International Refugee Law: Convention Definition & Non-Refoulement

[00:00:00][Music] hello i'm shawnri hegg i'm the director of york university's center for refugee studies and a faculty member at osgoode hall law school this video is part of the crs online introduction to refugee studies the video aims to offer an introduction to international refugee law focusing on the 1951 refugee convention now it's important to keep in mind that much of the regulation of refugees and other displaced people occurs domestically through the legal and policy regimes of states and in some cases of regional entities like the european union nonetheless international law continues to play a key role in the protection of refugees it was only after world war ii that world governments recognized the need to create a binding legal regime requiring states to accept refugees and to protect their rights this led to the creation of the united nations high commissioner for refugees in 1950 this was the product of a compromise between the united states which wanted a temporary very limited agency and other countries that wanted a permanent broader agency with multiple purposes from a small organization with 34 staff and an annual budget of 300 000 us dollars unhcr has grown today to an organization that employs around 17 000 people with an annual budget of around 8 billion us dollars among its other rules unhcr is the guardian of the 1951 convention relating to the status of refugees as well as its 1967 protocol these two instruments are the key documents governing the international rights of refugees today because these documents set out the rights enjoyed by refugees by extension they also articulate the obligations owed by contracting states the convention covers a wide variety of topics from rights to property association and freedom of movement to the rights to access courts public education and employment two articles in particular require closer attention article 1 which sets out the definition of a refugee and article 33 which describes the critical principle of no refuelment the definition of the term refugee is found in article 1 of the 1951 refugee convention this definition has been adopted by most states and it has been directly incorporated into the domestic law of many states article 1 includes three types of provisions the first type of provision is inclusion this is set out in article 1 a it describes who is included in the refugee definition the second type of provision involves cessation cessation which is set out under article 1c of the refugee convention describes when someone who has refugee status may lose that status or have their status ceased the third type of provision is exclusion this is set out in article 1d through f of the refugee convention it describes when someone who otherwise qualifies for refugee protection will nonetheless be excluded from receiving that protection let's begin by looking at the inclusion provisions in article 1a of the refugee convention according to this provision the term refugee shall apply to any person who 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 their country of nationality or if they are stateless their country of habitual residence and is unable or owing to such fear is unwilling to avail themselves of the protection of that country originally this definition included time and geographic limitations restricting its application to individuals who were displaced as a result of events occurring in europe before january the 1st 1951 in other words people who were affected by world war ii in europe however both the geographic and the temporal limitations were eliminated by the 1967 protocol if we look at the inclusion provisions there are five different elements to consider the first element is that of alienage in order to claim refugee status an individual must be outside his or her country of origin or if the person has no country of nationality outside his or her country of habitual residence this is the key difference between refugees and internally displaced persons the second criteria is that an individual must have a well-founded fear a well-founded fear is generally viewed as having both a subjective and an objective component the person claiming refugee status must actually subjectively fear persecution and that fear must be objectively well-founded that is the fear must be justified in light of the objective situation in assessing the existence of a well-founded fear we might ask are there sufficient facts to permit the finding that this applicant in his or her particular circumstances faces a serious possibility of persecution the third element is the risk of persecution the convention does not contain any definition of persecution but it is generally understood as including any threat to life or physical freedom and other serious violations of human rights in determining whether something constitutes persecution we can look to a number of different factors first we can look to human rights law for guidance if the act in question constitutes a violation of human rights that suggests that it might be considered persecution additionally we can look to the circumstances of the case is the act in question repeated or part of a systemic pattern of oppression a single instance of a minor infringement of a human right might not amount to persecution but if it is part of a pattern of behavior repeated over time than it could similarly we can look at the nature of the freedom or right threatened and the nature and severity of the restriction if an infringement is sufficiently severe then a single instance might amount to persecution importantly there may be different agents of persecution persecution may be perpetrated by a state actor either by the state itself or by someone acting at the instigation or with the consent of the government but it doesn't have to be the agent of persecution could also be a non-governmental actor even a private citizen in a situation where the authorities of the state are unable or unwilling to take reasonable steps to prevent the persecution or the suffering of serious harm the fourth element is the grounds of persecution in order to meet the convention definition of a refugee the persecution suffered or feared by the individual must be linked to one of five convention grounds that is race religion nationality membership of a particular social group or political opinion the convention ground does not need to be the soul or even the dominant cause of the individual's fear but it must be a contributing factor importantly the convention grounds include both situations where the individual actually is a member of the group or actually does hold the beliefs or where the individual is perceived by the agent of persecution to be a member of the group or to hold the relevant beliefs even if they don't really now while some of the five convention grounds are fairly self-evident others require a bit of explanation let's begin with race when assessing a fear of persecution based on race one source of guidance is the convention on the elimination of all forms of racial discrimination race and religion should be fairly straightforward nationality however is somewhat odd as it generally overlaps with the other grounds by nationality the convention is referring to something broader than just citizenship it's typically loosely interpreted to include origins and membership in ethnic religious cultural and linguistic communities membership in a particular social group is an especially interesting basis for claiming refugee protection that is because it's one of the headings under which the scope of protection offered by the convention definition has expanded over time this provision has been interpreted to include groups defined by innate and unchangeable characteristics or characteristics that are so fundamental to the individual's identity that they should not be expected to change it is this convention