Refugee Protection

Background

States have built the legal framework that supports the international refugee protection regime. Over the years, States have affirmed their commitment to protecting refugees by acceding to the 1951 Convention relating to the Status of Refugees (Refugee Convention), the cornerstone instrument of refugee protection.

Three other important instruments have regional application. These are the Bangkok Principles, adopted in 1966 by what was then known as the Asian-African Legal Consultative Committee (AALCC)1, the Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted in 1969, and the 1984 Cartagena Declaration.

The Convention relating to the Status of Refugees is the foundation of contemporary international refugee law. It defines the term “refugee” and sets minimum standards for the treatment of persons who are found to qualify for refugee status. Because the Refugee Convention was drafted in the wake of World War II, its definition of a refugee focuses on persons who are outside their country of origin, and are refugees as a result of events occurring in Europe or elsewhere before January 1, 1951.

As new refugee crises emerged during the late 1950s and early 1960s, it became necessary to widen both the temporal and geographical scope of the Refugee Convention. Thus, a Protocol to the Convention was drafted and adopted in 1967. When these instruments are combined, a refugee is defined as someone who:

  • has a well-founded fear of persecution because of his or her race, religion, nationality, membership in a particular social group, or political opinion
  • is outside his or her country of nationality
  • is unable to avail himself or herself of the protection of his or her country of nationality or habitual residence, or to return there, for fear of persecution.

As a matter of international law, a person is a refugee as soon as the criteria contained in the definition are satisfied. By applying these criteria, a person does not become a refugee because of recognition, but is recognized because he or she is a refugee. A declaration of refugee status states the fact that the person is a refugee.

Key Message

It is the responsibility of States to protect their citizens. When the governments of home countries are not able or willing to protect the basic rights of people living in the State and these people are forced to cross an international border to escape persecution, generalised violence, conflict, or serious human rights violations, then the international community has the responsibility to step in to ensure that these people receive effective protection and that their basic rights are respected.

The creation of national refugee legislation based on international standards is the key to strengthening asylum, making protection more effective, and developing solutions for refugees.

Terms and Concepts

Asylum
The grant, by a State, of protection on its territory to persons from another State who are fleeing persecution or serious danger. Asylum encompasses a variety of elements, including non-refoulement, permission to remain on the territory of the asylum country, and humane standards of treatment.

Asylum-seeker
A person whose request or application for asylum has not been finally decided on by the country of refuge that he or she is in

Cessation clauses
Legal provisions that indicate when refugee status comes to an end. Cessation clauses are found in Article 1 C of the 1951 Convention relating to the Status of Refugees, and in Article 1 (4) of the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa.

Convention refugees
Persons recognized as refugees by States under the criteria in Article 1 A of the Convention relating to the Status of Refugees, and entitled to the enjoyment of a variety of rights under that Convention

Durable solutions
Any means by which the situation of refugees can be satisfactorily and permanently resolved to enable them to live normal lives. This can include voluntary repatriation, local integration, and resettlement.

Exclusion clauses
Legal provisions that deny the benefits of international protection to persons who would otherwise satisfy the criteria for refugee status. These clauses are found in Articles 1D, 1E, and 1F of the Convention relating to the Status of Refugees.

Local integration
A durable solution for refugees or asylum-seekers that involves their permanent settlement in a country in which they have been granted international protection

Mandate refugees
Persons who are recognized as refugees by UNHCR acting under the authority of its Statute and relevant UN General Assembly resolutions

Non-refoulement
A core principle of refugee law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened

Persecution
Any severe violation of human rights. In the refugee context, “persecution” refers to any act by which fundamental rights are severely violated for reasons of race, religion, nationality, political opinion, or membership of a particular social group.

Refugee law
The body of customary international law and various international, regional, and national instruments that establish standards for refugee protection

Refugee status determination procedures
Legal and administrative procedures that are undertaken, by States and/or UNHCR, to determine whether an individual should be recognized as a refugee in accordance with national and international law

Resettlement
The transfer of refugees from the country in which they have sought refuge to another State that has agreed to admit them. The refugees will usually be granted asylum or some other form of long-term resident rights and, in many cases, will have the opportunity to become naturalized citizens. Resettlement is a durable solution as well as a tool for the protection of refugees.

Temporary protection
An arrangement developed by States that can be offered to persons arriving en masse from situations of conflict or generalized violence. It offers protection of a temporary nature without prior individual status determination.

Voluntary repatriation
Return to the country of origin based on the refugees’ free and informed decision. Voluntary repatriation may be organized or spontaneous.

1  The Bangkok Principles were revised and consolidated by the Asian-African Legal Consultative Organization (AALCO) in June 2001.