Protection of refugee in the context of crisis: The case of Eswatini

The flow of migrants into Europe. Source: quanlynhanuoc.vn.

There have been international efforts to address problems regarding refugee rights protection in the past. Following Article 14 in the Universal Declaration on Human Rights, legal frameworks like the 1951 Refugee Convention and its 1967 Protocol provide the foundation for safeguarding refugee rights, aiming to ensure their safety, dignity, and autonomy. The later addition of regional legal frameworks, such as the Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, can complement and build on the previous treaties. Even though many countries are party to these agreements, many countries impose reservations that weaken these protections, particularly concerning work rights and social protection rights [4]. As most refugees are hosted by low-income and developing countries [5], the intersection of global solidarity and localized efforts becomes pivotal in addressing these challenges effectively.

Among many party members of the international legal framework on refugee rights protection, Eswatini offers a unique lens for analysing the protection of refugee rights due to its status as a small lower-middle refugee-receiving nation within Southern Africa, a region heavily impacted by migration and displacement[6]. This is especially relevant given that most refugees remain in neighbouring countries, with low- and middle-income nations hosting 75% of the displaced population [7].

This article will first explore the international legal framework for refugee rights protection. It then uses Eswatini as a case study to not only compare textually the national legislative framework of the country to the international framework regarding refugee right protection but also analyse the practical issues in the implementation of such legislative measures, yielding invaluable lessons for other low-middle-income refugee-receiving countries.

International Frameworks for Refugee Protection

As outlined above, the 1951 Geneva Convention, the 1967 Protocol and the 1969 OAU Convention provide a comprehensive legal mechanism for refugee protection in Eswatini and other African countries by providing the scope of application, codifying a set of rights and laying out the implementation mechanisms. It is worth noting that the content of these legal instruments applies wholly to Eswatini since the country has acceded without reservation to all of them [8].

Scope of Application

The scope of application for international refugee protection frameworks significantly influences their inclusivity and ability to respond to diverse refugee crises. The 1951 Convention Relating to the Status of Refugees 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” (Article 1A(2)). The emphasis of this definition is on the protection of refugees against five different forms of persecution. Significant exclusions to this definition include those who have committed war crimes, serious non-political crimes, or crimes against humanity. This definition of refugee status also does not apply to those refugees who benefit from the protection or assistance of a United Nations agency other than UNHCR, such as refugees from Palestine who fall under the auspices of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), as well as those refugees who have a status equivalent to nationals in their country of asylum. Initially, this definition was constrained by temporal and geographical limitations, applying only to events occurring in Europe before January 1, 1951 (Article 1B(1)). These restrictions were later lifted by the 1967 Protocol Relating to the Status of Refugees, which removed the temporal and geographical constraints, extending the Convention’s applicability to new refugee situations worldwide (Preamble, 1967 Protocol).

This 1951 Convention’s establishment of a singular definition for refugees gives it a wider scope of application, in contrast to previous international legal instruments regarding refugees, which only apply to specific groups[9]. Though the 1967 Protocol has lifted the major temporal and geographical limitations in the 1951 Convention definition, James Hathaway, in The Oxford Handbook of International Refugee Law [10](page 173), has pointed out this new definition may not have been truly universalized as it still contains a major limitation – it confines the provision of refugee status to those individually persecuted due to five civil and political factors while ignoring broader reasons for forced migration including natural disasters, wars, and other broad political or economic crisis. Some scholars have called for a new definition of refugee status[11], yet others recognise the comprehensive scope of this definition in conjunction with regional expansions and complementary frameworks. Some also noted the flexible interpretability of this definition. Justice Kirby of the High Court of Australia has noted that different societal and cultural factors can give rise to different sources of persecution not necessarily familiar to Western countries, which means the definition is not static.

The Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa offers a broader definition. Article 1(2) includes individuals compelled to leave their habitual residence “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.” This definition expands on the definition given by the 1951 Convention, providing African countries with the flexibility to offer protection to the many individuals and groups forced to flee conflict and other situations of violence on the continent, who are not accounted for in the 1951 definition[12]. However, some argue that the Convention is outdated in that the circumstances mentioned, such as occupation and foreign domination, are no longer relevant in the African context, emphasizing the need to include generalized violence, internal aggression, and massive violations of human rights to more comprehensively describe refugee-generating circumstances in the continent. The prima facie application of this definition on migratory influxes has also shown some inadequacies [13].

