Denying the existence of the discipline of international refugee law is a fallacy, a response to Juol Nhomngek
Denying the existence of the discipline of international refugee law is a fallacy: A refutation of the article entitled: “The interplay between international and refugee law in South Sudan,” by Juol Nhomngek
By Bhol Chol Kucdit, Juba, South Sudan
July 2, 2017 (SSB) — Dear readership, reference to the above cited article which was shared by one Juol Nhomngek on his face-book page responding to a commentary shared by Tong K Kuocnin on his face-book page challenging the author’s knowledge in international refugee law in Makerere law school, the commentary made by Tong Kuocnin invited many comments from friends and associates on face-book in which I shared my view too.
The matter in issue was a question posted by the author himself that…’’ARE REFUGEES NOT ENTITLED TO HAVE OR HOLD A PASSPORT OF COUNTRY OF ORIGIN OR NOT? A CASE OF SOUTH SUDANESE REFUGEES IN UGANDA’’. The author went further by asking…’’is it a crime for a refugee to hold a passport of his/her country of origin?’’ These questions were framed and answered by the author when the lady who went with him to the office of prime minister in Uganda was denied to enter the office when she was asked by a police officer to produce her Refugee ID card but instead produced her South Sudanese passport.
As a result, the author and the lady were denied to enter and the police went further to question them why the lady does not have refugee ID and so on and so forth. There was a quarrel between the author and the police officer. When the author left thereafter, he got upset and set the above questions which provoked the debate on face-book. From the views of many associates on face-book, it was categorically underlined that refugees although they may have their country of origin’s passport or national ID may not use it for identification since they changed their legal status.
They are no longer under the protection of their country of origin because they ran for their safety of life for fear of persecution of the same authorities. The author was also asked to look up the section 31 of Uganda Refugees Act, 2006 that provides how documents relating to refugees are dealt with in Uganda.
Based on the views I shared in the discussions, the author rushed with sentiment to term my comments as directly attacking his personality and concluded that I might have what he called ‘personal problem’ with him. As saying goes that you cannot teach an old dog with new tricks, the author in question denied the contents of his first question he posted on the event that befell him and the lady in the premises of the office of prime minister and went on to deny the existence of international refugee law by framing the above entitled article which I will be responding in the course of this piece of advice.
It was shocking news ever in the international legal discourse in which the sheer ignorant of this unfortunate author confirmed to the world the hanging question in balance whether this author had ever been trained in this field.
Before I go further to advice the author on his misfortune in this field, it is imperative to shade some light on why Universities exist and which role do they play? In my view, it is a truism that the most fundamental role of a University is to nurture the production of high quality academic work, challenging the existing suppositions, developing original ideas and putting forth new opinions which derive innovation and progress at any institution of higher learning.
Makerere University in general and its school of law in particular is not an exception to the above, it has been known to be the most prestigious academic training ground and world-class institution of learning that contributes to the world community of academic excellence. Contrary to these high attributed values to this institution, the author in question who claimed to be brilliant lawyer wanted to portray the unusual self of this institution. I will not accept to be misled by the academic shortfall of the author for I know there are many graduates of Makerere University who present the true image of this prestigious University in the region and the world.
I would treat his case as a personal problem since there is no vicarious liability of an institution of learning given the individual’s failure to understand the subject. His situation also reminded me about the story I heard from one my professors of law whose his name is withheld because I did not asked permission to use his name; the professor told an old story in then Sudan that….’’there are those who went to Harvard Law school, London, Oxford, and many other prestigious Universities in the world but they still come back original’’.
The literal meaning of this story was that going to London school of law or Harvard does not give you a required knowledge since the knowledge in University is not an oxygen that one can inhale upon reaching the University Campus. So, for those who went there for that sake came back as original as they went there. The author in question might have drowned in this ocean of academic struggle.
Coming back to the title of his article and its contents therewith, the author referred me to be a commentator who had just rushed in and comment on hearsay on his post when I saw his name ‘Juol’ but did not read his post correctly. That was not correct, I did neither just comment on his post as he said nor was there any special thing attached to his name that attracts anybody attention. It was a name like any other name and no problem with that.
