Dissertation on the Scope and Impact of the 1951 Refugee Convention

This dissertation delves into the scope and impact of the 1951 Refugee Convention, a crucial legal instrument governing refugee protection. It begins with an overview of the Convention, its key principles like the definition of a refugee and non-refoulement, and its historical context. The study then ...Read More

Running head: DISSERTATION – SCOPE OF 1951 REFUGEE CONVENTION
Dissertation – Scope of 1951 Refugee Convention
Name of the Student
Name of the University
Author Note

1SCOPE OF 1951 REFUGEE CONVENTION
Table of Contents
1. Chapter 1 – Background to the 1951 Refugee Convention......................................................4
1.1. The 1951 Refugee Convention – A Brief Overview.........................................................4
1.2. Important Concepts and Principles of the 1951 Refugee Convention..............................5
1.3. Issues with the 1951 Refugee Convention........................................................................7
1.5. Research Questions...........................................................................................................9
1.6. Research Hypothesis.........................................................................................................9
2. Chapter 2 – Understanding the Role of the 1951 Refugee Convention in according
Protection to Refugees and Asylum Seekers.................................................................................11
2.1. The Framework for Refugee Protection..........................................................................11
2.1.1. Establishing Refugee Rights and of Refugees under the 1951 Convention on
Refugees – A Brief Overview....................................................................................................13
2.1.2. Duties of Refugees......................................................................................................15
2.1.3. Legal Obligations and Duties towards Refugees by Countries that are Signatories of
the 1951 Refugee Convention...................................................................................................16
2.1.4. Non-Compliance to the Provisions of the 1951 Refugee Convention by Contracting
States 20
Chapter 3 - The aspects of the definition of a refugee that poses as a means to which a call for
reform has been based...................................................................................................................23
3.1. Who is a Refugee?..............................................................................................................23

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3.2. Challenges to the Conventions definition...........................................................................25
3.3. Other Challenges to the 1951 Refugee Convention...........................................................31
3.3.1. Poor Quality of Infrastructure in Receiving Countries....................................................31
3.3.2. Discrepancy between International Standards of Refugee Protection and Regional
Approaches to Refugee Care and Protection.............................................................................33
3.3.3. The Case of Gender Based Violence and Persecution.....................................................38
4. Chapter 4 - The new millennial conversion or turnabout in attitude towards the protection of
refugees..........................................................................................................................................40
4.1. Setting the background to the change.................................................................................40
4.1.1. THE SITUATION OF - REFUGEES FLEEING FROM PERSECUTION...................40
4.1.2. THE SITUATION OF – MAXIMUM INFLUX.............................................................47
4.1.4. THE SITUATION OF – CROSS BORDER DISPLACEMENT....................................49
4.1.5.1. The Case of Poland.......................................................................................................53
4.1.6. The Situation of Climate Refugees and Challenges posed to the 1951 Refugee
Convention.................................................................................................................................55
5. Chapter 5 – Conclusion.............................................................................................................63
5.1. The Way Forward...............................................................................................................63
References......................................................................................................................................71

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1. Chapter 1 – Background to the 1951 Refugee Convention
1.1. The 1951 Refugee Convention – A Brief Overview
The Refugee Convention of 1951, known also as the Convention on the status of
Refugees is the key legal instrument that governs the protection and rehabilitation of refugees
and asylum seekers worldwide.1 It has been ratified by as many as 145 states, most, if not all of
which are concentrated in the Global North, and it outlines the definition and concept of a
refugee, the rights of refugees and the various legal obligations which states are under, to provide
protection and security for refugees. The 1951 Refugee Convention forms the basis for the work
that is done by the United Nations High Commissioner for Refugees (UNHCR), which is the UN
Refugee Agency. 2
The refugee convention was approved of at a special conference of the United Nations
which took place in the year of 1951. The first country to ratify the agreement was Denmark, on
the 4th of December in 1952 and the treaty officially came into force from the 24th of December
in 1954.3 The agreement was initially limited to providing protection only for refugees from
Europe who had been fleeing persecution in the years following World War II, but prior to 1951,
even though states were in a position to declare that the stipulations of the Refugee Convention
could be applied to refugees and asylum seekers belonging to other parts of the world as well.4 In
1967, a protocol was established to the Refugee Convention of 1951, which removed the
1 Refugees, United. 2019. "The 1951 Refugee Convention". UNHCR. https://www.unhcr.org/1951-refugee-
convention.html.
2 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.
3 Refugees, United. 2019. "UNHCR - The UN Refugee Agency". Unhcr.Org. https://www.unhcr.org/.
4 Ibid

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geographic and time limits that applied to refugees yet declarations that had been made
previously by states which had ratified the Refugee Convention of 1951, on its geographic scope
in particular, were grandfathered.
The Refugee Convention of 1951 has been signed by 145 nation states while its Protocol
of 1967 has been signed and ratified by 146 nation states.5 The most recent country to sign and
ratify the Convention, was Nauru, with its President Marcus Stephen signing the Convention as
well as the Protocol on the 17th of June in 2011, after which both the agreements were ratified on
28th of June in 2011. The countries of Nevis, St Kitts and Madagascar have only signed the 1951
Refugee Convention and not its 1967 Protocol, while the United States of America, Cape Verde
and Venezuela are signatories only to the 1967 Protocol.6 Given the fact that the Protocol was
ratified by the USA in 1968, many of the state obligations towards refugees that have been spelt
out in the Refugee Convention of 1951, are obligations that the USA is bound to adhere to, such
as Article 1 of the Convention as well as Articles 2 to 34 which have been amended in the 1967
Protocol as provisions which fall within the jurisdiction and purview of the Supreme Law of the
Land. 7
1.2. Important Concepts and Principles of the 1951 Refugee Convention
Rights of refugees as promulgated by the provisions of the 1951 Refugee Convention are
rights that signatories and parties to the Convention are morally obliged to uphold, even today.
Some of the key features of the 1951 Refugee Convention are its definition of the term refugee
and the principle of non-refoulement. A refugee is defined by the 1951 Convention as a person,
5 Refugees, United. 2019. "The 1951 Refugee Convention". UNHCR. https://www.unhcr.org/1951-refugee-
convention.html.
6 "OHCHR | Protocol Relating To The Status Of Refugees". 2019. Ohchr.Org.
https://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolStatusOfRefugees.aspx.
7 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.

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who, “As a result of events occurring before 1st January 1951 and owing to a well-founded
fear of being persecuted for reasons of race, religion, nationality, membership of a particular
social group, and or political opinion is outside the country of his nationality, and unable to,
or owing to such fear is unwilling to avail himself 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”. 8 The Protocol of
1967 has extended the definition of a refugee to indicate who falls within the definition of a
refugee as stated in the 1951 Refugee Convention, alluding to the fact that events occurring
before 1st January 1951 could not be considered as the only pre-requisite for defining who is a
refugee. 9
The principle of non-refoulement which is a fundamental international legal principle
has also been well outlined in the Refugee Convention of 1951, and as such forms the basis of
duties and obligations of states as exercised with regard to refugees.10 Non-refoulement prevents
countries that receive refugees and asylum seekers to return them forcibly to the same
circumstances or situations that had caused them to flee in the first place as returning them to
such situations or circumstances would put them once again in the danger of being persecuted on
grounds of, “race, religion, nationality, membership of a particular social group or political
opinion”.11 Non-refoulement essentially refers to generic repatriations of large groups of people
such as refugees and asylum seekers into war zones or other disastrous locations, living in which
8 Refugees, United. 2019. "The 1951 Refugee Convention". UNHCR. https://www.unhcr.org/1951-refugee-
convention.html.
9 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.
10 "UNTC". 2019. Treaties.Un.Org. https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
3&chapter=4&clang=_en.
11 Refugees, United. 2019. "UNHCR - The UN Refugee Agency". Unhcr.Org. https://www.unhcr.org/.

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could cause them to lose their lives.12 Non-refoulement as such is a foremost principle of what
may be termed as customary international law. This is a provision of international law that
applies even to countries that have not ratified the 1951 Refugee Convention or its Protocol of
1967. Specifically, it is in Article 33 of the 1951 Refugee Convention, that the non-refoulement
principle is espoused. Article 33 of the UN Refugee Convention of 1951 states that, “No
Contracting State shall expel or return (refouler) a refugee in any manner whatsoever, to the
frontier of territories where his life or freedom, would be threatened on account of his race,
religion, nationality, membership of a particular social group or political opinion”.13 Yet it is
also mentioned at the same time, in Article 33 of the 1951 Refugee Convention, that, “the
benefit of the present provision may not, however, be claimed by a refugee whom there are
reasonable grounds for regarding as a danger to the security of the country in which he is, or
who, having been convicted by a final judgment of a particularly serious crime, constitutes a
danger to the community of that country”. 14What this goes onto reveal is that the 1951 Refugee
Convention refuses to accord protection to asylum seekers who might be considered as a danger
to the host country, on the basis of reasonable grounds of the same, the principle of non-
refoulement notwithstanding. 15
1.3. Issues with the 1951 Refugee Convention
While the UN Convention on Refugees of 1951 has established a protection system for
refugees and asylum seekers around the world, especially for those who are faced with the
dangerous risk of persecution within the territories of their own countries, it appears that many of
12 Ibid
13 Refugees, United. 2019. "The 1951 Refugee Convention". UNHCR. https://www.unhcr.org/1951-refugee-
convention.html.
14 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.
15 "UNTC". 2019. Treaties.Un.Org. https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
3&chapter=4&clang=_en.

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the rights and duties of nation states as outlined in the Convention are archaic in character,
designed for another era rather than the 21st Century. A number of problems with the scope of the
1951 Refugee Convention of 1951 have come to the fore since the decade of the 1980’s. As
argued by Adrian Millbanks, the recent waves of boat people from Vietnam have demonstrated
with a relative amount of ease, how dealing with the matter of illegal arrivals is something that is
greatly constrained due to the obligations of states towards refugees in general and in Australia
in particular, under the 1951 Refugee Convention. Millbanks argues that a lot of attention has
been given to the nature of such obligations, as also how Convention or on-shore refugees fall
within the purview of a different protection system with respect to legal and other obligations, in
comparison to refugees who fall within the purview of offshore humanitarian programs or people
who are provided with temporary forms of protection under either safe heaven or what may be
termed as extended visa arrangements. Increasing tendencies of smugglers and the boat refugees
or boat people to circumvent border controls and visa restrictions has encouraged the country of
Australia to go ahead and join other countries of the world in questioning openly, the continuing
viability and operation of the 1951 Refugee Convention. 16
1.4. Aims and Objectives of the Study
Against the specific background that has been outlined above, the aims and objectives of the
present investigation are as follows –
 To determine the role that is played by the 1951 Refugee Convention in according
protection to refugees
16 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.

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 The aspects of the refugee definition of 1951 that require reforms and revisions to be
initiated
 The new millennial turnabout or conversions in global attitudes towards refugee
protection
 To understand if more cooperation is needed from the UNHCR for protecting refugees
and asylum seekers worldwide, more adequately today
1.5. Research Questions
The specific research questions which this project looks to answer are as follows –
RQ 1 – What is the role played by the UN Refugee Convention of 1951 in according protection
to refugees?
RQ 2 – What are the aspects of the refugee definition as contained in the 1951 Refugee
Convention that requires reforms and revisions to be initiated?
RQ 3 – What accounts for the new millennial turnabout or conversion in global attitudes towards
refugee protection?
RQ 4 – Is more cooperation needed from the UNHCR to protect refugees and asylum seekers
around the world, more adequately today?
1.6. Research Hypothesis
The hypothesis for this research is as follows
Hypothesis 1 – The 1951 Refugee Convention needs to be reformed in the light of new
challenges

9SCOPE OF 1951 REFUGEE CONVENTION
Hypothesis 2 – The 1951 Refugee Convention does not need to be reformed in the light of new
challenges

10SCOPE OF 1951 REFUGEE CONVENTION
2. Chapter 2 – Understanding the Role of the 1951 Refugee Convention in
according Protection to Refugees and Asylum Seekers
2.1. The Framework for Refugee Protection
The protection and asylum of refugees and asylum seekers around the world is governed by
the UN Convention on Refugees of 1951. As mentioned earlier, refugees are defined under this
convention as any person who “As a result of events occurring before 1st January 1951 and
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group, and or political opinion is outside the country of his
nationality, and unable to, or owing to such fear is unwilling to avail himself 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”.17
When one talks of the international protection of refugees, it should be important to note
firstly that the obligation and responsibility of safety of every citizen lies with the State itself.
When a state or government is unable or unwilling to take the responsibility in protecting the
individual citizens in that state, then consequentially the rights and wellbeing of the citizens of
that state will be impacted. [give example of Syria and other failed states; Civil war outbreak in
Syria march 15, 2011, situation engendered with politics , territory and religious groups, left 12
million people in the country in need of humanitarian assistance, citizens suffered devastating
effects , 6.7 million Syrians now refugees , 6.2 million now displaced.18 Then the DRC 720,300
17 Refugees, United. 2019. "The 1951 Refugee Convention". UNHCR. https://www.unhcr.org/1951-refugee-
convention.html.
18 https://www.worldvision.org/refugees-news-stories/syrian-refugee-crisis-facts

