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The Geneva Convention's relevance in international refugee protection

Topic: Who is a Refugee under the 1951 Convention relating to the status of Refugees?

Geneva Convention, or the Convention Relating to the Status of Refugees, or the 1951 Refugee Convention, is the main multilateral treaty of the United Nations (UN) that not only defines the term refugee but also brings out the rights that the individuals get when they are granted asylum, along with stating the responsibilities that a nation gets once it grants asylum. The Geneva Convention was adopted in 1951 and was the result of the two devastating world wars that left the world in a state of turmoil. In the context of international refugee protection, this convention takes centre stage. This is because the matter is still very relevant in the present world and even more than it was before.  

The Geneva Convention was the result of a special conference of the UN and was adopted on 28th July 1951, and entered into force on 22nd April 1954. This convention brings clarity to the definition of refugees. This is in the sense of who will be deemed as a refugee and who will not be treated as one. It also brings out the rights, assistance and protection that the refugees have to receive. For the Office of the United Nations High Commissioner for Refugees (UNHCR), the Geneva Convention acts as the primary legal base. Initially, the convention was restricted to geographic and temporal terms, where the only focus was placed on the refugees that were in Europe post-WWII. The scope of this convention was expanded later on in 1967, and this was done with the Protocol relating to the Status of Refugees. At present, there are one hundred and forty-six State parties that the Convention has, which includes nations like Germany. In the context of the protection of refugees, this continues to be the most significant international document.  

This document seems like a powerhouse in the context of refugee protection due to the strength it has attained since it was first brought forth, and the high number of participants that have boarded this ship. However, this convention has faced a lot of criticism. This is not only in the context of the convention failing to live up to its objectives but also in the context of it being outdated for the present time. It is stated that the convention was brought decades ago and a lot has changed since then. Even the manner in which the refugees have been defined under the act shows the old-age view on who is deemed as a refugee. In order to understand these contentions in a better manner, this discussion takes a journey on exploring the very definition of refugees as is given under the Geneva Convention. In doing so, the criticism that this definition has garnered, along with the reasons to show how this definition needs an update, basis the present scenario, will be elucidated.

The Geneva Convention acts out as a remarkable document that has created a system of international protection for individuals who need it. Looking at it from the international law perspective, this Convention gives a person the status of being a refugee when they have lost the protection from the state of which they hold the nationality or the state of their origin. For being a refugee, it is thus necessary to show failure or loss of protection from the state, which makes it crucial for such a person to be given this protection. In order to admit a person as a refugee, the recognition of the part played by the state is crucial. A person is granted refugee in the territory of another nation only when it is a genuine case and the person genuinely needs protection. This is why the international standards were developed so as to put forth the criteria that were needed for accepting a claim of refugee status and to allow for the determination of such a claim. The needful standards have been covered under Article 1 of this convention.

How the definition of refugees is given under the Convention

The article begins by showing the criteria, which would lead a person to be termed a refugee. A person would be deemed as a refugee under this convention when he has been considered to be a refugee based on the “Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the Refugee Organisation”. Here the article clarifies that the decisions that were taken in the context of the non-eligibility during the period of its activities, by the International Refugee Organisation, would not prevent the refugee status from being accorded to such an individual who meets the criteria laid down in paragraph 2 of this section.

The events that took place before 01st January 1951, coupled with the rational fear of prosecution based on the reasons of membership of a specific political opinion or social group, nationality, religion, or race, a person can claim refuge in an outside nation. The refuge is essentially sought out of the nation for which such person holds the nationality. Further, such a person is not able to avail of the protection of such nation, or owing to such fear is not willing to avail such protection would qualify in the context of being a refugee. This can also be granted to a person who does not have the nationality and is out of the nation that was their earlier habitual resident because of certain events, or where such person is not willing to return to their habitual residence nation due to fear of such events. Where a person holds the nationality of more than one nation, the country of his nationality would refer to the nations where he is a national. Further, the individual would not be considered as not having the protection of the nation of his nationality where there is the absence of a valid reason for such well-founded fear was present and where such a person does not avail the protection of the country of which he is a national.

Article 1(B) clarifies the meaning of the words 'events occurring before 1 January 1951, as have been covered in Article 1(A). these were making reference to either the events that took place before 01st January in Europe or the ones that occurred in Europe or elsewhere. Every contracting state is required to make a declaration regarding the meaning that they apply to this term, so as to set the obligations under this Convention. This has to be done in the context of making a declaration at the time of accession, signature or ratification. Where the contracting state has adopted the alternative that has been stated in the first option, they can get their obligation extended by referring to the second option at any time, by simply issuing a notification that has been addressed to the Secretary-General of the United Nations.