Rights Entailed for Refugees

The rights specified under the 1951 Convention could be generally categorized into different groups as follows: personal status rights, including non-discrimination (Article 3), freedom of religion (Article 4), and access to courts (Article 16); employment rights, such as wage-earning work (Article 17), self-employment (Article 18), and practising professions (Article 19) under conditions comparable to nationals; welfare rights, including public relief (Article 23), social security (Article 24), and housing (Article 21); education rights, ensuring access to elementary education on par with nationals (Article 22); freedom of movement, allowing refugees to choose their residence and move freely within the host country (Article 26); and identity and travel documentation, granting identity papers (Article 27) and travel documents for international travel (Article 28).

Underpinning these rights are some notable principles. The principle of non-discrimination (Article 3) stipulates that refugees should not face discrimination based on race, religion, or country of origin. The principle of non-penalization (Article 31) states that refugees should not be penalized for their illegal entry or presence, provided they present themselves without delay to authorities and show good cause for their entry. The principle of non-refoulement (Article 33) prohibits the expulsion or return of refugees to territories where their life or freedom would be threatened.

These refugee rights are often not defined in absolute terms and are not applied immediately to any presumptive refugee in a Contracting State’s jurisdiction. Instead, these rights have two main features: incremental acquisition and contingent standards[14]. Refugees acquire rights progressively based on their legal status and duration of stay. Upon mere presence, they are protected from penalties for illegal entry (Article 31) and rights to education, rationing, and non-refoulement, among other critical rights. Lawful stay extends these rights to include access to wage-earning employment (Article 17) and public relief (Article 23), while habitual residence grants more rights, such as artistic rights and industrial property (Article 14) and access to court (Article 16) This stagged approach balances the Convention's protective aims with the host state's capacity and interests [15].

The 1951 Convention's contingent standards define refugee rights relative to the treatment of other groups. Refugees are entitled to the same treatment as nationals for elementary education (Article 22) and the most favourable treatment for foreign nationals for employment (Article 17). Other rights, such as self-employment (Article 18), are generally granted under conditions comparable to aliens. This framework integrates refugee rights into the host country's legal system, ensuring protection while respecting national policies. This reliance on relative standards and phased implementation balances international obligations and domestic sovereignty.

The 1967 Protocol does not independently enumerate rights but incorporates the rights and principles of the 1951 Convention, applying them universally.

The OAU Convention supplements these protections in the African context by emphasizing solidarity and burden-sharing among member states. Article 2 urges states to provide asylum and cooperate with international efforts to address refugee crises, reinforcing the principle of non-refoulement within the African context. Importantly, it includes provisions for granting temporary residence when a refugee has not received the right to reside in any country of asylum. This approach underscores collective responsibility but highlights disparities in states’ capacities to implement these rights effectively. However, Article 3 on the prohibition of subversive activities can limit the refugee's right to express a political opinion, as refugees are prohibited from 'attacking' a Member state through the press or radio.

Implementation Mechanisms

Under the 1951 Convention and its 1967 Protocol, the United Nations High Commissioner for Refugees (UNHCR) plays a central role in supervising the application of these instruments (Article 35, 1951 Convention; Preamble, 1967 Protocol). UNHCR’s responsibilities include refugee status determination, coordinating international assistance, and monitoring compliance with the principle of non-refoulement.

The OAU Convention emphasizes state responsibility in conjunction with regional cooperation. Article 5 outlines the foundation of the mechanism for voluntary repatriation, protecting the refugee's right to voluntarily return to their country of origin as well as the right to not be persecuted for doing so. Additionally, Article 8 advocates for collaboration with the UNHCR to ensure alignment with international standards. These mechanisms highlight the interplay between international and regional efforts.

The 1951 Convention, complemented by the universal applicability of the 1967 Protocol, provides a robust foundation for recognising refugee status and articulating rights. The OAU Convention extends these protections by addressing specific regional challenges, expanding the definition of a refugee, and emphasizing solidarity among African states. These frameworks underscore a comprehensive legal approach to refugee protection, albeit with differing scopes and emphases tailored to their respective contexts. Their legal provisions illustrate a commitment to safeguarding refugees' fundamental rights and dignity while fostering international and regional cooperation.

Eswatini National Framework for Refugee Protection

Historically, Eswatini has hosted many refugees and asylum seekers, reaching 20,000 in the 1980s. They mostly originated from neighbouring countries, such as South Africa during its Apartheid regime and Mozambique during its civil war[16]. Today, Eswatini is hosting a total of 1,507 asylum-seekers and 263 migrants with refugee status, the majority of whom are nationals of the Democratic Republic of the Congo, Somalia, and Burundi. The Malindza Refugee Reception Centre is the sole facility to accommodate refugees in the country, but refugees can also integrate into society [17].

