The Refugee Convention
The United Nations Convention Relating to the Status of Refugees (commonly known as the Refugee Convention) is the primary international legal document relating to refugee protection. It defines who is a refugee and outlines the rights of refugees and the legal obligations of states towards refugees and asylum seekers.
The Refugee Convention was adopted at a United Nations conference on 28 July 1951 and entered into force on 22 April 1954. The Refugee Convention was originally designed to respond to the needs of European refugees in the years following World War II. As such, it applied only to persons who had become refugees as a result of “events occurring before 1 January 1951”. The Convention also allowed signatories to limit their obligations to refugees originating from Europe alone.
In 1967, the Protocol Relating to the Status of Refugees removed the geographic and time limitations of the original Convention, broadening its scope to create capacity to respond to new refugee situations. The protocol entered into force on 4 October 1967.
The Refugee Convention defines a refugee as:
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 the country of his/her nationality and is unable, or owing to such fear, is unwilling to avail himself/herself of the protection of that country.
In order for someone to be recognised as a refugee under the Convention, therefore, they must satisfy the following criteria:
- The person must be outside their country of origin
- The reason for their flight must be a fear of persecution
- This fear of persecution must be well founded (ie. they must have experienced it or be likely to experience it if they return)
- The persecution must be due to one or more of the five grounds listed in the definition
- They must be unwilling or unable to seek the protection of their country
The definition also includes a qualifier which excludes any person who has committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside their country of refuge or any other act contrary to the purposes and principles of the United Nations.
Rights of refugees
The Refugee Convention also recognises that refugees hold certain rights. Some of these are universal human rights recognised in other human rights treaties such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, for example the rights to freedom of religion, work and education. The Refugee Convention outlines the degree level of rights recognition which should be accorded to refugees.
For instance, the Convention requires states parties to accord to refugees:
- The same rights as citizens in relation to freedom of religion, intellectual property, access to courts and legal assistance, accessing elementary education, labour rights and social security.
- Treatment which is as favourable as possible and at least as favourable as that accorded to foreign nationals, in relation to the acquisition of property, self-employment, practising as a professional, housing, accessing secondary and tertiary education.
- Treatment which is at least as favourable as that accorded to foreign nationals with respect to freedom of association, wage-earning employment, freedom of movement
The Refugee Convention also recognises a number of rights which are specific to refugees.
Article 31: Refugees unlawfully in the country of refuge
Article 31 of the Refugee Convention prohibits states parties from imposing penalties on refugees who, when coming directly from a territory where their life or freedom was threatened, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and can show good cause for their illegal entry or presence.
This Article recognises that refugees have a lawful right to enter a country for the purposes of seeking asylum, regardless of how they arrive or whether they hold valid travel or identity documents. As such, what otherwise be considered illegal actions (eg. entering a country without a visa) should not be treated as such if a person is seeking asylum. This means that it is incorrect to refer to asylum seekers who arrive without authorisation as “illegal”, as they in fact have a lawful right to do so if they are seeking asylum.
Article 31 also prohibits states parties from restricting the freedom of movement of refugees who arrive without authorisation, with the exception of restrictions necessary for regularising their status. Furthermore, such restrictions should be applied only until their status in the country is regularised or they obtain admission into another country.
Articles 32 & 33: Expulsion and Non-refoulement
Article 32 of the Refugee Convention prohibits states parties from expelling a refugee who is lawfully in their territory, except on grounds of national security or public order.
Article 33 of the Refugee Convention outlines the principle of non-refoulement. According to this principle, states parties must not forcibly expel or return (refouler) a refugee to a situation where their life or freedom may be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. The principle of non-refoulement has become part of customary international law and is considered to be binding on all states, even those which have not signed the Refugee Convention.
States parties to the Refugee Convention
The Refugee Convention and its Protocol currently have 148 states parties. This includes two states (Madagascar, Saint Kitts and Nevis) which are party only to the 1951 Convention and three states (Cape Verde, United States of America, Venezuela) which are party only to the 1967 Protocol. All other states are parties to both instruments. A complete list of states parties to the Convention can be obtained through the United Nations’ Status of Treaties database, accessible through treaties.un.org
Australia was among the earliest states parties to the Refugee Convention, acceding to the treaty on 22 January 1954. Australia ratified the 1967 Protocol on 13 December 1973.
Last updated November 2011