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Convention Relating to the Status of Refugees

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Not to be confused with Convention on the Reduction of Statelessness.
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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.

Convention Relating to the Status of Refugees
  Parties to only the 1951 Convention
  Parties to only the 1967 Protocol
  Parties to both
  Non-members
Signed28 July 1951
LocationGeneva, Switzerland
Effective22 April 1954
Signatories145
Parties
  • Convention: 146[1]
  • Protocol: 147[1]
DepositarySecretary-General of the United Nations
Full text
1951 Refugee Convention at Wikisource

This convention was enshrined in Article 78 of the Treaty on the Functioning of the European Union.[2]

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.[3]

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, economic migrants, population displacement, environmental migrants, and modern warfare.[4] Nevertheless, ideas like the principle of non-refoulement (non-returning of refugees to dangerous countries) (Article 33) are still applied today, with the 1951 Convention being the source of such rights.[5]

History

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Prior to the 1951 convention, the League of Nations' Convention relating to the International Status of Refugees, of 28 October 1933, dealt with administrative measures such as the issuance of Nansen certificates, refoulement, legal questions, labour conditions, industrial accidents, welfare and relief, education, fiscal regime and exemption from reciprocity, and provided for the creation of committees for refugees.[5] However, the League of Nations' convention was primarily designed for the relief of refugees from the breakup of the Ottoman Empire and from the Russian Revolution, and was only ratified by nine countries, limiting its scope.[5]

The 1951 Convention was adopted by a United Nations Conference on the Status of Refugees and Stateless Persons, convened in Geneva in 1951. The convention was approved on 28 July 1951, and entered into force on 22 April 1954. It was initially limited to providing protection for European refugees from before 1 January 1951 (that is, those displaced by 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.[6]

Parties

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As of 20 January 2020, there were 146 parties to the convention, and 147 to the Protocol.[7][1][8] 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".[9]

Definition of refugee

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Article 1 of the Convention defines a refugee as a person who:[10][11]

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.[12] The UNHCR is called upon to provide international protection to refugees falling within its competence.[13] 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.[14]

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.[15]

Scholars have started to consider this definition unsuitable for contemporary society, where for example environmental refugees are not captured in the definition.[16]

Rights and responsibilities of parties

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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.[17] There are a number of provisions to which parties to the Refugee Convention must adhere.

Refugees shall

  • 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.[17]
  • 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 help the UNHCR to supervise the implementation of the provisions in the convention.[17]
  • provide information on any national legislation they may adopt to ensure the application of the convention (Article 36).[17]
  • 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 from 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[18]
  • 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.[17] 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.[17]

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)

Noncompliance

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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.[19] 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.[20]

See also

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References

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  1. ^ 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.
  2. ^ "Consolidated Version of the Treaty on the Functioning of the European Union". Official Journal of the European Union. 26 October 2012. Retrieved 6 June 2023.
  3. ^ Convention relating to the Status of Refugees, Article 5.
  4. ^ Schoenholtz, Andrew I. (2015). "The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-First Century". Chicago Journal of International Law. 16 (1). SSRN 2617336. Retrieved 6 June 2023.
  5. ^ a b c Jaeger, Gilbert (September 2001). "On the history of the international protection of refugees" (PDF). International Review of the Red Cross. 83 (843): 727–737. doi:10.1017/S1560775500119285. S2CID 145129127.
  6. ^ "No. 8791 Protocol relating to the Status of Refugees. Done at New York, on 31 January 1967". Treaty Series – Treaties and international agreements registered or filed and recorded with the Secretariat of the United Nations (PDF). Vol. 606. United Nations. 1970. p. 268. Retrieved 19 October 2013.
  7. ^ UNHCR: States Parties to the Convention and Protocol, retrieved 15 July 2010
  8. ^ "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.
  9. ^ Joan Fitzpatrick, "The International Dimension of U.S. Refugee Law", 15 Berkeley J. Int'l. Law 1, Berkeley Law Scholarship Repository, 1997
  10. ^ United Nations High Commission for Refugees. (2012). Text of Convention. Retrieved 5 May 2012. Archived 7 June 2012 at the Wayback Machine
  11. ^ "What is a Refugee? Definition and Meaning | USA for UNHCR". unrefugees.org. Retrieved 23 October 2022.
  12. ^ United Nations High Commission for Refugees 2011 § C(8).
  13. ^ United Nations High Commission for Refugees 2011 § E(14).
  14. ^ Protocol Relating to the Status of Refugees of 31 January 1967 – English text, Article I § 2.
  15. ^ 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
  16. ^ Lee, Eun Su; Szkudlarek, Betina; Nguyen, Duc Cuong; Nardon, Luciara (April 2020). "Unveiling the Canvas Ceiling: A Multidisciplinary Literature Review of Refugee Employment and Workforce Integration". International Journal of Management Reviews. 22 (2): 193–216. doi:10.1111/ijmr.12222. ISSN 1460-8545. S2CID 216204168.
  17. ^ 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
  18. ^ Yewa Holiday (24 March 2017). "The Problem with the Prosecution of Refugees". University of Oxford, Faculty of Law. Retrieved 1 July 2018.
  19. ^ Convention relating to the Status of Refugees, Article 38.
  20. ^ "Crikey clarifier: does Australia's refugee policy breach UN rules?". crikey.com.au. 29 November 2012. Retrieved 23 October 2022.
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