First published on LLRX.com, July 15, 2000. Updated May 29, 2007, March 5, 2009 and July 25, 2009.
The 1951 Convention relating to the Status of Refugees is now over 50 years old. What impact has this instrument had on resolving refugee problems and how effective has it been as the principal standard for the international protection of refugees? Although the total refugee and asylum-seeking population has dipped since the early 1990s, over 30 million “persons of concern to the UN High Commissioner for Refugees” can still be counted in the world today. Moreover, debates continue regarding the nature of the protection that refugees should be granted, the role of the international community, and the obligations of receiving countries towards refugees.
This guide directs readers to some of the key texts and resources available on the Web that can help shed light on, and provide a context for, many of the issues currently being deliberated in the refugee law arena.
1. International Instruments
Two principal conventions govern international refugee law matters: the 1951 Convention relating to the Status of Refugees, and its 1967 Protocol. The Convention sets out the rights of refugees and the standards for their treatment in the countries that receive them. It defines “refugee” in Article 1A(2) as,
…[A]ny person who…owing to 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 [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country… .
Because the definition requires that a person be outside his or her country, it effectively excludes internally displaced persons from receiving international protection. Moreover, because it focuses on individualized persecution, it does not recognize situations of generalized violence (such as wars), natural disasters, and large-scale development projects as legitimate causes of flight.
The Protocol was drafted to remove the geographic and time limitations of the earlier instrument, the incorporation of which reflected the post-World War 2 context in which the Convention was framed. Otherwise, it retains the same language as that used in the Convention.
It is important to note that neither instrument makes any direct reference to the concept of asylum; lawful admission, and the conditions under which it is granted, remains the discretion of States. Instead, the Convention provides for the principle of non-refoulement, found in Article 33, which stipulates that “No Contracting State shall expel or return (‘refouler‘) a refugee in any manner whatsoever to…territories where his (or her) life or freedom would be threatened… .”
To review commentary on and the Travaux Préparatoires for the 1951 Convention, see:
- Goodwin-Gill, G., Convention relating to the Status of Refugees, Geneva, 28 July 1951; Protocol relating to the Status of Refugees, New York, 31 January 1967, Audiovisual Library of International Law, 2008
- Grahl-Madsen, A., Commentary on the Refugee Convention 1951: Articles 2-11, 13-37, UNHCR, 1963 (re-published 1997)
- Travaux Préparatoires: Records of the 1951 Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (organized in reverse chronological order)
- Travaux Préparatoires (organized chronologically)
The Convention celebrated its 50th anniversary in 2001. Resources that examine and/or comment on its impact over the past 50 years include:
- Couldrey, M. and T. Morris, eds., “UNHCR and the Convention at 50: Fighting Fit or in Need of a By-Pass?”, Forced Migration Review, no. 10, 2001
- ICRC, ed., “50th Anniversary of the 1951 Refugee Convention: The Protection of Refugees in Armed Conflict,” International Review of the Red Cross, no. 843, 2001
- Rehn, E., ed., “UNHCR: The First Fifty Years,” Refuge: Canada’s Periodical on Refugees, vol. 19, no. 5, 2001
- Tomasi, L., ed., “UNHCR at 50: Past, Present and Future of Refugee Assistance,” International Migration Review, vol. 35, no. 133, Spring 2001
Two regional instruments, the 1969 Organization for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa and the 1984 Cartagena Declaration on Refugees, reaffirmed the basic principles of the Convention and Protocol, but expanded the definition of refugee to more realistically account for contemporary root causes of flight, i.e., war, internal conflict, massive human rights abuses, etc.
For further discussion of the role these instruments have played in the development of international refugee law, see:
- ACNUR, Memoria del Vigésimo Aniversario de la Declaración de Cartagena sobre los Refugiados (1984-2004), 2005
- Bond Rankin, M., “Extending the Limits or Narrowing the Scope? Deconstructing the OAU Refugee Definition Thirty Years On,” New Issues in Refugee Research, no. 113, 2005
- Namihas, S., ed., Derecho Internacional de los Refugiados, Fondo Editorial de la Pontificia Universidad Católica del Perú, 2001
- Okoth-Obbo, G., “Thirty Years on: A Legal Review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa,” Refugee Survey Quarterly, vol. 20, no. 1, 2001
Human Rights and Humanitarian Law
The plight of refugees is fundamentally a human rights issue. Human rights treaties are therefore effective tools to use in the international protection of refugees, particularly the 1984 Convention against Torture, which provides for the principle of non-refoulement in Article 3. Similarly, prohibitions against torture in the 1966 International Covenant on Civil and Political Rights (Article 5) and the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 3) have been invoked to protect refugees from being refouled. Elsewhere, the 1969 American Convention on Human Rights promotes the right to seek and be granted asylum in Article 22(7).