11SCOPE OF 1951 REFUGEE CONVENTION
refugees living in neighbouring countries fleeing from armed conflict and violence19]. Since the
rights of the citizens are no longer protected by the government of their home countries , the
“international community” steps in and assumes responsibility owed to an individual by that of
its former state and therein provides “protection” for the citizen(s)[who have fled from situations
of armed conflict and violence] , ensuring their basic human rights are met.
Protection is mandated by the 1951 Convention on Refugees for asylum seekers whose
political and civil rights are violated and it does not stipulate protection for people whose
economic and social rights appear to be at risk. The mandate of the 1951 Refugee Convention is
one that extends to asylum seekers who are unfortunate enough to have been disenfranchised
based on their religion, nationality, race, as well as membership of a political opinion or a social
group. This has led scholars such as James C. Hathaway to describe the mandate of the 1951
Refugee Convention as a politically biased and rather lopsided rationale for human rights law
and refugee law.20 When it comes to interpreting membership of a particular social group, it may
be taken to understand that the mandate of the refugee convention of 1951 extends to women and
child refugees who are far more vulnerable in situations of conflict, violence and persecution in
comparison to male refugees. Women and children in situations of conflict and violence face
insecurities and dangers for reasons that are quite different from the dangers that are faced by
male refugees. As such are they are faced with unique set problems once they become displaced
or are considered refugees.21 It is also important to note that since the 1951 Refugee Convention
is an instrument that does not mandate any protection for refugees and asylum seekers whose
social and economic rights are violated, it is possible for states to regard individuals who make
19 https://www.worldvision.org/refugees-news-stories/forced-to-flee-top-countries-refugees-coming-from
20 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.
21 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.

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such claims to be economic migrants rather than refugees. Such a classification is justified more
often than not on the basis of the fact that extending protection and security to these individuals
could imply offering asylum and protection for all poor people living in the world. 22
Not all those who apply for refugee status are considered to be worthy of refugee protection
under the framework of the 1951 Refugee Convention. The application of the provisions of the
UN Refugee Convention of 1951, are subject to exclusion clauses that are embodied in Section
right up to Section F under Article 1. The exclusion clauses describe the category of persons who
are not deserving of international protection. Out of all these provisions, Clause F is worth
making note of, since it excludes from state protection, people who are seen to have committed
crimes against security and peace, individuals who appear to have behaved in a manner that is in
contravention of the purposes and principles of the United Nations and common law criminals of
a serious nature. There are also cessation clauses as listed in Clause C under Article 1 of the
Refugee Convention of 1951, which outline all of the circumstances where international
protection, assistance and care may cease to be provided. 23
2.1.1. Establishing Refugee Rights and of Refugees under the 1951 Convention on
Refugees – A Brief Overview
The 1951 Convention relating to the status of Refugees encompasses the rights of a refugee
in the following forms:
Article 3 ; Non discrimination
Article 4 ; Freedom of religion
22 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.
23 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.

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Article 16 ; free access to justice on territories of states that are party to the convention
Article 17 ; the right to employment
Article 21 ; the right to accommodation/housing
Article 22 ; the right to access to an education
Article 23 ; the right to public assistance/government assistance
Article 26 ; freedom of movement within the territory of the state they have south refuge
in
Article 32 ; the contracting state are not to expel refugees bar the exception of grounds of
national security.
Article 33 ; the principle of non-refoulment ,where contracting states to the convention
are prohibited from returning a refugee back to the frontline territories of which they had
fled624
In an extraordinary effort to secure the rights of refugees, the principle of non- refoulment
was an important inclusion, that has been included in a wide spread of documents [such as the
UN’s convention against Torture and other Cruel inhuman or degrading treatment or
punishment] to support the working framework for the “International Protection” of refugees.
The prohibition of non-refoulment is widely accepted by all countries, and when a state grants
asylum to an asylum seeker, the country thereby accepts the responsibility to protect, safeguard
24 https://www.unhcr.org/en-ie/3b66c2aa10 - see the United Nations Refugee Agency website, the 1951
Convention is available in PDF version and if you make your way to page 17 of the document , you will the Articles
3 onwards [the first article on page 14 addresses the definition of a refugee – but for the purpose of this
reference , skip on ahead to page 17].

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and respect the refugee’s human rights and uphold the principle of non-refoulment, allowing for
the refugee to remain on its territory until a solution is found.
2.1.2. Duties of Refugees
While the rights of refugees are well outlined in the UN Refugee Convention of 1951, what
is also pointed out in this legal instrument are the duties and obligations of refugees to their host
country or country of asylum. Article 2 of the Refugee Convention of 1951 states that, “Every
refugee has duties to the country in which he finds himself, which require in particular that he
conform to its laws and regulations as well as to measures taken for the maintenance of public
order”. In other words, refugees and asylum seeking groups have the obligation to respect
regulations and laws of the nation where they happen to be seeking shelter in or where they are
granted protection and asylum.25 They are not to regard themselves as being different in any way
from the citizens or nationals of that particular country and neither are they to think themselves
to be different from foreigners who are staying in or are visiting that country. Such an obligation
is one that requires all refugee and asylum seeking groups to refrain from engaging in any type
of subversive activities which happen to be directed against the country of their residence or
origin or the country from where they had to flee due to persecution in the first place.26 Examples
of such activities include armed insurrection, among other things. The delineation between the
rights of refugees to enjoy freedom of expression, freedom of opinion and other fundamental
rights and such obligations of refugees is something that is not very distinct or clear when it
comes to the 1951 Refugee Convention27. The instrument has failed to take cognizance of, or
25 Refugees, United. 2019. "The 1951 Refugee Convention". UNHCR. https://www.unhcr.org/1951-refugee-
convention.html.
26 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
27 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.

15SCOPE OF 1951 REFUGEE CONVENTION
address such a distinction if any and it was only until later on the 1980’s following the
emergence of instruments like the Cartagena Declaration of 1984 for the protection of refugees
in the South American region, that this conflict was taken note of. 28
2.1.3. Legal Obligations and Duties towards Refugees by Countries that are
Signatories of the 1951 Refugee Convention
States that have signed and ratified the 1951 Refugee Convention are to exempt refugees
from the process of reciprocity as clearly stated under Article 7 of the Refugee Convention. This
implies that the manner by which rights are granted to refugees should not be similar to the type
of rights that they are accorded in their home countries or places of former habitual residence, as
refugees have been compelled to free conditions and persecution prevailing in their home
countries and do not enjoy the protection of the home countries. States that have signed and
ratified the 1951 Refugee Convention can also adopt and implement provisional measures
against groups of refugees and asylum seekers if it is in the interest of the national security of
their countries to do so. 29This is something that is provided for under Article 9 of the Refugee
Convention. The personal status of a refugee and the rights that come with the personal status of
a refugee are to be respected by the host country, especially with regard to marriage and
cohabitation as stated clearly in Article 12 of the UN Convention on Refugees of 1951.
According to Article 16 of the Refugee Convention of 1951, host countries are to provide
refugees and groups of asylum seekers, with free access to courts and legal facilities. This will
enable the quick and easy granting of refugee status for such groups of people. According to
Article 25 of the UN Convention on Refugees, refugees are also to be provided with
28 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
29 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.

16SCOPE OF 1951 REFUGEE CONVENTION
administrative assistance by the host country, if the latter has signed the Refugee Convention of
1951. This administrative assistance will be aimed at hastening the process of refugee status
determination for the asylum seekers concerned. Identity papers are also to be provided for
refugees by the host governments that are also signatories to the 1951 Refugee Convention, as
made available under Article 27 of this instrument. 30
With regard to ensuring the mobility of refugees in particular, it is imperative that all
contracting states to the 1951 Refugee Convention adhere to Article 28, which states that
refugees are to be provided with travel documents that will enable them to move from one part of
the country to another in a safe and secure manner and without invoking or inviting the ire of
state authorities. According to Article 30, refugees should be given the opportunity to have their
assets transferred. Article 34 of the 1951 Convention on Refugees provides for the rapid
naturalization and assimilation of refugee groups or communities into the social fabric of the host
nations. 31It is the responsibility of the host states which have also signed the UN Convention on
Refugees of 1951 to make sure that refugees are naturalized into the society of the host state at
some point of time or the other, especially if refugees have been residing in the host country for
several years on end. Cooperation on the part of contracting states with the UNHCR is demanded
under Article 35 of the 1951 Convention on Refugees. 32According to Article 35, the host state is
to cooperate fully with the UNHCR in the proper and adequate exercise of its functions and it
shall also play a role in making sure that the UNHCR is able to supervise the effective
implementation of all the provisions contained under the 1951 Refugee Convention. According
30 Refugees, United. 2019. "The 1951 Refugee Convention". UNHCR. https://www.unhcr.org/1951-refugee-
convention.html.
31 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
32 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.

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to Article 36, contracting states must provide information about the type of national legislation
that they are likely to adopt in order to make sure that the provisions of the Convention are being
applied in the manner that is desired.33 Article 38 of the 1951 Convention on refugees states that
host countries which are signatories to the Refugee Convention are to settle disputes that they
may be facing with other countries that are hosting refugee populations in the International Court
of Justice, provided such dispute settlement is not otherwise possible. 34
It is important that the contracting states do not engage in any type of discriminatory
activities against refugee communities as set out in Article 3 of the 1951 Refugee Convention.
States that have signed the 1951 Refugee Convention are also prevented from taking exceptional
measures against refugee communities solely on grounds of the nationality of the refugee, as
provided under Article 29 of the Refugee Convention. Article 31 of the Refugee Convention
states that contracting nation states cannot impose any penalty on a refugee or asylum seeker that
has entered the country illegally for the purpose of obtaining protection, which means that
unlawful presence and entry are not in any way liable for prosecution. 35Article 32 of the Refugee
Convention also states that contracting nation states do not have the right to go ahead and expel
refugees. Article 33 outlines the principle of non-refoulment and strictly prohibits contracting
states from forcibly returning refugees to or expelling them to countries that they have managed
to run away from in the first place.36 The UNHCR has the ground to intervene with relevant
33 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
34 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.
35 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
36 "UNTC". 2019. Treaties.Un.Org. https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
3&chapter=4&clang=_en.

18SCOPE OF 1951 REFUGEE CONVENTION
authorities if this principle is threatened and shall inform the public when doing so, if this is
deemed as necessary. 37
Article 4 of the 1951 Refugee Convention states that refugees are to be given the freedom to
go ahead and practise their own religious beliefs and customs while Article 14 of the instrument
states that the industrial property and artistic rights of refugees is something that is to be
respected at all times by the contracting states. Article 20 of the Refugee Convention of 1951
makes it clear that refugees and asylum seekers are to be provided with rationing measures in
order to meet their daily needs and requirements.38 According to Article 24, elementary
education is to be provided to refugee children and even to adult refugees by the host countries
that are signatories to the 1951 Refugee Convention.39 Article 23 provides for public relief as
well as assistance to be given to refugee groups. Social security and labour legislation are also to
be provided for by contracting states for refugee groups and asylum seekers as stated quite
explicitly in Article 24 of the Refugee Convention. 40
Article 13 of the Refugee Convention of 1951 makes it clear that refugee groups are to be
treated just like other non-nationals when it comes to matters such as the division and use of
movable as well as immovable property. Article 15 of the Refugee Convention states that no
distinction shall be made between refugees and non-nationals when it comes to right to form
unions and other related associations.41 According to Article 17, of the UN Refugee Convention
37 Refugees, United. 2019. "The 1951 Refugee Convention". UNHCR. https://www.unhcr.org/1951-refugee-
convention.html.
38 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.
39 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
40 Refugees, United. 2019. "The 1951 Refugee Convention". UNHCR. https://www.unhcr.org/1951-refugee-
convention.html.
41 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.

19SCOPE OF 1951 REFUGEE CONVENTION
refugees have the right to seek employment in the host country. Contracting states cannot
obstruct this right of refugees as it is their human right to be accorded the scope or opportunity to
find work and eke out a living for themselves in the host country. Refugees also have the right to
self-employment and it is the responsibility of contracting states to uphold such as right, as
provided for under Article 18 of the Refugee Convention of 1951. 42Article 19 states that
contracting states cannot interfere in the right of refugees to engage in practice of liberal
professions. Contracting states cannot deny refugees and asylum seeking groups the right to
higher education and housing facilities as made available under Articles 22 and 21 of the
Refugee Convention of 1951. According to Article 26 of the UN Convention on Refugees,
freedom of movement is something that contacting states have to ensure for refugee and asylum
seeking groups on its territory and freedom of choice with regard to taking up residence in the
country is also something that is to be granted by the contracting states, as made available by the
same provision. 43
2.1.4. Non-Compliance to the Provisions of the 1951 Refugee Convention by
Contracting States
While the Refugee Convention of 1951 is legally binding in its scope and character there
is no specific body or organization that is entrusted with the responsibility of supervising its
compliance. While supervisory responsibilities are technically granted to the United Nations
High Commissioner for Refugees (UNHCR) for this purpose, there is no way by which this body
can enforce the Refugee Convention as such, and there lacks a formal mechanism that will allow
individual refugees or groups of refugees to go ahead and file complaints in the event of any
42 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
43 Refugees, United. 2019. "The 1951 Refugee Convention". UNHCR. https://www.unhcr.org/1951-refugee-
convention.html.

