The interplay between international and refugee law in South Sudan (part 1)
We have only one international law: a commentary on understanding of refugee law in South Sudan
By Daniel Juol Nhomngek, Kampala, Uganda
In the recent article I wrote on refugee where I put a question across as: ARE REFUGEES NOT ENTITLED TO A PASSPORT OR TO HOLD A PASSPORT? THE CASE OF SOUTH SUDANESE REFUGEES IN UGANDA seeking for the interpretation of the refugee law in regard to documents which the refugees must show when it comes to identification document: that is whether by showing a passport can be a crime under the refugee law hence a person is prohibited to show any other documents apart from the refugee identity card.
It all happened that on the day I wrote that article I went with the sister-in-law who was having an appointment with the office of the UNHCR for her process of the documents for her family resettlement programme. We came at about 8:00 AM to the Office of Prime Minister of Uganda and when the sister-in-law tried to enter the game, the police officer was sitting at the game to check the identity of those who were entering landed on this sister-in-law of mine and asked her whether she had an identity card.
Innocently, she put her hand into her handbag and pulled out her South Sudanese passport. Upon looking at it the way police officer reacted caught me by a surprise. The police officer began to interrogate her beginning with the following questions: “you mean you say you are a refugee and you have a passport?” and then again he asked her “why do you have a passport?” As he was asking her these questions he was putting the passport in his pocket. At that point I intervened but the police officer was not even listening to me and we ended up quarreling.
When our quarrel ended, I left with the sister in law to the UNHCR office which was next to the Prime Minister’s office. As I was walking towards that office the idea struck me that I should ask the obvious question which is: ARE REFUGEES NOT ENTITLED TO A PASSPORT OR TO HOLD A PASSPORT? This question which appeared simple at the first glance attracted a lot of debate on line. Among those who took part in the debate were some of South Sudanese lawyers who believe that they know more of the Refugee law, which they referred to as International Refugee Law (IRL) than me who was asking the question.
Unfortunately, they missed the point as they veered off the path of the legal or intellectual argument. Where they went wrong was failing to carefully observe the right way of intellectual argument by attacking my personality. For instance, one of the lawyers whose comment directly touches on my personality is the one who wrote an article in respond to the article with the titled above which he entitled: Is International Refugee Law (IRL) taught at Makerere University School of Law? In that article, he clearly criticized not my argument but my knowledge of law by questioning the school which I finished from. In doing that I think he was trying to show that Makerere no longer produce competent graduates in law. That was my interpretation of his article.
My conclusion on his article that I have given above is supported by his concluding part of that article in which he said: In a nutshell, i believed Molana Juol Nhomngek might have emotionally mistaken immigration law with international refugee law. I would humbly advise Molana Juol Nhomngek to kindly revisit his international refugee law jurisprudence if indeed he was trained in this law.
The above conclusion points to one direction and that direction is that to him I don’t have sufficient knowledge in what he calls International Refugee Law (IRL). Of course as I have put the phrase International Refugee Law (IRL)in italic, I am trying to draw the attention of the readers to the fact that in my opinion there is nothing like IRL as we do not have national refugee law hence refugee law is refugee law as a branch of international law corpus.
In addition, his argument also point to the fact that that I don’t have a clear knowledge of the difference between the immigration law and refugee law, which shows that he had failed to clearly understand the relationship between the law branches of the international law. I will later give the relationship in the last part of this discussion.
After that first lawyer, another lawyer took the same argument by showing that I was having personal problem and that is why I could not understand the refugee law and he then conclude that “This is also a rare chance to advice him not write on any topic of law without thorough research when he knows that legal fraternity is staffed by other people who knows more than him. I beg to close!” In making this statement, he thought that I am lacking knowledge in the area of refugee law. He was therefore trying to advise me though his advice was based on hearsay as he based it on the article whose title I have quoted above. The above article was written based on the question set by the author himself not the question that I asked initially hence he went wrong also.
As I have discovered later in his writing, his only problem was seeing the name “Juol” though he misspells it as “joel”. This was because he had already made up his mind to show that I am ignorant of the Refugee law thus he failed to read my original post and consequently he let the hot iron of erroneous comment based on hearsay to fall on his feet hurting him with wrong argument and comments.
However, the above comments I referred to in general are not my concern in this article as this article is only intended to clear some misconception about the refugee law. As seen in the quote I have already made above, the issue of IRL came up and the commentator even advised me to revisit that concept and further challenge my understanding of refugee law that I have failed to differentiate it from immigration law.
