International

Refugee Law
Introductory

Introductory
International

law of refugees is a branch of

International human rights law which was developed
to protect human being in specific circumstances.
Refugees are the most persecuted and vulnerable
group of people in the present world.
In recent times the number of refugees has been
increasing inter alia as a result of armed conflicts,
natural disasters and environmental degradation in
various parts of the world.
International refugee law mainly comprises of
international instruments that define basic standards
for treatment of refugees.
Refugee law encompasses customary law, peremptory
norms and international legal instruments.

Main Sources of International Refugee Law

Universal Treaties

(A) The 1951 Convention Relating to the Status of

Refugees
-The 1951 Convention is the starting point for any
discussion about international refugee law. It is one of
only two universal refugee instruments and the second
is the 1967 Protocol to the 1951 Convention.
(B) The 1967 Protocol Relating to the Status of Refugees
-The aim of the 1967 Protocol was to acknowledge the
applicability of the 1951 Convention to contemporary
refugee movements.
-The Protocol is an independent instrument to which
States may accede without becoming Parties to the
1951 Convention, though this rarely happens.

Main Sources of International Refugee Law

Regional Treaties

(A) The 1969 OAU Convention Governing the Specific

Aspects of Refugee Problems in Africa
This Convention was adopted in 1969 by member States
of the Organization of African Unity (now the African
Union).
This regional treaty complements the 1951 Convention by
containing a broader refugee definition.
(B) Cartagena Declaration, 1984
-In 1984, a colloquium of government representatives and
distinguished Latin American jurists was convened in
Cartagena, Colombia to discuss the international
protection of refugees in the region.
-This gathering adopted what became known as the
Cartagena Declaration.

Main Sources of International Refugee Law

(C) The UN Declaration on Territorial Asylum, 1967
In 1967, the UN General Assembly adopted a Declaration on
Territorial Asylum directed toward States.
The Declaration reiterates that granting asylum is a peaceful
and humanitarian act that cannot be regarded as unfriendly
by any other State.
(D) Some Soft Law Instruments

1.The Declaration of States Parties to the 1951 Convention

and/or its 1967 Protocol (2001)
2.The Declaration on Territorial Asylum (1967)
3.Executive Committee (Ex Com) Conclusions on the
international protection.
(D) Some European Union Instruments
(E) Customary International Law
(F) Judicial Decisions and Academic Opinion

The 1951 Convention declares that-Protection must be extended to all refugees without
discrimination;
-Minimum standards of treatment must be observed in relation
to refugees, who, for their part, have certain duties towards
the State that hosts them;
-Expulsion of a refugee from the country of asylum is of such
gravity that it should only take place in exceptional
circumstances, on the basis of national security or public
order risks;
-As the provision of asylum may place an undue burden on
certain States, satisfactory solutions can only be achieved
through international cooperation;
-Protecting refugees is a humanitarian gesture, and so the
granting of asylum should not cause tension between States;
-States must cooperate with UNHCR in the exercise of its
functions and facilitate its task of supervising the proper
implementation of the Convention.

Significance of the 1951 Convention

The Convention has been a major achievement

in international refugee law since:

-It contained a general definition of the term
refugee (Art.1);
-It embodied the principle of non-refoulement
according to which no person shall be returned
to a territory where he or she may be exposed to
persecution. (Art.33);
-It set the minimum standard of treatment of
refugees, including the basic rights to be
granted, and the duties of refugees vis--vis
their country of refuge;

Significance of the 1951 Convention

-It contained provisions that concern their legal
status, gainful employment and welfare;
-It contained provisions regarding the issue of
identify and travel documents, naturalization
and other administrative matters;
-It required states to cooperate with UNHCR in
the exercise of its functions and to facilitate
the task of supervising the application of the
Convention.

Limitations of the 1951 Convention

When the 1951 Convention was adopted, states were

concerned to focus mainly on the existing refugee problems,

and necessarily not to assume obligations for the future, the
extent of which could not be foreseen.
It resulted in two major limitations:
i. The 1 January 1951 dateline; and
ii. The geographical limitation only for Europe.
The benefits of the Convention were not to apply to persons
who corresponded to the definition, but who became
refugees as a result of events occurring before 1 January
1951.
The events just referred to could be understood to mean either
(i) Events occurring in Europe before 1 January 1951, or
(ii) Events occurring in Europe or elsewhere before 1 January
1951.

Who is a Refugee? General Definition

According to Blacks Law Dictionary, a refugee is a

person who flees or is expelled from a country,

especially because of persecution and seeks heaven
in another country.
Under international law, refugees are individuals
who:
a. Are outside their country of nationality or former
habitual residence;
b. Have a well-founded fear of persecution because
of their race, religion, nationality, membership of a
particular social group or political opinion; and
c. Are unable or unwilling to avail themselves of the
protection of that country, or to return there, for
fear of persecution.

