Symposium on the 1951 Refugee Convention at 75: With a Little Help from its Friends: the 1951 Convention relating to the Status of Refugees at 75

[Geoff Gilbert is a Professor at the School of Law and Human Rights Centre, University of Essex, Senior Adviser to PPLA, DIPS, UNHCR and Head of Research for the Criteria Volume of the new Handbook]

The 1951 Convention relating to the Status of Refugees is celebrating its 75^th birthday. In the same way as if it were a human being, after 75 years it looks very different from it did ‘at birth’. The language may not have changed much, just that which was introduced by the 1967 Protocol, but the understanding of the remit of the Convention has been substantially refined in the light of legislative and case law developments.

There is no ‘international refugee court’ or a treaty body mechanism to receive individual communications that could interpret the 1951 Convention akin to the Human Rights Committee under the International Covenant on Civil and Political Rights. Differences between states about the interpretation of the 1951 Convention can be resolved by a decision of the International Court of Justice under Article 38 thereof, but that has never happened thus far. On the other hand, the jurisprudence from national courts has been prolific. 

However, while Lord Steyn may have famously opined that:

there can only be one true interpretation of a treaty [and that national courts must] […] must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning (R v Secretary of State for the Home Department, Ex parte Adan, Ex parte Aitseguer), 

the decision of one nation’s courts is never binding on another state. 

Nevertheless, given the exponential growth in national case law on the 1951 Convention, this treaty is definitely ‘living’, potentially ‘over-dynamic’, and apparently lacking central oversight of the multiple domestic decisions. Fortunately, while no interpretative treaty tribunal was established in 1951, the Convention did create a means for authoritative treaty interpretation as is set out in Article 35:

35.1. The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, …, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention. (emphasis added; and see Walter Kälin, ‘Supervising the 1951 Convention Relating to the Status of Refugees: Article 35 and beyond’, in Erika Feller, Volker Türk and Frances Nicholson, Refugee Protection in International Law, CUP 2003)

Like any other actor interpreting a treaty, UNHCR should apply the standard approach. First, it should see to what extent the treaty itself defines its own terms. Where that does not resolve all issues, then reference can be made to the customary international law of treaty interpretation that is reflected in the language of the Vienna Convention on the Law of Treaties (VCLT) – see Olivier Corten, Pierre Klein,  Vaios Koutroulis, and  Anne Lagerwall (eds), The Vienna Conventions on the Law of Treaties: A Commentary (OUP, 2nd Edition, 2025). As ever, Articles 31 and 32 of the VCLT are the starting point for interpreting the 1951 Convention. The first step is enshrined in Article 31:

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.

31.3. There shall be taken into account, together with the context:

…
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.

Article 32 goes on to provide additional and supplementary frameworks for interpretation.

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; […].

As outlined above, under Article 35 of the 1951 Convention UNHCR has been given by states parties the duty of supervising the application of the provisions of the Convention. Hence, if UNHCR issues guidance under Article 35 as to the meaning of the Convention, that UNHCR guidance has been provided with a view to assisting States parties in fulfilling their obligations in applying the 1951 Convention, like every other treaty body issuing its views, such as the Human Rights Committee when it promulgates General Comments.

As the Director of UNHCR’s Division of International Protection and Solutions has announced in her contribution to this Symposium on the 75^th Anniversary of the 1951 Convention, UNHCR is now engaged in renewing the 1979 Handbook on Procedures and Criteria for Determining Refugee Status (Handbook). 

After almost fifty years, the Handbook is still UNHCR’s authoritative and comprehensive interpretative guidance of Article 1 of the 1951 Convention, and, moreover, it is still used by courts and other decision-makers at all levels across the world. While the Handbook has not been updated since 1979, UNHCR did issue Guidelines on International Protection (GIP) under Article 35 that provide expert guidance on aspects of refugee status determination criteria, such as Gender (GIP No.1) and regarding Armed Conflict and Violence (GIP No.12). Furthermore, while the 1979 Handbook was mainly drafted internally, later GIPs have come about after engagement by UNHCR with the wider international community. The renewed Handbook will incorporate the GIPs into the text of the Criteria volume so that courts and other decision-makers have a single place in which to search for UNHCR’s authoritative interpretative guidance.

