The limitations of the 1951 Refugee Convention

Photo source: The Blue Diamond Gallery,Refugee (2015)

<http://thebluediamondgallery.com/r/refugee.html>

The 1951 Refugee Convention was introduced following the aftermath of World War II, which saw the displacement of many Jewish refugees escaping the Holocaust. The Convention provides a definition of the term ‘refugee’ and asserts the principle of non-refoulement, which means that it is not permissible for a refugee to be returned to a country were they face persecution. Australia became a signatory in 1954 and therefore is expected to abide by the conditions set the Convention. However, this isn't all good news for those seeking asylum in countries such as Australia. There are a number of limitations associated with the Refugee Convention most notably its narrow and restrictive nature, specifically in relation to the provided definition of refugee and the rights and obligations provided with the convention.

The 1951 Refugee Convention

Article 1A(1) of the 1951 Convention provides that a refugee is,

… someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.

The Convention itself does not provide a definition for the word ‘prosecuted’ but it is has been accepted to refer to a ‘continuing threat of deprivation of life or physical freedom.’ Therefore in determining whether or not an individual seeking asylum qualifies as a refugee, factors that may be addressed include: the nature of the freedom threatened, the nature and severity of the restriction and the likelihood of the restriction eventuating in the particular case.

Additionally, Article 33 of the Convention recognises the principle of non-refoulement. This principle provides that an individual who is granted refugee status is not to be returned to a place where their life or freedom would be threatened on grounds of race, religion, nationality, and membership of a particular group or political opinion. The principle of non-refoulement is incorporated into Australian Law within the Migration Act 1958 (Cth).

Narrow Definition

The first issue associated with the 1951 Convention concerns its narrow definition of a refugee. The requirement that the applicant be fleeing persecution can be seen to exclude other instances in which individual may be subjected to suffering, injustice and discrimination, but of a form ‘that is not considered serious enough to amount to persecution.’ Furthermore, section 91R(1) of the Migration Act (Cth) provides that an individual seeking asylum will not be successful in establishing refugee status unless, their reason for seeking asylum is the essential reason for the persecution and that such persecution involves serious harm and systematic and discriminatory conduct.

Additionally, the definition of refugee provided within the 1951 Convention is only applicable to the specific grounds of, race, nationality, religious belief, political opinion or membership to a particular group. This therefore excludes individuals who are subjected to torture, cruel punishment or other infringement of democratic rights for reasons other than those specified within the Convention. For example, an individual’s facing persecution in relation to their sexual preference or gender identity may be unsuccessful in applying for refugee status.

Rights/Obligations

The second weakness associated with the 1951 Convention, is that it does not provide an individual, seeking asylum, with a right to enter another state. ‘Instead it imposes a ‘limited obligation on a national state not to expel or return a refugee to a state where he or she faces persecution’. Additionally an asylum seeker can only apply for refugee status, if they arrive physically in that country. There is no obligation on a country to take offshore applicants.

Furthermore, the Convention does not provide an individual, whom is granted refugee status, with a right to permanent residence. The principle of non-refoulement within Article 33(1) of the Convention allows refugees to be removed to a ‘safe third country’. Alternatively, under Article 1C(5) an individual who has been granted refugee status can be ‘forcibly repatriated to their home country once a government considers that the reasons for refugee status have ceased’.

In conclusion, this article has highlighted the issues associated with the 1951 Refugee Convention, namely its narrow definition and the lack of rights and security it provides. The convention is also restricted to those fleeing persecution and on the specific ground of race, religion, nationality, membership of a particular social group, or political opinion. Furthermore, while the principle of non-refoulement prevents a country from returning a refugee to a place where their life or freedom would be threatened, no right is given to an asylum seeker to enter a nation state or a right to permanent residence.

References

[1] Azadeh Dastyari, ‘Explainer: Australia’s obligations under thee UN Refugee Convention’, The Conversation (online) 18 July 2013 <http://theconversation.com/explainer-australias-obligations-under-the-un-refugee-convention-16195>.

[2] United Nations, 1951 Convention Relating to the Status of Refugees, 189 UNTS 137 (28 July 1951).

[3] Dastyari above n 1.

[4] Michael Head and Scott Mann, Law in Perspective: Ethics, Society and Critical Thinking (UNSW Press, 2nd ed, 2009.

[5] UNHCR The UN Refugee Agency, Convention and Protocol Relating to the Status of Refugees, <www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf>.

[6] International Refugee Rights Initiative: Rights in Exile Programme, The 1951 Convention relating to the Status of Refugees and its 1967 Protocol <http://www.refugeelegalaidinformation.org/1951-convention>.

[7] Ibid.

[8] Sir Elihu Lauterpacht and Daniel Bethlehem, ‘The scope and content of the principle of non refoulement: Opinion’ in Erika Feller, Volker Turk and Frances Nicholson (eds.) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, (Cambridge University Press, 2003) <http://www.unhcr.org/publications/legal/419c75ce4/refugee-protection-international-law-scope-content-principle-non-refoulement.html>.

[9] Australian Law Reform Commission, Family Violence and Commonwealth Laws – Improving Legal Frameworks, Report No 117 (2012) <http://www.alrc.gov.au/publications/22-refugee-law/refugee-law-australia-0>.

[10] Ibid.

[11] Head and Mann, above n 4, 458.

[12] Migration Act 1958 (Cth) s 91R(1).

[13] Head and Mann, above n 4.

[14] Ibid 459.

[15] Ibid.

[16] Head and Mann, above n 4, 459.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.