Wednesday, August 06, 2008

Need for Fresh Look at 1951 Convention and Relevance of Post Colonial Experiences

K.M. Parivelan
The Refugee Convention, which was formally adopted on 28 July 1951, forms the foundation of the modern international legal system designed to protect people who have to flee their countries because of persecution or conflict. It is widely credited with saving countless lives and ensuring a means of escape for people facing imprisonment, torture, execution and other human rights abuses for reasons such as their political or religious beliefs, or membership in a particular ethnic or social group. It is the key legal instrument in defining who is a refugee, their rights and legal obligations of the State Parties. The 1967 Protocol removed geographical and temporal restriction from the Convention.

The Convention provides a universal definition of who exactly qualifies as a refugee. This definition has proved sufficiently flexible to encompass new types of refugees as they have emerged over the years. The Convention also established a framework of basic refugee rights - for example, the right to identity papers, access to courts and education - without which their lives in asylum countries would be quite a predicament for asylum seekers and refugees.
What are the positive influences of 1951 Convention?
1. It provided the basic and general definition for ‘refugee’
2. It facilitated the customary international law scope for promoting the principle of ‘non- refoulement’
3. It set the minimum standard of treatment for refugees and provisions for their legal status and welfare
4. It provides legal and political scope for States to co-operate with UNHCR in the exercise of its functions.

Post Colonial Influences

The conflicts that accompanied the end of the colonial era in Asia, Africa and Latin America led to a succession of large -scale refugee movements. These population displacements prompted the drafting and adoption of not only the 1967 Refugee Protocol but also several other regional initiatives.

The 1969 OAU Convention governing the specific aspects of refugee problems in Africa, which came in to force in 1974. It went about expanding the definition of the term ‘refugee’ as well as principle of ‘non-refoulment’. The OAU Convention contextually elaborated on the 1951 Convention definition of refugee as: “any person compelled to leave his/her country because of “external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality.”. This means that persons fleeing civil disturbances, widespread violence and war are entitled to claim the status of refugee in States that are parties to this Convention regardless of whether they have a well-founded fear of persecution. Similarly in Latin America the initiative was taken by government representatives and distinguished Latin American jurists in 1984 to discuss the international protection of refugees in the region. This gathering adopted what became known as the Cartagena Declaration. The Declaration recommends the definition of a refugee used throughout the Latin American region should include the 1951 Refugee Convention definition and also persons who have fled their country “because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.” Although the Declaration is not legally binding on States, most Latin American States apply the definition as a matter of practice; some have incorporated the definition into their own national legislation.

In the context of Asia, distinct attempt was not made at convention or declaration level, but the principles adopted by the Asia Africa Legal Consultative Committee (AALCC) in 1966 is quite a contributory step. Even though non-binding in character, did influence the refugee policy in the region. Similarly a Group of Arab experts met in Cairo in November 1992 and adopted a non-binding Declaration on the protection of Refugees and displaced Persons in the Arab world.

In the recent years, however, the continuing validity of the 1951 Convention has been publicly questioned in some quarters. This has alarmed refugee protection activists, UN officials and aid agencies involved with refugees who feel that politics are being played at the expense of the Convention and, therefore, of the refugees it protects. The reasons behind these attacks on the Convention appear to be linked primarily to the rising number of asylum-seekers, the increase in people-smuggling networks, the perception that the majority of asylum-seekers are "bogus," and the high costs involved in maintaining asylum systems.

These concerns are understandable, but the critique of the Convention tends to ignore some vital basic factors, "Firstly, the main reason the numbers soared was that there were three major wars in Europe during the 1990s, in addition to numerous other conflicts around the world. "Secondly, the whole point of the Convention is precisely to make the distinction between those who need the international protection that official refugee status affords, and those who do not. Therefore, one set of argument is that it doesn't mean there's anything wrong with the Convention per se. The Convention has also been wrongly blamed for a collective failure to manage the soaring numbers of would-be economic migrants. "The Convention was never intended to sort out all the world's migration problems. "The trouble is, with virtually no other migration path open from poor countries to rich ones, the Convention has been subjected to pressures which should be catered for by alternative migration management tools."

On the cost of managing asylum-systems, we need to look at some states having rigorous process of detaining every single asylum-seeker entering the country without proper documentation. "This is an extremely expensive way of dealing with asylum-seekers, as well as inhumane and, arguably, quite at odds with Article 31 of the Convention." Asylum systems in some countries are inefficient, sometimes taking years to reach a decision. "This means not only considerable extra costs in terms of social benefits, but it also makes such countries attractive to economic migrants, stimulating a “vicious circle of increased numbers, higher costs, and slower decisions”.

The most worrying trend is the growing number of states violating Article 33 of the Convention, which says, "No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened…" If refugees are sent straight back to danger - or are prevented from leaving their countries in the first place - then all the other measures designed to protect and assist them count for nothing. Under international law this should not happen, and blatantly ignoring international law is a dangerous path to tread." The 1951 Refugee Convention has come under increasing scrutiny in recent years, with some governments questioning its continuing relevance. UNHCR has been paying special attention to the problem, analysing the extent of the practice in recent years in terms of the number of countries involved and the number of people affected. This is being done in the context of the "Global Consultations on International Protection", talks between UNHCR, governments, non-governmental organisations (NGOs) and experts focusing on how States are interpreting and implementing the 1951 Refugee Convention and examining protection problems that are not fully covered by the treaty, so as to better protect refugees. Most notably the Executive Committee constituted is able to incorporate some of the non-signatory countries to voice their concerns and proactively contribute to the refugee protection regime.

1 comment:

nafeesa said...

I found this artical very useful as it is looking at all the pros and cons of the issue at hand. I was reading a journal article by Sainz-Padro on "The Contemporary relevance of the 1951 Convention Relating to the Status of Refugees".
This helped me understand Padro's article.