The Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention or the Geneva Convention of 28 July 1951, is a United Nations multilateral treaty that defines who a refugee is, and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The Convention also sets out which people do not qualify as refugees, such as war criminals. The Convention also provides for some visa-free travel for holders of refugee travel documents issued under the convention.
The Refugee Convention builds on Article 14 of the 1948 Universal Declaration of Human Rights, which recognizes the right of persons to seek asylum from persecution in other countries. A refugee may enjoy rights and benefits in a state in addition to those provided for in the Convention.
The rights created by the Convention generally still stand today. Some have argued that the complex nature of 21st century refugee relationships calls for a new treaty that recognizes the evolving nature of the nation-state, population displacement, environmental migrants, and modern warfare. Nevertheless, ideas like the principle of non-refoulement (Article 33) are still applied today, with the 1951 Convention being the source of such rights.
The Convention was approved at a special United Nations conference on 28 July 1951, and entered into force on 22 April 1954. It was initially limited to protecting European refugees from before 1 January 1951 (after World War II), but states could make a declaration that the provisions would apply to refugees from other places.
The 1967 Protocol removed the time limits and applied to refugees "without any geographic limitation" but declarations previously made by parties to the Convention on geographic scope were grandfathered.
As of 20 January 2020, there were 146 parties to the Convention, and 147 to the Protocol. Madagascar and Saint Kitts and Nevis are parties only to the Convention, while Cape Verde, the United States of America and Venezuela are parties only to the Protocol. Since the US ratified the Protocol in 1968, it undertook a majority of the obligations spelled out in the original 1951 document (Articles 2-34), and Article 1 as amended in the Protocol, as "supreme Law of the Land".
Definition of refugee
Article 1 of the Convention defines a refugee as:
As a result of events occurring before 1 January 1951 and owing to 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 and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
With the passage of time and the emergence of new refugee situations, the need was increasingly felt to make the provisions of the 1951 Convention applicable to such new refugees. As a result, a Protocol Relating to the Status of Refugees was prepared, and entered into force on 4 October 1967. The UNHCR is called upon to provide international protection to refugees falling within its competence. The Protocol defined refugee to mean any person within the 1951 Convention definition as if the words "As a result of events occurring before 1 January 1951 and ..." were omitted.
Several groups have built upon the 1951 Convention to create a more objective definition. While their terms differ from those of the 1951 Convention, the Convention has significantly shaped the new, more objective definitions. They include the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa by the Organisation of African Unity (since 2002 African Union) and the 1984 Cartagena Declaration, while nonbinding, also sets out regional standards for refugees in South and Central Americas, Mexico and the Caribbean.
Rights and responsibilities of parties
In the general principle of international law, treaties in force are binding upon the parties to it and must be performed in good faith. Countries that have ratified the Refugee Convention are obliged to protect refugees that are on their territory in accordance with its terms. There are a number of provisions to which parties to the Refugee Convention must adhere.
- abide by the national laws of the contracting states (Article 2)
The contracting states shall
- exempt refugees from reciprocity (Article 7): That means that the granting of a right to a refugee should not be subject to the granting of similar treatment by the refugee's country of nationality, because refugees do not enjoy the protection of their home state.
- be able to take provisional measures against a refugee if needed in the interest of essential national security (Article 9)
- respect a refugee's personal status and the rights that come with it, particularly rights related to marriage (Article 12)
- provide free access to courts for refugees (Article 16)
- provide administrative assistance for refugees (Article 25)
- provide identity papers for refugees (Article 27)
- provide travel documents for refugees (Article 28)
- allow refugees to transfer their assets (Article 30)
- provide the possibility of assimilation and naturalization to refugees (Article 34)
- cooperate with the UNHCR (Article 35) in the exercise of its functions and to help UNHCR supervise the implementation of the provisions in the Convention.
- provide information on any national legislation they may adopt to ensure the application of the Convention (Article 36).