20SCOPE OF 1951 REFUGEE CONVENTION
grievance of dissatisfaction. It is specified under the provisions of the 1951 Refugee Convention
that complaints if any should be directed to the International Court of Justice but there has not
been a single contracting state until date that has taken such matters to the ICJ. 44It is possible for
individual refugees to lodge complaints with human rights committees of the United Nations
under the framework of an instrument known as the International Covenant on Civil and Political
Rights, or under the framework of International Covenant of Economic, Social and Cultural
Rights, but till date, such complaints have not been filed.45 It is possible to levy international
sanctions by contracting states against countries that are signatory to the 1951 Refugee
Convention and which are seen to repeatedly violate the provisions of the Convention. Some of
the pragmatic consequences that contracting states can face if they do end up violating the
provisions of the Refugee Convention are public shaming, with the international media taking a
leading role in this matter and condemnation of violators verbally by the United Nations and
other countries but whether these can significantly deter acts of violation of the provisions of the
Convention is something that remains to be seen. 46
The 1951 Convention is just one of the instruments for international protection alongside
the UN human rights convention, EU asylum law, European Convention on Human Rights, the
European Charter of Fundamental Rights, the African Convention on Human and people’s rights,
the African Convention on Refugees and the American Convention on human rights. Each
instrument works to complement each other; the granting of asylum is not a right that anyone is
entitled to technically speaking , however according to the Universal Declaration of human
44 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
45 "OHCHR | Protocol Relating To The Status Of Refugees". 2019. Ohchr.Org.
https://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolStatusOfRefugees.aspx.
46 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.

21SCOPE OF 1951 REFUGEE CONVENTION
rights47 , everyone has the right to “seek” and to also “enjoy” asylum from persecution in other
countries48. Both instruments stops short at recognising a right to asylum at an international level.
Furthermore, given that asylum seekers are humans and therefore are afforded human rights, the
1951 Convention’s articles is the first step to persons fleeing from armed conflict to regaining
back their rights, the Convention mimics similar fundamental rights; article 4 affords the refugee
the right to practice their religion and article 16 access to justice.
47 1948
48 Ibid see article 14.

22SCOPE OF 1951 REFUGEE CONVENTION
Chapter 3 - The aspects of the definition of a refugee that poses as a means to
which a call for reform has been based
3.1. Who is a Refugee?
A refugee is an individual who is outside or has fled his or her country of origin due to a
well-founded fear of persecution engendering their:
Race
Religion
Political opinion
Nationality
Membership in a particular social group
In addition to the above, the individual is unable to or unwilling to access the protection of
their state or return to their state due to a fear of persecution.
The 1951 Convention provides the above for a definition of refugees. This definition is
widely accepted by the international community as the general definition of the term “Refugee”.
Alongside this, the OAU [ Organisation of African Unity]49 continues from where the 1951
Convention stopped and extended their definition to include cover for persons “compelled” to
leaving their country.
49 Now referred to as African Union (AU)

23SCOPE OF 1951 REFUGEE CONVENTION
“The term “refugee” shall also apply to every person who, … is compelled to leave his place of
habitual residence in order to seek refuge in another place outside his country …”50
In the article 1 section 2 of the OAU convention the above cover is extended to persons
compelled to leave their country of origin or nationality without having to meet the condition of
the “well founded fear of persecution”, that is a primary criterion in that of the 1951 Convention.
After the 1974 OAU definition for refugee, came that of the 1984 Cartagena Declaration,
in Cartagena Columbia. This was a group comprised of academics, government officials and
lawyers who drafted and adopted a declaration to support the work performed by the United
Nations High Commissioner for Refugees”51. The declaration made recommendations to the
effect that the definition of a refugee in the 1951 Convention should go further to include cover
for the following persons fleeing from their country because;
“… their lives, safety or freedom have been threatened by generalized violence, foreign
aggression, internal conflicts, massive violation of human rights or other circumstances which
have seriously disturbed public order…”52
Although the above definition is bares similarities to that of the OAU , with the
difference being that the declaration is not in any way legally binding on States.
All the various definitions provided for the term refugee are not mutually exclusive. All
definitions recognise that there are circumstances that can render an individual to seek asylum
50 The OAU Convention; governing the specific aspects of refugee problems in Africa, 20 June 1974. All see pdf
version on UNHCR|Ireland – page 3 (2) ; https://www.unhcr.org/en-ie/about-us/background/45dc1a682/oau-
convention-governing-specific-aspects-refugee-problems-africa-adopted.html
51 See roman numeral II section (e) @ https://www.oas.org/dil/1984_cartagena_declaration_on_refugees.pdf
52 Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America,
Mexico and Panama * See roman numeral III subsection 3 or see short hand version on redworld;
https://www.refworld.org/docid/3ae6b36ec.html

24SCOPE OF 1951 REFUGEE CONVENTION
elsewhere and be classified as a refugee , thus a standard of treatment is thereby established in
such situations , all stemming from that of the 1951 Convention.
3.2. Challenges to the Conventions definition
This first criticism of the 1951 convention is the scope and definition of who is a refugee.
The protection and definition of who is a refugee is codified in the 1951 convention relating to
the status of refugees and the 1967 protocol on the status of Refugees53.
One wishing to enjoy the protection of the international community is required to satisfy the
requirements set under the provision of article 1(A) (2) of the 1951 convention:
[Someone who] ... owing to a 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 a nationality and
being outside the country of his former habitual residence as a result of such events, is the unable
or owning to such fear, is unwilling to return to it54.
The results of World War I created a huge influx of refugees , the league of Nations55 had
sort for a resolution to tackle the issue and conceived the first official institution the office of the
high commissioner for refugees to be charged with formulating a comprehensive scheme to deal
with the creation of refugees from ww2 [ for example , the exodus of Russians from the Soviet
Union, Turkish & Assyrian nationals fleeing their respective states ,Then followed hosts of other
specific groups of refugees56]
53 Protocol Relating to the Status of Refugees, 31January1967, G.A. Res. 2198 (XX.I), 21
U.N. GAOR, Supp (No. 16) at 48, U.N. Doc. A/6316 (1966). In force 4 October 1967 in accordance with Article VIII
[hereinafter Protocol].
54 See the Convention, supra, note 2, at Sub article l(A)(2)
55 7 League of Nations O.J. 755-58 (1921)
56 See also: Convention of 28 October 1933, UNHCR Collection, supra, note 10, at 45;Convention of 10 February
1938, UNHCR Collection, supra, note 10, at 46; Protocol of 14 September 1939, UNHCR Collection, supra, note 10,

25SCOPE OF 1951 REFUGEE CONVENTION
The league of Nations did not give a general term for refugee but rather at the time
choose to deal with each case as they came along. The refugees covered by these agreements had
the following characteristics:
(1)They [were] nationals of a particular territory; (2) they [had] lost the
protection, in law or in fact , of the particular government controlling the said territory;
and (3) they [were] stateless or possessed no other nationality57.
No focus was put on their political, religious, racial or ethnical features of the refugees,
but rather their loss of protection from their own national state, a demonstration of this can be
seen in the case of the Russian exiles, where the league of nations noted “no longer enjoyed the
protection of the Government of the Union of Socialist Soviet Republics and had not acquired
another nationality”58 . This was also covered by sub article 14(1) of the Universal Declaration of
human rights which stated that as per 14(1) Everyone has the right to seek and to enjoy in other
countries asylum from persecution59.
As argued by James Hathaway (1991), the definition of a refugee as contained in the
1951 Refugee Convention is one that may be viewed as comprising of five essential elements all
of which are to be established adequately prior to refugee status being appropriately recognized
and accorded.60 The first of these elements is alienage. The definition of a refugee as contained in
the 1951 Refugee Convention is one that extends only to individuals who have left or fled from
at 46; and the Constitution of the International Refugee Organization, UNHCR Collection, supra, note 10 at 46-7.
57 C.O. Miranda, "Toward a Broader Definition of Refugee: 20th Century Development Trends" (1990) 20 Cal. West.
lnt'l L. J. 315 at 318
58 See Arrangement of 12 May, 1926, UNHCR Collection, supra, note 10 at 45
59 The Universal Declaration Of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810(1948), at 71, Sub article 14(1).
60 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.

26SCOPE OF 1951 REFUGEE CONVENTION
their countries of origin and in the case of people who are stateless, individuals who have left the
countries of their former habitual residence. It is argued secondly, that in order to be accorded
protection as a refugee and be given the status of a refugee the refugee claimant needs to
demonstrate that he or she is a person who genuinely appears to be at risk. For such a person to
believe only that he or she is in jeopardy is not going to be enough if this person is to be granted
refugee status. 61There are objective facts, in the view of Hathaway (1991), that need to be in
place and which will serve as a concrete foundation of the concern that has induced this
individual to seek protection and asylum in a country other than his or her own state. The flight
of the claimant is also something that needs to be motivated by persecution or the risk of
persecution of the refugee claimant’s concerns and pleas are to be considered legitimate. It is
only when the refugee claimant is facing the, “risk of serious harm” and only when the state to
which the refugee claimant belongs is unable to or unwilling to provide protection and security,
can the claims of the person be taken seriously for determination of refugee status. The fourth
important element of the definition of refugee as contained in the 1951 Refugee Convention is
that there must be some nexus between the refugee claimant and his or her religion, nationality,
race, and membership of a particular social group or political opinion. In fact the most critical
question for consideration here is that whether or not only the political or civil status of the
refugee can be the sole determinant of the fact that such a person is facing the serious risk of
persecution, threat and harm. Finally, a genuine claim and need for protection must exist in order
for a person to be accorded refugee status in keeping with the definition of a refugee as contained
in the 1951 Refugee Convention. 62
61 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
62 Ibid

27SCOPE OF 1951 REFUGEE CONVENTION
Challenges to the definition of a refugee as contained in the 1951 Convention also stem
from the phrase, “well-founded fear of persecution” which is contained in the Convention
definition. In fact such a phrase is one that serves as a reflection of the primary elements of the
character of a refugee in the minds of the people who had authored the Convention. Earlier
methods of defining refugees in terms of categories were done away with and the feeling of fear
was considered to be a relevant motive for a refugee to seek protection and asylum in another
country.63 Due to the fact that fear is quite a subjective condition, the term, “well-founded fear of
persecution” is one that renders a subjective element to the definition of refugee as contained in
the 1951 Refugee Convention. What this implies therefore is the fact that the applicant’s
statements need to be evaluated at the time of making a claim instead of judging the prevailing
conditions or situation of the country that has caused this person to flee, in the first place, for the
purpose of determining refugee status of the concerned individual.64 The term “well-founded” is
added to the element of fear, which is, by itself a subjective condition and state of the mind. This
goes onto indicate, that over and above a genuine feeling of fear and persecution, there must be
an objective situation that supports the claims for refugee status. “Well-founded fear” is a phrase
which can therefore be regarded to contain within it an objective element and a subjective
element both and both of these elements are to be taken into consideration by refugee status
determination officials at the time a claim for refugee status is made. According to Hathaway
(1991), such a two-pronged approach that is adopted to the definition of the phrase, “well-
founded fear of persecution” is an approach that is neither practically meaningful, nor is it
historically defensible. 65It is argued by James Hathaway (1991) that the term well-founded fear
63 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
64 Ibid
65 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.

28SCOPE OF 1951 REFUGEE CONVENTION
of persecution is one that has little to do with the feeling or state of the mind of the person who is
a refugee claimant except for the fact that it can provide some evidence or reflection on the
situations prevailing in the country from where the refugee claimant has fled. 66It is the argument
of James Hathaway (1991), that well-founded fear as a concept is inherently objective in its
nature and that the purpose of inserting such a phrase in the refugee definition is to restrict
heavily the scope of according refugee protection to people who are capable of demonstrating
prospective or present risk of persecution regardless of the nature or the extent of the
mistreatment that has been meted out to him if at all, and which he may have suffered in the past.
Persecution in particular is a condition that may be defined in the view of Hathaway
(1991), as a systematic or sustained violation of the essential human rights demonstrative of the
failure or collapse of state protection. The “well-founded fear of persecution” is something that
can be seen to exist only if it is anticipated with a certain degree of reasonableness that for the
refugee claimant to remain in the country could result in some serious harm occurring to this
individual, the type of harm that the government shall not prevent or will not protect him from.
Such use of human rights standards for the determination of the legitimacy or existence of
persecution is rejected by many scholars.67 In the view of Karl Zink, it is only a limited and
restricted subset of human rights violations that is capable of constituting persecution while Atle
Grahl-Madsen is of the view that denial or restriction of rights such as the freedom of religion,
thought, opinion, conscience, expression and peaceful assembly as well as association are those
that are situated outside the purview of persecution. 68
66 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
67 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
68 As cited in Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.

