any money or other means of subsistence. They generally do not speak the language of the country of refuge, and all too often in the 1990s they may face hostility from other residents in the country of refuge. They are particularly vulnerable to exploitation and violence during the period of flight and while in the country of refuge.  They may have lost or become separated from the breadwinners of their families, which in itself is a cause for both emotional trauma and very real difficulties for the maintenance of livelihood. It is not to be forgotten that approximately 80 percent of the worlds refugees are women (many of whom are widowed)  and children.  As the United Nations High Commissioner for Human Rights has pointed out: [B]eing a refugee means more than being an alien. It means living in exile and depending on others for such basic needs as food, clothing and shelter. 
Refugees are not a homogeneous group, and they may also have very different practical experiences and problems in their countries of refuge. There are many differences between the experiences of the middle-class Bosnian refugee family in Germany, the second generation Palestinian who has never lived in his/her country of origin, and the Afghani widow in Pakistan. However, whatever their background and wherever they seek refuge, all too often refugees share a common problem: Their ESC rights are in jeopardy, and they face practical problems in accessing the economic and social entitlements that they do have.  In Great Britain, for example, a 1995 government study found that, despite being relatively well-educated, most refugees suffered considerable downward social mobility and found it very difficult to obtain employment of the same status as they held in their home country.  In many parts of the world refugees (and asylum seekers) may find themselves living in very large refugee camps or, alternatively, spontaneously settling among citizens of a neighboring country with persons of the same ethnicity as themselves. Where refugees (and asylum seekers) are confined to camps, this, in itself, may have implications for their ESC rights. On the one hand, access to wage-earning employment may be limited, particularly where camps are located in remote and/or poor areas of the country of refuge. On the other hand, the concentration of refugees/asylum seekers in one place may facilitate their access to food, education and medical services provided by the host state and/or international organizations and NGOs.
In other parts of the world, for example in many Western countries, refugees and asylum seekers are not confined to refugee camps, but are confronted by a complex legal machinery for claiming refugee status, for obtaining permission to work, and for access to state benefits in host countries. They also face language and other problems integrating into the country. Refugees ability to access their ESC rights is frequently limited by their inability to communicate in the language of the host state and their limited understanding of its systems. Persons suffering from health problems or psychological trauma may find it even more difficult to obtain employment or self-employment and to access social services.
Who Is a Refugee?
The legal definition of the term refugee is generally far narrower than the popular one. In the popular understanding, a refugee is often thought of as a forced migrant, i.e., someone who has had to leave his or her country of origin or habitual residence. The stricter, legal definitions of the term are contained in an international instrument (the UN Refugee Convention) and two regional ones (the African Refugee Convention and the Cartagena Declaration).
According to the UN Refugee Convention, a refugee is
Thus, the UN Refugee Convention offers protection to a narrow group of persons who are outside their country of origin or residence and are unable to return to it because of one or more of the reasons outlined in the UN Refugee Convention.
The African Refugee Convention defines a refugee far more broadly and thus offers protection to a wider group of persons. According to the African Refugee Convention, a refugee is:
Many African states are parties to both the African Refugee Convention and the UN Refugee Convention. The African Refugee Convention should be seen as a complement to the UN Refugee Convention. 
Latin American countries have their own, nonbinding, declaration on refugeesthe Cartagena Declaration. It defines refugees in a manner similar to the African Refugee Convention. According to the Cartagena Declaration, the term refugee includes not just those persons specified in the UN Refugee Convention, but also:
International Protection of Refugees ESC Rights in Host Countries
The Refugee Convention does contain a range of provisions relating to refugees ESC rights that are not found in the other refugee instruments.  Under the UN Refugee Convention, protection of refugees ESC rights is thus not simply a question of humanitarian assistance, but is a matter of a legally binding international obligation. However, as will be seen, even the UN Refugee Convention contains only limited protections of those rights.
The relevant provisions of the UN Refugee Convention are set out at the end of this paper. Article 7(1) sets the tone. It provides that [e]xcept where this Convention contains more favourable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally.
