Professor Fullerton: Comparative Perspectives on the Protection of Forced Migrants
Class 2 -- Readings
Convention Relating to the Status of Refugees
Article 1(A)(2), provides:
For the purposes of the present Convention, the term "refugee" shall apply to any person
who * * * [a]s a result of events occurring before 1 January 1951 and owing to wellfounded 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 and
is unable or, owing to such fear, is unwilling to avail himself of the protection of that
country * * *.
Article 1(B) provides:
(1) For purposes of this Convention, the words “events occurring before 1 January 1951” in
article 1, section A, shall be understood to mean either
a. “events occurring in Europe before 1 January 1951”; or
b. “events occurring in Europe or elsewhere before 1 January 1951”, and each
Contracting State shall make a declaration at the time of signature, ratification or
accession, specifying which of these means it applies for the purpose of its
obligations under this Convention.
(2) Any contracting State which has adopted alternative (a) may at any time extend its
obligations by adopting alternative (b) by means of a notification addressed to the
Secretary-General of the United Nations.
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CHAPTER ONE
SECTION B: THE LAW APPLICABLE TO FORCED MIGRANTS
1. HISTORICAL OVERVIEW
Nations’ approaches to forced migration have varied over the years, as have the
protections that they have made available to forced migrants. Scholars, too, have provided
different perspectives on the evolution of protection for refugees. The excerpts below offer a
range of diverse and sometimes conflicting views on the development of the institution of
asylum.
UNHCR, THE STATE OF THE WORLD'S REFUGEES:
THE CHALLENGE OF PROTECTION
P. 33 (1993).
THE ORIGINS OF ASYLUM
The concept of asylum has been in existence for at least 3,500 years and is found, in one
form or another, in the texts and traditions of many different ancient societies. In the middle of
the second millennium BC, as entities resembling modern states with clearly defined borders
began to develop across the Near East, several treaties were concluded between rulers which
included provisions for the protection of international fugitives. For example, a Hittite king drew
up a treaty with the ruler of a different country, in which he declared "Concerning a refugee, I
affirm on oath the following: when a refugee comes from your land into mine he will not be
returned to you. To return a refugee from the land of the Hittites is not right." In the 14th century
BC, another Hittite king, Urhi–Teshup, who had been deposed by his uncle, was given refuge by
the Egyptian pharaoh, Rameses II.
***
In Ancient Greece, numerous internal religious sanctuaries were established. However,
the idea of external asylum also existed. Herodotus cites the case of a Phrygian, Adrastus, who
fled to Sardis in Lydia (now Turkey) after accidentally killing his brother. He presented himself
at the palace of Croesus, who welcomed him and told him he could stay as long as he wished.
Asylum also features in Ancient Greek drama: in Sophocles's tragedy Oedipus at Colonus the
Athenian king, Theseus, gives a compassionate reception to the exiled Oedipus.
In AD 8, the Roman poet Ovid was banished by the Emperor Augustus to Tomis on the
Black Sea (now Constanta in Romania), on the extreme edge of the Empire. As he records in
Tristia (Sorrows), the Tomitans received him warmly. * * *
The Old Testament Book of Numbers shows God instructing Moses to designate six
cities as places of refuge, "both for the children of Israel, and for the stranger, and for the
sojourner among them" (35:9–15). In the New Testament, St. Matthew's Gospel portrays the
infant Christ and his family as refugees fleeing into Egypt. Christian sanctuaries were first
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recognized under Roman law in the 4th century AD, and their physical scope was gradually
extended. In the 6th century, the Emperor Justinian—anticipating modern asylum laws—limited
the privilege to people not guilty of serious crimes.
During the early years of Islam, the Prophet Mohammed and his followers were forced to
take refuge from those who felt threatened by the growing power of the new faith. The Hijra, his
flight from Mecca to Medina in AD 622, marks the beginning of the Islamic era according to the
religious calendar. The Koran spells out the importance of the notion of asylum in Islam: "Those
who have believed and have chosen exile and have fought for the Faith, and those who have
granted them help and asylum, these are the true believers" (8:74).
From early times, asylum had both political and humanitarian dimensions. The ancient
practice of granting internal sanctuary—often on a temporary rather than permanent basis—in
holy places reflected respect for the deity and the Church, while the grant of asylum by kings,
republics and free cities was a manifestation of sovereignty. As the power of the monarchy grew,
the right to grant asylum increasingly became the prerogative of the state and the inviolability of
internal asylum in holy places declined correspondingly. * * *
The revocation of the Edict of Nantes in 1685, which forced 250,000 French Protestants
(the Huguenots) to flee their country, marked the beginning of the modern tradition of asylum in
Europe. It caused the Marquis of Brandenburg to issue the Edict of Potsdam allowing the
settlement of Huguenots in his territory. After the French Revolution, the category of refugees
fleeing political rather than religious persecution began to gain prominence. Although the first
recorded use of the term "the Right of Asylum" occurred as early as 1725, asylum continued to
be viewed more as a prerogative of the Sovereign than as an individual right to protection until
the early years of the 20th century.
PAUL WEIS, RECENT DEVELOPMENTS IN THE LAW OF TERRITORIAL ASYLUM
1 Human Rights J. 378, 378–80 (1968).
The term "right of asylum" is in current use, but it is not always clear in what sense it is
employed. In traditional international law, the right of asylum is considered as the right of the
State to grant asylum in the exercise of its territorial supremacy. In the context of human rights,
the term has normally been used from the aspect of the individual, i.e. as the right of the
individual to asylum. We find here the first reason for conflicting views: the loose use of the
term "right of asylum" leads to confusion, as it depends on the outlook of the author and the
context whether the term is used in the sense of the right of States to grant asylum or the right of
the individual to receive and to be granted asylum.
