The 1951 Convention relating to the Status of Refugees and its 1967 Protocol
Published: 11 Oct 2016
The 1951 Convention relating to the Status of Refugees and its 1967 Protocol are the most comprehensive and widely ratified international codification of refugee rights, provides a definition of “refugee” and spells out the legal status of refugees, including their rights and obligations. States that have acceded to the 1951 Convention are obliged to protect refugees on their territory and respect refugees’ basic human rights, which should be at least equivalent to freedoms enjoyed by foreign nationals living legally in a given country and, in many cases, to citizens of that state.
Article 1(A)(2) of the 1951 Convention defines a refugee as a person who:
As a result of events occurring before 1 January 1951 and 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, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Refugee status is declarative. This means that you are a refugee as soon as you fulfill the criteria set forth in the above definition. Recognition of refugee status does not make you a refugee, it merely recognises an already existing situation.
Well Founded Fear of Persecution
The ‘well-founded fear of persecution’ element of the refugee definition is assessed both objectively (well foundedness) and subjectively (fear). The fear must be subjectively genuine and objectively reasonable. In terms of the subjective element, an assessment of the individual’s credibility is sometimes needed where the case is not sufficiently clear from the facts on record. In terms of the objective element, an understanding of the conditions in the country of origin as well as the individual’s description of the situation are instructive.
It is not necessary that the applicant’s fear be based on his or her own experience; the applicant’s fear may stem from the experience similarly situated individuals. In this way, the 1951 Convention protects not only persons who have been persecuted but also to those who wish to avoid risking persecution.
Persecution
The 1951 Convention does not define persecution and no universally accepted definition has evolved. The core meaning of persecution clearly includes the threat of deprivation of life or physical freedom. In its broader sense whether something amounts to persecution under the 1951 Convention turns on the assessment of a range of factors, including: (i) the nature of the freedom threatened, (ii) the nature and severity of the restriction, and (iii) the likelihood of the restriction eventuating in the particular case.
Temporal and Geographical Limits
The scope of the 1951 Convention was initially limited to persons who became refugees as a result of events occurring before 1951, which is understood to mean events occurring in Europe prior to 1951. The 1967 Protocol Relating to the Status of Refugees removed the 1 January 1951 time limit and made the 1951 Convention applicable without geographical limitation to Europe.
Nexus Grounds
The 1951 Convention refugee definition specifies that a person will qualify for refugee status only if he or she fears persecution ‘for reason’ of one or more of the five grounds listed in Article 1A(2). This is often referred to as the ‘nexus to the Convention’ requirement. It is satisfied if the Convention ground is a relevant factor contributing to the persecution – it does not need to be its sole or even dominant cause.
Race
Article 1 of the 1965 Convention on the Elimination of All Forms of Racial Discrimination defines racial discrimination to include distinctions based on race colour, descent or national or ethnic origin. This broad meaning is a valid definition of race under the 1951 Convention.
Religion
Freedom of religion is a fundamental human right. It includes the right to have or not to have a religion, to practice one’s religion and to change religions. Religion under the 1951 Convention refers not only to established institutionalized religions; it also covers any belief system, defined by UNHCR as ‘convictions or values about a divine or ultimate reality, or the spiritual destiny of mankind.’
Nationality
Nationality as a ground for refugee status includes citizenship and also extends to groups of people defined through their real or perceived ethnic, religious, cultural or linguistic identity, regardless of whether this difference has been legally formalised.
For a complete overview and analysis of the rights of refugees, please refer to: “The Law of Refugee Status“, James Hathaway (1991) and “The Rights of Refugees under Internation Law“, James C. Hathaway (2005), Cambridge: Cambridge University Press, pp. 936.