Convention relating to the Status of Refugees, 1951

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The 1951 Convention relating to the Status of Refugees, with just one “amending” and updating Protocol adopted in 1967, is the central feature in today’s international regime of refugee protection, and some 144 States (out of a total United Nations membership of 192) have now ratified either one or both of these instruments (as of August 2008). The Convention, which entered into force in 1954, is by far the most widely ratified refugee treaty, and remains central also to the protection activities of the United Nations High Commissioner for Refugees (UNHCR).

The historical context helps to explain both the nature of the Convention and some of its apparent limitations. Just six years before its conclusion, the Charter of the United Nations had identified the principles of sovereignty, independence, and non-interference within the reserved domain of domestic jurisdiction as fundamental to the success of the Organization. In December 1948, the General Assembly adopted the Universal Declaration of Human Rights, article 14, paragraph 1, of which recognizes that, “Everyone has the right to seek and to enjoy in other countries asylum from persecution”, but the individual was only then beginning to be seen as the beneficiary of human rights in international law. These factors are important to an understanding of both the manner in which the 1951 Convention is drafted (that is, initially and primarily as an agreement between States as to how they will treat refugees), and the essentially reactive nature of the international regime of refugee protection (that is, the system is triggered by a cross-border movement, so that neither prevention, nor the protection of internally displaced persons come within its range).

The Convention is sometimes portrayed today as a relic of the cold war and as inadequate in the face of “new” refugees from ethnic violence and gender-based persecution. It is also said to be insensitive to security concerns, particularly terrorism and organized crime, and even redundant, given the protection now due in principle to everyone under international human rights law. The Convention does not deal with the question of admission, and neither does it oblige a State of refuge to accord asylum as such, or provide for the sharing of responsibilities (for example, by prescribing which State should deal with a claim to refugee status). The Convention also does not address the question of “causes” of flight, or make provision for prevention; its scope does not include internally displaced persons, and it is not concerned with the better management of international migration. At the regional level, and notwithstanding the 1967 Protocol, refugee movements have necessitated more focused responses, such as the 1969 OAU/AU Convention on the Specific Aspects of Refugee Problems in Africa and the 1984 Cartagena Declaration; while in Europe, the development of protection doctrine under the 1950 European Convention on Human Rights has led to the adoption of provisions on “subsidiary” or “complementary” protection within the legal system of the European Union.

Nevertheless, within the context of the international refugee regime, which brings together States, UNHCR and other international organizations, the UNHCR Executive Committee, and non-governmental organizations, among others, the Convention continues to play an important part in the protection of refugees, in the promotion and provision of solutions for refugees, in ensuring the security of States, sharing responsibility, and generally promoting human rights.

Cooperation with UNHCR

The General Assembly identified a protection role for the High Commissioner in relation, in particular, to international agreements on refugees. States party to the 1951 Convention/1967 Protocol have accepted specific obligations in this regard, agreeing to co-operate with the Office and in particular to “facilitate its duty of supervising the application of the provisions” of the Convention and Protocol.

Treaty oversight mechanisms, such as those established under the 1966 International Covenant on Civil and Political Rights, the 1984 United Nations Convention against Torture and the 1989 Convention on the Rights of the Child, have distinct roles, which may include both the review of national reports and the determination of individual or inter-State complaints. UNHCR does not possess these functions, and the precise nature of the obligation of States is not always clear, although together with the statutory role entrusted to UNHCR by the General Assembly, it is enough to give the Office a sufficient legal interest (locus standi) in relation to States’ implementation of their obligations under the Convention and Protocol. States generally do not appear to accept that UNHCR has the authority to lay down binding interpretations of these instruments, but it is arguable that the position of the UNHCR generally on the law or specifically on particular refugee problems requires to be considered in good faith.

The organization's primary objective is to ensure that all persons can exercise the right to seek asylum and find safe refuge in another state, and to return home voluntarily. UNHCR currently helps more than 21 million people and the Convention , which has proved to be remarkably flexible in rapidly changing times, continues to be the cornerstone of refugee protection.

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Anne von Oswald/Andrea Schmelz, Network Migration in Europe, 2010




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