This conflict became apparent when the Universal Declaration of Human Rights was drafted.
The text of article 14, paragraph 1, of the Declaration as drafted by the United Nations
Commission on Human Rights in 1947 read "Everyone has the right to seek and to be granted
asylum". This formulation was, however, not considered acceptable by a number of States on the
ground that it implied an individual right to asylum. The final version of Article 14, paragraph 1,
of the Declaration as adopted by the General Assembly in 1948 does not employ the words "to
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be granted" and reads: "Everyone has the right to seek and to enjoy in other countries asylum
from persecution". This phraseology was called by Professor Lauterpacht "artificial to the point
of flippancy" as it recognizes a right to seek but not a right to be granted asylum.
The second ambiguity arises from the term "asylum" itself. The Greek "asylou" means a
place which may not be violated, i.e., a sanctuary. Originally a religious institution under which
persons fleeing from prosecution or persecution could find shelter in sacred places considered
inviolable, the term was later received into secular law and thereafter into international law.
Views on the meaning of the term "asylum" as a legal concept in international law differ, but we
may accept for present purposes the authoritative definition given by the Institute of International
Law when it considered the question of asylum at its Bath Session in 1950, i.e. "Asylum is the
protection which a State grants on its territory or in some other place under the control of certain
of its organs, to a person who comes to seek it." This definition includes, of course, both
territorial or internal asylum and diplomatic or extraterritorial asylum. We are concerned here
only with the former.
In any effort to appraise the present position of the law relating to asylum, account must
also be taken of historical developments. In earlier times, when passports, visas and rigid frontier
controls were still largely unknown, the crossing of frontiers did not present serious problems to
fugitives. Asylum consisted in the refusal by the State in which the fugitive found himself of a
request for surrender by the State from which the fugitive had fled. The question of asylum
arose—and this is the context in which it is dealt with in most of the leading textbooks on
international law—mainly in connection with extradition. Up to the eighteenth century "asylum"
was, in fact, granted to fugitives from justice who had committed common crimes. In the
eighteenth, and more particularly in the nineteenth century, the principle that persons wanted for
serious common crimes should be surrendered to other States upon request, became gradually
accepted. Conversely, asylum came to be granted to an increasing degree, to political offenders.
Thus, the modern law of extradition is characterized by the admissibility of the extradition of
common criminals and the exclusion of extradition in the case of political offenders.
The Belgian Extradition Law of 1833 and the Franco–Swiss Treaty of 1831 were the first
to embody the principle that political offenders should not be extradited. This principle has since
been incorporated in the extradition laws of the majority of countries and in most extradition
treaties. * * * It is, however, well known that the question of the meaning to be given to the term
"political offence" has given rise to considerable difficulty due to the existence of so-called
relative political offences ("délits complexes"), i.e. offences of common law committed with a
political motive or for a political purpose. The practice of States and the decisions of courts as
regards the interpretation of the term "political offence" varies greatly. * * *
In the twentieth century the problem of asylum, while still arising frequently in
connection with extradition, has largely become one of admission. Our century has seen the mass
movement of persons who have fled their country on account of oppression for political, racial,
or religious reasons. It has been called "the century of the homeless man". Persons seeking
asylum are not so much political offenders as victims of political oppression, particularly
refugees from monolithic regimes. Recent legal history reflects this development. The law of
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asylum is not only concerned with the question of extradition but also with the problem of
admission of refugees from persecution and their protection once they have received refuge.
***
MARYELLEN FULLERTON, THE INTERNATIONAL
AND NATIONAL PROTECTION OF REFUGEES
Guide to International Human Rights Practice 246–47 (4th ed. 2004).
***
Although * * * refugees are an age-old phenomenon, societal responses to refugees
during the past century have differed substantially from those in earlier times. Before the
emergence of industrialized societies and the rise of the welfare state, rulers often welcomed
refugees into their realm, anticipating that artisans would benefit the society they joined while
others seeking refuge would increase the taxpayer rolls and enlarge the pool of those who could
be conscripted for military service. There was no corresponding public duty to care for refugees
from another land. Private charity might sustain refugees for a short time, but quasi-permanent
government-supported refugee camps were unknown. Refugees became self-supporting fairly
quickly or perished.
During the nineteenth and twentieth centuries, governments grew more wary of refugees.
The growth of "nation-states" and the strengthening of national identities led to the view that
refugees and other outsiders threatened a society's security and cultural cohesion by introducing
disease, subversive ideas, and foreign traditions. Simultaneously, post-Enlightenment societies
gradually assumed greater responsibility for the poor but did not want to see their numbers
swelled by large groups of outsiders. The ironic result was that, as governmental obligations to
assist the helpless and indigent became a fundamental tenet of society, states began to impose
extremely restrictive conditions on those who sought to enter the national territory. This tension
between generosity towards those at home and wariness of those from abroad still persists and, in
many ways, characterizes the responses of developed nations to the millions of refugees in the
world today.
***
The disintegration of the Turkish, Russian, and Austro–Hungarian empires in the early
twentieth century emphasized the international scope of refugee movements. Millions of
refugees fled in all directions. International organizations dedicated to refugee assistance were
created; with them came attempts to define legally who is a refugee. Early definitions tended to
describe refugees in terms of their nationality, implicitly recognizing that political events had
triggered the flight of certain groups of people.
