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USA: the 1951 UN refugee convention, 60 years on
20 June 2011

If refugees are granted access to education and the labour market, as foreseen under the 1951 convention, not only can they rebuild their lives, but also contribute to their new communities, Amman, Jordan (Peter Balleis SJ/ JRS)
In recent years, advocates, including JRS, have directed renewed attention towards those refugee rights outlined in the convention that are still too often ignored, such as freedom of movement, employment, and other areas essential to human dignity.
Washington DC, 20 June 2011 – Today, on World Refugee Day, we pause to reflect on the significance of the UN Convention Relating to the Status of Refugees, which commemorates its sixtieth anniversary this year.

How has this document, which forms the basis for the international response to refugee needs, stood the test of time? Can this fundamental statement of human rights continue to respond to the ever evolving challenges of forced migration over the coming decades?

In the beginning

Drawing on a number of pre-existing documents touching upon certain aspects of refugee rights, most notably the 1948 Universal Declaration of Human Rights, the UN refugee convention was originally intended both to define and limit the responsibility of signatory states toward refugees displaced by World War II and its immediate aftermath.

Thus, its formulation was driven as much by self-interest as by humanitarian concerns, and it is within this context that the convention set forth the first universal refugee definition and articulated the minimum obligations of signatories towards those falling within the convention's scope.

Over time, the refugee definition, which offers protection based on a well-founded fear of persecution on the basis of race, religion, nationality, membership of a particular social group or political opinion, has proved to be both sufficiently narrow, yet, at the same time sufficiently flexible as to provide a useful reference for states seeking standards by which to deal with a wide variety of situations resulting in forced displacement.

Evidence of the usefulness of this definition is found in the fact that 147 states have now adhered to the convention or its protocol. Significantly, the key convention principle of non-refoulement, a prohibition on returning refugees to countries where they may directly or indirectly face persecution, has now achieved acceptance as customary international law. The universality of this principle is such that even non-signatory states are hesitant to breach it.

Virtues of omission

Just as significant is what the convention does not contain. Surprisingly, it makes no attempt to define persecution, nor what constitutes a social group – a last minute addition to the refugee definition that has proved to be key to its success.

While the convention affirms the right of refugees to seek refuge in other states, it does not obligate any state to grant them access to its territory. This has led states to turn refugees away from their borders and to interdict potential refugees on the high seas, violating the spirit, if not the letter of the treaty.

Moreover, even though the convention establishes the right of refugees to seek asylum, a state is not obliged to grant asylum to refugees within its territory, thus leaving many in legal limbo.

The emphasis of the convention on non-refoulement, without linking this principle to a positive obligation of states to ensure access to any of the three durable solutions – local integration, voluntary repatriation or resettlement in a third country – has had unanticipated consequences. It has contributed to the creation of protracted situations in which refugees are forced to subsist for years and even decades in camps, unable to go home, yet denied opportunities to integrate into their host societies and prevented from moving onwards to a third country.

The resultant 'warehousing' of refugees, at a tremendous cost both in terms of human suffering and of local and international resources, is perhaps the convention's most troubling unforeseen consequence.

Further, the convention establishes no oversight body to enforce compliance with its obligations. Consequently, interpretation of the convention and the protections it provides have been left to individual signatories, regional groupings and the UN refugee agency, UNHCR. This admittedly has proved to be a significant weakness, as states frequently subordinate their obligations to their own political interests.

Nonetheless, it can be argued that this omission was necessary to make participation in the convention widely acceptable to states, and that the very openness of the convention to reinterpretation in light of evolving circumstances has over time contributed to an evolution of thought and practice that has allowed the understanding of what constitutes refugee protection to evolve in a positive direction.

Open to interpretation

While critics have periodically raised doubts about the continuing relevance of the convention in light of the growing complexity of forced migration, the very fact that it does not attempt to anticipate every circumstance to which it might apply has proved to be a great advantage.

In recent decades, interpretation of the refugee definition has expanded to encompass types of persecution not envisioned by the original signatories. For instance, it is now is widely interpreted to include persecution committed by non-state actors, e.g. rebel groups, in circumstances where states are unwilling or unable to protects their citizens. The concept of membership of a particular social group has also been expanded and is frequently applied to newly recognised groups, such as victims of gender violence.

It is doubtful that the drafters could have anticipated the political and social changes that have prompted this evolution had they attempted a more detailed refugee definition six decades ago.

Looking ahead

As the convention enters its seventh decade, governments, international bodies and the human rights community continue to reference its provisions as they attempt to address the serious gaps in refugee protection. In recent years, advocates, including JRS, have directed renewed attention towards those refugee rights outlined in the convention that are still too often ignored, such as freedom of movement, employment, and other areas essential to human dignity.

The convention, employed in tandem with other complementary human rights instruments, is thus becoming the basis of a new movement which advocates with and on behalf of refugees so that they might be protected from harm, affirmed in their human autonomy, and supported in their aspirations. There is every reason to expect that the convention will remain a living document, continually evolving along with our understanding of refugee needs.

Mitzi Schroeder, Director for Policy, JRS USA

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