- settle disputes they may have with other contracting states at the International Court of Justice if not otherwise possible (Article 38)
The contracting states shall not
- discriminate against refugees (Article 3)
- take exceptional measures against a refugee solely on account of his or her nationality (Article 8)
- expect refugees to pay taxes and fiscal charges that are different to those of nationals (Article 29)
- impose penalties on refugees who entered illegally in search of asylum if they present themselves without delay (Article 31), which is commonly interpreted to mean that their unlawful entry and presence ought not to be prosecuted at all
- expel refugees (Article 32)
- forcibly return or "refoul" refugees to the country they have fled from (Article 33). It is widely accepted that the prohibition of forcible return is part of customary international law. This means that even states that are not party to the 1951 Refugee Convention must respect the principle of non-refoulement. Therefore, states are obligated under the Convention and under customary international law to respect the principle of non-refoulement. If this principle is threatened, UNHCR can respond by intervening with relevant authorities and, if it deems necessary, will inform the public.
Refugees shall be treated at least like nationals in relation to
- freedom to practice their religion (Article 4)
- the respect and protection of artistic rights and industrial property (Article 14)
- rationing (Article 20)
- elementary education (Article 22)
- public relief and assistance (Article 23)
- labour legislation and social security (Article 24)
Refugees shall be treated at least like other non-nationals in relation to
- movable and immovable property (Article 13)
- the right of association in unions or other associations (Article 15)
- wage-earning employment (Article 17)
- self-employment (Article 18)
- practice of the liberal professions (Article 19)
- housing (Article 21)
- education higher than elementary (Article 22)
- the right to free movement and free choice of residence within the country (Article 26)
Although the Convention is "legally binding," there is no body that monitors compliance. The United Nations High Commissioner for Refugees (UNHCR) has supervisory responsibilities but cannot enforce the Convention, and there is no formal mechanism for individuals to file complaints. The Convention specifies that complaints should be referred to the International Court of Justice. It appears that no nation has ever done this.
An individual may lodge a complaint with the UN Human Rights Committee under the International Covenant on Civil and Political Rights or with the UN Committee on Economic, Social and Cultural Rights under the International Covenant on Economic, Social and Cultural Rights, but no one has ever done so in regard to violations of the Convention. Nations may levy international sanctions against violators, but no nation has ever done so.
At present, the only real consequences of violation are 1) public shaming in the press, and 2) verbal condemnation of the violator by the UN and by other nations. To date, those have not proven to be significant deterrents.
- ^ a b c "Chapter V – Refugees and Stateless Persons". United Nations Treaty Series. 22 July 2013. Archived from the original on 14 November 2012. Retrieved 22 July 2013.
- ^ See e.g. CONSOLIDATED VERSIONS OF THE TREATY ON EUROPEAN UNION AND THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION
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- ^ "Chapter V – Refugees and Stateless Persons". United Nations Treaty Series. 22 July 2013. Archived from the original on 1 April 2012. Retrieved 22 July 2013.
- ^ Joan Fitzpatrick, "The International Dimension of U.S. Refugee Law", 15 Berkeley J. Int'l. Law 1, Berkeley Law Scholarship Repository, 1997
- ^ United Nations High Commission for Refugees. (2012). Text of Convention. Retrieved 5 May 2012. Archived 7 June 2012 at the Wayback Machine
- ^ What is a Refugee?What is a Refugee?
- ^ United Nations High Commission for Refugees 2011 § C(8).
- ^ United Nations High Commission for Refugees 2011 § E(14).
- ^ Protocol Relating to the Status of Refugees of 31 January 1967 - English text, Article I § 2.
- ^ UNHCR. "LA SITUACIÓN DE LOS REFUGIADOS EN AMÉRICA LATINA: PROTECCION Y SOLUCIONES BAJO EL ENFOQUE PRAGMÁTICO DE LA DECLARACIÓN DE CARTAGENA SOBRE LOS REFUGIADOS DE 1984". 2004 (in Spanish).http://www.oas.org/DIL/xxxiv/Documentos/Juan%20Carlos%20Murillo/JCMurillo.DOCUME~1.DOC
- ^ a b c d e f UNHCR: Refugee protection: A Guide to International Refugee Law, 2001, ISBN 92-9142-101-4, retrieved 19 August 2015
- ^ Yewa Holiday (24 March 2017). "The Problem with the Prosecution of Refugees". University of Oxford, Faculty of Law. Retrieved 1 July 2018.
- ^ Convention relating to the Status of Refugees, Article 38.
- ^ Rose Moloney, "Does Australia's refugee policy breach UN rules?" Crikey Clarifier, Nov 29, 2012.