***
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JAMES C. HATHAWAY, A RECONSIDERATION OF THE
UNDERLYING PREMISE OF REFUGEE LAW
31 Harv. Int'l. L. J. 129-183 (1990).
International protection is granted to refugees for reasons of humanity. The founding
fathers of international law --Grotius, Suarez, and Wolff-- viewed asylum as a natural right of the
individual, and a duty of the State. They believed that, in pursuance of an international
humanitarian duty, States which granted asylum were acting on behalf of the civitas maxima or
the community of States. Today, we translate the idea of universal society into the humanitarian
duty of international protection of refugees, and the individual right of the refugee to seek
international protection.
****
Refugee law, with its predominant emphasis on the establishment of secure conditions of
exile, is fundamentally a product of European political culture. The first international legal
standards governing the protection of refugees were designed by European states after World
War I for the protection of European refugees; therefore, the role of refugee law reflected the
political norms of European society.
In particular, the evolution of the nation-state system dramatically affected the nature of
the collective response to the needs of involuntary migrants. In the medieval era, the rulers of
Europe were motivated by universalist political philosophy to open their doors to many groups
forced by various circumstances to seek sanctuary away from their homes. The practice of
sheltering those compelled to flee was continued during the era of liberalism, both as an
acknowledgment of individual liberties and as a means of promoting communal enrichment. By
the beginning of the twentieth century, however, the view in Europe of the state as an instrument
for carrying out a spiritually inspired mandate had been discarded in favor of a conceptualization
of the state as an independent political apparatus dedicated to advancing the general good of its
own population. This shift away from a commitment to the effectuation of a higher law and the
emergent narrow focus on perceived self-interest led to two types of restrictionist policy that
closed borders to many would-be migrants.
First, a belief emerged that national sovereignty was best assured by a linkage between
cultural similarities and political organization. The spirit of the American and French revolutions
had imbued states with the conviction that a "people" should be entitled to political selfdetermination within a defined territory and that the legitimacy of the state was in some sense
contingent on the extent to which its actions promoted a common cultural consciousness. States
thus came to use control over immigration as a means of excluding those persons whose
backgrounds differentiated them from the national norm and who might as a result constitute
threats to the unity of the nation-state.
Second, the emergence of systems of national economies led states to be more concerned
with promoting the general economic well-being of their own populations. The vantage point of
state interest permitted, and arguably required, the subjugation of humanitarian instincts to the
attainment of national economic goals. Immigration came to be seen less as a means of
addressing the needs of fleeing individuals or of recognizing their right to self-determination, and
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more as a vehicle for facilitating the selection by states of new inhabitants who could contribute
in some tangible way (such as skills or wealth) to the national well-being. International migration
was no longer to be a function of the particularized needs or ambitions of the would-be
immigrants, but was instead to be closely controlled to maximize the interests of sovereign
nation-states.
This desire by European states to establish normative standards and control mechanisms
to stem the arrival of less desirable immigrants coincided with a series of major population
displacements within Europe during the early part of the twentieth century. * * *
In this historical context, refugee law originated as an attempt to accommodate the reality
of a largely unstoppable flow of involuntary migrants across European borders within the
broader policy of restricting immigration. In its initial form, refugee law thus constituted a
largely humanitarian exception to the protectionist norm, with the screening of immigrants
eliminated for large groups of fleeing persons. * * *
***
2. THE EVOLUTION OF INTERNATIONAL INSTITUTIONS
The most substantial reforms to international refugee law emerged in the aftermath of
World War II, but the beginnings of international efforts to provide assistance to refugees took
shape as the international community was emerging from the turmoil of World War I. What
follows is a brief sketch of the successive efforts to deal with forced migration at the
international level.
a. League of Nations
The League of Nations, established in 1920, soon began efforts to assist refugees. Fridtjof
Nansen, a famous polar explorer and humanitarian who had initially mounted efforts to assure
the repatriation of war prisoners, was appointed as the first High Commissioner for Refugees in
1921. His office assisted many groups displaced by World War I, the Russian revolution, and the
demise of the Ottoman empire. Nansen's efforts focused on providing assistance to refugees,
seeking resettlement opportunities for them, and issuing identity papers that came to be known as
"Nansen passports." That documentary innovation proved quite useful in helping displaced
people to move abroad, get settled, and seek employment. See UNHCR, The State of the World's
Refugees: Fifty Years of Humanitarian Action 15 (2000).
During these years, a series of arrangements and treaties provided a framework for
international assistance and protection for certain forced migrants. This early international
regime generally defined refugees in terms of specific political crises. Thus, international
protection extended only to those who belonged to certain national groups and who no longer
enjoyed the protection of their national government. For example, one League of Nations treaty
in the 1920s defined refugees as follows:
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Any person of Russian origin who does not enjoy or who no longer enjoys the protection
of the Government of the Union of Soviet Socialist Republics and who has not acquired
another nationality.
Any person of Armenian origin formerly a subject of the Ottoman Empire who does not
enjoy or who no longer enjoys the protection of the Government of the Turkish Republic
and who has not acquired another nationality.
Arrangement relating to the Issue of Identity Certificates to Russian and Armenian Refugees,
signed May 12, 1926, 89 L.N.T.S. 47.
Post-World War I arrangements primarily provided a legal framework for the efforts of
the League of Nations and its High Commissioner to provide assistance and documentation, and
contained only recommendations addressed to states parties for the treatment of refugees, rather
than clear legal requirements. A 1933 treaty contained more extensive obligations for states with
regard to persons covered by the earlier arrangements, including a broad nonrefoulement
provision that also barred rejection at the frontier. But only eight states adhered to the treaty, and
many of these entered reservations to key provisions. Convention relating to the International
Status of Refugees, signed Oct. 28, 1933, 159 L.N.T.S. 199. The drafters of the 1938 treaty on
refugees from Germany therefore scaled back the extent of obligations that states would
undertake under that instrument, but it still attracted only three adherents. See Robert J. Beck,
Britain and the 1933 Refugee Convention: National or State Sovereignty?, 11 Int'l J. Refugee L.
