Refugee protection under the 1951 Refugee Convention

Martin Jones Centre for Applied Human Rights

University of York martin.jones@york.ac.uk

HKBA’s Convention Against Torture Training and Accreditation Programme 11 June 2017

1. Background to the Refugee Convention 2. Definition of refugee 3. Non-refoulement of a refugee 4. Rights of refugees beyond non-refoulement 5. Role of UNHCR and resettlement

1 BACKGROUND

Background to the Refugee Convention

• Developed after a series of treaties and agreements between WWI and WWII

• Not strictly (or solely) a “human rights” treaty • 146 state parties • Supplemented by the Refugee Protocol

Limited number of state parties (in Middle East and Asia)

Article 40(1)

Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. Such a declaration shall take effect when the Convention enters into force for the State concerned.

Non-extension to Hong Kong

• UK did not extend Refugee Convention to HK • China has not extended Refugee Convention

to HK – Though it has been extended to Macau

• Article 40(3) requires that China “shall consider the possibility of taking the necessary steps” to extend the Refugee Convention

2 DEFINITION OF REFUGEE

The Definition

For the purposes of the present Convention, the term "refugee”, shall apply to any person who … 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

Not the only definition of refugee

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.

OAU Refugee Convention of 1969, Article 1(2)

Modifications

• The Refugee Convention imposes a temporal (pre-1951) limitation

• The Refugee Convention allows for a geographic (European) limitation

• The Refugee Protocol of 1967 withdrew the temporal limitation and (largely) removed the geographic limitation – Turkey is the (now significant) exception to this

proposition

Being a refugee

• Fixed, closed category • Necessary excludes some migrants

– Including some forced migrants

• Includes: – Criteria for inclusion (Article 1(A)(2)) – Criteria for exclusion (Article 1(D), (E) and (F)) – Criteria for cessation (Article 1(C))

Interpretation of the Refugee Convention

“[T]he enquiry must be into the meaning of the Refugee Convention approached as an international instrument created by the agreement of contracting states as opposed to regulatory regimes established by national institutions. It is necessary to determine the autonomous meaning of the relevant treaty provision.”

R. v. SSHD ex parte Adan and Aitsegur [1998] UKHL 15

“Determining” refugee status

A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee. UNHCR Handbook on Procedures for Determining Refugee Status (1979) ¶ 28.

Application of the VCLT

• The Vienna Convention on the Law of Treaties sets out how to interpret treaties

• Interpretative principles set out in Articles 31 to 33

Article 31(1)

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Articles 31(2) and (3)

• “Context” includes other agreements made at the time by the parties and other instruments made in connection and accepted by the parties as related

• In addition to “context”: – Subsequent agreements – Subsequent practice – Any other applicable rules of international law

Article 32

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable.

In the context of the Refugee Convention

• Being aware of the object and purpose of the Refugee Convention

• Interpreting in good faith • Examining the practice of other states, including

as expressed in their jurisprudence • Looking at international policy (as subsequent

agreements and as practice), including guidance of UNHCR

• Understanding the negotiating history of the Refugee Convention

Three case studies

• Case 1: Mya, a young woman from Burma • Case 2: Ahmed, a doctor from Syria • Case 3: Berta, an activist from Honduras

The Definition

For the purposes of the present Convention, the term "refugee”, shall apply to any person who … 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

Elements of the definition

1. Well-founded fear of persecution 2. For reasons of an enumerated ground 3. Outside country of nationality 4. Unable or unwilling avail of state protection

The Definition

For the purposes of the present Convention, the term "refugee”, shall apply to any person who … 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

Well-founded fear • Objective risk of harm • By acts committed by the state or non-state

agents of persecution • Based upon a consideration of personal risk and

the general situation – No requirement of past persecution – But past persecution is relevant – Documented situation of similarly situated individuals – Based upon reliable sources

• Forward looking test – What will happen in the future …

Level of certainty of harm

• Less than absolute certainty • Less than certainty beyond a reasonable doubt • Less than certainty on a balance of probabilities "good grounds", "reasonable chance”, "reasonable possibility”, "serious possibility” • More than a mere possibility

Of being persecuted • Persecuted is not defined • Is broader than “torture” and CIDTP (although

these would be included as persecution) • “A serious and systematic violation of human

rights” • Interference with a right

– Examine the nature of the rights (eg. absolute and non-derrogable)

• Cumulative / holistic analysis • In the circumstances of the individual

“Although persecution does not require bodily harm or a threat to life or liberty . . . [it] is an extreme concept that does not include every sort of treatment our society regards as offensive . . . ”

-Fisher v. INS (9th Cir., 1996)

• Persecution vs. – Harassment or discrimination

• Is the harmful act “serious” enough?

– Prosecution • Is the harmful act a violation of a “right”?

– Pay attention to how “the law” is applied – Eg. Military service evasion / Conscientious objection

• Internal relocation alternative – Risk elsewhere in country of origin – Implications (including new risks) of living

elsewhere

The Definition

For the purposes of the present Convention, the term "refugee”, shall apply to any person who … 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

Nexus • One of five enumerated grounds:

– Race – Religion – Nationality – Political opinion – Membership in a particular social group

• Real or perceived • No need for claimant to identify • May be one or more grounds

Membership in a particular social group

Each of these grounds describes persecution

aimed at an immutable characteristic: a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed.