29SCOPE OF 1951 REFUGEE CONVENTION
Another problem that stems from the definition of a refugee as contained in the 1951
Refugee Convention and which in turn poses a challenge to the legitimacy of the convention is
the absence of the term gender as enumerated basis for the fear of persecution. Feminist
complaints concerning the definition of a refugee as contained in the 1951 Refugee Convention
are those that extend beyond merely the language or text of the definition to what gender based
claims of being persecuted could actually seem like if it were possible for refugees and asylum
seekers to go ahead and make such claims in the first place. Scholars like Doreen Indra (1987)
have demanded or called for a definition of a refugee that is seen to take cognizance of feminist
theories, such as the theory of social bifurcation, whereby society is divided into two spheres, the
private sphere and the public sphere and it is women who remain subjugated and relegated to this
private sphere. 69
Yet another challenge to the definition of refugee as contained in the 1951 Refugee
Convention can be detected in the obscure and ambiguous manner by which the protection of
children of refugee claimants has been prescribed.70 The 1951 Refugee Convention as well as its
1967 Protocol are seen to define refugees regardless of the age factor and there are no specific
provisions that are outlined as to the ways by which refugee children are to be cared for. To
apply a condition such as the well-founded fear of persecution to refugee children is not
something that is likely to prove as problematic given that in most cases where refugee claims
are made, the children are accompanied by their parents. To determine refugee status for children
who are not accompanied by their parents is a task that proves to be far more challenging for
refugee status determination authorities with special considerations being required in the process.
69 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.
70 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.

30SCOPE OF 1951 REFUGEE CONVENTION
Based on the law of the particular state where asylum is being sought, children who seek asylum
can be granted refugee status if they are able to demonstrate the well-founded fear of
persecution, the requirement for being granted refugee status as made available by the definition
of refugee in the 1951 Refugee Convention and its Protocol of 1967. 71If the claim is rejected,
then the child in the given situation can be made to stay in the country where he or she is seeking
asylum by being granted the status of an immigrant or may just be deported altogether. If the
effects that staying in refugee camps on the psychological and physiological developments of a
child are to be considered, then it becomes imperative to ensure that the process of refugee status
determination is made as quickly as possible, keeping the best interests of the child in mind and
using appropriate procedures and giving special attention to the situation. This is something that
becomes quite difficult to do if the standards of refugee protection as laid down by the 1951
Refugee Convention are to be adhered to. 72
3.3. Other Challenges to the 1951 Refugee Convention
3.3.1. Poor Quality of Infrastructure in Receiving Countries
There are a variety of other factors in the present day and age that have contributed to
rendering the 1951 Refugee Convention and its definition of the term refugee as largely
inadequate for meeting the present day needs of asylum seekers. The first among these is the
deteriorating quality of asylum and protection standards in the countries that receive large and
mixed flows of refugees. It is important to note that most of the refugee receiving countries of
the world, are countries that are concentrated in the Global South.73 These are countries that are
71 Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
72 Hathaway, James C. The law of refugee status. Vol. 104. Toronto: Butterworths, 1991.
73 Chimni, Bhupinder S. "The geopolitics of refugee studies: A view from the South." Journal of refugee studies 11,
no. 4 (1998): 350-374

31SCOPE OF 1951 REFUGEE CONVENTION
poor and lack the funding and the infrastructure that is needed to do a thorough job of ensuring
security for the refugees. The type of protection and rehabilitation or security for refugees as
envisaged in the 1951 Refugee Convention is feasible for a developed country that has a
plentiful reserve of resources to fall back on. This is something that has often led scholars
to consider the 1951 Refugee Convention to be largely Eurocentric in character. 74It was
designed keeping refugees fleeing persecution during the Second World War in mind and does
not do much to take cognizance of the unique requirements, needs and situation of refugees in
the 21st century. As mentioned before, the majority of the countries that receive flows of refugees
and asylum seekers are Third World Countries and these countries do not have the resources or
the infrastructure that has to be put in place to ensure that asylum seekers are well protected and
kept safe from danger until the situation in their country of origin or former habitual residence
has normalized and is safe for them to return to. 75The absence of resources, funding and
infrastructure in the refugee receiving countries today implies that the quality of asylum and
protection that is accorded to refugees is of quite an inferior standard. In most cases, the refugee
claims are rejected by these countries and the refugee and asylum seeking groups are treated as
illegal migrants. They are ostracized and perceived as criminals by the nation state where they
seek asylum and protection from, and have to live their lives as low, base criminals, who are on
the run, whereas in truth, they are fleeing the threat of persecution in their countries of origin or
former habitual residence. At times, nation states of the Global South which receive refugee
flows in large numbers are seen to violate the principle of non-refoulment, pushing back new
arrivals of refugees at the borders repeatedly, a well-known example of this being the case of
74 McAdam, Jane. The Refugee in International Law. Oxford University Press,, 2007.
75 Chimni, Bhupinder S. "The geopolitics of refugee studies: A view from the South." Journal of refugee studies 11,
no. 4 (1998): 350-374

32SCOPE OF 1951 REFUGEE CONVENTION
India.76 India is a country like most other countries of South Asia such as Bangladesh, Pakistan
and Nepal, that has not signed the 1951 Refugee Convention, yet the principle of non-refoulment
is binding on this nation and it violates this principle by pushing back refugees at the borders
because it lacks the quality of infrastructure and resources that are needed to do a sufficient or
adequate job of caring for refugees. 77
3.3.2. Discrepancy between International Standards of Refugee Protection and Regional
Approaches to Refugee Care and Protection
There appears to be a sharp discrepancy between international standards of protection for
refugees, as established by the 1951 Refugee Convention and the regional approaches to the
same, and this is accounted for by the fact that the 1951 Refugee Convention is euro-centric in its
nature and scope.78 It does not take into account the unique situations and predicaments of
refugees and asylum seekers who hail from other parts of the world, and has envisaged a
protection system for refugees keeping European conditions in mind, namely, the facts that led to
the persecution of individuals during and in the aftermath of the Second World War.79 Owing to
this inadequacy or shortfall in the 1951 Convention for Refugees, regional instruments such as
the OAU (Organization of African Unity) Convention of 1969 and the Cartagena Declaration of
1984 emerged, to cater to specifically the needs and requirements of refugees and asylum seekers
in the Global South.80 The OAU Convention was devised to look into the care and protection of
76 Sen, Sreya. "Understanding India’s refusal to accede to the 1951 refugee convention: Context and
critique." Refugee Review: Re-conceptualising and Forced Migration in the 21st Century 2, no. 1 (2015): 1-7.
77 Chimni, Bhupinder S. "The geopolitics of refugee studies: A view from the South." Journal of refugee studies 11,
no. 4 (1998): 350-374
78 Chimni, Bhupinder S. "Third world approaches to international law: a manifesto." Int'l Comm. L. Rev. 8 (2006): 3.
79 McAdam, Jane. The Refugee in International Law. Oxford University Press,, 2007.
80 Chimni, Bhupinder S. "The geopolitics of refugee studies: A view from the South." Journal of refugee studies 11,
no. 4 (1998): 350-374

33SCOPE OF 1951 REFUGEE CONVENTION
asylum seekers in the African region as a whole while the Cartagena Declaration was meant to
address mixed and massive flows of refugees in the countries of South America. The regional
instruments are those that accord protection for refugees based on situations and circumstances
prevailing in these countries rather than the standards for refugee protection that are prescribed
by the 1951 Refugee Convention. States are seen to approach the matter of refugee care and
protection in both the Global North as well as in the Global South on the basis of the political
and economic situations prevailing in their countries rather than what the 1951 Refugee
Convention prescribes them to do. The United States of America for instance has an asylum care
system that is extremely vetted in its nature and scope, and following the arrival of the Trump
administration to power, the approach to refugee care and rehabilitation has become even more
stringent and restricted than it used to be before with refugee arrivals being strictly evaluated,
monitored, controlled and handled on the basis of what it is that the US administration feels it
can handle or take on rather than the standards that have been laid down in the 1951 Refugee
Convention. Such a discrepancy between the approach of the US to refugees today and the 1951
Refugee Convention can be witnessed in spite of the fact that the USA has ratified the Protocol
of 1967 and as such is bound by many of the provisions that are contained in the 1951 Refugee
Convention. Australia is also a country that has been sending back refugees from the borders and
has invited much criticism from the international community in doing so largely because of the
fact that Australia is a signatory to the 1951 Refugee Convention and as such is expected to
uphold the rights of refugees that are laid down in the Convention. Yet boat refugees in Australia
have been pushed back in large numbers and those who do land up on Australian soil are made to
spend long hours in detention centres before it is decided by the state authorities whether the
asylum seekers are to accorded refugee status or not. More often than not, asylum claims are

34SCOPE OF 1951 REFUGEE CONVENTION
rejected and asylum seeking groups are forcefully repatriated from the countries that have caused
them to flee in the first place, irrespective of whether or not they are accompanied by their
dependent children. 81
Discrepancy between international standards of refugee care and regional approaches to
refugee care and rehabilitation is something that can especially be witnessed in the countries of
Southern Asia, which have not signed or ratified the 1951 Refugee Convention but which
continue to receive refugees in large numbers all around the year.82 As such it can be stated
that the 1951 Refugee Convention is an instrument that is unsuitable for providing care and
protection for refugees in the South Asian countries. India for instance is one of the largest
refugee receiving nations in the whole world, and has been receiving refugee flows for quite
some time now, starting with the Partition of the subcontinent in the late 1940’s followed by the
arrival of Tibetan refugees in the 1950’s and 1960’s, the arrival of Chakma refugees from
Bangladesh in the late 1960’s, and early 1970’s, followed by refugee arrivals generated by the
Liberation War of Bangladesh in 1971 and of course refugees fleeing the war against terror as
unleashed by the USA in Afghanistan.83 The most recent exodus of refugees into India has been
that of the Rohingya refugees, originally fleeing persecution and terror from Myanmar into
Bangladesh and then from Bangladesh onto India. The approach of a country like India has from
the beginning been quite arbitrary to refugees. While the Indian state has not denied protection to
refugee groups in an outright manner, it has not been able to accord the protection and standards
of refugee care and protection as laid down by the 1951 Refugee Convention, towards the
81 Chimni, Bhupinder S. "Third world approaches to international law: a manifesto." Int'l Comm. L. Rev. 8 (2006): 3.
82 Sen, Sreya. "Understanding India’s refusal to accede to the 1951 refugee convention: Context and
critique." Refugee Review: Re-conceptualising and Forced Migration in the 21st Century 2, no. 1 (2015): 1-7.
83 Chimni, Bhupinder S. "The geopolitics of refugee studies: A view from the South." Journal of refugee studies 11,
no. 4 (1998): 350-374

35SCOPE OF 1951 REFUGEE CONVENTION
refugee groups on its soil. India is a poor country with limited resources and it is also averse to
availing international assistance for resolving matters that are concerned to be of domestic
concern. 84
Since the refugees in India reside on Indian territory how they are dealt with becomes a
matter that is exclusive to the domestic matters or affairs of the country, and while the UNHCR
has been allowed a nominal presence in Delhi, it is allowed to look into refugee status
determination only for arrivals from Afghanistan. The UNHCR has quite a limited mandate as
far as its operations in India are concerned and does not interfere with the work of the
government in this respect, leaving it to the Indian state to handle refugees in the manner that is
desired. It is evident from the case of India and other countries of Southern Asia, as to why these
nations have refrained from becoming signatories to the 1951 Refugee Convention in the first
place. To begin with, India and other countries of Southern Asia are characterized by porous
borders which facilitate the easy movement of people across the borders, and consequently the
quick and easy arrival of people from across the border at any given point of time. India and
other South Asian countries are also hugely populous and it becomes very difficult for the nation
state to impose controls on the movement of people.85 The financial resources of Southern Asian
nations like India and Bangladesh are quite limited and not sufficient to care for refugees in the
manner that has been outlined in the 1951 Refugee Convention. 86To provide protection for
refugees and asylum seekers in the manner that has been prescribed in the 1951 Refugee
Convention would pose huge strains on the finances of India and other Southern Asian countries
84 Chimni, Bhupinder S. "Third world approaches to international law: a manifesto." Int'l Comm. L. Rev. 8 (2006): 3.
85 Chimni, Bhupinder S. "The geopolitics of refugee studies: A view from the South." Journal of refugee studies 11,
no. 4 (1998): 350-374
86 Sen, Sreya. "Understanding India’s refusal to accede to the 1951 refugee convention: Context and
critique." Refugee Review: Re-conceptualising and Forced Migration in the 21st Century 2, no. 1 (2015): 1-7.

