1951 REFUGEE CONVENTION

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1951 REFUGEE CONVENTION

• The main international refugee treaty is the 1951
  UN Convention relating to the Status of Refugees
  and its 1967 Protocol
• Article 14(1) of the Universal Declaration of
  Human Rights also states Everyone has the right
  to seek and enjoy in other countries asylum from
  persecution

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WHY?

• A) Horrors prior to and including the Second
  World War
• B) Help find a solution to the millions of people
  displaced following the Second World War.
• By February 1997 126 countries had ratified both
  the Convention and Protocol

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Who are refugees?

• The UN Refugee Convention 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 and is unable or,
  owing to such fear, is unwilling to (cont.)

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(Cont.)

• avail himself of the protection of that country
  (Article 1 A2)
• It is this definition that has been incorporated
  into Australias 1958 Migration Act.
• In practice different states apply this
  definition differently

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Non-refoulement

• Fundamental to the protection of refugees is the
  principle of non-refoulement
• that no body should be forcibly returned to a
  country where his or her life or freedom would be
  at risk
• This is spelled out in Article 33 of the 1951
  Convention

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Article 33

• 1. No Contracting State shall expel or return
  (refouler) a refugee in any manner whatsoever
  to the frontiers of territories where his life or
  freedom would be threatened on account of his
  race, religion, nationality, membership of a
  particular social group or political opinion.

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Declining commitment to refugees

• Increasingly Western governments have introduced
  ways to hinder asylum seekers, e.g. fines for
  airlines, visa controls, e.t.c.
• Measures to prevent people from reaching borders
  are dubbed non-entrée
• The use of safe third countries is also
  increasing

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Non-refoulement

• A number of other Conventions and agreements
  establish non-refoulement as a rule of
  international customary law
• These include the UNCAT (Article 3) and the ICCPR
• Also EXCOM Conclusion 6
• as well as regional agreements, eg the European
  Convention for the Protection of Human Rights and
  Fundamental Freedoms

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What is EXCOM?

• The work of UNHCR is overseen by its Executive
  Committee (EXCOM), which is comprised of
  representatives of 57 states particularly
  involved in refugee matters.
• At its annual meeting EXCOM makes decisions
  (Conclusions) which, while not legally binding,
  are adopted by consensus (over 40 states).

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EXCOM

• As they represent the views of the international
  community EXCOM Conclusions carry persuasive
  authority.
• EXCOM has repeatedly stated that in all cases the
  fundamental principle of non-refoulement
  including non-rejection at the frontier must be
  ensured. (Conclusions 6 and 22)

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EXCOM

• EXCOM has also stated that there must be a
  clearly identified authority responsible for
  examining requests for refugee status and that a
  frontier authority should not reject an asylum
  claim without reference to that authority. (EXCOM
  Conclusions 8 15(j))

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Chain refoulement

• Refugees who are sent back to another country
  which then sends them back to their home country
  are said to suffer indirect or chain refoulement,
  which similarly contravenes the protection
  provided for under Article 33.

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Obstructing and deterring

• In recent years many states have taken measures
  to obstruct refugees trying to reach their
  frontiers.
• For example, in 1992 the USA intercepted Haitian
  boats and summarily returned them in what was
  seen as a direct violation of non-refoulement.
  (This was rejected by the US Supreme Court in
  what is widely felt as a political rather than
  judicial decision).

14
A question of sovereignty?

• Increasingly governments are claiming they are
  entitled to take actions against those who try
  and enter their territory illegally
• However Article 31(1) clearly states The
  Contracting States shall not impose penalties, on
  account of illegal entry or presence, on
  refugees, provided they present themselves
  without delay

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International refugee law

• International refugee law does not require that a
  refugee must seek asylum in the first country
  whose territory he or she reaches
• It is the country where he or she applies for
  asylum which is obliged to consider the
  application substantively and to ensure that the
  refugee is not directly or indirectly returned to
  face persecution

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International refugee law

• The only recognised exception is where an
  applicant has found protection in another country
• Many EU states have implemented a number of
  policies which abuse the principle of first
  country of asylum eg the Schengen Supplementary
  Agreement
• Also host third country (sent without asking
  consent of the third country)

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International refugee law

• A state can only be released from its obligation
  to consider someones asylum application
  substantively if that responsibility is assumed
  by a safe third country.
• It first must establish that the third country is
  both safe and explicitly guarantees that it will
  take on the responsibility.

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International refugee law

• Even with these guarantees people should not be
  removed if they have a compelling reason to to
  remain, e.g. family links

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Future implications

• Those processed in under UNHCR mandate
   resettlement where?
• Those processed out  no safety net for those at
  risk of non-Convention refoulement grounds
• Those clearly not refugees, but temporarily
  unsafe for their return
• Those clearly not at any risk if returned, but
  currently can't get entry for practical reasons -
  where to in the meantime?

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Conclusion

• Given Australias responsibilities under
  international refugee law serious concerns are
  obviously raised following its handling of the
  Tampa incident.