What I need to warn the author of that article above onset is that there is nothing like IRL and if he wasted or is wasting time that he is studying IRL then he is only chasing a wild goose as there is nothing like IRL but only the refugee law. Thus, a refugee law is a refugee law which is governing those who are forced from their country due to fear of prosecution on the grounds provided for under Articles 1(A) (2) and 33 of the refugee convention of 1951.
Refugees, therefore, fear to go back to their country of origin because of persecution. In order to protect such persons from being forced to go back to where they ran away from, the refugee law contains the principle of international law of non-refoulment as provided for under Article 33 mentioned above, which imposes a duty on all the states not to return those who claim that they are refugee to their country of origin or another country that they fear persecution unless it is proved that they are not refugees in actual sense.
As mentioned above, the non-refoulement is a fundamental principle of international law which forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on “race, religion, nationality, membership of a particular social group or political opinion” (See Article 1(A) (2) of 1951 Geneva Convention).
When it comes to the issue of refugees unlike political asylum, which applies to those who can prove a well-grounded fear of persecution based on certain category of persons, non-refoulement gives the protection to the generic repatriation of people, including refugees into war zones and other disaster locales. It is a principle of customary international law, as it applies to states that are not parties to the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol.
Moreover, non-refoulement principle is a principle of the trucial law of nations. In fact, though it is debatable today that whether non-refoulement is a jus cogens (peremptory norm) of international law, it is does not change the fact that in principle, it imposes a duty on all countries to protect all the people who claim to be refugees irrespective whether they are parties to the 1951 Geneva Convention. As a matter of law, international law permits no abridgments for any purpose or under any circumstances the protection of refugees and asylum-seekers due to the absolute prohibition provided for by the non-refoulement principle of the refugee law.
The reason for jealously safeguarding the principle of non-refoulement is because it arises out of an international collective memory of the failure of nations during World War II to provide a safe haven to refugees fleeing certain genocide at the hands of the Nazi regime. It was because of the tragedy that befell human community between 1939-45 in form of World War II that made the world leaders by then to think critically how they should effectively protect human population from destruction again as seen in the preambles of 1945 UN Charter and the 1948 the Universal Declaration of Human Rights.
Indeed and as pointed out above, following World War II, the need for international checks on state sovereignty over refugees became apparent to the international community. This is because during the war, for instance, several states had forcibly returned or denied admission to German and French Jews fleeing the Holocaust leading to many of them being exterminated in the cold blood.
As a need for the protection of refugees became apparent due to the torture or even rampant deaths that were imposed on those fleeing the war (refugees and asylum-seekers) due to the fact that they were forcefully returned to the country of their origin that later executed them, the international community found it necessary to come up with the law that is based on legal-moral responsibility to protect those fleeing the war against forceful return.
Eventually, the international community came up with the idea to formulate the branch of international law that protects all the people who have left the country due to fear of prosecution and other grounds as provided for in the form Refugee law but not international refugee law. This is because legally we do not have international refugee law and those who call refugee law as such I consider it to be a misnomer.
Thus, there is nothing like international refugee law (IRL) but we only have refugee law which is the only law governing refugees and other asylum-seekers. Because the refugee law is not part of national law, it is defined as the branch of international law which deals with the rights and protection of refugees. This is unchallenged fact.
For the above reasons and for the sake of clarity, I find it necessary to differentiate the refugee law from human rights law, humanitarian law and immigration law. While refugee law protects citizens whether there is a war or not humanitarian law on the other hand only applies when there is an armed conflict but human rights law is basis of both refugee law and humanitarian law. The difference between the refugee law and humanitarian law and human rights law is that whereas human rights law protects all human beings irrespective of their status, refugee law protects only those who fear prosecution on the grounds as provided for under the Geneva Convention of 1951.
On the hand, the difference between refugee law and immigration law is that immigration law protects all the people who have emigrated from one country to the other irrespective of the cause of their immigration, while refugee law only protects those who fear to return to their country of origin due to persecution. This implies that the difference between immigration law and the refugee law is almost like similarity as immigration law is a mother of the refugee law but both have one base which is international law.
As seen above, the apparent differences between these three branches of international law does not give them independent and international status as many call refugee law, an international refugee law (IRL) as if it is an independent international law. As seen in the definition given already, refugee law is a branch of international law but not independent international law as it has mistakenly been called by some scholars including the commentator on that article of mine.
However to be fair, this misconception of looking at the refugee law as if it is an independent international law is not the fault of that person who wrote an article in reply to my article but it arises out of the differences in opinion among international law scholars as to the relationship between refugee law, humanitarian law and international human rights law. The discussion on these differences is what forms part of a larger discussion on fragmentation of international law.