For more discussion of these and other protections, see:
- Franco, L. et al., El asilo y la protección Internacional de los refugiados en América Latina: Análisis crítico del dualismo “asilo-refugio” a la luz del Derecho Internacional de los Derechos Humanos, UNHCR, 2004
- Gorlick, B., “Human Rights and Refugees: Enhancing Protection through International Human Rights Law,” New Issues in Refugee Research, no. 30, 2000
- McAdam, J., “The Refugee Convention as a Rights Blueprint for Persons in Need of International Protection,” New Issues in Refugee Research, no. 125, 2006
- Mole, N., Asylum and the European Convention on Human Rights, Council of Europe, 2000
- Röhl, K., “Fleeing Violence and Poverty: Non-refoulement Obligations under the European Convention of Human Rights,” New Issues in Refugee Research, no. 111, 2005
- UNHCR Manual on Refugee Protection and the ECHR, 2003, updated August 2006
The scope of humanitarian law as set out in the Geneva Conventions also extends to refugees. For a more thorough overview, see:
- Program on Humanitarian Policy and Conflict Research, International Humanitarian Law Research Initiative (free registration required)
- Society of Professional Journalists, Reference Guide to the Geneva Conventions
Selected International Law Collections
- UNHCR, Collection of International Instruments and Other Legal Texts Concerning Refugees and Others of Concern to UNHCR, 4 vols., June 2007
- UNHCR, Refworld Legal Collection (under “Type,” select “Multilateral Treaties/Agreements” and/or “International Legal Instruments”)
2. International Bodies
United Nations High Commissioner for Refugees (UNHCR)
UNHCR is the principal UN agency mandated to provide assistance and international protection to refugees and other persons of concern, and to find solutions to their plight. Traditionally, these solutions have taken the form of asylum, resettlement, and voluntary repatriation. UNHCR’s Statute includes a very similar definition of “refugee” as the 1951 Convention. However, over time, UNHCR’s mandate has been expanded by the UN General Assembly and Economic and Social Council to cover other groups in “refugee-like” situations that normally would not fall within the office’s competence (including some internally displaced persons).
UNHCR’s Department of International Protection publishes a variety of materials that provide guidance on and analysis of legal issues relating to refugees and asylum. Most are available on the organization’s Web site. A few key UNHCR titles and aggregated sets of resources are highlighted below:
- Convention Plus (initiative to enhance refugee protection and resolve problems through discussion and negotiation among relevant States)
- Global Consultations on International Protection (series of meetings held in 2001 and 2002 with the aim of strengthening refugee protection)
- Handbooks and Guides (includes, inter alia, 1) analyses of specific provisions within the 1951 Convention presented as “Guidelines on International Protection”; and 2) the Handbook on Procedures and Criteria for Determining Refugee Status, originally produced by UNHCR in 1979 and widely cited by courts and decision-making bodies)
- Legal and Protection Policy Research Series (includes discussion papers and background papers from expert meetings produced by various legal advisors)
Executive Committee of the High Commissioner’s Programme (EXCOM)
Gaps in refugee protection have been addressed largely through the Executive Committee of the UN High Commissioner for Refugees (EXCOM), a body comprised of 76 governments that meets annually in Geneva. Each year, members discuss a variety of issues relating to international protection and adopt conclusions. While these conclusions lack the force of law, they carry some weight because they represent a consensus reached in an international forum. Key documents that emanate from EXCOM meetings include the Conclusions on International Protection, annual Notes on International Protection, and background papers prepared by the Executive Committee’s Standing Committee.
United Nations Relief and Works Agency (UNRWA)
The 1951 Convention includes a clause stipulating that its provisions do not extend to persons already being assisted by other UN organs. Therefore, a separate legal machinery has evolved to address the situation of Palestinian refugees, as they fall under the mandate of UNRWA. For more information, visit UNRWA’s Web site.
