the 1951 refugee convention - lunds universitetlaw.lu.se/webuk.nsf/(menuitembydocid... ·...
TRANSCRIPT
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
Literature
• http://www.cambridge.org/se/academic/subjects/law/human-rights/law-refugee-status-2nd-edition?format=PB#Y4tgFFvMZDvDERbe.97
• https://global.oup.com/academic/product/the-refugee-in-international-law-9780199207633?q=Jane%20McAdam&lang=en&cc=se
• https://global.oup.com/academic/product/the-1951-convention-relating-to-the-status-of-refugees-and-its-1967-protocol-9780199542512?q=Jane%20McAdam&lang=en&cc=se
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
Asylum and Non-refoulement
Article 14 of The Universal Declaration of Human Rights
1. Everyone has the right to seek and to enjoy in other
countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions
genuinely arising from non-political crimes or from acts
contrary to the purposes and principles of the United Nations.
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
Asylum and Non-refoulement
There is no individual right to asylum in international law.
Art. 14 UDHR confers no such right.
Neither does the 1951 Refugee Convention (CSR).
EU law: Art. 18 of the EU Charter on Fundamental Rights
may recognize the right to asylum (as argued by Maria-Teresa
Gil-Bazo in RSQ 2008)
http://www.europarl.europa.eu/charter/pdf/text_en.pdf
There are rights entitling to non-refoulement, once a person
comes under the jurisdiction of a state.
Non-refoulement explicit in Art. 33 CSR and Art. 3 CAT
Non-non-refoulement implied in Art. 3 ECHR Art. 7 ICCPR
It is assumed that there is a prohibition of refoulement in
customary IL.
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
The 1951 Convention on the Status of Refugees
• Designed to solve the post-WWII refugee crisis in Europe
by creating a refugee status and attaching rights to it.
• Temporal limitation. Geographical limitation. Keep in mind
the 1967 New York Protocol
• Status of ratification
http://www.unhcr.org/protection/basic/3b73b0d63/states-
parties-1951-convention-its-1967-protocol.html
http://www.refworld.org/pdfid/505187992.pdf
https://treaties.un.org/
• The role of the UNHCR http://www.unhcr.org/cgi-
bin/texis/vtx/home The Handbook
http://www.refworld.org/docid/4f33c8d92.html
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
The structure of Article 1 of the CSR
• Art. 1 (A): Inclusion Clause
historical categories: statutory refugees
general definition – cornerstone of the protection system!
• Art. 1 (B): Geographical scope
• Art. 1 (C): Cessation Clause
• Art. 1 (D): Protection/Assistance by other agencies (e.g.
UNRWA) http://www.unrwa.org/
• Art. 1 (E): Protection equivalent to nationals
• Art. 1 (F): Exclusion clause
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
The Refugee Definition
‘ … 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 nationality and is unable, or owing to such
fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the
country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return
to it.’
http://www.aljazeera.com/blogs/middleeast/2017/03/refugee-syria-isil-held-raqqa-people-choice-170330175229626.html
https://www.aljazeera.com/news/2017/12/syrian-refugees-lebanon-facing-harsh-conditions-171228155137105.html
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
Alienage“The Convention could have, but chose not to, concern itself also
with enabling people to escape their country by providing for a right
of admission to another country to allow them to do so...
In an ideal world there would no doubt be provision for states to
facilitate the escape of persecuted minorities... I am satisfied,
however, that on no view of the Convention is this within its scope.
The distinction between, on the one hand, a state preventing an
aspiring asylum-seeker from gaining access from his own country to
its territory, and on the other hand returning such a person to his own
country... can be made to seem a narrow and unsatisfactory one. In
my judgment, however, it is a crucial distinction to make and it is
supported by both the text of the Convention and by the authorities
dictating its scope.”
R. (European Roma Rights Centre and Others) v. Immigration Officer
at Prague Airport, [2003] EWCA Civ 666 (Eng. CA, May 20, 2003),
at [37], [43].
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
The methodology for determining refugee status
• Is there ”well-founded fear”?
• Is there serious harm? (”being persecuted”)
• Is the state unable or unwilling to offer effective protection?
(”unable... unwilling”) The idea of “surrogate protection”
• Is the lack of protection linked to one or more of the five
convention grounds? (”for reasons of race, religion,
nationality, membership of a particular social group or
political opinion”)
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
• Alienage
• Genuine Risk
• Serious Harm
• Failure of State Protection
• Nexus to Civil and Political Status
• Needs Protection
• Deserves Protection
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
The methodology for determining refugee status
Tools to establish the well-founded nature of the fear
Asylum
seeker’s
testimony
(credibility)
Past
persecution
of the A.s.
Harm to
similarly
situated
persons
General
human
rights
situation
Generalised
oppression
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
The methodology for determining refugee status
‘ … serious violations of human rights.’ (UNHCR Handbook,
para.51)
EU Qualification Directive (recast)
What constitutes persecution?
Acts of persecution Agents of persecution
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
The methodology for determining refugee status
The five grounds of
persecution
Race
ReligionNationality
Political
opinion
Particular
social group
Nexus
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
The nature of refugee status determination
• Refugee status determination is declaratory, not
constitutive: A person is a refugee as soon as s/he fulfills the
criteria contained in the definition in Art. 1 CSR (UNHCR,
Handbook, para. 28)
• In practice, states often withhold rights under the CSR until
status determination is completed.
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
The nature of refugee status determination
Four major elements of domestic control over refugee protection may be identified.
• First, the Convention leaves the protection decision tostates. ...
• Second, the refugee definition... is sufficiently flexible toallow states to make protection decisions in a way thataccords with their own national interest.
• Third, states are explicitly authorized to exclude refugees... if they are adjudged undesirable or unworthy of assistance.
• Finally, the international refugee regime does not requirestates to afford asylum or durable protection to suchrefugees as the state chooses to recognize.”
James Hathaway, A Reconsideration of the Underlying Premise of Refugee Law, Harvard International Law Journal, Vol. 31 No. 1 (Winter 1990) p. 166
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
Rights under CSRAs the bond between refugee and host state tightens, the
number of entitlements increases. Five levels of attachment.
- Subject to a state’s jurisdiction E.g. art. 3 (non-
discrimination), art. 33 (non-refoulement)
- Physically present on state territory E.g. art. 27 (identity
papers), art. 31 (non-penalisation of entry, restrictions on
movement)
- Lawfully present on state territory E.g. art. 32 (protection
from expulsion)
- Lawful stay on state territory (certain length of residence)
E.g. art 17 (wage-earning employment), art. 28 (travel
document)
- Durable residence E.g. art. 16.2 (legal aid/exemption from
costs in court proceedings)
Faculty of Law, Lund University / Vladislava Stoyanova, 23/04/2018
Thank you !
Vladislava Stoyanova