Conducting a Legal Analysis

To determine whether starting a refugee rights organization is the most appropriate approach, it is essential that there is a thorough understanding of the international, national, and local laws and policies guiding refugee rights. The legal analysis is designed to help you assess whether refugees experience significant human rights violation in your country. It maps (1) the legal and policy framework for refugee protection in your country, and (2) the extent to which these laws are implemented in practice. As conducting legal analysis is a timely process, consider obtaining pro bono assistance from law firms to conduct this research.

There is also a Self-Assessment Quiz attached at the bottom of the page. This is to guide you to decide whether you should (1) start a refugee rights organization, (2) start a project within an existing human rights organization, or (3) adopt alternative approaches. If you have identified significant human rights violations for refugees in your country in your Self-Assessment Quiz, you may proceed to conduct a field analysis.

For a brief overview of the relevant international and regional refugee and human rights law, you may refer to the refugee rights law section of the toolkit. Note that if you identify a gap for refugee protection in law and/or in practice, it might be effective to adopt a combination of refugee rights tools in your organization to address these gaps. The advocate section of the toolkit provides practical advice on how to implement the these tools.

Guiding questions in a legal analysis

To conduct a legal analysis, consider researching the following:

  • Is the country a party to any international refugee rights instruments? Consider whether your country is a party with or without reservations, or not a party. The instrument may not be applicable if it cannot be ratified by your country e.g. because the instrument is restricted to a different geographic area.
    • 1951 Convention Relating to the Status of Refugees (1951 Convention)
    • 1967 Protocol Relating to the Status of Refugees
    • 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention)
    • 1984 Cartagena Declaration on Refugees
  • To which other international human rights instruments is the country a party to? Consider whether your country is a party with or without reservations or not a party. The instrument may not be applicable if it cannot be ratified by your country e.g. because the instrument is restricted to a different geographic area.
    • Universal Declaration of Human Rights
    • International Covenant on Civil and Political Rights
    • International Covenant on Economic, Social, and Cultural Rights
    • Convention on the Rights of the Child
    • Convention on the Elimination of Discrimination Against Women
    • Convention Against Torture
    • Convention on the Elimination of Racism
    • Regional Human Rights Instrument(s)
  • What national laws explicitly govern refugees or refugee rights?
  • What other laws accord rights that apply to refugees equally with other communities in the country? Note that laws according rights to “all persons” implicitly accord rights to refugees.
  • Which of the following rights are accorded to refugees under national law? Include all rights accorded to refugees in law, even if those rights are ignored or violated in practice. Consider both encamped and non-encamped, urban or rural, refugees.
    • Non-refoulement
    • No arbitrary detention
    • Free movement
    • Employment
    • Education
    • Equal protection (access to police, courts, etc.)
    • Access to healthcare
    • Access to social assistance
    • Birth registration
    • Access to financial institutions
    • Naturalization opportunities
  • Which of the following rights are accorded to refugees in practice? Indicate all rights that refugees actually enjoy, regardless of whether these rights are enshrined in law. Consider both encamped and non-encamped (urban or rural) refugees.
    • Non-refoulement
    • No arbitrary detention
    • Freedom of movement
    • Employment
    • Education
    • Equal protection (e.g. access to police, courts)
    • Access to healthcare
    • Access to social assistance
    • Birth registration
    • Access to financial institutions
    • Naturalization opportunities
  • Does national law treat certain nationalities of refugees differently? If so, how? This question applies only to laws explicitly enshrining different treatment for refugees based on nationality. It does not include discrimination or preferential treatment in practice.
  • In practice, are refugees of certain nationalities treated differently from those of other nationalities? If so, how? This question applies to informal policies or common practices in the treatment of refugees.
  •  Does the law distinguish between refugees based on their arrival dates in the country? This question applies only to differential treatment that is explicitly enshrined in law, not to informal policies or practices.
  •  In practice, does the government distinguish between refugees based on their arrival dates in the country? This question applies to differential treatment carried out through informal policy or common practice.

After you complete these questions, you may download the Self Assessment Quiz below to help you determine whether you should start a refugee rights organization. If the results indicate that you should start a refugee rights organization or a project, you may proceed to conduct a field analysis.