597, 600 (1999).
b. UNRRA and the International Refugee Organization (IRO)
Although the efforts of the 1930s proved bitterly insufficient in the face of the oppression
committed by fascist regimes, World War II itself triggered more extensive activity. The allies
created the UN Relief and Rehabilitation Administration (UNRRA) in 1943, and it remained in
operation until 1947. UNRRA had a broad mandate for assistance and rebuilding, but was not
created primarily as a refugee agency. All who had been displaced by the war came within its
competency. After the war, UNRRA focused on repatriating the displaced, but this task became
increasingly controversial as the Cold War deepened and significant numbers of persons resisted
return to either the USSR, a wartime ally, or countries that had come under Soviet control.
Under pressure led by the United States, UNRRA's mandate was brought to an end, and a
new temporary specialized agency, the International Refugee Organization (IRO), came into
being in 1947. As a concession to the Soviets, the IRO retained responsibility to assist
repatriation, but a General Assembly resolution creating the Organization also stated that "no
refugees or displaced persons who have finally and definitely, in complete freedom, and after
receiving full knowledge of the facts, including adequate information from the governments of
their countries of origin, expressed valid objections to returning to their countries of origin * * *
shall be compelled to return * * *." G.A. Res. 8(1) (Feb. 12, 1946), U.N. GAOR, 1st Sess., UN
Doc. A/64 at 12 (July 1, 1946). See UNHCR, The State of the World's Refugees: Fifty Years of
Humanitarian Action 14–18 (2000). In the end, only about 10 percent of those assisted by the
IRO chose to repatriate. The IRO had responsibility for determining the refugee status of
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individuals according to an extensive new definition, and for considering the validity of
objections to return. The IRO Constitution (its founding treaty) counted among valid objections
"persecution, or fear, based on reasonable grounds, of persecution because of race, religion,
nationality or political opinions, provided these opinions are not in conflict with the principles of
the United Nations." It also specifically authorized the IRO to create "some special system of
semi-judicial machinery" to carry out its decisionmaking duties. Constitution of the International
Refugee Organization, Annex I, done Dec. 15, 1946, 18 U.N.T.S. 3.
The IRO assisted displaced persons, which it defined to include primarily people forced
to leave their countries by Nazi, fascist or quisling regimes to "undertake forced labour or who
were deported for racial, religious or political reasons." The IRO Constitution defined several
categories of refugees:
● victims of the Nazi, fascist, quisling or similar regimes
● Spanish Republicans and other victims of the Falangist regime in Spain
● persons considered refugees before World War II for reasons of race, religion,
nationality or political opinion
● Jewish or stateless residents of Germany or Austria who had been detained there or had
been forced to flee, but had subsequently been returned to those countries
● unaccompanied children, aged 16 or younger, outside their homeland who were
orphans or whose parents had disappeared.
A comprehensive account appears in Louise W. Holborn, The IRO: A Specialized Agency of the
United Nations: Its History and Work (1956).
c. United Nations Relief and Works Agency (UNRWA) for Palestinian Refugees
After the end of World War I, the British government administered Palestine under a
League of Nations mandate. This continued until 1948. When the state of Israel was proclaimed
in that year, war broke out, and more than 700,000 Palestinians took refuge in Jordan, Lebanon,
Syria, the West Bank, and the Gaza Strip. In response to this crisis, the UN General Assembly
created the United Nations Relief and Works Agency (UNRWA—wholly distinct from UNRRA,
which had ceased to exist by that time), an agency dedicated to providing relief to the Palestinian
refugees.
UNRWA defines Palestinian refugees as those people, and their descendants, who lived
in Palestine two years prior to the 1948 hostilities, and who lost their homes and livelihoods as a
consequence of the conflict. Roughly five million Palestinians are currently registered with the
agency, which operates in Jordan, Lebanon, Syria, Gaza and the West Bank. See About
UNRWA, <www.unrwa.org/etemplate.php?id=47>. It has responsibility for extensive
assistance programs, but no mandate to engage in legal protection and hence no real role in the
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ongoing refinement of the international law governing refugees. See Lex Takkenberg, The Status
of Palestinian Refugees in International Law (1998).
d. Office of the United Nations High Commissioner for Refugees (UNHCR)
Members of the United Nations had envisioned the International Refugee Organization as
a temporary response to the refugees created by World War II. It would repatriate those that it
could, seek resettlement for the rest, and then close its doors. There was significant disagreement
about whether the United Nations should thereafter play a role in responding to future refugee
crises, as well as about how extensive such a role might be. The UN General Assembly
eventually chose a compromise approach; in 1950, it established the Office of the United Nations
High Commissioner for Refugees (UNHCR) for an initial three-year period, beginning in 1951.
See UNHCR, An Introduction to the International Protection of Refugees 6–7 (1992). The
Office's mandate was regularly extended in three- to five-year increments until 2003, when the
General Assembly extended the mandate “until the refugee problem is solved.” G.A. Res. 58/153
(A/58/503) (24 February 2004). The instrument creating the office and defining its
responsibilities foreshadowed the definition of "refugee" that would be included in the 1951
Convention a year later (with some variations). Its central provision gave UNHCR the
responsibility to deal with persons outside their country of origin "owing to a well-founded fear
of being persecuted for reasons of race, religion, nationality or political opinion." Statute of the
Office of the United Nations High Commissioner for Refugees, para. 6(A)(ii), UNGA Res.