I commented after I keenly read his post which carried a lot of corrections in his understanding of international refugee law which he denied its existence in his above cited article. The problem with this author as I pointed out earlier is that he does things before he critically examined the topic of his discussion and if he is corrected, he jumped almost to the top of the sky and claimed that he did not say this and that or you have personally attacked me.
However, coming to the question whether there is international refugee law or not as claimed by the author, it would take one to write a book about this issue since it involves a lot jurisprudences internationally, regionally and domestic legal arrangement. In the interest of time and the space, my piece of advice would concentrate on some of statements put across by the author mostly in his conclusion and I quote……..
‘’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’’.
As quoted above, the author at some point contradicted himself in his discussion about the non-existence of international refugee law because what is there is Refugee law but not international refugee law and I quote this contradiction as……’’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’’.
Having quoted the above assertions of the author, my answer as highlighted above is that denying the existence of international refugee law is a laughing stock and vomitable intellectual food of thought in the following ways.
First, let take a little look at the origin of international refugee law in question and see whether the author in question was right or not. The protection framework of the current international legal regime for refugees emerged as a reaction to a particular set of events occurred at a discrete time and in a specific place. The history of the genesis and evolution of international refugee law has been a history of conflicts of interests between law and politics.
Refugees have existed as long as history, but an awareness of the responsibility of the international community to provide protection and find solutions for refugees dates only from the time of the League of Nations and the election of Dr. Fridtjof Nansen as the first High Commissioner for Russian refugees in 1921. The League of Nations defined refugees by categories, specifically in relation to their country of origin. Dr. Nansen’s mandate was subsequently extended to other groups of refugees, including Armenians in 1924, as well as Assyrian, Assyro-Chaldean, and Turkish Refugees in 1928.
Up until 1950 the League of Nations, and thereafter the UN, established and dismantled several international institutions devoted to refugees in Europe. The International Refugee Organization (IRO) was the last to precede UNHCR. The IRO was created in 1947 to deal with the problem of refugees in Europe in the aftermath of the Second World War and was to be terminated by June 30, 1950.
It was soon apparent, however, that the comprehensive nature of the task it had been assigned to address every aspect of the refugee problem from registration and determination of status, to repatriation, resettlement, and “legal and political protection” precluded winding up of that international effort. (See, www.refworld. Com) for more information
There was also a growing conviction of the importance of a multilateral approach to resolving refugee problems. Thus, in December, 1949 the General Assembly decided to replace the IRO with UNHCR, which was established for an initial period of three years, as a subsidiary organ of the General Assembly under Article Twenty-two of the UN Charter. On December 14, 1950 the General Assembly adopted the Statute of the UNHCR. UNHCR’s tasks stated therein were to provide international protection for refugees and to seek permanent solutions to their problems by assisting governments to facilitate their voluntary repatriation and on January 1, 1951 UNHCR began its work.
When UNHCR was established, the problem presented was essentially one of dealing with the approximately one million individuals who had first fled Nazism, and later communism, in Europe. UNHCR’s work was mainly of a legal nature, to ensure entry and ease integration in accordance with the 1951 Convention. The 1951 Convention was the first, and indeed remains the only, binding refugee protection instrument of a universal character. It was actually an instrument of rather limited intent, addressed particularly to the question of the status of refugees, not to solutions or to causes.
While it traced its origins broadly to human rights principles, it was more about states’ responsibilities than individuals’ rights. One principal contribution of the 1951 Convention was to put in place a global definition of refugee. In 1967 the main caveat attached to the universal character of this definition was a geographical and time limitation which was lifted comprehensively through the enabling of a protocol, presently the only one, to the 1951 Convention.
