Protection of refugees, returnees, migrants, and internally displaced persons against racism, xenophobia, and discriminatory practices

• Author: Cecilia M. Bailliet
• Position: Department of Public & International Law, University of Oslo, Norway
• Pages: 75-108

PROTECTION OF REFUGEES, RETURNEES, MIGRANTS, AND INTERNALLY

DISPLACED PERSONS AGAINST RACISM, XENOPHOBIA, AND

DISCRIMINATORY PRACTICES

*Cecilia M. Bailliet

RESUME:

Given the rise of nativism, populism, and authoritarianism in the world, there is a need to examine

the situation of foreigners and persons perceived to foreigners, including refugees and IDPs. There

are currently three scenarios faced by refugees and IDPs: protracted camps/warehousing,

urbanization, and detention. This article will outline the range of human rights violations and

accountability gaps in each of the three scenarios faced by refugees, arguing that these are

examples of structural xenophobia. It will discuss normative gaps within international law and

analyze the role of compliance mechanisms in the UN Human Rights Treaty Body Regime and

regional human rights bodies. The article underscores the risk of inaction by the international

community in the face of discrimination against refugees, using the case study of Norway. The

conclusion will suggest a way forward by supporting the proposal for a new Protocol to the UN

Convention on the Elimination of Racial Discrimination addressing xenophobia.

Keywords: Xenophobia, Refugees, UN Treaty Bodies, Regional Human Rights

I. INTRODUCTION

The issue of protection of refugees, returnees, and internally displaced persons against racism,

xenophobia, and discriminatory practices is one of the most compelling challenges of our time as

there is a lack of clarity as to the scope of the current normative and institutional framework. The

United Nations High Commissioner for Refugees (UNHCR) estimates that there are over 68

million people who are subject to forced displacement all over the world, the largest flight since

World War II.1 The majority of refugees come from just thr ee countries: South Sudan, Afghanistan,

and Syria, and the majority or refugees seek refuge in just five countries: Turkey, Pakistan,

*Department of Public & International Law, University of Oslo, No rway

1 http://www.unhcr.org/figures-at-a-glance.html

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Uganda, Iran, and Lebanon.2 In terms of internally displaced persons (IDPs), the highest total

majority is found in Syria, Congo, and Iraq.3

Many persons are fleeing state failure, armed conflict, terrorism, insecurity, natural

disasters, famine, and other situations which do not fit neatly into the 1951 Convention on the

Status of Refugees. Hence, this complicates recognition of the legitimacy of their protection claims

and related rights, although they may be covered by regional refugee and IDP instruments, such

as the Cartagena Declaration on Refugees, OAU Convention on Refugees and the Kampala

Convention on IDPs. 4 China, the Philippines, and India have the highest number of new

displacements on account of natural disasters.5 Venezuelans and Nicaraguans who have been

fleeing political violence and humanitarian crisis, have been received by neighboring states, which

have been struggling to process claims and increasing the risk of treating them as migrants, raising

the risk of detention, deportation, and denial of status and rights.6

In spite of the fact that the majority of displaced persons remain in the South, there has been a

significant increase in discriminatory attitudes across the world against those forced to flee. Indeed,

the Pew Research center recently conducted a poll which demonstrated that in eight of the 10

European nations surveyed, 50% or more believe incoming refugees increase the likelihood of

terrorism in their country.7 Similarly, in Australia, a national survey found that although many

stated that they were in favor of protecting refugees, they also supported turning back boats filled

with asylum seekers. The survey noted polarizing language distinguishing “queue jumping”

“illegal” asylum seekers arriving by boat from “genuine” ”legal” “legitimate” refugees.8 There is

2 http://www.unhcr.org/afr/figures-at-a-glance.html

3 http://www.internal-displacement.org/database/displacement-data

4 See Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central

America, Mexico and Panama, 22 November 1984, available at:

http://www.refworld.org/docid/3ae6b36ec.html [accessed 31 October 2018],See Organization of African Unity

(OAU), Convention Governing the Specific Aspects of Refugee Problems in Africa ("OAU Convention"), 10

September 1969, 1001 U.N.T.S. 45, available at: http://www.refworld.org/docid/3ae6b36018.html [accessed 2 April

2018] and African Union, African Union Convention for the Protection and Assistance of Internally Displaced

Persons in Africa ("Kampala Convention"), 22 October 2009, available at:

http://www.refworld.org/docid/4ae572d82.html [accessed 2 April 2018]

5 http://www.internal-displacement.org/global-report/grid2017/#media-pack

6 https://www.cis.org/Luna/Latin-America-Tightens-Borders-Face-Venezuelan-Nicaraguan-Outflows

https://www.newsdeeply.com/refugees/community/2018/09/28/why-latin-america-should-recognize-venezuelans-as-

refugees

7 http://www.pewglobal.org/2016/07/11/europeans-fear-wave-of-refugees-will-mean-more-terrorism-fewer-jobs/

8 http://refugeeresearchblog.org/public-attitudes-towards-asylum-seekers-and-refugees/

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a correlation between fear of terrorism and crime and discriminatory attitudes including religious

stereotyping, racial discrimination, xenophobia, fear of non-assimilation (different values),

concern about competition for scarce jobs and social benefits, etc. This context may be juxtaposed

against the statistic that only 1% of refugees are resettled from the South to the North.9

States in the North and the South are currently strengthening mechanism to prevent the physical

entry of asylum seekers, ranging from construction of fences and walls, to legal requirements based

on nationality, such as visas, and other tactics to deny legal presence or stay. 10 Asylum seekers in

Europe and the Americas are regularly treated as irregular migrants and denied protection when

undergoing processing.11 The trend is to support containment or speedy deportation, at times in

the form of disguised collective expulsion.12

In like manner within Africa, J O Moses Okello notes:

In most of Africa these days, refugees are not welcomed with the exuberant sense of

solidarity that surrounded the promulgation of the OAU Convention. Instead, African states

are increasingly following the lead of other regions by closing their borders and threatening

to forcibly return those who have made it into their territories. Even in those countries

where refugees are readily admitted and positive policies towards them are in force, their

treatment is not always in keeping with the Convention. Previously such treatment was by

states alone but today it is also the treatment by the general public that is the concern as

hosting communities have become increasingly hostile to the refugees. In South Africa, for

instance, where only recently many of its own citizens were themselves refugees for many

years, xenophobic behaviour and intolerance towards refugees have become

commonplace.13

Part II of this article will present a definition of xenophobia and outline normative protection gaps.

Part III will present systemic xenophobia in the three scenarios faced by refugees. Part IV will

further discuss normative gaps within international law. Part V will analyze the role of compliance

9 http://www.unhcr.org/resettlement.html

10 https://www.diis.dk/node/11965

11 https://www.hrw.org/news/2016/11/23/eu-policies-put-refugees-risk

12 https://www.echr.coe.int/Documents/FS_Collective_expulsions_ENG.pdf

1313 http://www.fmreview.org/faith/okello.html

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