Working Papers Series
In 2011 the Refugee Rights Unit launched the Working Paper Series. This Series is aimed at promoting the activities and research of the Unit and to disseminate scholarly work in the field of Refugee Law.
- Does the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa Article III provision prohibiting "subversive activities" unjustifiably limit the freedom of expression of a refugee? : A South African answer By Alison Vadachalam
The 1969 OAU Convention article 3 requires refugees to abstain from subversive activities against any Member State of the OAU. This paper discusses whether or not this article unjustifiably infringes the refugee's right to freedom of expression. Freedom of expression is a right that is well protected by the South African Constitution. As with all rights in the Bill of Rights, this right is subjected to a limitation analysis. This paper aims to show that while article 3 does constitute a limitation on the refugees right to freedom of expression, the limitation is constitutionally justifiable as the right is not unjustly restricted and can be enjoyed a wide degree.
- Excluding Terrorists under the United Nations Convention on the Status of Refugees By Kate Dodgson
This paper considers the extent of exclusion of terrorists from refugee protection since the September 11 attack. The purpose and function of the excluding provision is discussed and an international comparison aimed at defining a 'terrorist' is conducted. Finding the balance between too narrow and too broad when defining exactly what is a 'terrorist is a very important undertaking - as once a person is deemed a 'terrorist', even the principle of non-refoulement cannot be invoked for protection. The paper then goes on to analyse how various states have grappled with the task of proving an individual to be culpable and complicit in an act of terrorism - given that they recognise such a person can be excluded from refugee protection. Furthermore, the paper investigates what consequences would follow from a person being granted refugee status and subsequently discovered to have participated in an act of terrorism.
- Child Soldiers and the Exclusion from Refugee Status By Ayla Prentice-Cuntz
This paper considers the legal provisions creating protection and excluding protection for refugees; and whether child soldiers can and should fall within the provision excluding protection. On the face of it, child soldiers often do participate in war crimes or crimes against humanity, which causes them to fall within the ambit of the provision excluding them from refugee protection. However, this paper argues that given the fact that this is a child, perhaps there are circumstances where the focus should shift from viewing the child as a perpetrator to rather viewing the child as a victim. This paper investigates the concept of child soldiers and applies the findings to the relevant provisions.
- Affirming the Right to Physical Security in International Law: The Case of Palestinian Refugees in the Occupied Palestinian Territories By Duncan Smorfitt
This paper examines the right to physical security international law and its applicability to Palestinian refugees in the Occupied Palestinian Territories. This paper addresses Israel's claims that international human rights law and humanitarian law do not apply in these occupied territories. This essay concludes international human rights and humanitarian law which includes the right to physical security are applicable to the occupied territories and that Israel violates these rights frequently.
- The Right to Physical Security for Refugees: A South African Perspective By Lara Wallis
This paper analyses the right to physical security for refugees in South Africa. The legal framework giving effect to the right to physical security in South Africa will be assessed in terms of its value in theory and effectiveness in practice. Furthermore, the obstacles of the realisation of this right for refugees in South Africa will be discussed. This paper concludes that the South African Constitution provides a solid foundation for this right. The increasing xenophobia in South Africa calls for more effective implementation of this right for refugees. This paper suggests improved policing, educating, specific hate crime legislation and establishing of guidelines on handling violence against refugees in South Africa to help realise the right to physical security for refugees in South Africa.
- The Right to Education in South Africa By Ruth Browne
This paper analyses the right to education for asylum seekers and refugees. In doing so it examines socio-economic rights as a category, using the South African Constitution and judgments made by the Constitutional Court. Thereafter, this paper outlines the human rights framework for the right to education and examines how this right applies to refugees. Furthermore it will look at the state of education in South Africa. This paper will identify the beneficiaries of the right to education with specific reference to refugee and asylum seekers. It will, thereafter, analyse the barriers to access to education for refugees and asylum seekers such as fees, documentation issues that lead to admission difficulties. Other issues are language barriers and xenophobia. This paper will conclude with making observations and recommendations.
Analysis of Domestic Refugee Legislation in the SADC
The following three Working Papers form part of the Unit's on-going project on the analysis of domestic refugee law throughout the SADC countries:-
- Working Paper on Namibia's Refugee Legislation By Justin de Jager
This paper discusses and analyses the refugee legislation operating in Namibia. It also provides an overview of the country's history and its development of political circumstances. The paper goes on to explain how the political developments in the country influenced the needs that had to be filled by legislation. Therefore, the result that Namibia's current position of having implemented a structured legislative refugee framework, which operates within a broader human rights regime, is argued to be the product of the country's history.