This article also clarifies the conditions that would lead to a person ceasing to fall under the protections offered under section A of this convention. This involves a person voluntarily reacquiring their nationality, which they had earlier lost. In addition, where a person has re-available the protection of the nation of which he holds the nationality on a voluntary basis, he would not be able to avail of the protection of this convention. When a person acquires the nationality of another nationality and gets protection from this newly adopted nationality's nation, he would no longer be deemed a refugee. Furthermore, due to the situations that led to the person being recognized as a refugee was no longer in existence, and yet he can no longer continue to refuse the protection offered by the country of his nationality, he will not get the protections stated under Article 1(A). Consequently, this paragraph does not apply to someone who may provide strong grounds based on prior persecution for declining to seek the assistance of the country of their origin. The refugee status will also not be given to a person who has no nationality as the situations that led to the person being recognized as the refugee was no longer in existence. When someone can provide strong grounds based on prior persecution for declining to seek the protection of the country of their nationality, this paragraph does not apply to that individual.

The criteria that need to be met for considering a person as a refugee

The D clause of this article clarifies the non-applicability of the Convention to individuals who are receiving refugees assistance or protection, at present, from the agencies of the UN, save for the United Nations High Commissioner. In case the assistance or protection is not available for any reason, the individuals would be entitled to the Convention stated benefits ipso facto, without such person’s position being settled as per the pertinent resolutions adopted by the UN’s General Assembly. The next section of this discussion showed the non-applicability of this convention to the individuals who have been recognized by the relevant authority of their nation, where the individual has taken residence, as regarding the obligations and rights that came with the possession of the nationality of such nation. The next section also clarified the provisions for non-applicability of the convention where some serious reasons were present. These serious reasons involve committing a crime against humanity, a crime against peace, a war crime, as have been defined in the varied international instruments, which have been specifically curated to cover provisions pertaining to these crimes. The serious reasons also include the individual committing a serious non-political crime, which is out of the country of refuge before he had been admitted to such nation as a refugee. In addition, where a person has been guilty of acts that go against the principles and purposes of the UN, it would be deemed as a reason, resulting in non-granting of protection under this convention.

The wider sense overview of Article 1 provides the base of refugee being granted, discontinued or denied to a person and the necessary protection surrounding this status. There are various significant elements covered in the refugee definition given under this article, which includes a justifiable persecution fear on the basis of reasons that have been detailed in this article and being out of the nation of original, habitual residence, or nationality that was evidenced through the reluctance to get back to such a nation. There are certain key elements that this definition carries, in terms of the outside the country of origin, habitual residence, or nationality, with the reluctance to get back to such a nation, as these are all questions that are essentially based on facts. The evidence is constituted in the fear of persecution faced by the claimant in the country of their origin, habitual residence, or nationality, along with the affirmation that such an individual has lost protection from such a nation.

As against the factual part of this definition, the legal standard is reflected in the criterion regarding logical fear of persecution. However, the application of this legal standard is conditioned by the presence of objective facts. The key term that is used in the context of "well-founded", which has been referred to in this discussion as rational or justifiable, shows the fear is based on the valid ground of persecution as per scholars. This view is based on the suggestion that in the context of the concerned person, the claim has to be measured by taking an objective yardstick, instead of checking the frame of mind of the person, in order to make the decision regarding the claim made for the refugee status. There have been several scholars, who have supported this notion. Thus, it has emerged that the "well-founded" term indicates that there must be enough evidence to support the conclusion that an application for refugee status might face a very real risk of being persecuted if returned home in their homeland. There have been sources that show that this phase, in the context of fear, shows that the applicant has to be given a reasonable description to show the reasons behind such a fear of persecution is an objective risk. Apart from this, the applicant has to show that there is a good reason to show that the fear of persecution is backed by proper evidence. These very views have been reflected in the decisions that have been taken by the superior courts in the leading common law jurisdictions. 

Clarification of the events that lead to a person being considered a refugee

The meaning of the phrase being referred to here has attained additions from the consensus of judicial opinions, regarding the fear of persecution with regards to the Convention Relating to the Status of Refugees set standards. Here, reference can be made to the ruling of the Supreme Court of the United States in the matter of I.N.S. v CardozaFonseca (1987) 467 US 407. This case resulted in the test of reasonable possibility for persecution being brought forth for making a determination regarding the meaning of this very phrase. Judge Stevens gave a very illustrative opinion stating that as long as the objective situation was shown to be present through evidence, there was no need of showing that the circumstances would result in probable persecution. Rather, it was deemed as enough to show that there was a reasonable possibility of persecution. 