Thus, most of the provisions relating to employment, self-employment and welfare under the UN Refugee Convention provide that refugees shall be given the most favourable treatment accorded to other noncitizens in the same circumstances.  Restrictions on the employment of noncitizens are not to be applied to refugees who have been in the country of refuge for over three years, who are married to a national of the country of refuge or who have children possessing the nationality of the country of refuge. Refugees seeking self-employment are in a slightly better position. They are to be accorded treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances. Refugees who seek to practice a profession and whose qualifications are recognized by the host country are to be treated in the same way as those seeking self-employment. In addition, refugees who do manage to obtain employment are to benefit from the same treatment as nationals in respect of pay and employment, and refugees are to have the same treatment as nationals in respect of social security, subject to the restrictions set out under article 24.
In respect of publicly controlled housing and education, other than elementary education, refugees are again to be granted treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances. In relation to elementary education, public relief and assistance and the rationing of products in short supply (where a rationing system exists), refugees are to get better treatment. The UN Refugee Convention provides that refugees are to get the same treatment as nationals in these areas.
Importantly, the UN Refugee Convention also provides in article 16 that refugees are to have free access to the courts in their country of refuge. The contracting states are to facilitate and make every effort to expedite naturalisation proceedings [in respect of refugees] and to reduce as far as possible the charges and costs of such proceedings (art. 34). Thus once a person has been recognized as a refugee by a particular country, s/he can hope to become a national of that country in a short term and thus to receive the same treatment as nationals. While article 34 only obliges contracting states to make every effort, at least some states allow refugees to become citizens very quickly. 
Some of the practical problems facing refugees in accessing their ESC entitlements have been discussed above. There is, however, another, related problem and that is: When does a refugee become a refugee? This question may seem odd, but it is of crucial importance in practice. The problem is caused by the relationship between international refugee law and domestic law. While the refugee conventions set out definitions of who is to be classified as a refugee, they contain no enforcement mechanisms, and the task of deciding who satisfies the definition is left to domestic law and policy. Frequently domestic law classifies a person as an asylum seeker until the relevant domestic authorities have decided that s/he qualifies as a refugee under domestic law and/or policy. On the other hand, domestic authorities may consider that the person is to be treated as a refugee as of the date of his/her application, the date of entry into the country, or some later date.
Under international law a person is to be considered a refugee simply by virtue of satisfying the definition in the relevant refugee convention regardless of the domestic status determination process. Domestic authorities generally will consider that asylum seekers are not entitled to the specific protections of the UN Refugee Convention. In addition, many states will refuse refugee status and instead grant a form of humanitarian residence status that enables a person to stay in the country of refuge legally for a period, but which will not entitle him or her to access the provisions of the UN Refugee Convention. Domestic refugee status determination procedures are often very lengthy. Indeed, it may take years until the refugee status of an individual asylum seeker is decided.
The UN Refugee Convention is clearly limited in protecting the ESC rights of refugees. Firstly, it only applies to those countries that are states parties to the convention. Secondly, it contains no provisions in relation to certain ESC rightsfor example, regarding an adequate standard of living or physical and mental health, and no clearly binding provisions regarding the role of the family.  Lastly, refugees may be unable to access entitlements under the convention until they have formally been classified as refugees by domestic authorities.
Questions thus arise as to whether provisions in other international conventionsin particular, the ICESCRgranting greater ESC rights protection may apply to and assist refugees. Certainly, both the UDHR and the ICESCR refer to the rights of everyone, not just citizens or nationals. The nondiscrimination provisions of the international instruments may provide guidance. Article 2 of the UDHR is extremely broad. ICESCR article 2 is similarly broad:
However, national origin would appear not to include nonnationals, as no specific reference is made to nonnationals.  It would, however, seem, at the very least, arguable that refugees (and other nonnationals) would be covered under the other status provision, and certainly the CESCR has asked questions regarding the status of refugees.  In addition, article 2(3) of the ICESCR contains a specific reference to the situation of nonnationals:
Thus it is possible that developed countries, at the very least, are to take steps to guarantee the rights in the ICESCR to nonnationals.