36SCOPE OF 1951 REFUGEE CONVENTION
which are already burdened by populations of massive size. The fact that the 1951 Refugee
Convention mandates that the UNHCR be allowed to supervise the implementation of the
provisions of the Convention in contracting states is also one of the primary reasons why the
1951 Refugee Convention has not been adopted by India, Pakistan, Bangladesh, Sri Lanka,
Nepal and Bhutan.87 None of these countries approve of foreign interference on their soil and this
is one of the many reasons again why the 1951 Refugee Convention appears to be unsuitable for
meeting the challenges and needs of refugees today, especially refugees that are concentrated in
the countries of the Global South like the Southern Asian countries. 88
India and other Southern Asian countries are seen to adopt their own unique approaches
to dealing with refugees on Indian territory. In the case of India in particular, the approach to
refugees has been quite ad-hoc, with tremendous benefits, care and protection being rolled out
for Tibetan refugees and limited protection and assistance being provided to the Chakmas from
Bangladesh. Of late, the Chakmas have been naturalized into Indian society but the approach of
the Indian state towards the arrival of the Rohingya refugees has been hostile, with immediate
efforts being made on the part of the ruling administration to have the refugees deported once
again to Myanmar, or at the very least to the country of Bangladesh. 89
3.3.3. The Case of Gender Based Violence and Persecution
As mentioned before, one of the biggest gaps in the protection framework that has been
established by the 1951 Refugee Convention is the fact that the definition of refugee as contained
87 Acharya, Bhairav. "The Future of Asylum in India: Four Principles to Appraise Recent Legislative Proposals." NUJS
L. Rev. 9 (2016): 173.
88 Chimni, Bhupinder S. "The geopolitics of refugee studies: A view from the South." Journal of refugee studies 11,
no. 4 (1998): 350-374
89 Acharya, Bhairav. "The Future of Asylum in India: Four Principles to Appraise Recent Legislative Proposals." NUJS
L. Rev. 9 (2016): 173.

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in the Convention is one that fails to mention anything about the term gender. 90Gender based
issues and claims are ignored in the Convention definition of a refugee and it is not established
whether gender based claims of persecution can account for the type of persecution that serves as
constructive ground for granting an asylum seeker the status of a refugee. Today, gender based
violence is something that is on the rise in countries that are plagued by conflict and violence and
which are producing refugees in large numbers. Gender based violence of a very high magnitude
is seen to occur in refugee generating countries like the Democratic Republic of Congo and in
Sudan, as well as in refugee receiving countries like Kenya. The inability of the 1951 Refugee
Convention to address the matter of gender based persecution serves as a major challenge to the
Convention today, as states or countries that receive refugees have to devise their own standards
and procedures for catering to asylum seekers who are fleeing from gender based asylum and
who have been ostracized or subjected to oppression on account of their sexuality. While the
UNHCR has laid down a number of guidelines for the care and protection of women refugees,
these have been laid down several years after the 1951 Refugee Convention came into existence,
revealing that the Convention definition of a refugee is one that is inadequate to look into the
needs and requirements of female asylum seekers in particular. The UN Convention on Refugees
does not outline what states are supposed to do when gender based violence and refugee
generation takes place. It does not prescribe the specific method and techniques that receiving
countries must put to use in order to give care and protection to asylum seekers who are faced
with gender based persecution, who are violated, tortured and abused on ground of their sexual
orientation and who require gender sensitive approaches to be made by the host nation in order
for them to be suitably resettled and rehabilitated in the host nation.91 As such, refugee care
90 McAdam, Jane. The Refugee in International Law. Oxford University Press,, 2007.
91 Chimni, Bhupinder S. "Third world approaches to international law: a manifesto." Int'l Comm. L. Rev. 8 (2006): 3.

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givers and state authorities of countries that receive refugee flows in large numbers have to
establish their own ground rules or guidelines for dealing with the matter of women refugees or
women asylum seekers. While the UNHCR Guidelines on the care and protection of women
refugees and asylum seekers is definitely useful for looking into the matter of female refugee
protection or dealing with claims of gender based persecution and violence, the fact that these are
merely guidelines and not legally binding in nature like the provisions of the Refugee
Convention of 1951 makes them all the more difficult to implement or abide by.92 The latter is
especially true for nation states that are hostile in their approach to refugee arrivals and who want
to refouel or deport refugees rather than provide them with asylum and care. 93
92 McAdam, Jane. The Refugee in International Law. Oxford University Press,, 2007.
93 Chimni, Bhupinder S. "Third world approaches to international law: a manifesto." Int'l Comm. L. Rev. 8 (2006): 3.

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4. Chapter 4 - The new millennial conversion or turnabout in attitude towards
the protection of refugees
4.1. Setting the background to the change
The frame for my analysis on this protection tool goes as follows. Firstly I would like to
approach the proposed challenges to the convention through a category of situations. These
situations are a mock-up of reported grounds for revision of the Convention by academic and
political writers.
The situations as follows:
The classic case of a refugee fleeing form persecution
The classic situation of mass influx displacement on a large scale driven by provoked
by conflicts and other civil fracas;
The cross-border displacement situations provoked by disasters be it natural disasters
or man-made calamities like that of nuclear disasters, etc;
The case of mixed flows of indistinguishable individuals, asylum seekers who are
actual refugees and the latter migrants posing as refugees.
4.1.1. THE SITUATION OF - REFUGEES FLEEING FROM PERSECUTION
When we consider refugees fleeing from persecution, the 1951 Convention is the landmark
establishment of the protection of obligations owed to them. The instrument is widely accepted

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for codifying the founding principles that make up International Refugee Law and adhered to by
148 state parties.
Looking at the convention it reveals to us “who is a refugee” [and what the required conditions
for fleeing are]; it introduces in detail the principle of non-refoulement [refugees should not be
forced to return to the territory where they were at risk of facing persecution or had faced
persecution]; it lays down the principle of non discrimination [that all refugees must be afforded
the same protection]; it legitimises the illegal crossing and entering of another country for the
aim of seeking asylum [a person fleeing from persecution ought not be penalised for the illegal
entry of the country they intend to seek asylum]; It creates a very narrow exception for the
expulsion of a refugee [ only in serious circumstances states can use this measure on the grounds
of it impacting public order and or security];
Prima facie the 1951 Convention is a mascot for the protection, freedom and
humanitarian treatment of refugees, with its objective to give refugees a voice, a right to be heard
by potential surrogate host countries and to force the responsibilities of protection for them
“refugees”. Surely by glace at the principles of the convention, the baseline of these founding
principles as provided for in the convention, are fundamental living testaments for the further
future assurance of refugees and cannot be considered time bound.
Understanding the purpose for which the Convention was so drafted how then is there a
mounting account of malaise against the convention today.
The first part of the alleged challenge to the convention lays in its text itself, as argued by
various academic writers such as A.Millbanks in 200094, in his research paper on “the problem
94 A.Millbank,(2000) “The Problem with the 1951 Refugee Convention”, Research Paper 5, Social Policy Group, 5th
September, Parliament of Australia: see website also “aph.gov.au”

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with the 1951 refugee convention”, the scope of the definition of a refugee is outdated, along
with along with its narrow minded ideals of exile being the one all resolution to refugee
problems. It is argued by A. Millbanks that the obligation towards refugee protection is
something that falls squarely on the host country only after the asylum seeker or refugee has
crossed the border and has entered the country and stands on the territory of that country. The
most important obligations in this respect are the obligation to not penalize the asylum seeker for
having entered the country illegally and to adhere to the principle of non-refoulement by not
repatriating the asylum seekers back to the countries that had caused them to flee in the first
place. Millbanks is of the view that the primary problem with the 1951 Refugee Convention
today is the fact that it is outdated and that it has been designed for an era that is completely
different from the current one. The Refugee Convention definition in the view of Millbank does
not confer the right to be rehabilitated or assistance for a refugee until and unless the refugee has
managed to reach the shores of a signatory country, and there are no obligations that are imposed
on states by the Convention to not persecute or expel people who are residing in their territories.
The asylum channel that is designed by the Refugee Convention of 1951 is one that facilitates
illegal migration and movement and as such is seen to encourage the work of smugglers and
middle men who put lives of refugees and asylum seekers in greater danger than ever in the
name of providing them with assistance and protection. 95
It is argued by Millbank that no account is taken of the fact that the 1951 Refugee
Convention does not consider the impact, such as political, economic or social impact that the
influx or arrival of refugees can have on the host country. An inequity with regard to outcomes is
seen to exist between Convention refugees and camp refugees. The convention gives priority to
95 Millbank, Adrienne. "Australia and the 1951 Refugee Convention [Revised version of The Problem with the 1951
Refugee Convention; a Research Paper (no. 5, 2000-2001) published by the Dept of the Parliamentary
Library.]." People and Place 9, no. 2 (2001): 1.

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refugees that are present, on the basis of their mobility rather than according assistance and
protection to asylum seekers and refugees facing the greatest need. 96It is further argued by
Millbank that a gross discrepancy is seen to exist in the funds that are utilized by Western
countries or countries of the Global North in supporting as well as processing refugee claims
compared to the funds that they are seen to contribute to the United Nations High Commissioner
for Refugees for supporting refugees and asylum seekers the world over. Furthermore, asylum
seekers do not generate publicity or empathy using public channels and media in the same way
that refugees are known to do and what the Convention has really managed to do is to foster
unfortunate and simplistic characterizations of these asylum seekers as economic entities that are
abusive and consequently undeserving of care and protection or political entities that are helpless
and therefore worthy of care and protection. Millbanks argues in conclusion that the 1951
Refugee Convention is an instrument that has worked well enough for looking into the needs and
requirements of refugees and asylum seekers up to the period of the Cold War but it is not well
designed for handling the massive and mixed flows of refugees as witnessed in today’s day and
age. 97The average intake of refugees by a country like Australia today, through its humanitarian
assistance programs stands at 12000, making it the largest off shore refugee intake in the world.
In fact the potential impact which the Convention refugees could have on such humanitarian
assistance programs is something that became quite apparent in the month of February in 2000,
when the procedure for processing off shore visa applications was something that put on hold or
suspended owing to indications being provided of the fact that fifty percent or more of the
programs allocation is something that could easily be taken up by all the successful asylum
96 Millbank, Adrienne. "Australia and the 1951 Refugee Convention [Revised version of The Problem with the 1951
Refugee Convention; a Research Paper (no. 5, 2000-2001) published by the Dept of the Parliamentary
Library.]." People and Place 9, no. 2 (2001): 1.
97 Millbank, Adrienne. "Australia and the 1951 Refugee Convention [Revised version of The Problem with the 1951
Refugee Convention; a Research Paper (no. 5, 2000-2001) published by the Dept of the Parliamentary
Library.]." People and Place 9, no. 2 (2001): 1.

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seekers on shore. Millbanks is also of the view that implementing the obligations towards
refugees in Western Countries in accordance with the standards and procedures prescribed in the
1951 Refugee Convention is something that is distorting international refugee care and
rehabilitation altogether. Many of the OECD countries in Europe as well as the country of
Canada have been spending an amount that is close to 5 billion USD in the year of 1990, an
amount which is ten times the amount set aside as budget by the UNHCR for that particular year.
Australia today, is seen to spend close to fourteen million dollars to support the work of the
Refugee Review Tribunal which plays a key role in carrying out refugee status determination
procedures for asylum claimants in Australia which is also as much as what the country is seen
to donate towards world refugee support through its membership of the UNHCR. 98
It must also be remembered that the grounds for persecution under the Convention can be
viewed as not strict enough allowing for too much room for interpretation at both regional and
international levels.
The definition of the term refugee has long been criticized as one of the limiting factors
to the Convention of 1951. If anything the cause for such critic lies in the availability of other
definitions of the term used at regional levels. For an illustration;
A John Doe fleeing from a civil war in their respective African country, enters into a
refugee camp in the neighbouring African country, which also suffers a civil war with threats of
imminent violence to all citizens including refugees. John Doe finds his way to Europe and seeks
Asylum.
98 Millbank, Adrienne. "Australia and the 1951 Refugee Convention [Revised version of The Problem with the 1951
Refugee Convention; a Research Paper (no. 5, 2000-2001) published by the Dept of the Parliamentary
Library.]." People and Place 9, no. 2 (2001): 1.

