Symposium on the 1951 Refugee Convention at 75: Introduction

[Massimo Frigo is a Senior Policy Officer in the Protection Policy and Legal Advice Section (DIPS) at the UNHCR.

Cornelis (Kees) Wouters is a Senior Refugee Law Adviser in the Protection Policy and Legal Advice Section (DIPS) at the UNHCR.]

Seventy-five years is a veteran age for everyone; even for a multilateral treaty. It is sufficient time to live through paradigmatic changes, different generations, new forms of persecution, conflict and causes for flight, and politicized practices undermining treating refugees with dignity. 

When the 1951 Convention relating to the Status of Refugees (‘the 1951 Convention’) was finalized, the Universal Declaration of Human Rights had just been adopted. The only international human rights law treaty existing was the European Convention on Human Rights, adopted in 1950, but not yet entered into force. With the exception of labour rights under the International Labour Organization, the individual was pretty much a bystander spectator of the desires of State powers. 

It is in this environment that the 1951 Convention saw the light of the day. 

At the time, State representatives believed that the “refugee problem,” as they called it, would soon be resolved. They drafted the Convention to reach this goal. As the UN Secretary-General affirmed in his report introducing the draft Convention, the goal of this treaty was for refugees to:

“be integrated in the economic system of the countries of asylum and […] provide for their own needs and for those of their families. […] It is essential for the refugee to enjoy an equitable and stable status, if he is to lead a normal existence and become assimilated rapidly”.

(UN Doc. E/AC.32/2)

When he opened the Conference of Plenipotentiaries that adopted the final text of the 1951 Convention, the first UN High Commissioner for Refugees, Gerrit Jan van Heuven Goedhart, himself a former refugee, clarified how the Convention was going to achieve this objective:

One of the main disabilities under which refugees laboured was their uncertainty of status, since in their case there was no link between the individual and international law, nor did the protection of the Government of their country of nationality extend to them. Their position was both precarious and unfortunate, since they were bereft of the benefits of international law which possession of nationality normally ensures. A Convention of the type proposed would give refugees their proper standing in international law, and would more clearly define their rights and duties, not only in their own interest but also in that of the governments of the countries in which they reside.

(UN Doc. A/CONF.2/SR.2, p. 9)

The 1951 Convention was therefore adopted with the clear objective of enlivening the right of refugees to be recognized as a person before the law as other individuals in the country of asylum and, hence, be able to access their rights and a life in dignity.

In one way, the 1951 Convention achieved its objective. At the time of its adoption, it addressed the refugees “as a result of events occurring before 1 January 1951” in Europe. Indeed, through the 1951 Convention, the Contracting States achieved the objective to provide access to rights, inclusion in national systems and solutions to such refugees. 

As we know, however, the ‘refugee problem’, today and across the world, has not been solved. As a reality that has accompanied the tragedy of displacement in human history, refugees continue unfortunately to exist. Seventy-five years later, the challenges are different, the political context dire, and multilateralism under increasing pressure. And forced displacement has not been solved; in fact, it has reached troubling heights. 

In this world, the 1951 Convention, now ‘globalized’ through its 1967 Protocol, remains the structural legal framework allowing refugees to be recognized as persons before the law, be included in new communities, and, as such, to concretely access rights in their country of asylum.

Under Article 35 of the 1951 Convention, States are obliged to facilitate UNHCR in exercising its mandate, particularly to supervise the application of this treaty. This unique duty seeks to promote consistency in the interpretation and application of this legal instrument.

In this supervisory framework, the 1979 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and its supplementary Guidelines on International Protection are amongst the most influential and enduring guidance documents in the field of refugee law. They have had a direct impact on the lives and freedoms of refugees. They have contributed to the recognition of refugee status for persons persecuted for their sexual orientation or their gender; their politics or because they were trafficked. Thanks to these documents, a Colombian farmer persecuted by guerilla groups or paramilitaries with no State protection has been able to be recognized as a refugee and find international protection. The same is possible for a woman at risk of female genital mutilation, or of intimate partner violence to which the police refuses or is unable to respond. The Handbook and Guidelines can mean protection and a future for a child forcibly recruited, exploited and abused by militias in one of the many conflicts proliferating in the world today.

Supervision in refugee law, however, must be conducted through dialogue. UNHCR guidance has been cited, adopted and sometimes critiqued. Academic scholarship and courts have enriched doctrinal debates and highlighted gaps and inconsistencies. The Convention has become a living instrument precisely because it has been interpreted dynamically across jurisdictions, regions, academic paradigms and legal traditions.

It is the right time to take stock of how key stakeholders working with refugees and refugee law value the centrality of the 1951 Convention in the system of refugee protection that interacts with other bodies of law and what can be done to ensure its vitality to provide refugees a life in safety and with dignity, protecting them from harm and allowing them to rebuild their lives in the decades ahead. This is why UNHCR, with the kind support of Opinio Juris, has organized this global symposium hosting contributions on the relevance of the 1951 Convention relating to the Status of Refugees (and/or its 1967 Protocol). While we should say, as it is practice, that the contributions may not necessarily always reflect UNHCR’s views, they provide a much-needed kaleidoscope of opinions to support the work of promotion and protection of the 1951 Convention. We are therefore extremely grateful for the precious contributions of all the authors of this Symposium.