Assistance may also be gained from the International Covenant on Civil and Political Rights (ICCPR), which clearly applies to refugees. General Comment 15 of the Human Rights Committee deals specifically with the position of nonnationals:
General Comment 20 of the Human Rights Committee also refers to nonnationals, stating that article 7 of the ICCPR prohibits states parties from exposing persons to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.
Thus, the general rule is that each one of the rights of the ICCPR must be guaranteed without discrimination between citizens and aliens. However, some of the rights recognized in the Covenant are expressly applicable only to citizens (e.g., art. 25), while some apply only to aliens (e.g., art. 13).
Discussing the nondiscrimination provision of the ICESCR, one author considers that one failing of that Convention
However, in relation to refugees the specific international instrument appears to have limitations, and it would seem unlikely that a specific instrument broadening refugees access to ESC rights will be forthcoming in the near future. 
This same author suggests that, whatever the precise scope of the nondiscrimination provisions of the ICESCR, even if aliens are not entitled to equal treatment in all respects, their rights are still protected to some extent under the Covenant: [S]o far as the Covenant establishes the rights of everyone, non-nationals would have a right to the enjoyment of the minimum core content of those rights. 
It would thus appear that refugees are, at the very least, entitled to minimum essential protection of their ESC rights in the same way that nonnationals generally are. This would appear to fit neatly with the concern of the United Nations High Commissioner for Human Rights about the narrow interpretation of the term refugee applied by many countries, an interpretation which leads to the exclusion of many asylum seekers on the grounds that they are economic migrants. The High Commissioner has stated:
While there may be great validity in the High Commissioners concerns, the question remains whether those persons who do qualify for refugee status under the narrow interpretations of the legal term refugee are entitled to the further protection of ESC rights as provided by international law.
Domestic Protection of Refugees ESC Rights
Refugees ESC rights may also be protected by the domestic laws of the country of refuge. These may include constitutional provisionswhich often apply to more than just citizens of the countryand national legislation.
In addition to the legal reasons for using domestic legal provisions to assist refugees, there may also be good political and practical reasons for addressing their social and economic needs within the context of the ESC provisions of the host community. This may be important, for example, to ensure that refugees receive treatment similar to that accorded to the host community rather than treatment that is, or is perceived to be, preferential. Mass inflows of refugees in recent years have frequently occurred within less developed countries. These movements have often placed very significant strains on the economy and environment of those countries. Even in developed countries, refugees have been perceived as placing unacceptable financial burdens on the host population.
While the presence of refugees may, in fact, have positive effects on the satisfaction of the ESC rights of a host community,  those are frequently overlooked, and host communities instead protest against the real, or perceived, negative economic effects of the presence of refugees. In particular, where governments and nongovernmental agencies provide services to refugees while denying them to the local population, or where refugees are perceived by local people to be treated more favorably, animosity towards the refugees may be the result. 
The Role of ESC Rights in Relation to Forced Migration
There is an increasingly widespread understanding and acceptance that violations of human rights are one major cause of refugee flows.  This understanding clearly extends to civil and political rights and possibly also to cultural rights (e.g., violations of the cultural rights of Kurds in Turkey). However, the link between violations of economic and social rights and the creation of refugees is more problematic.
There is no doubt that social and economic problems lead to both voluntary migration and to forced or involuntary migration. The Special Rapporteur on the situation of human rights in Myanmar was informed that, in the first half of 1997, between 5,000 and 25,000 Muslim refugees fled to Bangladesh to escape forced labor, portering and starvation.  However, the refugee conventions protect only those persons fleeing persecution for the particular reasons set out in those conventions. In countries around the world, complaints are common about refugees who are not persons fleeing persecution, but who are merely economic migrants seeking a better life. Such criticisms mean that discussions about the link between social and economic rights violations and the flow of refugees can be a potentially difficult and perilous task.