ground that has led to the refugee definition including persecution on the basis of gender and sexual orientation the final convention ground is political opinion political opinion is understood broadly in this context and it's not limited to membership in a political party the opinion expressed may or may not be rightly attributed to the individual that is the individual may not actually hold the beliefs that are attributed to them by the agent of persecution the fifth and final element in the inclusion factors is the availability of state protection refugee protection is viewed as a measure of last resort where it's possible individuals should seek and receive protection from their own state similarly the fear of persecution may not extend to the entire territory of the country particularly if the agent of persecution is a non-state actor where it is possible and reasonable individuals are expected to seek an internal flight alternative that is to move to another area in the country where the individual could settle and be safe from persecution in thinking about the inclusion provisions it's worth keeping in mind that for the purposes of the 1951 refugee convention a person is a refugee when they meet the definition not when they are officially recognized as such through a refugee determination process another way of making this point is that refugee determinations are about recognizing refugee status not about conferring that status the second set of provisions in article 1 of the 1951 refugee convention that we're going to be looking at are the provisions relating to cessation a person may have their refugee protection cessated either due to voluntary acts or due to changes in circumstances voluntary acts can include acts that suggest that the person has re-availed themselves of the protection of their home country for example they may have returned to their country to live they may have returned to their country to visit their family or they may have done something like applying for a passport from their home country it is important to keep in mind that the particular acts in question must be evaluated in their context to ensure that the person has in fact re-availed themselves of the protection of their home country a change in circumstances refers to a situation where circumstances have changed in the claimant's country of origin such that they no longer face a serious risk of persecution this may occur for example where there's been a peace agreement that's been reached or where there's been a political regime change in order to qualify as a true change of circumstances for the purposes of cessation the change must be of a fundamental nature and must be real and sustainable unhcr recommends that a minimum of 12 to 18 months should elapse before a decision can be made as to whether there's been a meaningful change in circumstances that addresses the cause of displacement and that warrants a cessation of refugee status the third and final set of provisions in article 1 of the 1951 refugee convention that we're going to be looking at involve exclusion according to these provisions in certain circumstances a person who meets all of the other criteria of the refugee definition may nonetheless be excluded from refugee protection these provisions are set out in article 1d through f under these provisions a person may be denied refugee protection because they have already received protection by some other u.n body or because they already enjoy some other status in their home country for the latter for example you can think of people who would be entitled to nationality or citizenship in another country because of their family status because for example they may be married to a citizen of that country more critically article 1f of the 1951 convention sets out circumstances where a person would otherwise be entitled to refugee protection but is viewed as being undeserving of protection the rationale behind this section is that some acts are so grave so contrary to the principles that underpin refugee protection and human rights as to render their perpetrators undeserving of international protection as refugees it also prevents people from abusing the institution of asylum merely to avoid legal accountability for crimes that they may have committed this provision is read narrowly and includes situations where there are serious reasons for considering that the person claiming refugee status has been involved in crimes against peace war crimes crimes against humanity acts contrary to the purposes and principles of the united nations or serious non-political crimes in these cases the individual will not be granted convention refugee status but depending on the circumstances and the risks that they face they may still avoid deportation back to their countries of origin other than the definition contained in article 1 of the 1951 refugee convention the most important provision in the convention is article 33 which prohibits the return or expulsion of refugees and which is really the cornerstone of the international refugee regime embodying the principle of non-refulement this provision states that no party to the convention shall expel or return a refugee in any manner whatsoever to a situation where his life or freedom would be threatened based on one of the convention grounds this protection is qualified by the statement that it will not apply in situations where there are reasonable grounds to believe that the refugee may be a danger to the security of the host country many legal scholars as well as the united nations high commissioner for refugees share the view that the prohibition on refuelment of refugees constitutes a rule of customary international law this is important because customary international law is binding on all states including those that are not party to the relevant agreements in other words if non-refuelment is now part of customary international law then it is binding on all states not just those that are party to the 1951 convention or the 1967 protocol the principle of non-refilement of refugees prohibits any form of forcible removal this includes deportation expulsion extradition informal transfers or renditions and perhaps especially importantly even non-admission at the border under certain circumstances although the principle of non-refullment does not entail a right of the individual to be granted asylum in a particular state it does mean that states that are not prepared to grant asylum to persons who are seeking international protection on their territory must adopt a course of action that does not result in the removal of those individuals directly or indirectly to a place where their lives or freedoms would be in danger due to a convention ground as a general rule then in order to meet their conventional obligations states are required to grant individuals seeking international protection access to their territory and to fair and efficient asylum procedures or to otherwise ensure that they have access to the territory of another state where they will not be subject to refoulement of course this is not what always happens in reality in practice many states engage in various forms of refuelment this includes expulsion or deportation of refugees return of refugees to their countries of origin or to unsafe third countries electrified fences or border walls to prevent entry non-admission of asylum seekers push-offs of boat arrivals and interdictions on the high seas nonetheless the provisions of the 1951 refugee convention and the 1967 protocol that we've discussed in this module are the first place that you can look to see whether these practices comply with international law these instruments set out the framework for the definition of refugees under international law as well as the prohibition on returning refugees or refueling refugees to face persecution together they form the cornerstone of international refugee law [Music] you