Who is a Refugee? General Definition

The 1951 United Nations Convention Relating to

the Status of Refugees has adopted in its Article

1 (A) (2) the following definition of a refugee:
Any 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 to or, owing to such fear,
-Is unwilling to avail himself of the protection of
that country.

Who is a Refugee? General Definition

The 1967 Protocol relating to the Status of

Refugees refined the definition of a refugee as a

person who:
i. Is outside his/her country of nationality or
former habitual residence.
ii. Has a well-founded fear of persecution because
of his/her race, religion, nationality, membership
in a particular social group or political opinion.
and
iii. Is unable or unwilling to avail himself of the
protection of that country, or to return there, for
fear of persecution.

Who is a Refugee? General Definition

Art. 1 (2) of the 1969 Organization of African

Unity (OAU) Convention also defines a refugee

asAny person-Compelled to leave his or her country.
-Owing to external aggression, occupation,
foreign domination or events seriously
disturbing public order.
-In either part or the whole of his country or
origin or nationality."

Who is a Refugee? General Definition

The 1984 Cartagena Declaration states that

refugees also include personsWho flee their country-Because their lives, security or freedom have
been threatened.
-By generalized violence, foreign aggression,
internal conflicts, massive violations of
human rights, or
-Other circumstances which have seriously
disturbed public order.

Extended Definition of Refugees

under the 1951 Convention
The 1951 Convention Relating to the Status of

Refugees strives to define refugee from different

angles.
This convention indeed provided a total of three
clauses to define refugee in its clause (A) to (F)
under Article 1.
In the clauses (A) to (F) the 1951 Convention
defines the term refugee conclusively by asking
a total of three questions:
1. Who shall be included as refugees?
2. Who shall be ceased to be refugees?
3. Who shall be excluded from the status of
refugees?

Extended Definition of Refugees

under the 1951 Convention
Art.1 of the Convention from clause (A) to (F)

defines the term refugee by mentioning that1. Who shall be included as refugees,
2. Who shall be ceased to be refugee and
3. Finally who shall be excluded from the status of
refugee.
Thus, the provisions of the 1951 Convention,
defining who a refugee is, consist of three clauses:
1. Inclusion clauses- Art.1 (A) (2)
2. Cessation clauses- Art.1 (C)
3. Exclusion clauses- Art.1 (D), (E) and (F)

Inclusion Clauses-Art. 1 (A) (2)

According to Article 1 A (2) of the 1951 Convention the

term refugee shall apply to any person who:

1. As a result of events occurring before 1 January 1951 and
2. Owing to well-founded fear of being persecuted
3. For reasons of race, religion, nationality, membership of
a particular social group or political opinion
4. Is outside the country of his nationality and
5. Is unable or, owing to such fear,
6. Is unwilling to avail himself of the protection of that
country; or
7. Who, not having a nationality and being outside the
country of his former habitual residence as a result of
such events, is unable or unwilling to return to it.

2. Cessation Clauses-Art. 1 (C)

Article 1 (C) of the 1951 Convention states that:

This Convention shall cease to apply to any person falling under

the terms of Art.1 (A) if:
(1) He has voluntarily re-availed himself of the protection of the
country of his nationality; or
(2) Having lost his nationality, has voluntarily re-acquired it, or
(3) He has acquired a new nationality, and enjoys the protection
of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country
which he left or outside which he remained owing to fear of
persecution; or
(5) He can no longer, because the circumstances in connation
with which he has been recognized as a refugee have ceased
to exist, continue to refuse to avail himself of the protection of
the country of his nationality;

2. Cessation Clauses-Art. 1 (C)

(6) Being a person who has no nationality
(stateless)
he
is,
because
of
the
circumstances in connation with which he has
been recognized as a refugee have ceased to
exist, able to return to the country of his
former habitual residence.

3. Exclusion Clauses-Art.1 (D), (E), (F)

The exclusion clauses stipulate that the Convention shall not

apply to persons who would otherwise qualify but do not

need or deserve protection.
The 1951 Convention, in Sections (D), (E) and (F) of Article 1,
contains provisions whereby persons otherwise having the
characteristics of refugees, are excluded from the refugee
status.
Such persons fall into three groups:
1. The first group (Article 1 D) consists of persons already
receiving United Nations protection or assistance;
2. The second group (Article 1 E) deals with persons who are
not considered to be in need of international protection; and
3. The third group (Article 1 F) enumerates the categories of
persons who are not considered to be deserving of
international protection.

3. Exclusion Clauses-Art.1 (D), (E), (F)

First Group: The persons already receiving UN

protection or assistance- Art.1 (D)

Second Group: Deals with persons who are not
considered to be in need of international
protection.-Art. 1 (E)
Third Group: Enumerates the categories of
persons who are not considered to be deserving
of international protection.-Art. 1 (F)