3. National Legislation
States parties to the 1951 Convention and 1967 Protocol implement the treaties’ provisions in their national laws. Usually, these texts are supplemented by more detailed administrative procedures that spell out the process for seeking asylum, i.e., interviewing, providing evidence, appealing a negative decision, etc. The main resource for relevant national legislation and regulations on asylum and refugees is UNHCR’s legislation database (under “Type,” select “National Legislation”). Alternatively, researchers can go directly to government immigration web sites, which often include links to legislation and a description of asylum procedures. Other resources that link to or provide overviews of the asylum and refugee policy practices of different countries include:
- ECRE, Weekly Bulletin (these cover both EU-wide developments and national developments)
- Migration Dialogue, Migration News (quarterly summary of key news and policy developments around the world)
- U.S. Committee for Refugees, World Refugee Survey (annual report with brief summaries of legal and policy developments in receiving countries; view complete reports or select individual countries from the “Refugee Conditions by Country” feature)
4. Case Law
The five enumerated grounds of the refugee definition as set out in the 1951 Convention and 1967 Protocol are often the subject of great debate; this in turn has led to different interpretations across jurisdictions. Legal researchers can access relevant case law either via Refworld’s Legal Collection or the Refugee Caselaw site. Decisions originate from 45 national jurisdictions in the former and from 28 countries in the latter.
Additional case law resources:
Recently, calls have been made for “gender” to be included as a sixth ground in the refugee definition. Visit the Center for Gender and Refugee Studies for texts of gender-related asylum case law.
Oxford University Press’ quarterly International Journal of Refugee Law is the foremost journal in this subject area. However, other titles that carry relevant articles include:
- European Journal of Migration and Law (Martinus Nijhoff)
- Georgetown Immigration Law Journal (Georgetown University Law Center)
- International Review of the Red Cross (International Committee of the Red Cross)
- Plein droit (Groupe d’information et de soutien des immigrés)
- Revue du droit des étrangers (Association pour le droit des étrangers)
The following resources may assist asylum seekers who require legal representation and/or general information about the asylum process:
- Asylumlaw.org (provides a detailed section on “Information for Asylum-Seekers,” as well as a database of attorneys and expert witnesses for registered users)
- UNHCR (provides instructions for contacting UNHCR field offices electronically)
Several organizations promote networking among refugee/immigration law advocates and/or offer opportunities to serve as pro bono attorneys. Examples include:
- American Immigration Lawyers Association (professional association)
- Asylum Legal Representation Program (information on how to become a pro bono volunteer in the U.S.)
- Electronic Information Network (membership network that provides information on immigration and refugee law)
- ELENA: European Legal Network on Asylum (facilitates networking and training)
- Immigration Law Practitioners’ Association (professional association in the UK)
- International Association of Refugee Law Judges (professional association)
7. Research Guides/Collections
For research tips, relevant articles, legal analyses, and refugee law treatises, refer to the following resources:
- CALS Asylum Case Research Guide (prepared by Georgetown University Law Center)
- FMO Research Guide: International Law and Legal Instruments (prepared by Forced Migration Online)
- Refugee Law Research Guide (prepared by UC Berkeley Law Library)
- Forced Migration Digital Library (provides access to full-text documents; for example, search on >law< in the subject field on the advanced search form)
8. Further Study
The following resources can be consulted for further study of international refugee law principles and practice:
- Audiovisual Library of International Law, Lecture Series on “International Migration Law” (video lectures by Prof. Guy Goodwin-Gill)
- Byrne, R., ed., The Refugee Law Reader: Cases, Documents and Materials, LARC, 5th ed., 2008
- European Legal Network on Asylum (ELENA) (offers courses for legal practitioners in refugee and asylum law)
- International Institute of Humanitarian Law (IIHL) (offers courses in refugee, human rights and humanitarian law)
- Odysseus Network (offers courses in EU immigration and asylum law)
- UNHCR Training Materials (includes self-study modules for human rights and refugee protection, refugee status determination, and an introduction to international protection)
- Goodwin-Gill, G., The Refugee in International Law, 3rd ed., Oxford University Press, March 2007
- Hathaway, J.C. The Rights of Refugees under International Law, Cambridge University Press, 2005
- Musalo, K., J. Moore, and R.A. Boswell, Refugee Law and Policy: A Comparative and International Approach, 3rd ed., Carolina Academic Press, 2007