The 1951 Refugee Convention. Vladislava Stoyanova

Transcription

1 The 1951 Refugee Convention Vladislava Stoyanova

2 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.

3 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) 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

4 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 SONLINE&mtdsg_no=V~2&chapter=5&Temp=mtdsg2&la ng=en#participants see also pdf The role of the UNHCR The Handbook

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6 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) Art. 1 (E): Protection equivalent to nationals Art. 1 (F): Exclusion clause

7 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. yrian-refugees-trapped-arsal html

8 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 )

9 The methodology for determining refugee status Tools to establish the well-founded nature of the fear Asylum seeker s testimony Generalised oppression (credibility) Past persecution of the A.s. Harm to similarly situated persons General human rights situation

10 The methodology for determining refugee status What constitutes persecution? Acts of persecution Agents of persecution serious violations of human rights. (UNHCR Handbook, para.51) EU Qualification Directive (recast)

11 The methodology for determining refugee status The five grounds of persecution Race Particular social group Religion Nationality Political opinion Nexus

12 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.

13 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 to states.... Second, the refugee definition... is sufficiently flexible to allow states to make protection decisions in a way that accords 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 require states to afford asylum or durable protection to such refugees 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

14 Rights under CSR As 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 (nondiscrimination), 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 (legal aid/exemption from costs in court proceedings)

15 Thank you! Vladislava Stoyanova