The 1951 Convention did put in place the enduring foundations of refugee protection by setting out baseline principles on which the international protection of refugees was to be built. These principles stated: refugees should not be returned to face persecution or the threat of persecution. So, the principle of non-refoulement was invoked with some exceptions which I will talk about later; it was asserted that protection must be extended to all refugees without discrimination; the problem of refugees is social and humanitarian in nature, and therefore should not become a cause of tension between states; since the grant of asylum may place unduly heavy burdens on certain countries, a satisfactory solution to the problems of refugees can only be achieved through international cooperation; persons escaping persecution cannot be expected to leave their country and enter another country in a regular manner, and accordingly should not be penalized for having entered into, or for being illegally in, the country where they seek asylum; given the very serious consequences the expulsion of refugees may have, such a measure should only be adopted in exceptional circumstances directly impacting national security or public order; and cooperation of states with the UNHCR is essential to ensure the effective coordination of measures taken to deal with the problem of refugees.
However, if the 1951 Convention was the baseline, it also contained, to some extent, only the basics. This became clear in the decade that followed, with UNHCR’s protection activities having to reach well beyond Europe into countries, particularly on the African continent, experiencing the painful process of decolonialization. The individualized and persecution-based approach to defining beneficiaries and their rights in the 1951 Convention was not so helpful here. The mass numbers of refugees and the generalized conflicts which precipitated their displacement ensured a growing mismatch.
The General Assembly felt it necessary to extend UNHCR’s mandate to protect and assist groups of refugees falling outside the definition and geographic ambit of the 1951 Convention, and thus UNHCR had begun the process that would lead eventually to the 1967 Protocol. Simultaneously, regional instruments were under development that, in effect, updated the 1951 Convention definition by expanding it to include a broader category of persons.
These instruments included, significantly, the 1969 OAU Convention on the Specific Aspects of Refugee Problems in Africa (OAU Convention). While incorporating the existing 1951 Convention refugee definition, the OAU Convention added a paragraph specifying that the term “refugee” shall also apply to every 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.
In other words, the notion of “refugee” was broadened beyond victims of generalized conflict and violence. The OAU Convention was also a significant advance from the 1951 Convention in its recognition of the security implications of refugee flows, in its more specific focus on solutions— particularly on voluntary repatriation, in contrast to the integration bias of the 1951 Convention— and through its promotion of a burden-sharing approach to refugee assistance and protection. The 1970s were in fact a decade of repatriation.
Millions of refugees returned home to countries like Angola, Mozambique, Guinea-Bissau, or Bangladesh. This period also proved to be an important one in terms of fostering the concepts of international solidarity and burden sharing (now changed to responsibility sharing) in the difficult search for solutions. One of the more important milestones in this regard was the International Conference on Refugees and Displaced Persons in Southeast Asia, at Geneva in 1979.
It came at a time when the world was following with grave concern the plight of Vietnamese fleeing their country in flimsy boats, confronting the perils of the sea and pirates only to be pushed back as they reached the shores of neighbouring countries. A three way agreement emerged from the Conference: ASEAN countries promised to provide temporary asylum; Vietnam undertook to promote orderly departures in place of illegal exists; and third countries agreed to accelerate the rate of resettlement.
Important burden-sharing schemes subsequently were put in place to ensure the continuing rescue at sea of the Vietnamese “boat people.” The Comprehensive Plan of Action (CPA) for Indo-Chinese refugees was the first attempt to implicate all concerned parties–countries of asylum, of origin, and of resettlement–as well as the donor community in a coordinated, solutions-oriented set of arrangements for the sharing of responsibilities for the refugee population.
Dear readership, having briefly pin-pointed the origin of international refugee law which is denied by the author in question, it is now you to judge whether international refugee law existed or not. I will now turn to his quoted statements mentioned earlier above in which he denied the existence of international refugee law as an independent discipline because it is a branch of international law since we have one international law and there is no national refugee law.
As I pointed out earlier that these statements are just contradictions in his mind since he failed to reconcile himself with jurisprudence of this field of law and I believed even a lay reader in law will not accept his argument. So, in simple understanding, how can someone says refugee law is a branch of international law where its basis can be traced and denied that there is no international refugee law because there is only one international law.
I will not go down again to define what international law is and what the branches of international law are since it is obvious even to those who have never studied law that there are many branches of international law which includes but not limited to International refugee law, international Human Rights law, International Trade (Economics) law, international criminal law, international Humanitarian law (IHL), international environmental law and the list is long. So, the glaring question is where did he get this idea? It is a really pity with him!