It is true that UNHCR has issued a range of different forms of guidance of greater or lesser authoritative standing to assist states and national courts. Discussion of how all those documents might be used in different circumstances and situations is beyond the scope of this paper, rather the focus here will be on the 1979 Handbook and the fourteen GIPs that complement it (thirteen GIPs are available in the 2019 reissuing of the Handbook and GIP No.14 is on Refworld). 

The Handbook is and continues to be a “supplementary means of interpretation” under Article 32 VCLT. Looking only at decisions by the higher courts across a range of different countries, the 1979 Handbook and GIPs are seen as offering authoritative guidance on the meaning of the 1951 Convention: 

• US Federal Court of Appeals (Del Carmen Amaya-De Sicaran v. Barr, 979 F.3d 210, 217–18, 4th Cir. 2020); 
• United Kingdom Supreme Court (G v G [2021] UKSC 9, paragraph 173);
• South African Constitutional Court (Gavrić v Refugee Status Determination Officer, Cape Town and Others [2018] ZACC 38, paragraphs 36, 40, 41, 52 and 73); and t
• the Austrian Supreme Administrative Court (Verwaltungsgerichtshof), (Ra 2019/14/0153, 27 May 2019, paragraph 17).

When it is launched, the new Handbook on Refugee Law will be issued under UNHCR’s Article 35 supervisory role. It will reflect the legal developments since 1979, but it will also reflect the changed circumstances since then so as to ensure inclusivity, rigour, and depth of insight. Admittedly, this revision and the drafting of the new Handbook are happening against a backdrop of great financial constraint for the UN, but, unlike for its predecessor, this work will benefit from the assistance of academia, judges, practitioners, civil society organisations (CSOs), and those persons with whom and for whom UNHCR works. 

While Article 35 gives UNHCR the supervisory role with regard to the interpretation and application of the 1951 Convention, the legal setting for that oversight is unrecognisable from what pertained in 1951 and almost as much from the situation in 1979. That has not only changed the process for drafting the Handbook, but it also means the scope of materials to which UNHCR must have regard when contemplating Articles 31.1, .3(b) and 32 of the VCLT is much broader. 

While the 1951 Convention was revolutionary when adopted in giving treaty rights to individuals (Articles 3-34), international human rights law and, in relation to understanding Article 1F on exclusion, Article 32 on expulsion, and Article 33.2 on particularly serious crimes and national security, international criminal law have both expanded at an unbelievable rate from what was the situation in 1979. Those other sub-disciplines of international law have shaped how states have understood the 1951 Convention and will need to be incorporated into the guidance offered by the new Handbook.

The renewed Handbook must also have global authority and that means that UNHCR needs to provide guidance on the expanded definitions of refugee status found in the 1969 Convention Governing the Specific Aspects of the Refugee Problems in Africa (1001 UNTS 45, 1969 Convention) and the 1984 Cartagena Declaration (adopted at a colloquium entitled “Coloquio Sobre la Proteccíon Internacional de los Refugiados en Américan Central, México y Panamá: Problemas Jurídicos y Humanitarios” held at Cartagena, Colombia from 19 – 22 November 1984, 1984–85, Article III(3)), amongst others. 

Having regard to Article VIII and Preambular paragraph 9 of the 1969 OAU Refugee Convention, and Articles I(4) and II(e) of the Cartagena Declaration, UNHCR has also been accorded by implication a supervisory role vis-à-vis both documents. If the new Handbook is to be of use to judges where regional instruments apply and to UNHCR staff carrying out refugee status determination, it must address the expanded definitions. Likewise, the consultation process outlined above has to be inclusive of persons with whom and for whom UNHCR works, judges, practitioners, CSOs and academics.

The 1979 Handbook provided guidance when there was practically no other source to which decision-makers could turn. The next Handbook has to provide coherent and comprehensive guidance in the midst of a plethora of decisions and interpretations in relation to very detailed analysis and questionings of the criteria for determining refugee status. And, if it is to be effective in all the contexts in which it will be applied, it will need to be as concise and clear as the Handbook issued in 1979.

Photo attribution: by Pawel Czerwinski on Unsplash