- Working Paper on Malawi's Refugee Legislation By Tapiwa Shana Nkhoma
This paper will provide an historical overview of the asylum process in Malawi and set out the existing legislative framework governing the asylum procedure. This will include a critique on legislation and government policy using international refugee and human rights law. This paper will conclude by making recommendations for reform that is compatible with treaty obligations and international human rights law.
- Working Paper on Zambia's Refugee Legislation By Annabel Heaney
This paper discusses the current refugee laws in Zambia, along with the current state of affairs of the presence of refugees and asylum seekers in the country. Furthermore, the paper contrasts the theoretical truth of the laws in place with the practical truth of what law is actually applied.
Rights based papers
- Monitoring the Unknown: Improving adherence to the principle of non-refoulement through a proposed 'monitoring network' By Charlotte Manicom
This paper considers the corner-stone principle of non-refoulement, and what State obligations exist in terms of avoiding, and monitoring, refoulement. This sets the legal backdrop upon which the feasibility of a monitoring network can be assessed. The paper then considers why a monitoring network is needed and what such a network would look like. The paper further considers how such a monitoring network can ensure it serves its legal purpose and what difficulties may be encountered.
- Receiving LGBTI Refugees in South Africa: Towards a Culture of Non-Discrimination and Human Rights By Yellavarne Moodley
This article explores the disconnect with the way South Africa portrays itself at the international level and the reality facing asylum seekers within the asylum determination process, particularly with regard to those fleeing on account of their sexual orientation. The thesis of this paper is that this disconnect appears to function at the level of implementation rather than written law, which on the face of it appears progressive and generous.
- Family Reunification within the Refugee Context: Is South Africa meeting its International, Regional, Constitutional and Legal Obligations towards Refugees? By Fatima Khan
Family unity is not considered a right within international refugee documents and as a result the laws and policies of most countries are silent in this regard. Family unity is however a legal concept which is addressed extensively in various other international law documents. This paper contends that refugee law as a dynamic body of law is informed by these international law documents and it should not be viewed as an isolated body of law and be denied the benefits there from. The right of family unity is often distinguished from the right to family reunification, which extends protection more specifically to families that have been separated that wish to reunite. Even though few human rights instruments specifically designate a right of family reunification it will be argued that to deny family reunification is to effectively violate the right to family unity. This paper furthermore examines the right to family reunification as it applies to refugees, looking specifically at the current status of South African and International law. It will be emphasised that because refugee law is informed by international human rights law, it can support, reinforce or supplement refugee law.
- Expanding the Protection Space for Refugees in South Africa - Criminal Case Watching Briefs for Access to Justice for Refugee Victims of Crime By Vicki Igglesden with Tal Schreier
This report evaluates the University of Cape Town Refugee Right Unit's watching brief programme in which it provides refugee victims of crime with the necessary legal support services they require within the various stages of the criminal justice system in their attempts to access justice. The aim of the report is to provide guidance and stimulus for further deliberation to a broad range of policy and practice actors, including the United Nations High Commissioner for Refugees, which are involved in the protection of refugees and in ensuring that refugee victims of crime are appropriately served by South Africa's criminal justice system.
- Litigating the Rights of Refugees in the Equality Courts By Justin de Jager
South African society bears a legacy of inequality and struggle against oppression. In the constitutional era, our courts have held the right to equality is a core fundamental value against which all law must be tested. The Equality Courts have therefore been heralded as a transformative mechanism for the redressing of systemic inequality and the promotion of the right. In practice, however, the Equality Courts face a number of challenges which effectively reduce the accessibility of the courts. Many of these challenges, outlined in this paper, are interconnected and if addressed would permit the courts to realise their full potential.
- Critical Challenges to Protecting Unaccompanied and Separated Foreign Children in the Western Cape: Lessons Learned at the UCT Refugee Rights Unit By Tal Schreier
Despite South Africa having a relatively well developed legal and policy framework for securing the rights of children, there are a number of critical child protection gaps that exist in terms of the implementation of these frameworks for unaccompanied or separated foreign children by Magistrates, Social Workers and Department of Home Affairs? (DHA) officials in particular. This research report focuses on the key challenges that the UCT Refugee Rights Unit has experienced in the protection of unaccompanied foreign children in the Western Cape. In addition to setting out the legal and policy frameworks for dealing with foreign children in South Africa, the paper reviews some of its cases and highlights various experiences of the RRU in the course of undertaking this work. The key protection gaps that are highlighted include difficulties with or lack of suitable entry by foreign unaccompanied or separated children into South Africa's child care and protection system, the unclear interface between the refugee regime and the child protection regime, inability to access legal documentation, and the poor level of knowledge of the legal and protection frameworks by government and frontline service providers.