MODULE 7

REFUGEES AND ESC RIGHTS
USING MODULE 7 IN A TRAINING PROGRAM

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 module

• reviews the definition of refugee;
• looks at international and domestic legal standards protecting the ESC rights of refugees; and
• considers the problem of forced migration.

Introduction

The vast majority of the world’s 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. [1]

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

• international instruments relating specifically to refugees: the UN Refugee Convention, [2] the African Refugee Convention, [3] and the Cartagena Declaration; [4]
• international human rights treaties, especially the International Covenant on Economic, Social and Cultural Rights (ÍCESCR); and
• domestic law.

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 safety—physical safety—that 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.” [5]   The grant of refugee status is thus often described as being an international substitute for the protection that should come from a person’s 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. [6]   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 world’s refugees are women (many of whom are wid­owed) [7] and children. [8]   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.” [9]

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. [10]   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. [11]   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

[a person who] owing to a 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, or who, not having a nationality and being outside the country of his former residence, is unable or, owing to such fear, is unwilling to return to it.[Art. 1A.]

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:

• a person who satisfies the criteria set out in the UN Refugee Convention above, or
• a person who] owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek ref­uge in another place outside his country of origin or nationality.[Art.1.]

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. [12]

Latin American countries have their own, nonbinding, declaration on refugees—the 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:

persons who have fled their country because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive viola­tions of human rights or other circumstances which have seriously disturbed public order.[Part III, para. 3.]

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. [13]   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.” [14]   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. [15]

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 rights—for example, regarding an adequate standard of living or physical and mental health, and no clearly binding provisions regarding the role of the family. [16]   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 conventions—in particu­lar, the ICESCR—granting 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:

[T]he States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin property, birth or other status.

However, “national origin” would appear not to include nonnationals, as no specific refer­ence is made to nonnationals. [17]   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. [18]   In addition, arti­cle 2(3) of the ICESCR contains a specific reference to the situation of nonnationals:

[D]eveloping countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognised in the present Covenant to 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:

[E]ach State party [to the ICCPR] must ensure the rights in the Covenant to all indi­viduals within its territory and subject to its jurisdiction (ICCPR art. 2, para. 1).  In general, the rights set forth in the Covenant apply to everyone, irrespective of reci­procity, and irrespective of his or her nationality or statelessness.

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

is that it does not identify those groups which might be considered to need spe­cial protection.  Specific reference is made only to the position of women and chil­dren.  Ideally, one might have hoped that mention would be made to the position of aliens, migrant workers, the elderly and those with physical or mental disabilities.  However it would be wrong to suppose that the Covenant fails to offer any protection in that re­spect.  The rights to which the Convention refers are the rights of “every­one”; the only limit ratione personae is to be found in article 2(3).  In any case, it is arguable that the particular concerns of these groups may best be dealt with by specific inter­national instruments that address the issues in detail. [19]  

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. [20]

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.” [21]

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:

[F]rom a human rights perspective, this situation raises great concern.  It will not al­ways be possible to distinguish, with certainty, between a refugee and economic mi­grant.  It may be argued that if the emphasis is placed on threats to life and freedom, there is little to distinguish between a person facing death through starvation and an­other threatened with arbitrary execution because of her political beliefs.  These con­siderations aside, the fact remains that regardless of whether a person is a refugee or an economic migrant, a citizen or a noncitizen, whether he or she is fleeing perse­cu­tion, armed conflict, threats to his or her life or abject poverty, that person is entitled to minimum human rights and minimum standards of treatment. [22]

While there may be great validity in the High Commissioner’s 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 provisions—which often apply to more than just citizens of the country—and 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, [23] 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. [24]

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. [25]   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. [26]   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, [27] 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. [28]   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. [29]  

Conclusion

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 circumstances—for ex­ample in Mozambique [30] and Cambodia. [31]

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. [32]   The most fundamental protection right [33] of refu­gees—that they should not be refouled and that repatriation should be voluntary—is 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.” [34]    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 Convention—substitute inter­national protection for certain persons in need—is 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 government’s and individual’s heart.  A closer examination of the provisions shows, however, that refugees have legal rights to this assistance.

Author: The author of this module is Nathalia P. Berkowitz.

USING MODULE 7 IN A TRAINING PROGRAM

NOTES

Poverty and economic polarization alone do not produce forced population displacements.  In fact, there are a number of countries which, although very poor, have in recent years been largely unaffected by the persecution conflict and human rights abuses which oblige people to abandon their homes: Lesotho, Namibia, Tanzania and Zambia, to give four examples from Southern Africa.  But such cases are the exceptions which prove the rule.  In general, there is able evidence to demonstrate that countries with low and declining standards of living are par­ticularly prone to complex emergencies, refugee outflows and other forms of forced dis­place­ment. [16]

It is no coincidence that forced population displacements occur most frequently in societies where a large proportion of the population is suffering from absolute poverty or where the stan­dard of living has suddenly declined.  There are, of course, some lower income countries which have been able to maintain democratic systems of government, to uphold high human rights standards and to remain free of communal violence.  But they are sadly few and far between.  When large sections of a population are economically marginalised, when they de­velop expec­tations that can rarely be realized by legitimate means, and when they are obliged to compete against each other for a limited and in some cases dwindling pool of resources, violence in one form or another is a predictable outcome. [269]