Although having acceded to the 1951 Convention in 2000, Eswatini did not have a comprehensive national legal instrument to codify these commitments for another 17 years, relying instead on the Refugees Control Order of 1978 and, to a lesser extent, other instruments such as the Citizenship Act of 1967; the Immigration Act of 1964; the Citizenship Regulations of 1967; the Citizenship Regulations of 1975; the Citizenships Order of 1974[18]. In 2017, the Eswatini Government passed the Refugee Act, to officially give effect to the 1951 Convention, the 1967 Protocol and the 1969 OAU Convention. This legislation defines refugees, designates the roles of various national bodies concerning refugee rights protection, specifies the procedures concerning the application for refugee status, refugee movement and treatment of refugees, and outlines the rights that which refugees are entitled. This section will evaluate the extent to which this 2017 Refugee Act and other legal instruments within Eswatini's national framework compare with the international treaties that Eswatini has acceded to.

Regarding the definition of “refugee”, the 2017 Refugee Act introduces a new definition by both the 1951 Geneva Convention and the 1969 OAU Convention. Section 4(1)(a) of this Act repeats after Article 1A(1) of the 1951 Convention, defining the application scope of the term “refugee” to include those outside of their country of nationality due to well-founded fears of persecution on grounds of race, religion,

nationality, membership of a particular social group or political opinion, as well as those not having a nationality and is currently outside of their country of habitual residence for the aforementioned reasons. Section 4(1)(b) expands this definition by Article 1(2) of the 1969 OAU Convention to include those displaced due to reasons of external aggression, occupation, foreign domination or events seriously disturbing public order. Additionally, section 4(1)(c) allows for the possibility of expanding this definition, extending the scope to include other categories of people if the Minister so determines. Sections 4(2) and 4(3) outline the exceptions to the definition, which mirrors 1969 OAU Articles 1(4) and 1(5), with the sole differences being the exclusion of clauses 1(5)(c) and 1(5)(d), which excludes those guilty of acts contrary to the OAU and the UN from the scope of application of the Convention, and clauses 1(4)(f) and 1(4)(g), which stipulates that the Convention will cease to apply once the refugee has committed a serious non-political crime outside his country of refuge after his admission to that country as a refugee or if he has seriously infringed the purposes and objectives of the Convention. Overall, the definition contained within the Eswatini 2017 Refugee Act is comprehensive and in line with the international conventions to which the country has acceded. Removing some exclusionary clauses from the Act and including a clause allowing the Minister to define additional refugee categories expands the scope of this definition to be wider than the concerned international treaties.

Concerning the rights and duties of refugees within Eswatini, the 2017 Refugee Act stipulates that a refugee will be entitled to all the rights included within the 1951 Convention and the 1969 OAU Convention while also including additional sections clarifying the provisions for illegal entry and presence, members of family, non-refoulement, expulsion, unaccompanied and separated children, importation and movement of livestock, and the restriction of firearms and ammunition. Section 8 of the Refugee Act facilitates the process through which those who gained entry illicitly may apply for refugee status and protects them from being detained or penalised in any way, affirming and clarifying Article 31(1) of the 1951 Convention. Similarly, sections on members of family, non-refoulement, expulsion, unaccompanied and separated children affirm the principles of family unity, non-refoulement, safe and justified expulsion, and the principle of the best interest of the child. However, section 17 on unaccompanied and separated children was criticized by the UNHCR for not incorporating the full wording of Article 3(1) of the UN Convention on the Rights of the Child (CRC), to which the Government of Swaziland is party, not extending the principle of the best interest of the child to all children applying for asylum, and not appointing an independent guardian and legal representative for unaccompanied or separated children, in accordance to CRC General Comment No. 6 (2005)[19]. The UNHCR also noted the lack of protective measures against statelessness; however, considering only the 1951 Convention, this Act has codified all rights into national law while reaffirming key principles [20].

Overall, Eswatini’s 2017 Refugee Act as a piece of legislation could be considered comprehensive and detailed, conforming to major international treaties regarding refugees to which Eswatini is a party. However, there are still areas to which this Act could conform more with international human rights law, specifically the Convention on the Rights of the Child and the Statelessness Conventions.