In the case of R v Secretary of State for the Home Department, ex parte Sivakuniaran (1988) 1 All E.R. 193, this very approach was approved by the House of Lords in England. This case involved six applicants, who were from Sri Lanka and were its nationals, who made an application for asylum and belonged to the Tamil ethnic group. Their application was refused by the Secretary of State based on the contention that the facts known to him did not show that the applicants had a probable fear of persecution in case they went back to the country of their origin, i.e. Sri Lanka. The reference was made by the House of Lords, to Article 1(A)(2) for the requirements of the convention. This was in reference to the well-founded fear of persecution stated under the convention that was faced by the applicant seeking refugee status. Here, the person would have to show that upon returning to their nation, they would be persecuted. The reasonable likelihood was sufficient to be demonstrated in such cases. In the view of the court, in order to make the decision related to the applicant's claim regarding the fear of persecution being well-founded, the circumstances and facts that were known to the Secretary of State or had been established to his satisfaction, had been taken into account by this authority. This could involve such matters as well that were not possibly known to the application for determining the fear of application was justified in an objective manner or not. Based on this very reasoning, the view of the court was that the respective authority had the relevant information before them that demonstrated that there was an absence of a fear of persecution for Tamils in general or for any specific group of Tamils or to the applicants of Sri Lanka. As a result of this, the Secretary of State had the right of refusing the application basis the point that there was no existence of a real risk of persecution.

The Federal Court of Appeal of Canada took into consideration the approaches that were taken by the Supreme Court of the United States and that of the House of Lords, as has been elaborated in the previous paragraphs. This was the case of Adjei v Minister of Employment and Immigration, Federal Court of Appeal Decision A-676-88, January 25, 1989, in which the Canadian Federal Court applied the reasonable chances of fearing persecution for making a determination regarding the well-founded fear of persecution being present, as a test. 

Meaning of the term 'events occurring before 1 January 1951'

These cases, in general, demonstrate the kind of issues that come with the growing restrictive interpretation of criteria that governed the status of refugees. However, the consistency of the test that has been relied upon, is significant in the context of putting forth the evidence regarding the standard that has to be followed for establishing a well-founded fear of persecution and has been seen as a general application in the international law. In the test of reasonable chance, reasonable possibility and reasonable likelihood, there is a similarity of content, as all of these are used in various manners for determining the fear of persecution being well-founded in an objective manner. Practically, there is no difference, on good authority, in the manner in which these tests are applied in the legal world. This was seen in the case of R v Governor of Pentonville Prison, ex parte Fernandez (1971) 2 A.E.R 691 at 697. The court was involved in constructing subsection 4(1)(c) of the Fugitive Offenders Act, 1967. This covered that an individual would not be returned basis of this legislation, where it is shown that the person could be prejudiced in his trial, could be restricted, punished or detained, if he is returned, in the context of his personal liberty, due to the reasons of political opinion, nationality, race or religion. For showing the chances of such an event, taking place, the reliance had to be placed on the serious possibility, substantial grounds, or reasonable chance, by the Court, in the context of the possibility of restriction or detention of the fugitive post his return. 

A crucial point that has to be clarified in the context of this discussion is that the preparatory material to the convention or the very convention itself, of the Convention Relating to the Status of Refugees, fails to define the term persecution. This is based on certain underlying motives. The judicial view, irrespective of the case, states that the persecution implies an oppressive action or an injurious act. However, the problem with taking the Convention's humanitarian spirit so literally and narrowly is that it challenges the fundamental essence of persecution, which is the concept of asylum as a whole. Major difficulties for extending the definition of persecution were therefore necessary in order to continue providing asylum for individuals who confront. To give an example of one such challenge, one could refer to the link between the refugee regime and human rights. The persecution concept clearly cannot remain unaffected post the succeeding developments in the law that relates to human rights. Thus, the meanings that have been attributed to the persecution term have to consider the presence of the general human rights standards.

