Symposium on the 1951 Refugee Convention at 75: The 1951 Convention and the 1967 Protocol – Relevance and a Continuing Foundation for Protection?

[Guy S. Goodwin-Gill is Emeritus Fellow of All Souls College, Oxford, Emeritus Professor of International Refugee Law, University of Oxford, and Honorary Professor, Faculty of Law & Justice and Kaldor Centre for International Refugee Law, University of New South Wales, Sydney.

Jane McAdam is an Australian Research Council Laureate Fellow and Scientia Professor of Law at the Kaldor Centre for International Refugee Law, UNSW Sydney, where she leads the Evacuations Research Hub.]

A 75^th birthday should be a cause for celebration, not a time to question one’s ongoing relevance. Yet, the major anniversaries of the 1951 Refugee Convention and its 1967 Protocol have tended to (re)ignite discussions about their continuing pertinence. Alongside perennial cries from political quarters that they have outlived their utility, we also hear that the 1951 Convention and the 1967 Protocol remain relevant to identifying and protecting refugees, and that their basic principles constitute the foundation stone, or the cornerstone, or even the keystone, of the system of international refugee law. 

We have often emphasised the latter ourselves, especially when the occasion demanded a rhetorical flourish, or when we thought that the spirit needed a boost. But, not infrequently, we maintained an iota of reservation. We recognized that the refugee definition was and is a work in progress, and that each contracting State necessarily retains a measure of sovereign discretion in determining its outer limits; that there is no overarching court or other body that could oblige a State to accept refugee status in a particular case; that many of the Convention’s provisions – on the right to work, or access to social security, or on freedom of movement – retain the aura of European standards fit for another age, if at all; and that in providing standards of treatment, the 149 States party to the Convention (and/or its 1967 Protocol) tend to display as much variety in implementation as they do in policy generally.

Despite these shortcomings, we remain sure of the Convention’s relevance. Why? First, look at what has been achieved since 1951. States rapidly accepted that the temporal and geographical limitations on the refugee definition were effectively unworkable and within 15 years or so, they agreed on a more universal approach. The 1967 Protocol effectively ensured that the refugee ‘problem’, described by the UN General Assembly at its first-ever session in 1946 as ‘international in scope and nature’, could indeed be addressed through a truly international framework. 

Next, with some help from emergent human rights treaties and the parallel development of regional instruments, the principle of non-refoulement was accepted as a fundamental right of the refugee (and, indeed, of everyone in search of refuge or protection). The scope of protection moved from the refugee, in the strict sense, to other people facing a real risk of torture or other cruel, inhuman or degrading treatment or punishment, or a real risk to their lives. In turn, the principle was applied in circumstances not immediately foreseen by the drafters of the 1951 Convention, including in the contexts of climate change, gender-based violence and sexual orientation. Meanwhile, courts in many jurisdictions have engaged in mutual reference and cross-citation as they face up to issues of interpretation and the application and extent of protection.

Second, millions of refugees – including in some non-signatory States that have adopted Convention standards in practice – have found new opportunities to live their lives in security, to find employment and education for their children, and on occasion to return to their own country in safety and dignity. However, there have been costs, and with the end of the Cold War the atmosphere changed. Globalisation contributed both to an increase in the movement of people between States, as well as to challenges and complications in ensuring protection in large-scale and mixed flows. Taking account of the asserted need to protect their own communities, States started to securitise all forms of migration, with refugees and asylum seekers commonly identified as potential risks, regardless of the lack of evidence.

In this context, the Office of the United Nations High Commissioner for Refugees (UNHCR) and advocates for refugees, migrants and the displaced have their work cut out today. They operate in an environment where States continue to seek to bypass their obligations, to avoid accountability no matter the lives lost and the injury done to those on the move, and to disregard the status of everyone as a person before the law, entitled to respect for their human rights and dignity.

Cooperation is Key

A key element in thinking about the future is international cooperation. Just as the General Assembly recognised back in 1946, the international and transnational nature of refugee movements means that no one State alone can (or should) deal with them alone. This is reflected in the Convention’s Preamble which acknowledges the importance of ‘international co-operation’ as central to the treaty’s object and purpose, and:

‘recogniz[es] that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner’.

At the policy level, this has translated into a one-sided discussion, particularly under the rubric of ‘international cooperation to share responsibilities and burdens in mass influx situations’. During the conflict in the former Yugoslavia, UNHCR came under considerable political pressure in 1999 to oversee a Humanitarian Evacuation Programme to transfer nearly 100,000 Kosovar refugees in Macedonia to third countries, pending their eventual return home. While UNHCR framed this as ‘an example of solidarity and burden-sharing in extreme conditions’, others saw it as ‘a direct challenge to the principle of non-refoulement’ which undermined the principle of unconditional asylum: it secured Macedonia’s compliance with the principle only if Kosovar refugees were moved elsewhere. Today, proposals to advance temporary protection as the norm similarly distract from fundamental protection principles. 

When issues of mass influx and burden sharing understandably became a focus of the Global Consultations on International Protection in the early 2000s, one paper stressed the importance of strengthening emergency capacity, of financial assistance, resettlement and durable solutions and, in exceptional situations, provision for emergency evacuation. This was followed by a discussion in the Standing Committee in 2004 on UNHCR’s protection responses, but not much was said about who should benefit, or about the determination of refugee status, or about the purpose of protection. Apart from recognizing that ‘prima facie refugee status and temporary protection were appropriate responses to mass influx situations’ (para 45), more emphasis was placed on the necessity of procedures for excluding individuals and ensuring the civilian character and physical safety of refugee groups.