428(V) (Dec. 14, 1950). Later General Assembly Resolutions, however, have often expanded the
mandate and authority of the Office, usually to cover specific additional populations.
UNHCR was originally intended to be a modest agency, shouldering minimal operational
responsibilities and dealing largely with governments—while governments in turn would take on
the main work of assisting refugees. As described in the 1950 Statute establishing UNHCR:
The United Nations High Commissioner for Refugees, acting under the authority of the
General Assembly, shall assume the function of providing international protection, under
the auspices of the United Nations, to refugees who fall within the scope of the present
Statute and of seeking permanent solutions for the problem of refugees by assisting
Governments and, subject to the approval of the Government concerned, private
organizations to facilitate the voluntary repatriation of such refugees, or their assimilation
within new national communities.
UNGA, Statute of the Office of the United Nations High Commissioner for Refugees, Chapter I,
para. 1 (emphasis added).
But within a few years the world realized that retaining operational responsibilities in a
global organization would prove quite useful. See David A. Martin, Refugees and Migration, in 1
United Nations Legal Order 391, 401–07 (Oscar Schachter & Christopher Joyner eds., 1995).
The current scope of UNHCR’s work is much broader:
UNHCR’s work quickly and irrevocably moved beyond its founding mandate. Indeed,
UNHCR’s functions have expanded in four important respects: (1) the category of
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persons deemed to be “refugees” has been enlarged; (2) the modalities of protection have
increased and expanded; (3) the provision of assistance to persons of concern has become
a central UNHCR function (the statute anticipated this work to be done by governments
and NGOs); and (4) UNHCR’s mandate has been extended to categories of persons
beyond refugees, most notably stateless persons, returnees, asylum-seekers and internally
displaced persons.
T. Alexander Aleinikoff, The Mandate of the Office of the United Nations High Commissioner
for Refugees, in Research Handbook on Migration and International Law (Vincent Chetail &
Celia Bauloz eds., forthcoming 2013).
As of January 10, 2013, the UNHCR has a staff of 7,685, working in 125 countries, with
expenditures totaling more than two billion dollars per year. UNHCR, What We Do,
<www.unhcr.org/pages/49c3646cbf.html>. Very little of that resource pool derives from the
mandatory dues paid by UN members as part of the regular UN budget. Because nearly all of
UNHCR's operations are funded by voluntary national contributions, the High Commissioner
must also serve as a major fundraiser. Recent years have seen painful budget shortfalls. The
UNHCR maintains a highly useful website, <www.unhcr.org>, that can be used to access
information about movements of refugees and displaced persons, assistance and protection
efforts, source country conditions, statistical data, and much more.
3. THE CONVENTION AND PROTOCOL RELATING TO THE STATUS OF
REFUGEES
a. The 1951 Convention
i. Overview and the Definition
Six months after the UNHCR came into existence, the United Nations convened a
Conference of Plenipotentiaries in Geneva to consider the formulation and adoption of a treaty
concerning refugees. The 1951 Convention Relating to the Status of Refugees resulted. 189
U.N.T.S. 137, signed July 28, 1951. This treaty and the abundant national law it has spawned
will occupy a great deal of our attention in this book. The centerpiece of the Convention's
definition of "refugee," Article 1(A)(2), provides:
For the purposes of the present Convention, the term "refugee" shall apply to any person
who * * * [a]s a result of events occurring before 1 January 1951 and owing to wellfounded 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 and
is unable or, owing to such fear, is unwilling to avail himself of the protection of that
country * * *.
The Convention thus limited the category of refugees to those who have crossed an
international border and who have a well-founded fear of persecution for any of the five
specified reasons (often called the nexus requirement): race, religion, nationality, membership in
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a particular social group, and political opinion. Moreover, as in the UNHCR Statute, refugees are
principally defined by individual characteristics and experiences; this is in contrast to earlier
instruments which often defined refugees by specified ethnic, geographic, historical, or political
background. These elements of the Convention definition have had enduring significance.
The caution of the drafters, however, some of whom explicitly mentioned concerns about
writing a "blank cheque" opening up immeasurable obligations into the distant future, is apparent
in the dateline provision (which was eventually altered, as we will discuss below). See Martin,
Refugees and Migration, supra, at 416–17. Under the Convention, a person could be a refugee
only if outside his or her home country because of events that occurred before 1951—in
principle, a finite group of beneficiaries. States were allowed a further option for narrowing their
exposure. They could declare at the time of ratification that they would apply the treaty only to
refugees displaced by events occurring in Europe. Art. 1(B).
Both these restrictions also reflect the connection of the treaty to the deepening Cold
War. The major European displacements before 1951 derived from the turmoil of World War II,
as well as the resistance of thousands of the displaced toward returning to countries that had
come under Soviet domination, either during the war or as a result of the USSR's maneuvering in
central and eastern Europe through the late 1940s. The Soviets demanded that they return home,
in accordance with the usual practice when a war ends. The Western European countries, after
reports of punishment or abuse of early returnees, eventually allowed war refugees to remain.
Thus, the effort that resulted in the 1951 Convention was initiated primarily to clarify the status
of those already living in and effectively accepted by the host countries. Professor Goodwin–
Gill summarized the outlook that animated the drafters:
The 1951 Convention was originally intended to establish, confirm or clarify the legal
status of a known population of the displaced. This met the needs of the time, and most
provisions focus on assimilation, or are premised on lawful residence or tolerated
presence. There is nothing on asylum, on admission, or on resettlement.
Guy S. Goodwin–Gill, The Future of International Refugee Law, Refugees, Oct. 1988, at 28.