One approach to this issue has been to stress the interrelationship of economic and social rights to civil and political rights,  and to note that violations of economic and social rights may go hand in hand with violations of civil and political rights and provide a climate for persecution of particular groups.  Another approach has been to note that violations of economic and social rights may in themselves be persecution when, for example, a particular group is unable to access education or health care, or is barred from employment or self-employment, on the basis of their race, religion, nationality, political opinion or membership in a particular social group. 
Ideally, refugees should not legally remain refugees forever. Instead they should be able to attain a more regular legal status, either by becoming settled in their country of refuge or a third country (for example, through obtaining citizenship), or by voluntarily returning to their country of origin. While the UN Refugee Convention stresses citizenship, the African Refugee Convention stresses voluntary repatriation. However, worldwide there has been an increasing focus on temporary protection of forced migrants and on the desirability of voluntary repatriation as being the best durable solution to the issue of forced migration. Voluntary repatriation is a realistic option only if returnees will enjoy a measure of both physical and economic security in their country of origin; that is, if they will be returning to a country in which not only their civil and political rights but also their economic, social and cultural rights are respected. Recognition of this fact has led the UN High Commissioner for Refugees to become involved in development-related activities in some circumstancesfor example in Mozambique  and Cambodia. 
The protection of refugees ESC rights during flight, in their country of refuge, and, if they return, in their country of origin, is not merely an academic matter. The High Commissioner for Human Rights recently reported that refugees in Bangladesh and Pakistan were at high risk of mortality due to lack of nutrition.  The most fundamental protection right  of refugeesthat they should not be refouled and that repatriation should be voluntaryis seriously jeopardized when their social and economic rights are not ensured during flight or within the country of refuge. The UN High Commissioner for Human Rights has observed that in many cases . . . [refugees] may feel compelled to leave owing to the degrading conditions of life to which they are subjected in host countries.  Thus, in practical terms, even if they are not compelled to leave by force, if refugees cannot obtain the minimum essentials for life in the country of refuge, then the very purpose of the Refugee Conventionsubstitute international protection for certain persons in needis nullified. Those persons may be left with no choice but to return to danger.
The protection of refugees ESC rights is thus a matter of very real concern and is one best addressed within the framework of refugee law as well as international and national human rights guarantees. All too often social and economic assistance to refugees is seen as humanitarian assistance provided out of the goodness of a governments and individuals heart. A closer examination of the provisions shows, however, that refugees have legal rights to this assistance.
1 . US Committee on Refugees, World Refugee Survey 2000 (Washington, D.C., 2000).
2 . UN Convention on the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 entered into force 22 April 1954, as amended by Protocol Relating to the Status of Refugees, opened for signature 31 Jan. 1967, 606 UNTS 267, entered into force 4 Oct. 1967 (hereafter cited as UN Refugee Convention).
3 . Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45, entered into force 20 June 1974 (hereafter cited as African Refugee Convention).
4 . Cartagena Declaration on Refugees, adopted at a colloquium entitled Coloquio sobre la proteccíon internacional de los refugiados en Américan Central, México y Panamá: Problemas jurídicos y humanitarios held at Cartagena, Colombia, 1922 November 1984.
5 . See UN Refugee Convention, articles 1A and 33; see also African Refugee Convention, article 2.
6 . UNHCR, The State of the Worlds Refugees (Oxford: Oxford University Press, 1997), 62-67.
7 . For an interesting short introduction to the particular problems of refugee widows, see Margaret Owen, A World of Widows (Zed Books, London, 1996). With regard to the situation of Afghan refugee widows and children, see also the Report of the High Commissioner for Human Rights, Human Rights and Mass Exoduses, UN Commission on Human Rights, Fifty-fourth Sess., Part I. B.2, UN Doc. E/CN.4/1998/51 (30 Jan. 1998) (hereafter cited as Mass Exoduses report).
9 . See United Nations High Commissioner for Human Rights, Fact Sheet No. 20, Human Rights and Refugees 1997, (hereafter cited as Fact Sheet 20), available on the Internet at http://www.unhchr.ch/html/menu6/2/fs20.htm
10. For discussion of some of the particular problems which refugees face in the country of origin, see Mass Exoduses report.