Implementation of Refugee Rights Protection

The Eswatini Refugee Act also codifies a set process through which the asylum applications shall be processed, establishes and assigns roles to national bodies and government positions, namely the National Refugee Advisory Committee, National Refugee Appeals Board, and the Commissioner and Deputy Commissioner for Refugees, who with Refugee Status Determination Officers would be understood to form Office of the Commissioner for Refugees.

The National Refugee Advisory Committee consists of the Commissioner for Refugees, along with key personnel from various other Ministries, and is tasked mainly with granting or rejecting asylum applications and advising the Minister on refugee matters. Most notably, the Committee would include a representative of the UNHCR, which is in line with the 1951 Convention’s Article 35(1) guidance for countries to cooperate with the UNHCR and facilitate its duty of supervising the applications of the Convention, although the Refugee Act designates the role of the UNHCR representative as an observer “with no right to vote”.

The National Refugee Appeals Board is established to protect refugees’ right to appeal by section 5(6) of this Refugee Act and Article 32 of the 1951 Convention.

The Commissioner for Refugees and his or her office are tasked with formulating and implementing policies and programs on refugees and “generally safeguard the welfare of refugees in the country”. Despite the vague wording, establishing a separate organ to manage refugee welfare is a positive development. Section 9 of this Act details the complete procedure to process asylum applications, issue the decision on each application, and process subsequent appeals. The section contains important safeguarding clauses such as 9(1), which states that “a request for protection made to an authorized officer, either at the border or within the territory of Swaziland, shall be considered an asylum application and may be made verbally or in writing”, facilitating the process of applying for asylum even for those that entered illegally. The section also contains provision for applicants with special needs (section 9(5), and speakers of different languages (section 9(4)). Overall, the establishment of a comprehensive procedure, and clear roles for national bodies, serve to standardise the procedure of processing asylum requests and protect the rights of refugees during said procedure.

Eswatini currently has one Refugee Center, the Malindza Refugee Reception Center[21]. This centre has been reported to have reached full capacity at 400 people before the arrival of 39 more refugees at the start of November 2024[22]. With the total refugee population in Eswatini consistently rising in the past few years, reaching 1202 people in 2023 and 1264 up until mid-year 2024[23], it could be assumed that more refugees are residing outside the Malindza Center.

Reports on refugee rights protection in Eswatini are limited. However, based on the recent US Report on Human Rights, there are still some limitations to implementing the refugee rights protection regime in Eswatini. Though the 2023 Report acknowledged the government’s establishment of a system for processing asylum applications, it also pointed to the significant backlog of refugee status determination cases due to a lack of caseworkers. More severe were claims stating that the government has imposed restrictions on refugees’ employment rights, even often the granting of their refugee status, with instances of difficulties acquiring work permits for non-agricultural jobs. Education rights were also reported to be limited, with children of asylum seekers not able to attend primary and secondary school without paying fees. Furthermore, though assimilation and local integration were promoted by law, discrimination cases were increasingly reported [24].

Conclusion

The issue of refugees remains pressing as conflicts and crises persist globally, continually forcing more and more individuals to seek safety and protection in foreign countries. International legal frameworks, particularly the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, have established comprehensive mechanisms to safeguard the rights of refugees and provide states with guidelines for addressing refugee issues responsibly. In Eswatini, the Refugee Act aligns with international standards, codifying the procedures for processing asylum applications and establishing a robust process to oversee and implement refugee protection.

However, the practical implementation of these laws reveals both progress and challenges. On the positive side, the Act provides comprehensive procedures, safeguarding clauses for vulnerable applicants, and a system for appeals, enhancing the fairness and efficiency of the asylum process. Yet, issues such as capacity limitations at the Malindza Refugee Reception Center, a backlog in refugee status determination due to insufficient caseworkers, and restrictions on employment and education rights highlight significant gaps. Additionally, reports of discrimination against refugees further undermine efforts toward local integration and assimilation.

To strengthen its refugee protection regime, Eswatini must address these challenges by increasing resources for case processing, improving access to education and employment opportunities, and promoting societal acceptance of refugees. By doing so, the country can better meet its international commitments and ensure a more inclusive and humane approach to managing its growing refugee population.

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[1] Student IB1, UWC Waterford Kamhlaba 2024-2025.