Insofar as the obligation or the responsibility to cooperate remains generally inchoate and difficult to direct into one or a series of duties with practical outcomes, it has tended to be understood ‘as a principle and methodology’. At the same time, some apprehensiveness is evident in UNHCR’s approach, which often seems wary of insisting on too much, lest it encourage States to do little or less than what their international obligations require. 

In 2011, UNHCR proposed that an expert meeting on sharing burdens and responsibilities therefore concentrate on, among others, mixed movements and protection, including irregular onward movements. It suggested, among others, providing asylum specialists, and sharing or transferring responsibility for processing and refugee status determination (subject to international protection needs and basic principles, such as family unity). It also proposed that, while overall responsibility for protecting asylum seekers remains with States, UNHCR could assist with certain practical elements, provided, of course, that it did not call UNHCR’s impartiality into question (which had been a core concern during the Kosovar crisis).

The results were desultory, and the Expert Meeting did not take up these suggestions with any degree of seriousness. Cooperation should include ‘protection safeguards’, it was said, although it was difficult to reconcile access to protection with border security, while one obstacle to cooperation lay in the different standards that can lead to onward irregular movements.

Reinventing the Relationship

As the world moves on into perilous times and refugees and others in search of refuge continue to face violence and lack of access to territory, asylum procedures and safety, it is time for UNHCR to focus its efforts on the refugee definition and the duty to provide protection, both as a consequence of the 1951 Convention and more widely. UNHCR’s mandate of protection is conferred by the UN General Assembly which calls upon Governments to cooperate with UNHCR in the performance of its functions, and gives UNHCR a clear supervisory duty over the Convention and Protocol. Paradoxically, UNHCR’s role is both independent and yet, in a world of sovereign States, cooperative; it does not owe fealty to any particular group of States, whether parties or not to the 1951 Convention, although as a UN body it also has a role in challenging discrimination and therefore the policy and practice that target the foreigner, the refugee or the asylum seeker because of their difference, and regardless of merit.

Many challenges lie ahead, but in promoting international protection, UNHCR needs to concentrate on identifying who is a refugee – in the fullest sense of the legal term – and on showing why he or she or they require protection, here and now. UNHCR has proven capable of rethinking its policy and practice. The Agenda for Protection, for example, effectively re-booted protection after the doldrums of the 1990s, and the 14 Guidelines on International Protection issued since 2002 have, on the whole, allowed it to influence courts and other decision makers in favour of a broader, more inclusive understanding of why, how and where individuals and communities may become refugees. A strength of the 1951 Convention is its capacity to evolve dynamically: it is ‘constant in motive but mutable in form’. Even so, plenty of challenges remain, one of the most pressing being how to bridge the protection gap which tends to marginalise, if not exclude, Palestinian refugees seeking treatment under the Convention.

Today, UNHCR needs to be more assertive, aware of its many allies throughout the world, and to be ready to make more. Many can be consulted for their practical experience, their advocacy and legal and clinical expertise, including lawyers, academic centres, international law organisations, refugee and migration law judges, treaty supervisory mechanisms, the Advocates General of the Court of Justice of the European Union, the Secretariat of the Council of Europe, the Inter-American Commission and Court of Human Rights, the Congressional Research Service in the United States and equivalent parliamentary bodies in other States, rights lobbying groups, and, of course, the refugees themselves.

UNHCR must also have the courage to stand up to and, if necessary, to ignore rogue States that are as dismissive of international law generally as they are of refugee protection. It must turn to and draw on those middle-ranking States that have long supported its efforts, without ever compromising its independent role. It must consult regularly and engage in public outreach, and show why protection is required – who needs it, when and where. It must assume and maintain a commitment to the rule of law, both for itself and for others; it must emphasise the common interest in due process wherever rights are in issue, and ensure that the refugee definition, however it is framed, is applied fairly and that it develops to meet the needs of those at risk. Above all, it must ensure that decisions on protection reflect accurate and up-to-date information on the situation in countries of origin, and that such information allows for the claims of the individual or group for protection to be examined and assessed in context – including as the context and therefore also the meaning of refugee evolves over time.

States remain liable and accountable for the consequences of their policies and their actions, and for the actions of their agents and those subject to their control. UNHCR is responsible for ensuring, through its cooperation with States, that everyone benefits from non-refoulement – not just the refugee with a well-founded fear of persecution, but also others at risk of serious harm. 

The 1951 Convention is by no means a perfect instrument. Many States were fearful that they would be left to carry an impossible burden as others defaulted on their obligations, and that fear continues to drive certain current policies of containment and deterrence, even as the institutions are now in place that could be used more efficiently to share responsibilities. The Convention is also not self-applying and there is no ‘declaratory’ approach that removes States from the task of determining refugee status before it accords the rights to non-penalisation for illegal entry, to limited protection against expulsion, or to non-refoulement. Hence the need for UNHCR to exercise its supervisory responsibility while promoting international cooperation.

But even if the Convention failed to anticipate the demographic changes in the movement of persons between States, the drafters did identify both the essential though never exclusive character of the refugee in flight, and his or her essential needs – protection against return to the risk of harm and the opportunity of a meaningful life in the short, medium and long-term. They also managed to capture other elements that are universal – the obligation of every State, acting ‘in concert in a true spirit of international co-operation’, to protect everyone from threats to life and freedom and to ensure that refugees benefit from appropriate standards of treatment. In this contested field, international refugee law certainly has relevance – and a future.

Photo attribution: by Pawel Czerwinski on Unsplash