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In the 1951 Convention, John Doe is not a refugee, however under the definition of The
Organization of African Unity [later replaced by AU – African Union] John Doe is a refugee.
The term refugee shall also apply to every person who, owing to external aggression,
occupation, foreign domination or events seriously disturbing public order in either part or the
whole of his/her country of origin or nationality, is compelled to leave his/her place of habitual
residence in order to seek refuge in another place outside his/her country of origin or
nationality99.
Disparities such as above can cause great confusion , however the Convention does not
compel receiving States to affirm all applications for refugee status, rather the 1948 Universal
Declaration provides “everyone has the right to seek & enjoy asylum from persecution” 100. The
European Court of Human Rights in the Case of M.S.S. v Belgium101 affirmed the Convention
imposes obligations on States to grant asylum to applicants who met its protection terms. On the
other hand States have a greater chance at manipulating the interpretation of the international
Convention at regional level to justify a claim of not being responsible to provide protection.
Paradoxically while the Convention is critiqued for its short comings surrounding the
purposed limitations to the text itself, when one truly analyses the compartments of the
Convention text , it becomes clear that the document is not a solution in itself to the refugee
crisis arising since the 1920’s, nor was it ever intended to be either, as many would have falsely
mistaken it to be.
99 The Organization of African Unity Convention Governing Specific Aspects of Refugee Problems in Africa, 10
September 1969, 1001 U.N.T.S. 45, entered into force June 20, 1974 (hereinafter the OAU Convention)
100 The Universal Declaration of Human Rights, Article 14, General Assembly resolution 217 A, 1948
101 Case of M.S.S. v. Belgium and Greece: A Catalyst in the Re-thinking of the Dublin II Regulation, Refugee Survey
Quarterly, 30(3): 107-128, January 2011

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Rather the Convention stands as a protection mechanism from which a solution(s) to the
refugee crisis could be created. Consider these facts heavily overlooked by academic writers
looking to debunk the relevance of the convention today;
The convention establishes the rights for persons seriously at risk, to be able to cross
international borders to seek safety “until the threat” in their home country is expunged,
The convention does not automatically equate absolute, permanent stay and integration,
The convention does not oblige receiving states to grant every asylum applicant with
refugee status.
In short when it comes to refugees fleeing from persecution the Convention remains a
strong key element for the affording of protection towards “refugees”.
While the UNHCR is aware of the fact that implementing the provisions of the Convention is
largely problematic in today’s day and age, the UNHCR is also of the belief that a review of the
Convention and its provisions is something that could end up restricting rather than expanding,
the rights of refugees. What the UNHCR specifically argues for is the opening up of channels or
increasing avenues for the process of legal migration to take place as this is something that is
likely to insulate the 1951 Refugee Convention from the pressures of migration, and also calls
for governments to work together with the UNHCR, not to go ahead and supplant the
Convention but to supplement the measures and solutions that are made available by the
Convention for the protection and care of refugees as a response to the changes that are taking
place in the refugee context. Expanding obligations of governments towards refugees over and
above the obligations that are imposed by the Refugee Convention of 1951 is in the view of
certain scholars not a pragmatic thing to do as these are proposals that are politically not viable.

46SCOPE OF 1951 REFUGEE CONVENTION
In the view of such scholars, countries are already overburdened by the obligations of the
Refugee Convention and do not need new obligations to increase this burden altogether. 102
4.1.2. THE SITUATION OF – MAXIMUM INFLUX
In the second half of the 20th century alone saw the effects of armed conflict contribute
to over 100 million deaths, with many conflicts like that in Darfur which is estimated to have
killed over 300,000 people since its eruption in 2003, are continuous and on ongoing103. The root
of the conflicts vary from ethnic to religious issues but not excluding others, but primarily ethnic
and religious based conflicts have contributed to a large displaced number of persons and
account for 20% of asylum applications arising in Europe from three prominent refugee
generating states identified by both the AOU & the UN High Commissioner; Afghanistan,
Somalia & Iran104.
Further the popular view promotes that the Convention ought to be broadened to apply in
such context, doctrinally the Convention serves as more of an aspirational basis for extending
protection rather than a blueprint for what is necessarily required. In this situation additional
protocols or doctrines specifically tailored to address the mass arrivals, ought to be provided to
supplement or rather complement the Convention as whole, reducing the effects of a lapse in the
protection framework on the European community.
The large scale influx at first instance would contribute to the deteriorating quality and
standard of individualised identification of the refugees, covered by the Convention and possibly
make the enjoyment of the rights attached to the refugee status impractical; for example[note to
102 Millbank, Adrienne. "Australia and the 1951 Refugee Convention [Revised version of The Problem with the 1951
Refugee Convention; a Research Paper (no. 5, 2000-2001) published by the Dept of the Parliamentary
Library.]." People and Place 9, no. 2 (2001): 1.
103 “Darfur security improving, says UN” (AFP) – January 20, 2011
104 United Nations High Commissioner for Refugees: “Asylum Levels and Trends in Industrialised Countries”, 2009

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self, add more examples of camps here] the Moria refugee camp in Lesbos, Greece which has the
capacity for 2,000 is overflowing with over 6,000 people 105, as the sheer weight of numbers of
applicants being processed increases, the international standards of humanitarian and physical
protection measures for the prima facie refugees decreases, making it impractical to for the
objectives envisaged in the Convention to be met.
The mass movement across borders institute such trying times for the major stakeholders
in the refugee protection framework, which are the receiving states, burdened by large scales of
individual application claims. The Convention would appear to be unsupported by provisions
giving leeway to burden sharing amongst receiving states. In the absence of clear parameters ,
the following mass movement pattern, as recorded in the World Development Reports in 2011 is
as follows;
75% of refugees would first flee from their country of origin into neighbouring countries.
Statistically these neighbouring countries more often low income states with low economical and
social standards, are facing their own conflicts, in addition to harbouring large numbers of
displaced persons and refugees106. In many situations the local civilians compete with the
refugees and displayed persons for natural resources and other humanitarian rights like that of
housing, education and healthcare.
In this regard , certainly supplementary instruments ought to be used to buffer the impact of this
ongoing mass movement, an agreement addressing the issues above should be reached in order
to strengthen the where the Convention is silent.
105 Georgios Makkas, ( The National, March 31, 2018) “Syrian refugees forced to choose war over Europe’s squalid
camps”, retrieved from : https://www.thenational.ae/world/europe/syrian-refugees-forced-to-choose-war-over-
europe-s-squalid-camps-1.717586
106 Margarita Puerto Gomez and Asger Christensen, “The Impacts of Refugees on Neighbouring Countries: A
Development Report 2011 Background Note, World Bank, July 2010.
Examples of of countries featured in the about report were Yemen, Pakistan, Chad, Sudan and Kenya.

48SCOPE OF 1951 REFUGEE CONVENTION
4.1.4. THE SITUATION OF – CROSS BORDER DISPLACEMENT
Persons of forced displacement are growing in numbers [list some statistics here] and the
main factors driving this migration are environmental factors such as climate change [ give
example], natural disasters, population growth, disease outbreak, sacristy of resources and so on.
The displaced persons who are made vulnerable and driven by natural disasters or other
serious factors flee and many seek the same protection and needs afford to that of the Convention
refugees. By comparison, although the legal implications of persons fleeing from persecution and
that of persons fleeing from natural disasters after exacerbating all their options are different,
however the aftermath of both their decisions to flee are quite similar if not worse for that of the
displaced person. For example a displaced person having lost their home, identity and family due
to a natural disaster become vulnerable and are at risk of trafficking and other related crimes.
The Convention is not applicable to forced displaced persons, but nonetheless there are
other capable instruments which offer the necessary protection and security here, as refugee law
professor Guy Goodwin argued;
It was once conceived that international protection in its mere form was limited and its scope
narrow, however the international protection framework has evolved to encompassing human
rights laws and humanitarian law into its framework of protection107.
Although bodies such as the CAT Committee and the European Court of Human Rights
have together contributed a great deal in non-refoulement provisions under the human rights
convention as way to bridging the gap for the protection of displaced persons, it is still not
107 Guy Goodwin-Gill, High Commissioner’s Dialogue on Protection Challenges, December 2, 2010

49SCOPE OF 1951 REFUGEE CONVENTION
enough. The challenge of creating a more still harmonizing body of protection still remains.
Seriously at risk individuals who flee devastating disasters do not have the recognised rights as
that of a refugee under the Convention, to cross international borders and seek asylum until the
treat in their country of origin is subsided.
Certainly the Convention is not applicable in these situations, rather a supplementary
doctrine that encompasses the objectives of the inter-connected frame work for protection; the
Convention, international human rights laws and humanitarian laws, ought to be warranted to
provide some form of interim protection, that will temporary provide for the safety and security
for persons fleeing for reasons other than persecution and also protect them against the legal
implications of illegal entry. The USA along with Canada, Australia and their EU counterparts,
started discussion papers in 2010108 that explored the conception of an emergency immigration
system that would deal with persons fleeing on grounds outside that of the grounds covered by
the Convention.
4.1.5. THE SITUTATION OF – MIXED MOVEMENT OF MIGRANTS & REFUGEES
Mixed flows include flows of migrants who leave their countries of origins for reasons
other than that which is specified in the Convention and together with non-migrants or asylum
seekers [genuine applicants for refugees status , that meet the 1951 conventions criteria’s] fleeing
from persecution make claims to refugee status on grounds which do not substantiate the claim.
The impact of the mass influx of migrants is a matter of concern for all but most
especially for the asylum systems in the Western front countries [in particular would be Western
European countries]. The European “frontline” countries as they are refereed would include the
108 Theme paper for the 2010 IGC full round, Miami, May 2010

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shores of Italy and Greece, have come under such increasing pressures being the first responders
on the migration channel routes [ see Exhibit 2]. Upholding the line behind these countries is
Germany, France and Spain;
Country Population Refugees Asylum seekers
Germany 82.7m 970,365 429,304
France 68m 337,177 63,127
Sweden 10m 240,962 51,646
Italy 60m 167,335 186,648
United Kingdom
[UK]
65.5M 121,837 40,365
Belgium 11.3m 42,168 18,760
Spain 46.3m 17,561 34,871
The UN are estimating a figure of 125 million people109 to be leaving their place of origin
at any given time in search of greener economic pastures, countries with better economic balance
, climate stability with higher standard of living for its citizens. The pull factors [advanced
technology, healthcare, free education, respect for human life and rights] of the Western
European civilization are simply compelling for migrants, leaving their home countries in search
for better opportunities are great. Although there is clearly an avenue for abuse of the asylum
109

51SCOPE OF 1951 REFUGEE CONVENTION
applications by migrants, this big issue obviously cannot be the direct consequence of an existing
document like that of the convention. Where is the responsibility taken by the other states party
to the Convention?
When a person lands in a contracting state to seek asylum and makes contact with the
government authorities within the time frame provided by that state. In order to determine if the
applicant does indeed full under the term of a refugee, the receiving state is under the obligation
to go through a procedure in which they can determine the true status of the new arrival, be it
migrant or refugee. Distinguishing between a migrant and a refugee may not be an easy task
however, that task still lies with that of the receiving state. It is very important to note one thing
that the 1951 Convention does not make it a given right that everyone is entitled to refugee
status, therefore frontline countries ought to recognise their power in that regard and review their
determination procedures, with a view of acknowledging there issues and working collectively
with other border sharing countries to further strengthen their procedures.
The approach that has been adopted by receiving countries is to avoid responsibility.
States are opposing their international responsibility, especially including those within the
European Union.
4.1.5.1. The Case of Poland
Following the 2015 migration crisis, the polish government have been in opposition to
the idea of to comply with the quota scheme; in 2017 it was said that the polish government
would only manage to process a total of 520 refugees out of 5,000 asylum applicants. It is
important to remember in this respect that the process of granting refugee status in the country of
Poland is quite an arduous one, and can take up to a couple of years at least, if not more. Refugee

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claimants and asylum seekers have to wait for a very long period of time to know if they claims
are being accepted or not and whether they are going to be granted the status of a refugee or not.
This long wait for migrants is something that the Polish authorities need to be looking into
immediately, but they are not. Once migrants cross a border in Poland, and make the claim that
they are refugees and that they are in the need of protection, they are transported to what may be
termed as a refugee centre.110 The refugee centres in Poland are situated in places that are distant
and remote and which are quite difficult for the ordinary people to access. At the very least, the
refugee centres are located far away from the urban areas and this makes it difficult for people
who are housed in the refugee centres to access schools and educational centres in Poland or
health care services or even the services for care and rehabilitation that are provided by NGO’s.
The people who reside in the refugee centres are allowed to work for a few weeks only after they
have submitted their application for refugee status and as such are not allowed to enter the work
market in the country, making their state of affairs difficult and painful. It is evident from reports
that are published by the Helsinki Foundation that the situation of Ukrainian refugees in Poland
is something that is especially precarious and they often have to give up their jobs overnight
because of the precarity of their situation in the country. 111
Migrants and asylum seekers who are granted refugee status in Poland or who have been
given the temporary status of immigrants have the right to obtain assistance and protection as
made available under programs that have been designed specifically for immigrants and migrant
communities by the Polish government. These are individual integration programs that are
conducted on an annual basis and which give migrants and refugees living in the country of
110 Krzyżanowski, Michał. "Discursive shifts in ethno-nationalist politics: On politicization and mediatization of the
“refugee crisis” in Poland." Journal of Immigrant & Refugee Studies 16, no. 1-2 (2018): 76-96.
111 Ibid

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Poland the right to seek shelter, care and assistance including financial aid that will cover the
cost of food and medicine and clothing. District Family Assistance Centres are also in place in
the country of Poland that are aimed at helping migrant communities overcome language barriers
as well as the social and material barriers that they are likely to be faced with once they arrive in
their new homes.112 Due to the present day EU laws and revised international legal obligations
with respect to refugees and migrant communities, the situation of asylum seekers in Poland
today is far better than what it was in the early part of the 1990’s, at a time when the country was
solely guided by the provisions of the 1951 Refugee Convention. 113
4.1.6. The Situation of Climate Refugees and Challenges posed to the 1951 Refugee
Convention
The element of economic and or climate migrants114 relocating in such mass groups due
to economic push factors, was certainly no the situation envisaged in drafting of the 1951
Convention neither was the Convention intended to address such situations, not in the 1951 and
not in the 20th century. Nevertheless although obvious to some but not to critics of the
Convention who are calling for a recall of the document as a whole, it should be said that the
current issue of migrants seeking asylum, is not that of the failing of the 1951 Convention itself,
but rather that of the previous governments of their States of origin or residence incapacity to
successfully manage their economy.115
112 Krzyżanowski, Michał. "Discursive shifts in ethno-nationalist politics: On politicization and mediatization of the
“refugee crisis” in Poland." Journal of Immigrant & Refugee Studies 16, no. 1-2 (2018): 76-96.
113 Ibid
114 McAam on; Climate Change , Forced Migration, and International Law, (2012).
115 McAdam, Jane. The Refugee in International Law. Oxford University Press,, 2007.