There has been a noted widening of the principles of human rights. This is particularly in the matter of the ambit of protection that is granted to the people in general. Apart from this, the convention has its base stemmed from the humanitarian ideas that are embedded in the human rights concept. The Preamble of this convention indeed confirms that the principles that have been covered in the Charter of the United Nations have been enunciated in this convention. These pertain to the enjoyment of freedoms and fundamental rights by human beings in a manner that is free of discrimination. The Convention based grounds for persecution, in the context of membership of a specific social group, political opinion, nationality, religion, or race, were similar to the ones that have been covered in the context of discrimination under the standards of human rights. These discriminatory grounds are prohibited in international law in general. 

The criticism that the definition of refugees has garnered

A connection is present between persecution and failure, at the very least, on the state's part in observing specific human rights. Here, one could look at the Preamble to the Convention that is related to the principle regarding humans enjoying freedoms and fundamental rights. This provides the base for advancing the notion that breach of some rights could be deemed as either persecution itself or evidence of it. As a result, discrimination based on country, religion, or race might be considered persecution under international law when it is committed in an unreasonable manner. The persecution that the refugees fear, as per suggestions, is mainly in the context of a major shortcoming that covers physical integrity, liberty or jeopardy to life. This is in relation to the meaning given by the Convention Relating to the Status of Refugees' article 31 and article 33. 

Article 31 of this convention is related to the threat to freedom or life with regards to persecution referred to under Article 1 of this convention. There is a link created between the grounds of the specific social group, political opinion, nationality, religion, or race, and such threats. On the basis of these grounds, for Article 1 of this convention, the persecution is primarily determined. Article 31 makes reference to refugees who come directly from the areas in which their freedom or life was under threat in the context of article 1. When it comes to recalling or expelling refugees, article 33 prohibits the states from doing so for any reason whatsoever driven by political views, membership in a specific social group and nationality or religion or race. Thus, any such view or conclusion that results in the life or freedom of the person being threatened, with regards to these reasons, would in general be deemed as persecution being warranted. 

Here, reference can be drawn from the indications given in the Convention Against Torture that depicts a connection between the human rights standard and persecution. As per Article 3 of this convention, there is a prohibition placed on refoulement, expulsion or return of the individuals to the nation in which there is a major risk of such an individual facing degraded or inhumane treatment, or torture. This is a cornerstone in refugee protection as this is a statement that is important to the non-refoulement principle. When this principle is included in the human rights instruments, without even referring to the refugee regime, its presence of it is confirmed in the general international law. In addition, proof of a likely danger of degrading or inhumane treatment or torture might be considered as evidence of or the existence of well-founded fear of persecution on such an inclusion. 

In the context of asylum seekers who face bad treatment short of persecution, the differences in meaning and origins for degrading or inhuman treatment and persecution in the European Convention on Human Rights and 1951 Convention, respectively, is significant. There is an absence of proper reasoning regarding why reliance should not be placed on this principle by an individual in the context of Article 3 of the convention for degrading and inhumane treatment. There is nothing to show in the case laws of the European Commission on this article that could even imply that such reliance was not plausible. The Human Rights Committee case laws have been able to demonstrate that banishment, detention and confinement on the basis of political opinions would be tantamount to persecution. The view of the Committee holds significance in two key cases where this was held true even without a reference being made to the 1951 Convention with regards to the standard of persecution. The clear meaning of this is that the scope of the term persecution is wide in the ambit and can be easily associated with certain human rights being denied.

Reasons for updating the definition of refugees in the present scenario

In the modern world, the substantial breaches of human rights, armed conflicts, internal strife, serious public disorder, and acts of foreign domination and aggression make it evident that the person would be compelled to run away from the place where such instances take place, that too in large numbers. The forced migration is based on the complex and intense reasons why the people attempt to migrate beyond the state borders. Hence the standard of a well-founded fear of persecution often becomes inadequate in the context of providing sanctuary to the big number of refugees who take the migration route to save them, and for this, they can go to any place. The 1951 convention does not make a direct reference to the matter of women in a pitiful situation where they are persecuted due to the reasons of their gender, where the women end up being victims of sexual abuse, the discriminatory pattern of traditional behaviour and customs, and systematic rape. Article 3 covered the definition of non-discrimination and does not cover sex as a category. Thus, this has been left to the United Nations High Commissioner for Refugees' practice in the context of recognizing that women at risk demand a special category when it comes to refugee protection. There have been some jurisdictions that have accepted this category to constitute a member of a specific social group, as has been referred to under Article 1(2) of this convention. 