11. J. Carey-Wood, K. Duke, and T. Marshall, The Settlement of Refugees in Britain, Home Office Research study No. 141, (London: HMSO, 1995).
12. According to article 8(2) of the African Refugee Convention: The present Convention shall be the effective regional complement in Africa of the 1951 United Nations Convention on the Status of Refugees.
13. The Cartagena Declaration does, however, include the following conclusion in Part III, paragraph 11: To make a study, in countries in the area which have a large number of refugees, of the possibilities of integrating them into the productive life of the country by allocating to the creation or generation of employment the resources made available by the international community through UNHCR, thus making it possible for refugees to enjoy their economic, social and cultural rights.
14. The term in the same circumstances as used in the UN Refugee Convention means that any requirements (including requirements as to length and conditions of sojourn or residence) which the particular individual would have to fulfill for the enjoyment of the rights in question, if he [or she] were not a refugee, must be fulfilled by him [or her], with the exception of requirements which by their nature a refugee is incapable of fulfilling (art. 6).
15. The United Kingdom government intends to allow refugees to promptly apply for citizenship. See Fairer, Faster, FirmerA Modern Approach to Immigration and Asylum, (Cm 4018 White Paper) July 1998.
16. The final act of the conference that adopted the UN Refugee Convention recommended that states parties take measures to ensure the family unity of refugees. See UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, part 1, chap. 6, available on the Internet at http://www.unhcr.ch/refworld/legal/handbook/handeng/hbtoc.htm.
17. See Matthew C. R. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Oxford: Clarendon Press, 1995), 172.
18. Craven, op. cit., 161-74.
19. Ibid., 25.
20. There has, however, been a United Nations Declaration on the Human Rights of Individuals Who are Not Nationals of the Country in which They Live, adopted by General Assembly Resolution 40/144 of 13 December 1985, which states, at article 8.1, Aliens lawfully residing in the territory of a State shall also enjoy, in accordance with the national laws, the following rights, subject to their obligations under article 4 [to respect national law] (c) The right to health protection, medical care, social security, social services, education, rest and leisure, provided that they fulfil the requirements under the relevant regulations for participation and that undue strain is not placed on the resources of the State.
21. Craven, op. cit., 174
22. Fact Sheet 20, note 9 above.
23. For example, by bringing new skills, knowledge, attracting international assistance and providing economic stimulus to an area, as has been pointed out by the Executive Committee of the High Commissioner for Refugees, 6 January 1997, Social and economic impact of large refugee populations on host developing countries, UN Doc. EC/47/SC/CRP.7 (hereafter cited as Executive Committee report).
24. For further information see, for example, Executive Committee report.
25. See, for example, Fact Sheet 20, note 9 above.
26. Mass Exoduses report, note 7 above.
27. See, for example, Fact Sheet 20, note 9 above; also UNHCRs contribution to the Report of the Secretary-General on the question of the realization of the right to development, Commission on Human Rights, Fifty-third sess., 20 February 1997, UN Doc. E/CN.4/1997/21 available on the Internet at http://www.unhchr.ch/html/menu4/chrep/2197.htm (hereafter cited as Right to Development report).
28. According to UNHCR, The State of the Worlds Refugees:
29. J. Hathaway, The Law of Refugee Status (Canada: Butterworths, 1991).
30. See Right to Development report, note 27 above.
31. See, for example K. Grant, Access to Land and Property Rights for Returnees to Cambodia, UNHCR Cambodia, May 1999, for further discussion about returning refugees; also see: T. Allen and H. Morsink, When Refugees Go Home: African Experiences (New Jersey: Africa World Press, 1994).
32. See Part I.B of Mass Exoduses report, note 7 above. Note that neither Bangladesh nor Pakistan is party to the UN Refugee Convention.
33. UN Refugee Convention, article 33, note 1 above.
34. Fact Sheet 20, note 9 above.