In the following contributions to this Symposium, the Director of UNHCR’s Division of International Protection and Solutions, Elizabeth Tan will outline how the 1951 Convention has been used and has adapted to protect refugees while addressing ever-changing situations of forced displacement saving millions of lives. In her piece Relevance, Clarity and Application, Elizabeth Tan will outline the object and purpose of the 1951 Convention, its scope and what UNHCR can do to ensure its lasting relevance as a “living document” able to address contemporary challenges of forced displacement.

Mustafa Alio, Co-Manager of R-SEAT, is going to address, in his piece The Convention is not a Relic, it is a Warning, the relevance of the 1951 Convention from the key perspective of refugees themselves. Based on his own experience of forced displacement, the contribution by Mustafa Alio underlines the true strength of the 1951 Convention as the basis for any principled action to protect refugees, while tackling the pressures currently straining the refugee protection system and their pernicious effect.

The contribution by Professors Guy Goodwin-Gill and Jane McAdam, The Convention and the 1967 Protocol – Relevance and a Continuing Foundation for Protection?,  provides a realistic look at the limits of the 1951 Convention, but also at its achievements, such as the recognition of the principle of non-refoulement as a fundamental right or its use to address contexts of gender-based violence and sexual orientation. The authors outline the challenges ahead that UNHCR will need to consider, including in its legal guidance. First and foremost, the role of international cooperation in refugee protection and the role UNHCR ought to take in its promotion.

Professors Liliana Jubilut and James Milner, co-chairs of the Global Academic Inter-Disciplinary Network, will outline in their contribution, (Re)Centering the Right of Asylum and Refugees, the relevance of the 1951 Convention and its three key features: the refugee definition, the core principles of non-refoulement and non-discrimination and the minimum standards of protection for refugees that it sets. Building on the framework of the Global Compact on Refugees, Professors Jubilut and Milner will outline how the global academic community can work to make the 1951 Convention a lively document for refugee protection.

In their contribution, Everlasting Cornerstone of Refugee Protection in Europe, Karolina Babická, Senior Legal Adviser of the International Commission of Jurists, Rosa Tibbetts, Legal Intern at the International Commission of Jurists, and Stavros Papageorgopoulos, Senior Legal Officer of the European Council on Refugees and Exiles, address the relevance of the 1951 Convention in the European legal systems amidst the current challenges that the protection system is facing. The authors address the importance of the Convention in the Council of Europe’s system and, in particular, in the jurisprudence of the European Court of Human Rights in interpreting the European Convention on Human Rights. They also outline the centrality of the 1951 Convention in the law of the European Union, both in its legislative instruments and in the jurisprudence of its Court of Justice.

Professor Matthew Gillet, Chair of the Platform of Independent Experts on Refugee Rights (PIERR) and member of the UN Working Group on Arbitrary Detention, provides us with a contribution, Its Enduring Role in Human Rights Protection, outlining the importance of the 1951 Convention for the UN human rights system. The piece demonstrates the interconnection of the 1951 Convention and human rights law both in terms of the jurisprudence of UN treaty bodies as well as of its use in the system of human rights protection provided both by treaty-based and Charter-based bodies.

Professor Vincent Chetail, in his contribution Resilience in Times of Contestation: The Turbulent Destiny of the Refugee Convention, provides us with an excursus into the origins of the 1951 Convention and its evolution through history following the different challenges of States and forced displacement through time. Professor Chetail shows that the current vitality of the 1951 Convention as a binding treaty is:

“not primarily a function of what it contains […] but from its embeddedness in a broader normative ecosystem that has progressively supplied, updated, and reinforced its protective content.”

The Honorable Russel W. Zinn, retired Justice of the Federal Court of Canada and President of the International Association of Refugee and Migration Judges, participates with a contribution on The Continuing Relevance to the Judiciary in Canada. Justice Zinn’s opinion piece details the most recent jurisprudence of Canadian apex courts and the increasingly prominent role given to the 1951 Convention in the interpretation of sensitive concepts such as national security and non-refoulement.

Finally, Professor Geoff Gilbert develops, in Living and Dynamic – With a Little Help from its Friends, the argument of the 1951 Convention as a living instrument, in particular in light of the supervisory role assigned to UNHCR by its Article 35. Professor Gilbert addresses the important role that UNHCR legal guidance played in shaping the interpretation of the Convention. He concludes by providing insightful advice on how UNHCR guidance should evolve to maintain the vitality of the 1951 Convention as a central instrument for the protection of refugees. 

As these interventions will show, the 1951 Convention is extremely relevant today, probably even more than 75 years ago. Much work is still needed to ensure refugees can live a dignified life like everyone else. This requires refugees to be able to move from survival to solutions with States providing them with trusted documents, with inclusion in education, housing and social protection programs, and allowing them to move and access the labour market. To achieve this, today, as seventy-five years ago, we have a Convention to lead the way.

Photo attribution: by Pawel Czerwinski on Unsplash