The cold war was cited as a cause of the 1951 convention, which was brought up throughout this argument. This convention represents the political objectives of the West therefore at time, as well as the European experiences of Nazi persecution during World War II. This conference was held. On a group and case-by-case basis, Europe's post-war displacement was dealt with following the war. The restrictions on exit in the communist nations ensured that these were low in numbers. The criteria of the convention could be applied on an ideological kudos and case basis by giving sanctuary to such people who were deemed as the free world's defectors. The majority of the asylum seekers from the present time originate from Africa, Asia, the Middle East and Eastern Europe, instead of the earlier times of Western Europe. These people are still not very welcome. Further, the need for unskilled labour in developed nations has gone down, which no longer confers any strategic or ideological benefit to the nation giving asylum. Since the number of asylum seekers continues to grow, the inclination towards expanding the out of date grounds and criteria of this convention by the governments is missing. 

The definition of a refugee does not make sense with the changed number and reasons for refugees. This is why this definition has been criticized by NGOs and scholars. This has led to calls for rethinking and expanding the manner in which this definition is defined. An example of this can be seen in the non-inclusion of the growing number of people who have been displaced due to climate change, non-state terrorism, or food insecurity in the definition of a refugee. There is a lack of guidance on protracted or long-term based displacement, which is being experienced by a growing proportion of displacement. The criteria laid down in the convention are outdated and limited, and the wording is also vague in parts. This had led to creative interpretation and expansion of the grounds of the convention by the judiciary in the context of protecting and dealing with the present situations. This means that the people who do not want to return home for non-convention reasons can rely on the discretion of the government to get the humanitarian status. This changes the context of refugees, giving refugees to people who do not qualify as being one under the 1951 convention. Apart from this, the 1951 convention also fails to acknowledge the high number of refugee influxes and the problems associated with it. Thus, even in genuine cases, it might not be feasible to uphold the theme of this convention or that of the definition given to the term refugee under Article 1.

Conclusion

The previous parts of this discussion detailed the meaning of refugee. A fine comb approach was adopted in deciphering the meaning of refugee in this definition. This discussion has helped in clarifying the parameters that would lead to a person being deemed as a refugee under the 1951 Convention. The definition of a refugee is covered under Article 1 of this convention. Apart from stating the criteria that result in a person being deemed as a refugee, this article also shows the different scenarios or situations that would result in a person not being granted the refugee status or the situations that would lead to a reversal of this status. The theme of a refugee is the protection of a person from persecution on various grounds of a specific political opinion or social group, nationality, religion, or race, a person can claim refuge in an outside nation. Where there are well-founded reasons for believing that such a threat of persecution exists, the convention requires the applicant to be granted refugee status. However, when the situation changes and the person no longer face a threat in the country of their origin, their refugee status would be taken back. The only exception of such reversal is that the individual is able to show compelling reasons based on the earlier persecution for refusing to get the protection of the country of his nationality, he would still be deemed as a refugee for the purpose of this convention. This article also bars the status being granted to those who threaten peace.

The discussion then undertook a deeper analysis of the meaning and the manner in which the courts interpret this article. In doing so, reference was made to the case in Canadian, American and British jurisdictions. This allowed in demonstrating that the courts interpret the wordings of this article in detail to confer the status of refugee. This very interpretation is cited as a criticism of this definition as the outdated definition makes it the responsibility of the court to interpret the nuances of this definition. Apart from this, the fact that this definition was given in a different era, and that time has changed a lot since then, also formed to be key criticism garnering points for this definition. Hence, the possibility of modernising the 1951 Convention definition of a refugee is the need of the hour. This would allow for the definition to factor in the modern reasons for migration and also consider the problem of a higher influx of refugees across the globe.

Primary Sources


Cases

Adjei v Minister of Employment and Immigration, Federal Court of Appeal Decision A-676-88, January 25, 1989

I.N.S. v CardozaFonseca (1987) 467 US 407

R v Secretary of State for the Home Department, ex parte Sivakuniaran (1988) 1 All E.R. 193

Statute and Statutory Instruments

European Convention on Human Rights 1950

Geneva Conventions 1949

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Swarb, 'Regina V Home Secretary, Ex Parte Sivakumaran: HL 16 Dec 1987 - Swarb.Co.Uk' (swarb.co.uk, 2021) <https://swarb.co.uk/regina-v-home-secretary-ex-parte-sivakumaran-hl-16-dec-1987/> accessed 19 April 2022

UNHR, 'Convention Relating To The Status Of Refugees' (2021) <https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees> accessed 19 April 2022

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Weis P, 'THE REFUGEE CONVENTION, 1951' (Unhcr.org, 2021) <https://www.unhcr.org/4ca34be29.pdf> accessed 19 April 2022

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