The Soviet bloc countries, however, persisted in their charges that concern over refugees
in the post-war era was a ploy meant to hamper their own rebuilding efforts. They disagreed
with the approach taken by the 1951 Convention, and they remained estranged from the work of
the UNHCR.
In separate provisions, the 1951 Convention expressly included coverage of those who
had satisfied the refugee definition in the international agreements from the 1920s, 1930s, and
1940s, although those definitions ordinarily had not required refugees to demonstrate a fear of
persecution. Art. 1(A)(1). It also explicitly excluded those receiving protection or assistance
from United Nations agencies other than UNHCR. Art. 1(D). This provision has had enduring
impact with regard to UNRWA, and it still serves to exclude most Palestinians from the coverage
of the 1951 Convention. Finally, the treaty barred those guilty of war crimes, crimes against
humanity, and other serious crimes from its major protections. Art. 1(F); see also Art. 33(2).
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ii. Status and Rights
Much of contemporary discussion and debate concerning the scope of the Convention
addresses the refugee definition contained in Article I. It is important to note, however, that
most of the Convention is not about defining refugees, but instead, as the treaty's title implies,
specifies standards for the legal status, rights, and treatment of persons who are refugees and are
present in the territory of a treaty party. See James C. Hathaway, The Rights of Refugees under
International Law 1–14 (2006). The prominence of these status questions in 1951 might seem
puzzling to American observers, but should be understood in the context of the continental
European civil law tradition observed by most of the states involved in shaping the Convention.
Those countries generally based the rights of aliens present in their territory on reciprocity with
the country of nationality, or (as with civil status issues such as the requirements and rights
pertaining to marriage or divorce) on the law of the country of that person's nationality. For
obvious reasons, this approach appeared unfair to refugees who had left regimes that treated both
citizens and aliens badly. The detailed gradations of rights set forth in the 1951 Convention
alleviated this legal problem.
You may wish to look through the treaty text at this point, to see for yourself the major
preoccupations of the drafters. Especially significant are documentary provisions that reflect the
heritage of the Nansen passport. Under the Convention, haven states, not UNHCR, are to issue
the identity documents, and, for certain refugees, the state must include a pledge to accept the
refugee's return at the end of his travels. See Arts. 27 & 28, and the Schedule and Annex at the
end of the Convention.
Note that some of the specific rights listed in the Convention are available to all refugees
physically present, but a host of others are limited to those "lawfully in" the country, or to those
"lawfully staying in" the country. The right to engage in employment, broad access to the
housing market, and the right to public assistance or social security, for example, apply only to
refugees lawfully staying in the country—i.e., those who have received some type of durable
residence rights. Merely proving that one meets the refugee definition does not give a refugee
any entitlement to lawful residence. This is why older legal texts often emphasize that the 1951
Convention does not provide for asylum.3 States retain discretion under the Convention to
bestow or withhold both lawful status and residence rights.
Nonetheless, many industrialized states have adopted domestic laws that essentially
award full legal residence to those who prove that they met the definition—provided they are not
disqualified, for example because of past crimes. These refugees are frequently said to have
received asylum, though this term does not appear in the treaty.
3
The UN General Assembly adopted a declaration in 1967 calling for a highly qualified right of asylum. Declaration
on Territorial Asylum, GA Res. 2312 (XXII) (Dec. 14, 1967). And the UN convened a conference in Geneva in
1977 to draft a treaty on territorial asylum. When its early work seemed likely instead to erode some of the
provisions in the 1951 Convention, the conference was quietly adjourned. See Paul Weis, Draft United Nations
Convention on Territorial Asylum, 50 Brit. Y.B. Int'l L. 151 (1980).
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iii. Nonrefoulement
Whether or not the domestic law awards asylum, the Convention extends to virtually all
refugees present, lawfully or not, the most basic of protections, the nonrefoulement provision of
Article 33.
No Contracting State shall expel or return (“refouler”) a refugee in any manner
whatsoever to the frontiers of territories where his [or her] life or freedom would be
threatened on account of his [or her] race, religion, nationality, membership of a
particular social group or political opinion.
The benefit of the present provision may not, however, be claimed by a refugee whom
there are reasonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgment of a particularly serious
crime, constitutes a danger to the community of that country.
This principle of nonrefoulement is the cornerstone of asylum and of international
refugee law. Article 33 is, however, qualified: states are not obliged to afford nonrefoulement
protection to a subset of refugees deemed dangerous. As described in the following chapters,
several other international human rights instruments have been construed to provide a broader
nonrefoulement protection, and some scholars contend that customary international law now
prohibits refoulement to countries where the individual will face persecution, torture, or inhuman
or degrading treatment. This view is not universally accepted; the United States, for example,
applies the specific treaty provisions outlining nonrefoulement obligations, rather than a broader
nonrefoulement standard. Thus, asylum procedures in the United States protect forced migrants
against refoulement by the terms of Article 33. This protection extends to those who have not
yet had their status formally declared, as well as to individuals already recognized as refugees. .
See UNHCR Note on the Principle of Non-Refoulement, November 1997, <www.unhcr.org/cgibin/texis/vtx/refworld/rwmain?docid=438c6d972>.
iv. Obsolescence of the Convention Dateline and the Adoption of the Protocol
By the early 1960s, the numbers of refugees from Asia and Africa were rising
significantly. Many had fled across international boundaries to escape persecution, but their
flight was impelled by events outside of Europe that had occurred after 1951. The 1951
Convention was therefore inapplicable. Although a change in the treaty was clearly desirable,
many diplomats worried that states would resist anything but minor, finite additions to its scope.