[2] UNHCR Global Trends Report 2023 https://www.unhcr.org/global-trends-report-2023, page 15

[3] UNHCR Global Trends Report 2023 https://www.unhcr.org/global-trends-report-2023

[4] UNHCR Dataviz, Protecting refugees through international legal instruments and domestic asylum laws

https://dataviz.unhcr.org/product-gallery/2024/07/protecting-refugees-through-international-legal-instruments-and-domestic-asylum-laws/

[5] World Bank Group Podcast, 8 Jan 2024 https://www.worldbank.org/en/news/podcast/2024/01/08/supporting-refugees-integration-forced-displacement-development-podcast

[6] UNHCR Global Report 2023, Regional Overview – Southern Africa https://reporting.unhcr.org/global-report-2023/regional-overviews/southern-africa

[7] UNHCR Global Trends Report 2023 https://www.unhcr.org/global-trends-report-2023

[8] UNHCR Submission for the Universal Periodic Review - eSwatini - UPR 25th Session (2016), page 3, https://www.refworld.org/policy/upr/unhcr/2016/en/123787#:~:text=Thumbnails%20Document%20Outline%20Attachments%20Layers,of%20the%20Child%20(CRC);

[9] UNHCR commentary.

[10] The Oxford Handbook of Refugee Law (page 173) https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1265&context=book_chapters&utm_source=chatgpt.com

[11] Indirect citation: Betts and Collier, Refuge: Transforming a Broken Refugee System (Allen Lane, 2007)

[12] LEGAL AND PROTECTION POLICY RESEARCH SERIES: The 1969 OAU Refugee Convention and the Protection of People fleeing Armed Conflict and Other Situations of Violence in the Context of Individual Refugee Status Determination, UNHCR, Marina Sharpe, page 19. https://www.unhcr.org/sites/default/files/legacy-pdf/50f9652e9.pdf?utm_source=chatgpt.com

[13] https://www.unhcr.org/media/conference-papers-thirty-years-legal-review-1969-oau-refugee-convention-governing-specific

[14] The Oxford Handbook of Refugee Law (page 172) https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1265&context=book_chapters&utm_source=chatgpt.com

[15] Same source as above (p. 181)

[16] https://www.unhcr.org/news/unhcr-prepares-swaziland-take-over-all-refugee-services

[17] Migration in Eswatini: A Country Profile 2015–2021, page 12

[18] https://sarpn.org/CountryPovertyPapers/Swaziland/Refugee/index.php#footnote

[19] UNHCR Submission for the Universal Periodic Review - eSwatini - UPR 25th Session (2016), page 4, https://www.refworld.org/policy/upr/unhcr/2016/en/123787#:~:text=Thumbnails%20Document%20Outline%20Attachments%20Layers,of%20the%20Child%20(CRC);

[20] UNHCR Submission for the Universal Periodic Review - eSwatini - UPR 25th Session (2016), page 4, https://www.refworld.org/policy/upr/unhcr/2016/en/123787#:~:text=Thumbnails%20Document%20Outline%20Attachments%20Layers,of%20the%20Child%20(CRC);

[21] eSwatini Presence Map 31 March 2022, https://data.unhcr.org/en/documents/details/84649

[22] IFRC GO, SWZ: Population Movement - 11-2024 - Influx of migrants in refugee camp, 2024-11-15, https://go.ifrc.org/field-reports/17364

[23] UNHCR Refugee Data Finder, https://www.unhcr.org/refugee-statistics/download?data_finder%5BdataGroup%5D=displacement&data_finder%5Bdataset%5D=population&data_finder%5BdisplayType%5D=totals&data_finder%5BpopulationType%5D%5B%5D=REF&data_finder%5BpopulationType%5D%5B%5D=ASY&data_finder%5BpopulationType%5D%5B%5D=IDP&data_finder%5BpopulationType%5D%5B%5D=OIP&data_finder%5BpopulationType%5D%5B%5D=STA&data_finder%5BpopulationType%5D%5B%5D=HST&data_finder%5BpopulationType%5D%5B%5D=OOC&data_finder%5Byear__filterType%5D=range&data_finder%5Byear__rangeFrom%5D=2018&data_finder%5Byear__rangeTo%5D=2024&data_finder%5Bcoo__displayType%5D=doNotDisplay&data-finder=on&data_finder%5Bcoa__displayType%5D=custom&data_finder%5Bcoa__country%5D%5B%5D=182&data_finder%5Bcoa__country%5D%5B%5D=182&data_finder%5Byear__%5D=&data_finder%5Bcoo__%5D=&data_finder%5Bcoa__%5D=&data_finder%5Badvanced__%5D=&data_finder%5Bsubmit%5D=

[24] 2023 US Report on Human Rights: Eswatini

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