Canada (A.G.) v. Ward [1993] 2 S.C.R. 689 at 737 (LaForest)

Judicially recognised social groups include…

Based on an individualised consideration of the individual and social context: • The poor; street children; homeless

individuals; etc. • Gender; sexual orientation; etc. • HIV positive; mentally ill; albinos; etc. • Family members* • Trade union activists; journalists; teachers;

police; etc.

For reasons of

• Need not be the sole (or even dominant) reason

• Need only be a contributing factor • May be the reason for

– The actions of the agent of persecution – The lack of state protection

Minister for Immigration and Multicultural Affairs v. Khawar [2002] HCA 14, 11 April 2002 (High Court of Australia)

Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.

MIMA v. Khawar [2002] HCA 14 at ¶ 31

The Definition

For the purposes of the present Convention, the term "refugee”, shall apply to any person who … 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

Alienage

• Usually the last criterion to be fulfilled • The exception are sur place claims where an

individual is outside country when risk arises – Change in circumstances in the country

• Revolution, new discovery of past activities, etc.

– Change in circumstances of the individual • New religious or political views, etc.

The Definition

For the purposes of the present Convention, the term "refugee”, shall apply to any person who … 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

State protection

• No protection is perfect • Presumption that a state is able to offer

protection • Analysis will vary depending on agent of

protection

A claimant must provide clear and convincing confirmation of a state’s inability to protect absent an admission by the national’s state of its inability to protect that national. Except in situations of complete breakdown of the state apparatus, it should be assumed that the state is capable of protecting a claimant. This presumption, while it increases the burden on the claimant, does not render illusory Canada’s provision of a haven for refugees. It reinforces the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant.

Canada (Attorney General) v. Ward

[1993] 2 S.C.R. 689

Cessation and exclusion

• Even if you meet the inclusion criteria (eg. fall within Article 1(A)(2)) you are not a refugee if… – The reasons for you needing protection have

ceased (Aricle 1(C)) – You do not need international protection (Article

1(D) and 1(E)) – You are undeserving of international protection

(Article 1(F))

Articles 1(D) and 1(E)

• Article 1(D): Excludes Palestinian refugees receiving assistance from UNRWA

• Article 1(E): Excludes individuals with status akin to nationality elsewhere – In cases of multiple nationality a claim must

succeed against all countries

Article 1(F): The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war

crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) (c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

3 NON-REFOULEMENT

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.

Article 33(2)

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 judgement of a particularly serious crime, constitutes a danger to the community of that country.

Article 33(2)

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 judgement of a particularly serious crime, constitutes a danger to the community of that country.

Non-refoulement • Refoulement prohibited to refugees in Article

33(1) (with the exception of Article 33(2)) • Prohibition applies only to refoulement not

expulsion to a “safe” country – Consider risk of “chain” refoulement – Some protections against expulsion in Article 32

• Is also prohibited – By domestic law (BORO, Ubamaka) – By other treaties (eg. CAT, ICCPR, CED) – By customary international law

4 (OTHER) RIGHTS OF REFUGEES

Rights of refugees

• Articles 3 to 33 detail refugees’ rights • These rights include:

– Access to courts (Article 16) – Right to education (Article 22) – Right to work (Articles 17 – 19)

• A complicated rights framework – Depends on local status (“attachment” of refugee – Depends on the policies / laws of the host state

(“comparator groups”)

Attachment

Article 32 The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

1 2 3 4 5

Comparator groups

Article 22(1) The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.

If rights are defined as relative to the rights of a comparator group, then one of the following groups will be the basis of comparison:

NATIONALS

MOST FAVOURED ALIENS

ALIENS GENERALLY

OR

OR

ABSOLUTE

5 ROLE OF UNHCR AND RESETTLEMENT

UNHCR • Created by UN General Assembly resolution

with (now) indefinite mandate – Also has mandate for stateless persons and ad hoc

mandate for IDPs – Slightly different definition of refugee (see Article

6B)

• Supervisory function under Article 35 of the Refugee Convention – A different model than subsequent treaty bodies

• Largest UN agency, in terms of staff and budget

Resettlement … some numbers Globally

Global population of forcibly displaced 60,000,000

Global population of refugees within UNHCR’s mandate 21,000,000

Global population in need of resettlement 1,200,000

Global submissions to states by UNHCR for resettlement (annually) 134,000

Global departures for resettlement 82,000

Regionally

Regional (Asia) refugees in need of resettlement 153,000

Regional (Asia) target for submission by UNHCR for resettlement (annually)

9,200

Regional (Asia) capacity for submission by UNHCR for resettlement (annually)

4,800

Dependence on one country

Percentage of resettlement by USA 62%

Referral for resettlement

1. Referral to UNHCR 2. Resettlement screening by UNHCR 3. Referral to a state 4. Screening by the state 5. Approval of resettlement 6. Arrangement of logistics of resettlement 7. Departure