UNHCR, however, took the lead to draft a Protocol that cut to the core of the problem by
eliminating the dateline altogether. In an unusually speedy treaty procedure, the UN General
Assembly approved the text and transmitted it to states for their accession. Within a few months
the Protocol had enough parties to enter into force. 1967 Protocol Relating to the Status of
Refugees, done January 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267. The
Protocol also eliminated the option of confining a state's obligations to refugees from Europe
(though states that had already adopted such a restriction could continue it even while accepting
the new instrument).
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With the Protocol, the refugee definition became truly universal. The Protocol did not,
however, expand the refugee definition to cover fears of harm not related to persecution. Nor did
it expand the grounds of persecution that give rise to refugee status. As of January 2013, 143
states are parties to both the Convention and Protocol, two are parties only to the Convention and
three others, including the United States, are parties only to the Protocol (which incorporates by
reference all the operative provisions of the underlying Convention).
Notes and Questions on the 1951 Convention and the 1967 Protocol
1. What allowed an individual to qualify as a refugee under the 1926 Arrangement
(reprinted at p. 48) or the IRO constitution (reprinted at p. 49)? How would they be likely to
prove their qualifications? What sources of proof could they use? What role did threats of
persecution play, either as a matter of individual qualification or as a justification for the
international community’s concern for these forced migrants?
2. Why did the international community expand the reach of the Refugee Convention
beyond events in Europe prior to 1951, but not enlarge the types of harm covered? Why do you
think governments were willing to provide protection only to those who had crossed
international borders?
3. Scholars such as James Hathaway have criticized what they see as the Western bias of
the 1951 Convention, because it gives "priority in protection matters to persons whose flight was
motivated by pro-Western political values." It emphasizes persecution based on five factors
under which "East bloc practice has been problematic. Western vulnerability in the area of
respect for human rights, in contrast, centres more on the guarantee of socio-economic human
rights than on respect for civil and political rights. * * * [But] persons denied even such basic
rights as food, health care, or education are excluded from the international refugee regime
(unless that deprivation stems from civil or political status)." James C. Hathaway, The Law of
Refugee Status 6–8 (1991). What do you make of this criticism? Does this simply reflect another
round in the debate between universal values and cultural relativism? If so, does that support or
undermine the criticism? How would you craft a refugee treaty to cover the omitted rights of
which Hathaway speaks? What practical obstacles to adoption and acceptance might such a
treaty confront?
Sadruddin Aga Khan, the UN High Commissioner for Refugees from 1965-1978,
observed: “States are reluctant to make a contractual commitment of a permanent and unlimited
nature in a field in which too large a part is left to the hazards of international life.” Sadruddin
Aga Khan, Legal Problems Relating to Refugees and Displaced Persons, [1976] I Recueil des
Courts 287, 319. How would Hathaway respond to this perspective? What is the proper role for
consequentialist concerns, such as the concern about offering refugee to large numbers of
possible claimants, in shaping refugee doctrine?
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4. REGIONAL LEGAL INSTRUMENTS AND ADDITIONAL PROTECTIONS
a. Evolving Regional Norms
Though the 1951 Convention refugee definition has become universal, many
governments have recognized the need for broader conceptions of protection. This has led over
the past few decades to the formulation of additional protection norms, with details varying by
region.
i. Europe
The 1951 Convention has played a key role in the treatment of refugees in Europe, and its
provisions have been widely incorporated into national legislation. But since at least the 1960s,
many European states, tribunals, and regional bodies have concluded that the Convention might
not address all those who should be protected against return to their countries of origin. In fact,
the cases of American opponents of the Vietnam War who had moved to Europe in the 1960s
and 1970s to escape conscription often served as the catalyst initially causing countries to
consider wider categories. The details concerning these de facto, B-status, or humanitarian
refugee categories varied from state to state, but generally the beneficiaries were allowed to
remain and were provided some type of legal status, despite their inability to show the requisite
fear of persecution on account of a Convention ground.
It has become common in Europe to speak of these additional bases for protection (going
beyond the requirements of the 1951 Convention) as "subsidiary protection." The European
Union, after years of detailed consideration, adopted legislation that guaranteed refugee status to
those who satisfied the 1951 Convention definition and also guaranteed subsidiary protection for
those who would face serious harm if returned to their homeland. Directive 2011/95/EU of the
European Parliament and of the Council of 13 December 2011 on Standards for the Qualification
of Third Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a
Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the
Content of the Protection Granted (Recast), 2011 O.J. (L 337). EU law defines serious harm to
include the death penalty or execution, torture or inhuman or degrading treatment or punishment,
or serious and individual threat to a civilian's life or person by reason of indiscriminate violence
in situations of international or internal armed conflict. Id. at Art. 15.
Additional legal protections have also developed in Europe based on the provisions of the
European Convention for the Protection of Human Rights and Fundamental Freedoms, done
Nov. 4, 1950, 213 U.N.T.S. 222, E.T.S. 5. The European Human Rights Convention (ECHR)
applies to 47 states, roughly twice as many as the 27 Member States that comprise the European
Union. The text does not refer to refugee status, asylum, or nonrefoulement, but Article 3 of the
Convention forbids states to employ torture or inhuman or degrading treatment or punishment.
Case law has interpreted Article 3 to forbid a state to return an individual to a country where "the
individual would face a real risk of being subjected to treatment contrary to Article 3 if
removed." Chahal v. United Kingdom, 1996–V Eur. Ct. H.R. 1831 (1996). As a result, asylum
seekers in any of the 47 states that have acceded to the European Human Rights Convention can
rely on Article 3 in challenging their deportation or removal from the country.
