Universal source of international refugee protection
a) Refugee definition (Art.1)
i. Inclusion clause: Art.1A (2): Article 1(A)(2) of the 1951 Convention defines a refugee as someone who
has a well-founded fear of persecution based on race, religion, nationality, social group membership, or
political opinion. This person must be outside their country of nationality and unwilling or unable to seek
protection from that country. Similarly, a person without nationality, who is outside their former habitual
residence due to these events, and is unwilling or unable to return, also qualifies as a refugee.
ii. Exclusion clause (Art.1D, 1E, 1F)
Art.1D:
This rule doesn't apply to people currently getting help from UN organs or agencies, except the UN High
Commissioner for Refugees. If that aid stops and their status isn't resolved, they automatically get protection
under this Convention.
Article 1E:
Says it doesn't apply to someone recognized by their host country as having the rights and duties of a citizen
there.
Article 1F, Refugee Convention:
Article 1F of the Convention states that certain individuals are not eligible for refugee status if:
There are serious reasons to believe they have committed specific crimes, including crimes against
peace, war crimes, or crimes against humanity.
This also applies if they have committed a serious non-political crime before seeking refuge or have
engaged in acts against the principles of the United Nations.
iii. Cessation cluse Article 1C
Article 1C of the Convention outlines that a person under section A will no longer be considered a refugee if
they:
Choose to be protected by their home country voluntarily,
Regain lost nationality willingly,
Acquire a new nationality with protection,
Return to the country they left due to persecution fears,
The circumstances for refugee recognition cease, and they can no longer refuse home country
protection; unless they have compelling reasons from past persecution,
If stateless, can return to their former habitual residence as the circumstances for refugee status cease.
principle of non-refoulement article 33
Article 33 prohibits sending refugees back to a place where their life or freedom would be at risk due to factors
like race, religion, nationality, social group, or political opinion. However, this protection doesn't apply to
refugees considered a security threat or convicted of a serious crime.
Cartagena declaration on refugee 1984
conclusion no5:
"To reiterate the importance and meaning of the principle of non-refoulement (including the prohibition of
rejection at the frontier) as a cornerstone of the international protection of refugees. This principle is imperative
in regard to refugees and in the present state of international law should be acknowledged and observed as a
rule of jus cogens."
Refugees unlawfully in the country of refugee Article 31(1)
Article 31 states that countries should not punish refugees for entering or being in their territory without
permission if they come directly from a place where their life or freedom was at risk, as defined in Article 1.
Refugees must promptly report to authorities and provide a valid reason for their unauthorized entry or
presence.
Supervisory Responsibility of UNFCHR Article 35 & 2 of 1967 protocol
Article 35 & 2 of the Convention states that:
1. Countries agree to work with the UN Refugee Agency and any successor UN agency to support their
functions, making it easier for them to supervise the Convention's application.
2. Countries commit to providing necessary information and statistics in the required format to the UN agency,
including details about the refugees' conditions, the Convention's implementation, and relevant laws.
refugee protection under international law:
Article 5 Geneva convention:
This Convention doesn't affect any rights and benefits given by a country to refugees, except those covered by
this Convention.
Asylum and international law:
Article 14 of UDCHER states that everyone has the right to seek asylum in other countries to escape
persecution. However, this right doesn't apply if the prosecution is for non-political crimes or acts against the
purposes and principles of the United Nations.
In the Australian High Court case minister for Immigration and Multicultural Affairs Ibrahim (2000), it was
emphasized that seeking asylum doesn't guarantee success. The intentional decision was not to create new
international laws restricting a country's right to regulate immigration. The International Covenant on Civil and
Political Rights ensures the freedom to leave and return but doesn't grant a specific right of entry for asylum.
On the other hand, Article 18 of the 2000 Charter of Fundamental Rights of the European Union guarantees the
right to asylum, aligned with international conventions. Similarly, Article 22(7) of the 1969 American
Convention on Human Rights and Article 12(3) of the 1981 African Charter on Human and People's Rights
affirm the right to seek asylum in foreign territories if persecuted for political or related crimes, following state
laws and international conventions.
Explicit recognition of non-refoulement
These international agreements explicitly forbid the expulsion, return, or extradition of individuals to another
state if there are substantial grounds to believe they would face torture, enforced disappearance, or serious
human rights violations. This recognition is emphasized in the 1984 UNCAT (Article 3), the 2006 UN
International Convention for the Protection of All Persons from Enforced Disappearance (Article 16), the 1969
American Convention on Human Rights (Article 22(8)), the 1985 Inter-American Convention to Prevent and
Punish Torture (Article 13(4)), and the 2000 Charter of Fundamental Rights of the European Union (Article
19(2)).
Implicit recognition of non-refoulement
The European Court of Human Rights (ECHR) implicitly recognizes the principle of non-refoulement,
prohibiting the expulsion of individuals who would face a real risk of ill-treatment in another state. This
obligation is derived from Article 3 of the ECHR. Similarly, the Human Rights Committee emphasizes that
states must not extradite or remove individuals if there are substantial grounds for believing they would face
irreparable harm. International instruments, such as the 1951 Geneva Convention, also address the protection of
refugees, barring their transfer to unsafe countries. The European Council commits to establishing a Common
European Asylum System to ensure consistent asylum procedures and protection standards.