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It is important to take note of the fact that the discourse pertaining to climate refugees has
been present ever since the decade of the 1980’s and that it was a UN official by the name of
Essam El Hinnawi who defined climate refugees for the very first time. According to him, the
climate or environmental refugees as he refers them to are people who have been forced to flee
from their traditional or habitual residences as a consequence of marked environmental
disruptions that have been triggered either by people or which have occurred naturally and which
have put their existence in jeopardy or have hampered seriously, the quality of their lives.116 One
of the biggest challenges faced by global authorities today in providing shelter and assistance to
environmental refugees or climate refugees is the fact that this is a category of people which has
not been defined or spoken of in the discourse surrounding refugees that has been established by
the 1951 Refugee Convention. 117It is the hope of the UNHCR, that the Nansen Initiative which
was introduced in the year of 2012 is what will set the future course of action for protection and
rehabilitation of climate refugees, in the absence of any scope or provision of the same under the
tenets of the 1951 Refugee Convention. The definition of climate refugee is one that had initially
posed a lot of threat to the UNHCR largely because of the fact that it did not match with the
definition of a refugee as contained in the 1951 Refugee Convention.118 It was argued on the part
of the UNHCR, that people displaced as a consequence of natural disasters or environmental
problems could rely on the support and the assistance provided by their national governments
while the Convention refugees could not, because of the risk of persecution that they faced at the
hands of their national governments. As mentioned by Article 1 A (2) of the 1951 Refugee
Convention, refugees are people who are fleeing persecution from authorities either in their
116 Kalin, Walter. "Guiding principles on internal displacement." Stud. Transnat'l Legal Pol'y 38 (2008): 1.
117 McAdam, Jane. The Refugee in International Law. Oxford University Press,, 2007.
118 Kalin, Walter. "Guiding principles on internal displacement." Stud. Transnat'l Legal Pol'y 38 (2008): 1.

55SCOPE OF 1951 REFUGEE CONVENTION
country of residence or in a country of former habitual residence and that they are either
unwilling or are unable to avail the protection that is accorded by such a country. It is also
crucial to take note of the fact that the distinction between internally displaced persons and
refugees is an integral aspect of conventional refugee law as it states the extent to which
assistance can be availed by the people who have been displaced. 119
Since the 1951 Refugee Convention does not state clearly what protection must be
provided to victims of climate change, it has become imperative to develop a new framework
that will address the needs and the requirements of the climate refugees or climate displaced. A
leading initiative in this matter has been taken by a man by the name of Walter Kalin. Kalin has
mentioned a number of impediments that humanitarian authorities are faced with when dealing
with the problem of climate refugees worldwide. First and foremost, there are a number of legal
impediments that lie in the path of doing good work for climate refugees, such as the fact that the
refugees cannot be forcibly made to return from the places that they had fled from after the
environmental disaster as subsided, as by doing so, one could just be exposing them to the risk of
torture, degrading and inhuman punishment or treatment at the hands of the authorities of their
nation states. Factual impediments also exist.120 It is not possible to send climate refugees back to
their original homes, or places of residence because of the fact that basic infrastructure such as
airports and roads have been destroyed as a consequence of natural disaster. Humanitarian
impediments also lie in the path of successful rehabilitation of victims of climate change. This is
because even though there is no human rights issue at stake, to send people back to a country
ravaged by natural disaster and to live in conditions of destitution and poverty could prove to be
119 Kalin, Walter. "Guiding principles on internal displacement." Stud. Transnat'l Legal Pol'y 38 (2008): 1.
120 Kalin, Walter. "Guiding principles on internal displacement." Stud. Transnat'l Legal Pol'y 38 (2008): 1.

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a largely inhuman thing to do. According to Kalin and others if one or more of the above
impediments are seen to exist, then the people displaced can be placed under the category of
“forcibly displaced” and are entitled to protection and assistance given by nation states. 121
Complementary forms of assistance and protection are those that put nation states in a
position to give care and shelter to people who could be returned or repatriated from a country on
grounds of human rights issues in situations that are not addressed explicitly by the UN
Convention on Refugees of 1951 and its Protocol of 1967. Such protection types are those
that are considered to be quite subsidiary to the type of protection that is made available to
the provisions of the Refugee Convention of 1951. 122Complementary forms of protection
include instruments like the Kampala Convention, which established the guidelines for
protecting people who were found to be victims of internal displacement, including climate
induced displacement in the continent of Africa, the UN Guiding Principles on Internal
Displacement of 1998 and the Kyoto Protocol which envisaged developing regional policy as
well as law as an effective form of response to the dangers and instability posed by climate
change.123 The office of the United Nations Human Rights Commission has undertaken an in-
depth study and analysis of the factors that trigger conditions for people to become climate
refugees and have located three obstacles that first need to be overcome if the act of climate
change is one that can be treated as a violation of human rights. The first of these is the task of
proving that emissions that are generated in one particular country could have a specific impact
121 Kälin, Walter, Jorg Kunzli, and Jörg Künzli. The law of international human rights protection. OUP Oxford, 2009.
122 McAdam, Jane. The Refugee in International Law. Oxford University Press,, 2007.
123 "Guiding Principles On Internal Displacement | IDMC". 2019. Internal-Displacement.Org. http://www.internal-
displacement.org/internal-displacement/guiding-principles-on-internal-displacement#targetText=The%20Guiding
%20Principles%20state%20that,other%20persons%20in%20their%20country.&targetText=The%20principles
%20restate%20the%20right,ethnic%2C%20religious%20or%20racial%20grounds.

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on people living in another country. Secondly, it must be demonstrated that human rights issues
are caused solely by the act of global warming and thirdly, the fact needs to be considered that
while the framework of climate change concerns itself with prospective or potential harm, the
framework of human rights concerns itself with responding to situations of human rights
violations. 124
There are a number of other factors that make the task of addressing displacement
brought about by climate change and natural disasters a difficult and challenging affair,
especially in light of the fact that displacement brought about by climate change is not
stated as an adequate ground for being accorded refugee status by the stipulations
contained in the 1951 Refugee Convention. The first important difficulty that arises is because
climate displacement is primarily an internal phenomenon with people who are forcibly
displaced remaining within the confines of their nation states. They do not cross borders to
escape from their situation and do not seek protection from a third country or protection and
assistance that is provided at the international level.125 Secondly, the migration that is induced as
a result of natural disasters and climate change is not migration that is necessarily forced in its
nature or character. There are migration management programs and agreements that need to be
put in place in order to deal with the problem of migration brought about by climate change
rather than devising a new refugee protection system for this purpose. To isolate climate and
environmental factors for forced displacement from political, economic, social and even
religious factors for the same, can be rather difficult to do and this in the bargain can lead to
unrealistic and long legal procedures.126 Creating a special or unique refugee status for victims of
124 Kälin, Walter, Jorg Kunzli, and Jörg Künzli. The law of international human rights protection. OUP Oxford, 2009.
125 Goodwin-Gill, Guy S., and Jane McAdam. The refugee in international law. Oxford University Press, 2007
126 Ibid

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climate change or people who are forcibly displaced as a consequence of natural disasters can be
more of a problem rather than a solution as it will end up excluding people who are actually in
dire need of assistance and protection especially for migrants who belong to the poorest of the
poor, who move for a variety of mixed factors and who may find it difficult to establish a link
between environmental and climate factors. 127
If the 1951 Refugee Convention is opened once again in order to address the issues that
are faced by climate refugees, then it will weaken the status that is already accorded to the
Convention refugees, that is, people fleeing the well-found fear of persecution in their
countries of origin or former habitual residence.128 Creating a new convention altogether for
climate refugees is also going to prove to be a painstaking and lengthy process, not to mention
expensive, and it is better if responses came from migration management and policy developers
worldwide such as the adoption of a Global Compact on Safe, Orderly and Regular Migration
and the Nansen Initiative which is specifically aimed at looking into the interests and the
protection of people who are displaced across the borders as a result of natural disasters. 129The
fact that climate migration discussions are those that have been focussing on preventive
measures only are also the reason why protection and care for victims of climate change is not as
sound today as what it should be. In the absence of a framework like the 1951 Refugee
Convention to protect the rights of people who are displaced by climate change, it is exceedingly
important not only to prevent environmental disasters from occurring but to also come up with
ways and means by which these disasters can be mitigated. The Paris Agreement for one
127 McAdam, Jane. The Refugee in International Law. Oxford University Press,, 2007.
128 Goodwin-Gill, Guy S., and Jane McAdam. The refugee in international law. Oxford University Press, 2007
129 Kälin, Walter, Jorg Kunzli, and Jörg Künzli. The law of international human rights protection. OUP Oxford, 2009.

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provides a framework that gives anchorage for disastrous situations that are brought about by
climate change and which considers human mobility for averting, minimizing and addressing the
matter of displacement where climate change is concerned. 130
Even though the 1951 Refugee Convention does not provide a framework for the
resettlement and rehabilitation of people who are displaced as a consequence of climate change,
there are other agreements as mentioned before like the Paris Agreement, the Kyoto Protocol and
the Nansen Initiative that have been playing an active role in protecting and giving assistance to
people who are displaced from their homes because of the consequence of climate change. 131The
International Organization for Migration for instance, is playing quite a laudable role in securing
and ensuring protection for people who are displaced because of natural disasters and problems
related to climate change.132 The International Organization for Migration makes use of existing
bodies of laws and instruments, both soft law as well as hard law in order to make sure that
disasters are managed and legal migrations are handled in the manner desired. Adopting human
rights based solutions or approaches can also go a long way in getting the issues of people
displaced by climate change resolved in an effective manner, even in the absence of a protection
framework like the 1951 Refugee Convention. 133Governments of countries for instance need to
take can active role in examining the climate or environmental drivers that are causing people to
move and should act quickly to assist this migration or mitigate the environmental disasters that
are taking place or which are on the verge of taking place. Such a human rights based method or
approach that is adopted by the government will not only be well received by the people who are
130 "The Paris Agreement | UNFCCC". 2019. Unfccc.Int. https://unfccc.int/process-and-meetings/the-paris-
agreement/the-paris-agreement.
131 "What Is The Kyoto Protocol? | UNFCCC". 2019. Unfccc.Int. https://unfccc.int/kyoto_protocol.
132 Goodwin-Gill, Guy S., and Jane McAdam. The refugee in international law. Oxford University Press, 2007
133

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bearing the brunt of climate induced displacement but shall also be looked upon favourably by
the international community. 134
Finally, it is important to note that establishing regular migration pathways can provide
an alternative to the dangers that people experience when they are compelled to move from their
place of origin or habitual residence because of climatic factors. 135Temporary protection,
humanitarian visas and the authorization to stay, in addition to free bilateral and regional
movement are examples of the type of migration pathways or solutions that can be established by
governments around the world in order to resolve the problems and grievances of people at the
receiving end of problems brought about by climate change and environmental disasters. 136
134 McAdam, Jane. The Refugee in International Law. Oxford University Press,, 2007.
135 Kälin, Walter, Jorg Kunzli, and Jörg Künzli. The law of international human rights protection. OUP Oxford, 2009.
136 McAdam, Jane. The Refugee in International Law. Oxford University Press,, 2007.