The misunderstanding of this kind stems from the fact that some scholars conceive each branch as a self-contained regime distinct from other branches, others regard the three branches as forming a larger normative system that seeks to protect the rights of all human beings at all time. The proponents of the latter conception view this holistic regime as including norms only applicable to certain situations such as armed conflict and military occupation (IHL) or to certain groups of people including refugees (refugee law), children (the Convention on the Rights of the Child), and prisoners of war (the 1949 Geneva Convention III).
It is because of the differences of opinions among different international scholars on the relationship between international law and refugee law as stated above, which has prompted international legal scholars to erroneously conclude that refugee law is a self-contained law hence the term International Refugee Law emerges from the ashes of disagree over the status of the Refugee law. Otherwise, Refugee law is not an independent branch of law in the international arena but it is a branch of international law that encompasses customary law, peremptory norms, and international legal instruments.
As a branch of international law, refugee law has it basis in the international instruments or treaties. The Statute of the International Court of Justice put treaties above as the first source of international law. It is in this respect Article 38 of the Statute of international Court of Justice provides that sources of international law shall include treaties, international customs, general principles of law as recognized by civilized nations, the decisions of national and lower courts, and scholarly writings. This means that refugee law, which has its sources in different treaties as listed below, is a branch of international law but not international law by its own as many consider it to be.
In addition to the above, the existence of the International and Regional Human rights instruments or treaties such as the 1948 Universal Declaration of Human Rights; the 1951 United Nations Convention Relating to the Status of Refugees; the 1966 Bangkok Principles on Status and Treatment of Refugees adopted at the Asian-African Legal Consultative Committee in 1966; the 1967 Protocol Relating to the Status of Refugees; the 1967 UN General Assembly Declaration on Territorial Asylum; the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and many others which provide for the basis of the refugee law do not allow us to give refugee law independent international status because of such a source and instead we should look at refugee law as a branch of international law. This argument makes the so-called international refugee law (IRL) a misnomer and therefore redundant.
Moreover, it is in relation to the above discussion which explains that the Refugee law is a branch of international law but not independent international law as many lawyers and some international legal scholars call IRL. Calling IRL is just a mistake and in fact a legal error in the international law discourses. This assertion finds its support in the fact that international law that imposes a duty on all the States to protect those who are running away from the persecution from their countries of origin is called a refugee law.
The Refugee Law is therefore derived from the word “refugee” and the question is who is a refugee? When it comes to the definition of who is a refugee, there is no consensus on the definition of a refugee, which makes it to be like the refugee law itself. In that regard, there is variety of definitions as to who is regarded as a refugee, which have come into play. Failure to agree on who is a refugee has made it difficult to create a concrete and single vision of what constitutes a refugee following the original refugee convention. However, Article 1 of the Convention as amended by the 1967 Protocol defines a refugee as:
“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 him or herself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” In fact, the definition of a refugee was something intended for temporary purpose as those recognized by the 1951 Geneva Convention were those who run away from persecution on January 1st 1951. Such restrictions were later then removed by the 1967 Protocol.
Regionally, the Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa adopted a regional treaty based on the Convention, adding to the definition that a refugee is Any person compelled to leave his/her country 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. Furthermore, in1984, a group of Latin American governments adopted the Cartagena Declaration, which is like the OAU Convention and added more objectivity based on significant consideration to the 1951 Convention. The Cartegena Declaration determines that a ‘refugee’ includes: Persons who flee their countries because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.
In the USA, in order to be considered a refugee an individual must: be located outside of the U.S.; be of specific humanitarian apprehension for the U.S; is able to validate previous persecution or feared approaching persecution based on their race, religion, nationality, social class, or political outlook; is not currently settled in another country; and is admissible to the U.S.
In summary, the discussion we so far have above shows that we have only one international law as there is nothing law International Refugee Law. This is because refugee law is refugee law. There are no two types of refugee laws of which one is national refugee law while the other is international refugee law. Whether the refugee law is enacted at the national, regional and international levels, the refugee law remains a refugee law as it is founded on irrevocable non-refoulment principle of refugee law which is a branch of international law.
NB// the author can be reached through: juoldaniel@yahoo.com
The opinion expressed here is solely the view of the writer. The veracity of any claim made are the responsibility of the author, not PaanLuel Wël: South Sudanese Bloggers (SSB) website. If you want to submit an opinion article or news analysis, please email it to paanluel2011@gmail.com. SSB do reserve the right to edit material before publication. Please include your full name, email address and the country you are writing from.
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