In the summer of 2015 the Refugee Crisis replaced the latest episode in the Greek bail-out negotiations as front page news. In the months that followed the EU and its member states came under criticism for appearing to be unable to cope with the large influx of migrants. The EU however is restricted in what it can do by the legal framework within which it is operating. This framework is a combination of national asylum and migration legislation, EU level policies such as the Common European Asylum System approved in 2013, and international legislation. Within this last category falls the often referred to Refugee Convention, which supersedes any national or regional legislation of its signatories. To really understand the rights and obligations of refugees it is essential to understand this treaty at the core of international refugee law. (Featured Image © Wikipedia Commons)
According to the UNHCR the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, signed by 144 and 145 countries respectively, form the corner stone of international refugee law.¹ The Charter of Fundamental Rights of the European Union, which became a legally binding document with the implementation of the Lisbon Treaty in 2009, obliges EU member states to adhere to both the convention and the protocol.² Claims that the documents require an update to respond to changes in the nature of refugee crises have been voiced before. Already in the 1980’s and 1990’s some experts said that the convention (and its protocol) was no longer applicable in most refugee situations.³ Around the turn of the century such an update was up for debate, and with it a redefinition of the UNHCR’s role.4 However, to date no new modifications have been introduced and the 1967 Protocol remains the latest change introduced to the Refugee Convention.
So what do these documents entail? What obligations and rights do they attribute to governments and refugees? First it is essential to understand the link between the Protocol and the original Convention. The Protocol was introduced in 1967 to address limitations on the time and geographical reach of the original Convention. It incorporates the entire Convention (minus these limitations) and in doing so can be adopted without the need to be a party to the original Convention. The limitation on time is included in Article I of the Convention, which provides a definition of who is to be considered a refugee under the treaty:
“As a result of events occurring before 1 January 1951 and owing to wellfounded 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.”5
The two underlined sections are essential principles in understanding the Refugee Convention. The original Convention was a result of large amount of refugees still spread out over Europa in the aftermath of World War II. Governments felt that a comprehensive solution was required to address the problem of displaced persons, many of whom were still unable to return to their home country.6 The Convention was never intended as an enduring international framework to deal with future refugee crises. Its limitation to events that occurred before 1951 is indicative of this. Moreover, article I allows parties to the convention to further limit it to events that occurred in Europe.
That a refugee should be someone with a “wellfounded fear of being persecuted” has a significant impact on who will or will not be considered to be a refugee, and accordingly, who will or will not be given the rights provided to refugees by the Convention. Known as the war-flaw, the element of persecution effectively disqualifies people who are fleeing conflict and war zones if there is no indication that they are specifically targeted.7 The counterintuitive limitation that someone fleeing war would not by definition be qualified as a refugee means those people are often only entitled to protection under humanitarian law (specifically the 1949 Geneva Conventions), which attributes significantly less protection and support to refugees than the Convention does.8
The 1967 Protocol was introduced in a response to ongoing and new refugee crises in the years following the original convention. It exists both as an extension to the original Convention and as a standalone treaty. By ratifying the 1967 Protocol states agree to incorporate the 1951 Convention word for word excepting the removal of the limitations imposed through its article 1.9 The Protocol means people can qualify as a refugee for events that occurred at any time before and after 1951. The geographical limitation to Europe is only allowed to stand for those states that already made such a declaration under the original convention, and only Turkey chose to do so and still maintains this limitation.10
Ascension to the 1967 Protocol means automatically accepting all the terms of the original 1951 Convention. When today’s politicians and experts mention the “Refugee Convention” they are in fact referring to the Protocol, as the original convention itself has no relevance to events occurring after 1951.
So what obligations does the Protocol, through its incorporation of the Convention, place on states? And what rights can those recognized as refugees claim? Chief among its principles is the prohibition of expulsion or return, known as non-refoulement. A refugee cannot, under any circumstances, be returned to the place where he is being persecuted. The only exceptions to this are refugees who are considered a danger to the host state or who have been convicted of a “particularly serious crime”. Furthermore, states are prohibited from penalizing refugees for illegally entering and remaining in their territory, provided they present themselves “without delay” to the authorities. This means an asylum seeker’s application for refugee status should not be negatively influenced by their illegal entry into the country. Additionally, refugees are allowed “a reasonable period” to obtain admission into another country, even if their application is refused in their original host country.11
Other core principles enshrined in the Protocol are those of non-discrimination on race, religion or country of origin, freedom of religious practices equal to those of nations of the host country, and in other matters rights equal to those of “aliens generally” unless the Convention specifically foresees a more favorable treatment. The Protocol can never be used to limit rights granted through national legislation that are more favorable than those in the original Convention text.12
In regard to employment a lawfully residing refugee (i.e. with an approved asylum application) is to be considered at least as favorable as any other foreign national in regard to liberal professions, wage-earning employment or self-employment.13 Likewise, housing rights, administrative assistance, and freedom of movement will be granted on (at minimum) equal status with other aliens.14 The Convention text also provides equality to nationals on a selected range of topics. It guarantees equal access to elementary education, public relief, labor legislation (such as paid holidays, working conditions, and salaries), and social security (in as far as contribution conditions are fulfilled).15 It also prohibits any taxation in any form that is higher than those taxations nationals themselves are subject to.16 Finally, the Convention asks of its contracting states to “facilitate the assimilation and naturalization of refugees”. This makes sense when one considers the unclear timeframe during which the reasons for a refugee situation will continue to exist. If refugees are living in a host country for a prolonged period it is in their best interest, as well as that of the host state’s, to integrate in the local social and cultural framework.17 Requiring efforts to facilitate refugees’ integration does not mean they are given an indefinite right to remain in their country of refugee. The Convention stipulates that the obligations and rights it provides will cease to exist once “the circumstances [that gave him refugee status…] have ceased to exist”.18 Its application is thus entirely limited to the conditions that previously led to a successful asylum application.
The Refugee Convention remains largely unchanged in content since it was created in 1951. The 1967 Protocol remains the only update to date, and it changed its time and geographical scope only. Throughout the decades since it has come under scrutiny again and again, and as the Refugee Crisis continues to evolve new calls for an update will be likely. It seems unlikely however that any such changes will be made in the near future. The alternative, withdrawing from the Convention and the Protocol, is not an option for EU member states due the Charter of Fundamental Rights of the European Union’s requirement to adhere to both treaties. For better or for worse, the Convention and Protocol will continue to form asylum policies within the EU for the foreseeable future.