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The Convention establishes a European Court of Human Rights (Eur. Ct. H. Rt.) to which
individuals can submit complaints after exhausting local remedies. This Court has rendered
numerous decisions limiting the power of states to expel asylum seekers who would face
inhuman or degrading treatment. For example, in Abdolkhani & Karimnia v. Turkey, App. No.
30471/08, Eur. Ct. H. Rts. (2009), the Court ruled that Turkey had violated Article 3 by
deporting Iranians who had been sheltered in Iraq under Saddam Hussein, even though they had
been members of a group deemed terrorist by the European Union and the United States. The
European Court noted that they resigned from the organization and had been recognized as
refugees by UNHCR, and concluded that they would face ill treatment or death if sent back to
Iraq or Iran. In N. v. Sweden, App. No. 23505/09, Eur. Ct. H. Rts. (2010), the Court ruled that
Article 3 prevented Sweden from returning an Afghani woman to Afghanistan after she
attempted to divorce her Afghan husband in Sweden. The cumulative risks of reprisals she
might face from her husband and her family in Afghanistan constituted a substantial likelihood
of inhuman or degrading treatment or punishment. In 2012, the European Court of Human
Rights ruled in Hirsi Jamaa v. Italy, App. No. 27765/09, Eur. Ct. H. Rts. (2012), that the Italian
authorities had violated Article 3 and other provisions of the ECHR and its Protocols by
returning Somali and Eritrean migrants intercepted in international waters to Libya pursuant to
the Italy-Libya return agreement. Some of the Court’s rulings have stirred controversy in
Europe, and the contours of the emerging jurisprudence are debated in several European capitals.
Chapter Nine will address the Hirsi Jamaa opinion and Chapter Eleven will consider several
other European developments in greater detail.
ii. Africa
By 1969, Africa had experienced over a decade of decolonization, the advent of wars of
liberation, and, in many locations, violent ethnic strife or dictatorial repression. The Organization
of African Unity (OAU, which changed its name to the African Union in 2002) faced mass
movements of people in many corners of the continent. Many African countries were strikingly
receptive, often allowing local integration or operating reasonably well-run camps, sometimes
with the assistance of international donors. But the OAU considered it useful to promulgate a
treaty to guide national and regional response, and specifically to take into account a wider range
of forced migration than did the 1951 Convention. The OAU Convention Governing the Specific
Aspects of Refugee Problems in Africa, done Sept. 10, 1969, 1001 U.N.T.S. 45, defined its
coverage to include both the 1951 Convention definition, as expanded by the Protocol, and the
following (Art. I(2)):
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.
Article II, titled "Asylum," contains a broad nonrefoulement provision as well as a pledge that
member states shall use their "best endeavours consistent with their respective legislations to
receive refugees and to secure [their] settlement."
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Although the OAU definition legally binds only African states that are parties to the
Convention, UNHCR generally uses the broader OAU definition, in practice, to guide its work
in forced migration emergencies in Africa. For example, most of the 150,000 people who fled
the Côte d’Ivoire into Liberia in 2011 were fleeing generalized violence, but neighboring states
and UNHCR considered them refugees. See UNHCR, Ivorian Refugees in Liberia, Apr. 24,
2011, <www.unhcr.org/4dad3fc09.html>. Similar results occurred when 250,000 Somalis fled
political instability and drought in 2011. See, e.g., UNHCR New Stories, One Year On,
Thousands Flee Somalia Every Month, but Successes Too, June 5, 2012,
<www.unhcr.org/pages/49e45a846.htm>.
iii. Western Hemisphere
In 1969 the Organization of American States (OAS) adopted the text of the American
Convention on Human Rights, done Nov. 22, 1969, 1144 U.N.T.S. 123, which sets forth an
extensive list of rights and also establishes an Inter–American Court of Human Rights. It entered
into force in 1978, but not all OAS member states are parties to the treaty. (The United States has
signed but not ratified.) Among its specific provisions are rights of asylum and nonrefoulement
(Art. 22(7) and (8)), but their scope does not differ significantly from the coverage of the 1951
Convention. During the 1980s, however, Latin America experienced significant repression,
political instability, and civil war that drove many thousands from their homes. Response was
needed, but many of these people did not fit the traditional refugee definition. Early in that
decade, experts from ten Western Hemisphere countries met in Colombia and adopted the
Cartagena Declaration on Refugees. It urged a wide range of improvements in the treatment of
refugees, but also contained the following:
[I]n view of the experience gained from the massive flows of refugees in the Central
American area, it is necessary to consider enlarging the concept of a refugee[.] * * *
Hence the definition or concept of a refugee to be recommended for use in the region * *
* [should include] persons who have fled their country because their lives, safety or
freedom have been threatened by generalized violence, foreign aggression, internal
conflicts, massive violation of human rights or other circumstances which have seriously
disturbed public order.
This description obviously has close parallels to the OAU Convention, but the OAS has
not incorporated this language in a treaty. Nonetheless, the Inter–American Commission on
Human Rights endorsed the declaration, and later the General Assembly of the OAS adopted a
formal resolution noting the work of the experts and resolving "[t]o underscore the importance of
the Declaration of Cartagena on Refugees and recommend to the member states that they apply
that Declaration in dealing with the refugees in their territory." Legal Status of Asylees,
Refugees, and Displaced Persons in the American Hemisphere, AG/RES 774 /XV–0/85 (Dec. 9,
1985).
__________
Thus, government representatives in the Western Hemisphere, Africa, and Europe have
recognized the need for a broader conception of protection than that enunciated in the 1951
Convention. Nonetheless, the formulations vary, and the extent to which some of these
developments embody international legal obligations as opposed to recommended practices or
views on wise policy is often contested.