Coming back to the other defect of his understanding that there is no national refugee law, only we have refugee law, this is also unfortunate of him, in the international law and the best practice among communities of nations, the international treaties or instruments or regimes governing refugees issues in the world are either ratified or acceded to by the states through their respective constitutional arrangements and once they are ratified or acceded to, the concern state will have to enact an enabling legislation to give effect to the international obligations that are accepted without reservation when ratifying or acceding to the these treaties.
The international law gave the privilege of state sovereignty to any individual state to enact a law on its own to implement the international obligations. This is why Uganda have Uganda Refugee Act, 2006 which gives effect to 1951 convention relating to the status of refugees and 1969, OAU convention governing the specific aspects of refugees problems in Africa which are ratified by Uganda.
The same thing applies to us in South Sudan where we have South Sudan Refugee Act, 2012 which does the same purpose. This privilege also extends to the states’ authorities to set its regulations on how to receive Asylum-seekers in the designated centres and as well as the administrative channels of determining the eligibility of refugee status provided that these procedures meet the international minimum standard.
This practice is traced back to the international law theories of Monism and Dualism which are reflected in most of the countries constitutions including Uganda and South Sudan. In most of the countries which have got married to monism theory, international law and national law is considered to be one and if the state ratified any international treaty, there would be no need to domesticate again the treaty in question by enacting a law to implement it.
The ratified international instrument (s) becomes part of the national legal system without any question. This theory is reflected under Article 9 (3) of South Sudan Transitional Constitution, 2011 (Amended, 2015) where it provides that……’’ All rights and freedoms enshrined in international human rights treaties, covenants and instruments ratified or acceded to by the Republic of South Sudan shall be an integral part of this bill’’.
In case of dualist theory, it is argued that international law and municipal law are separate and when the state ratifies or accedes to any international treaty, it should enact an enabling law to give effect to such international obligations according to the local conditions of the country. This theory is reflected in South African Constitution; 1996 and many other constitutions in the region and the world. This is a very vast topic but it is noteworthy to bring forth these theories in order to show the relationship between the branches of international law like international refugee law and municipal law.
The author in question denied that there is no national refugee law forgetting all this jurisprudence cited above. National refugee’s legislations are there to regulate the reception procedures of Asylum-seekers and the determination of refugee status and to give effect to the international obligations shared by that state.
Finally, the author also went ahead to deny the existence of international refugee law and asserted that refugee law got it basis in the principle of non-refoulement which has been customary international law principle. Before I could dispute this, let me underline that this ‘refoulement was derived from French word ‘refoule’ which means to return and non-refoulement means not forcefully return someone back to his home country where he/she will face threat to his/her life.
This principle of course acquired the status of customary international law that binds all states as envisage under Article 33 of 1951 convention relating to the status of refugees but interestingly the author failed to take note that this principle is not an absolute for it is provided for under the same Article 33 (2) of 1951 convention which provides the excludable triggers in which an individual claimant will not be allowed to stay in the country of Asylum where his/her existence amounts to national security threat.
Possibly, this Asylum-seeker can be taken back. This is an area where international refugee law fails to protect an individual claimant and in the best practice, the international Human rights law comes into rescue to fill this gap by which that individual claimant may invoke Article 3 of United Convention Against Torture, 1984 where it provides that nobody shall be returned to a place where he/she will face torture or ill-treatment or in degrading treatment. The state that is party this UNCAT, 1984 will invoke that article 3 not to return the individual back to the country or origin when he/she fails to get protection from 1951 convention.
In this regard, the author needs to be reminded about the short-coming of this principle and how he went wrong to conclude that it was only the basis of refugee law since it is binding principle of international law upon all states.
In conclusion, my learned friend in question needs to take note on this notorious fact that there is international refugee law and if it is unknown to his vocabulary, he would again be humbly advice to take course on it instead of jumping to rule out the existence of the discipline which is the international shocking news.
You can reach the author via his email: bolmutaram2@gmail.com
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