Introduction
Throughout the world and over the centuries, societies have welcomed frightened, weary strangers, the victims of persecution and violence. This humanitarian tradition of offering sanctuary is often now played out on television screens across the globe as war and large-scale persecution produce millions of refugees and internally displaced persons. Yet even as people continue to flee from threats to their lives and freedom, governments are, for many reasons, finding it increasingly difficult to reconcile their humanitarian impulses and obligations with their domestic needs and political realities. At the start of the 21st century, protecting refugees means maintaining solidarity with the world’s most threatened, while finding answers to the challenges confronting the international system that was created to do just that.
The year 2016 marks the 65th Anniversary of the United Nations Convention (Convention) relating to the Status of Refugees. The Convention was a landmark in the setting of standards for the treatment of refugees. It incorporated the fundamental concepts of the refugee protection regime and has continued to remain the cornerstone of that regime to the present day. However, some critics believe that that historical document is not fit for purpose nowadays.
This essay discusses whether the international refugee protection Convention still fit for purpose or not. The paper based on various websites, as well as a number of academic studies. It is structured as four parts. The first part gives a brief background of the Convention. Second part describes the Convention as a Human Rights Treaty. Challenges of the Convention are outlined in the third part. The last part will summarise the preceding section and derive some conclusions.
Background of the Convention
Grounded in Article 14 of the Universal Declaration of human rights 1948, which recognizes the right of persons to seek asylum from persecution in other countries, the United Nations Convention relating to the Status of Refugees, adopted in 1951, is the centrepiece of international refugee protection today. The Convention entered into force on 22 April 1954, and it has been subject to only one amendment in the form of a 1967 Protocol, which removed the geographic and temporal limits of the 1951 Convention. The Convention, as a post-Second World War instrument, was originally limited in scope to persons fleeing events occurring before 1 January 1951 and within Europe. The 1967 Protocol removed these limitations and thus gave the Convention universal coverage. It has since been supplemented by refugee and subsidiary protection regimes in several regions, as well as via the progressive development of international human rights law.
The fact that the Geneva Convention was a response to the mid-20th Century European refugee situation is important because despite this narrow focus, the approach taken then is now applied to disparate countries across the world in an age with very different refugee problems. Indeed, it was in post WW2 Europe that “certain key techniques for managing mass displacements of people first because standardized and then globalized”.
Under the Convention and Protocol, there is a particular role for the United Nations High Commissioner for Refuge (UNHCR). States undertake to cooperate with UNHCR in the exercise of its functions, which are set out in its Statute of 1950 along with a range of other General Assembly resolutions, and, in particular, to facilitate this specific duty of supervising the application of these instruments. By its Statute, UNHCR is tasked with, among others, promoting international instruments for the protection of refugees, and supervising their application.
The fundamental importance and enduring relevance of the Convention and the Protocol is widely recognized. In 2001, States parties issued a Declaration reaffirming their commitment to the Convention and the 1967 Protocol, and they recognized in particular that the core principle of non-refoulement is embedded in customary international law. Moreover, the General Assembly has frequently called upon States to become parties to these instruments. Accession has also been recommended by various regional organizations, such as the Council of Europe, the African Union, and the Organization of American States. Today, there are 147 States Parties to one or both of these instruments.
Nowadays, according to UNHCR, there are more than 43 million uprooted people worldwide. UNHCR now deals with 33.9 million people of concern to UNHCR: 14.7 million internally displaced people, 10.5 million refugees, 3.1 million returnees, 3.5 million stateless people, more than 837,000 asylum seekers and more than 1.3 other persons of concern.
The Convention as a Human Rights Treaty
The convention was the first international agreement covering the most fundamental aspects of a refugee’s life. It spelled out a set of human rights that should be at least equivalent to freedoms enjoyed by foreign nationals living legally in a given country and in many cases those of citizens of that state. It recognized the international scope of refugee crisis and necessity of international cooperation, including burden-sharing among states in tackling the problem.
The Convention is both a status and rights-based instrument and is underpinned by number of fundamental principles, most notably non-discrimination, non-penalization and non-refoulement. Convention provisions, for example, are to be applied without discrimination as to race, religion or country of origin. Developments in international human rights law also reinforce the principle that the Convention be applied without discrimination as to sex, age, disability, sexuality, or other prohibited grounds of discrimination. The Convention further stipulates that, subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum. Importantly, the Convention contains various safeguards against the expulsion of refugees. The principle of nonrefoulement is so fundamental that no reservations or derogations may be made to it. It provides that no one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.
Moreover, the Convention lays down basic minimum standards for the treatment of refugees, without prejudice to States granting more favourable treatment. Such rights include access to the courts, to primary education, to work, and the provision for documentation, including a refugee travel document in passport form. Most States parties to the Convention issue this document, which has become as widely accepted as the former “Nansen passport”, an identity document for refugees devised by the first Commissioner for Refugees, Fridtjof Nansen, in 1922.
In the juridical context of the human rights treaties, the Refugee Convention as a whole can be viewed as an affirmative measure in favour of refugees. While some of its detailed provisions are not found in later human rights treaties, most of them however implement a more widely granted human right, in this case responding to particular needs of the refugee situation: for example, the refugee travel document implements the broader right of everyone to freedom of movement. Since the right provided for in the Refugee Convention provision constitutes here an aspect of an International Covenant on Civil and Political Rights, the non-discrimination dimension can be raised in reports by States Parties and can in theory be the object of complaints to a relevant treaty body. Some of the refugee's rights considered here have been modified considerably by the human rights treaties.
Contemporary challenges of the Convention
The ‘myth of difference’ at the time of drafting presented non-European refugees as radically different from European refugees and therefore requiring solutions outside of the Convention. This ‘myth of difference’ directly challenges the universality of the Convention and Protocol –how can it be universal if most of the world’s refugees cannot be provided for within its framework? And yet it isn’t the question of the de facto universality of the rights inscribed in the Convention within a diverse world that is problematised by the world’s hegemonic powers. It is the failure of asylum applicants to fit into what has been decreed just grounds for claiming asylum in a foreign land. This is a false logic. The reality of difference is that many of today’s refugees are different from the Convention definition of the genuine refugee, the point being that it is not refugees who do not fit, it is the Convention.
Amsterdam’s agreement. Legal EU policy towards refugees first received in the Treaty of Amsterdam, 1997. Before its adoption, the States solved the issue of granting the status of refugee, retreating from the Convention's provisions. The common policy of all the Member countries of the EU have been restricting the flow of refugees by negotiating with the countries of Eastern Europe, bilateral agreements on the readmission of refugees. The result of this policy was the growth of a buffer zone between Europe and the States, of which was the flow of refugees. This meant that asylum-seekers, it became much more difficult to travel to EU countries for asylum. Moreover, the principle of non-refoulement was violated. An illustration may serve as the courts of Germany, under which refugees were sent to the country of transit or of nationality, where they have been persecuted (Bosniaks in Croatia, the Ethiopians — in Sudan).
All these contradictions