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5. Chapter 5 – Conclusion
5.1. The Way Forward
International protection serves as a temporary substitute for all types of national
safeguards with regard to national protection. The term international protection is one that entails
seeking solutions for problems that are related to refugees and asylum seekers. 137One of the best
solutions that comes to the mind when it comes to resolving a problem such as the international
refugee crisis is the solution of voluntary repatriation.138 Repatriation is the process that refers to
sending people back to the countries that they arrived from or migrated from in the first place.
Voluntary repatriation implies that refugees get to go back to the countries that they had run
away from, of their own free volition without anyone forcing them to return to near death
situations. They go back to their home countries or to the countries of their former habitual
residence because it feels safe and alright for them to do so. In the event that voluntary
repatriation appears not to be a feasible solution, there are other types of solutions or approaches
that can be explored to improve the lot of refugees and asylum seekers living in hapless
conditions around the world.139 Other options that may be thought of in this respect are the option
of resettling groups of refugees in a third country of repatriation or by integrating the refugees
with the local population of the host country, a process which is often referred to by the term
naturalization.140 Resettling refugees to a third country requires a lot of time and energy and a lot
of negotiation in addition to a lot of expense on the part of the host government, yet it is a viable
137 Refugees, United. 2019. "UNHCR - The UN Refugee Agency". Unhcr.Org. https://www.unhcr.org/.
138 Milner, James. "A History of Asylum in Kenya and Tanzania: Understanding the Drivers of Domestic Refugee
Policy." Monde (s) 1 (2019): 69-92.
139 Chimni, Bhupinder Singh, ed. International refugee law: A reader. SAGE Publications Pvt. Limited, 2000
140 Ibid

62SCOPE OF 1951 REFUGEE CONVENTION
solution because it implies that refugees are resettled in a nation that has the financial resources
to take care of their needs and which can provide them the security and the protection which the
present host country or government is unable to.141 When it comes to handling mass refugee
movements in particular, it becomes imperative to analyse the protection needs and specific
circumstances that the individual refugees find themselves in, in order to help them in a
comprehensive and consistent manner. 142More often than not, several solutions need to be
clubbed together so that the needs and requirements of the refugee population can be met in as
systematic and organized a manner as possible. It is when several solutions are put together all at
once, that the needs of refugees can truly be met and a lasting solution be arrived at to their
problems.143 It is clear from the discussions that have ensued above that the 1951 Refugee
Convention which is the principle legal instrument for looking into the care and protection
of refugees world-wide, is today an outdated instrument and cannot be used to meet the
protection needs of the global refugee population today. Indeed, this is an instrument that
was designed for a different era altogether and not the one in which we are living right
now. 144Upon such a realization, it becomes imperative to hit upon new protection standards and
solutions for addressing the plight of refugees, that is solutions and standards that will take
cognizance of the unique needs of refugees in the present day and age rather than being rooted in
the past. 145
141 Refugees, United. 2019. "UNHCR - The UN Refugee Agency". Unhcr.Org. https://www.unhcr.org/.
142 Chimni, Bhupinder Singh, ed. International refugee law: A reader. SAGE Publications Pvt. Limited, 2000
143 Milner, James. "A History of Asylum in Kenya and Tanzania: Understanding the Drivers of Domestic Refugee
Policy." Monde (s) 1 (2019): 69-92.
144 Refugees, United. 2019. "The 1951 Refugee Convention". UNHCR. https://www.unhcr.org/1951-refugee-
convention.html.
145 Milner, James. "A History of Asylum in Kenya and Tanzania: Understanding the Drivers of Domestic Refugee
Policy." Monde (s) 1 (2019): 69-92.

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The act of voluntary repatriation is undoubtedly one of the most effective ways by
which the refugee crisis can be resolved today. The element of voluntariness is one that is
central to the repatriation process. Refugees need to be willing to go back to their countries of
origin or the countries that they had been forced to flee from. They need to feel that it is safe to
do so. If they feel any reluctance to return to their countries of origin or habitual residence, then
they must be allowed to weigh the pros and cons of the situation before helping them to get back
to the place that they had originally migrated from.146 It is only when absolutely safety and
security is guaranteed and when refugees are willing to return to their home countries that the
repatriation process of refugees is likely to be successful. In order to facilitate the process of
refugee repatriation it becomes crucial for resettlement authorities including UNHCR officials to
meet with the refugees in their camps on a regular basis, to engage with them, to find out
whether they want to go home at all and if they do, then when it is that they would like to start
making their way back.147 It means that NGO staff members need to continuously be in touch
with refugees living in camps to update about what the situation is like in their home countries
and when refugees feel that it is indeed secure and safe for them to make a return they should be
allowed to do so.148 It is when repatriation is voluntary that the solution to the refugee crisis is
likely to be a long lasting, sustainable and durable one compared to situations where refugees are
coerced into repatriating to the countries that they had fled from. The process of voluntary
repatriation requires regularly reviewing conditions that prevail in the home countries of the
refugees and it means that refugees have the freedom to decide whether it is that they want to go
146 Milner, James. "A History of Asylum in Kenya and Tanzania: Understanding the Drivers of Domestic Refugee
Policy." Monde (s) 1 (2019): 69-92.
147 Refugees, United. 2019. "UNHCR - The UN Refugee Agency". Unhcr.Org. https://www.unhcr.org/.
148 Miller, Sarah Deardorff. UNHCR as a Surrogate State: Protracted Refugee Situations. Routledge, 2017.

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back or not.149 Voluntary repatriation is something that usually takes place when the risk of
persecution in the home country or in the country of origin of refugees has abated to quite a
considerable degree. At times refugees may want to voluntarily return to the countries that they
have been fleeing from because they miss their family, because they wish to get in touch with
their family members once again, in spite of the fact that the risk of persecution continues to
prevail. 150
A comprehensive approach to the process of voluntary repatriation is something that is
endorsed by the United Nations High Commissioner for Refugees, which is the UN Refugee
Agency.151 The root causes of refugee exodus or flight from countries of origin or countries of
former habitual residence are assessed by the authorities working at the UNHCR after which
sustainability of the return process is also assessed. If upon assessment, the sustainability of
return is found to be real, and if it is seen by the UNHCR authorities that the danger in the
country of origin of the refugees has reduced considerably, then only is the process of voluntary
repatriation promoted by the UNHCR authorities and not otherwise. At the end of the day, it is
the job of the UNHCR to make sure that refugees are able to return to home countries in a safe
and secure manner and not be at the risk of persecution once they do return. 152It is the UNHCR
which assumes the responsibility of refugees returning safely to their countries of origin. To help
refugees to return or be repatriated in safety implies that refugees are made to return in
149 Milner, James. "A History of Asylum in Kenya and Tanzania: Understanding the Drivers of Domestic Refugee
Policy." Monde (s) 1 (2019): 69-92.
150Milner, James. "A History of Asylum in Kenya and Tanzania: Understanding the Drivers of Domestic Refugee
Policy." Monde (s) 1 (2019): 69-92.
151 Miller, Sarah Deardorff. UNHCR as a Surrogate State: Protracted Refugee Situations. Routledge, 2017.
152 Milner, James, and Krystyna Wojnarowicz. "Power in the global refugee regime: Understanding expressions and
experiences of power in global and local contexts." Refuge: Canada's Journal on Refugees 33, no. 1 (2017): 7-17.

65SCOPE OF 1951 REFUGEE CONVENTION
conditions that ensure legal safety, physical safety as well as material safety.153 Legal security or
safety in this context implies freedom from the threat or the risk of persecution, non-
discrimination, integrity, public assurance of safety and amnesties. Physical security means
repatriation that guarantees relocation to sites that are free of mines, which are well demarcated
areas of resettlement and which are free from the threat of gun violence and other forms of
physical violence. Material security in this context refers to giving refugees access to land and
the financial resources that they need in order to be able to start over their lives in the home
country once again. 154The UNHCR also makes it a point to ensure that refugees are repatriated
or made to return to their home countries with their dignity intact. This implies that the refugees
are not manhandled in the process of being returned to their countries of origin, every effort is
made to provide the refugees with as much physical security as possible so that they can make a
full return without getting themselves hurt and ensuring that their rights and privileges will be
restored or offered once again by the state authorities in their home countries, thus not giving
them any reason for flight ever again.155 The dignity of return is one of the most important
aspects of the voluntary repatriation process as it means that the rights and the dignity of
refugees are fully respected and upheld when getting them to make a return to their home
countries once again. 156
153 Milner, James, and Krystyna Wojnarowicz. "Power in the global refugee regime: Understanding expressions and
experiences of power in global and local contexts." Refuge: Canada's Journal on Refugees 33, no. 1 (2017): 7-17.
154 Milner, James, and Krystyna Wojnarowicz. "Power in the global refugee regime: Understanding expressions and
experiences of power in global and local contexts." Refuge: Canada's Journal on Refugees 33, no. 1 (2017): 7-17.
155 Refugees, United. 2019. "UNHCR - The UN Refugee Agency". Unhcr.Org. https://www.unhcr.org/.
156 Crpeau, Franois. Refugees' Roles in Resolving Displacement and Building Peace: Beyond Beneficiaries.
Georgetown University Press, 2019.

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One of the key ways by which the UNHCR can promote and carry out the process of
voluntary repatriation in order to ensure a long lasting and durable solution to the refugee crisis
is to first make sure that a number of pre-conditions to facilitate the voluntary repatriation have
first been met. 157To begin with, the UNHCR authorities need to make sure of the fact that the
situation in the home country or the country of former habitual residence of refugees is one that
is characterized by political and economic stability, with conditions being safe to return for not
just one or two refugees but refugee and their families in large numbers. It is the duty and the
responsibility of the UNHCR to get in touch with state authorities in the home countries to find
out if the situation is stable enough for the refugees to return and whether or not the home
countries are willing to receive them back once again.158 In fact, UNHCR officials are to obtain
what may be termed as a formal guarantee or a formal statement of assurance from the home
country stating that conditions are stable and secure enough for the refugees to make a return.
The parties that are involved in the process of repatriation also need to be fully committed to the
voluntary nature of the repatriation process. Unhindered and free access needs to be given to the
UNHCR to access the refugees in the home country once again and make sure that they are
settling back into their old lives in a safe and secure manner. The essential terms and conditions
of the process of voluntary repatriation ought to be espoused in the form of a formal agreement
that is drawn up between the concerned authorities and the UNHCR. 159
When talking about voluntary repatriation as an effective and long lasting solution to the
refugee crisis it is also important to note that voluntary repatriation can be of two kinds. The first
is a spontaneous voluntary repatriation process and the second is what may be termed as an
157 Ibid
158 Crpeau, Franois. Refugees' Roles in Resolving Displacement and Building Peace: Beyond Beneficiaries.
Georgetown University Press, 2019.
159 Ibid

67SCOPE OF 1951 REFUGEE CONVENTION
organized repatriation.160 The organized repatriations are carried out when a resolution is arrived
at to the conflict situation that had caused the refugees to run away in the first place, when
repatriation is encouraged by the UNHCR, when repatriation agreements are draw up between
the countries of asylum, the home countries and the UNHCR ensuring that the repatriation will
be carried out in a voluntary and humanitarian manner, when the returnees are registered by the
UNHCR authorities, when the transportation for the process of repatriation is provided by the
UNHCR, and when the UNHCR is granted access, and unhindered access at that in the countries
where the refugees are making a return once again.161 The process of spontaneous repatriation
occurs without the drawing up of formal agreements, before hostilities cease in the host country,
without there being any registration procedures in place for the returnees and without any type of
organized international assistance being provided for the repatriation process. 162
In conclusion it can be argued that voluntary repatriation is indeed the ideal solution for
the refugee crisis today, especially given the fact that the 1951 Refugee Convention is now
outdated in character and regional solutions and new instruments are emerging that are gradually
taking the place of the Convention when it comes to protecting and providing assistance for
refugees on a mass scale. The 1951 Refugee Convention appears to be inadequate for looking
into the needs of climate refugees or refugees created by environmental disasters, it is also an
instrument that is being violated in the Global North, the countries of which have signed the
Convention and it also appears to have been designed for an different era, being largely euro-
160 Crpeau, Franois. Refugees' Roles in Resolving Displacement and Building Peace: Beyond Beneficiaries.
Georgetown University Press, 2019.
161 Miller, Sarah Deardorff. UNHCR as a Surrogate State: Protracted Refugee Situations. Routledge, 2017.
162 Crpeau, Franois. Refugees' Roles in Resolving Displacement and Building Peace: Beyond Beneficiaries.
Georgetown University Press, 2019.

68SCOPE OF 1951 REFUGEE CONVENTION
centric in its nature and scope. Organized repatriation is the need of the hour and must be
implemented when feasible, if a long lasting and durable solution to the world refugee crisis is to
be arrived at.

69SCOPE OF 1951 REFUGEE CONVENTION
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