1. Introduction and Background
The 1951 Convention Relating to the Status of Refugees (the 1951 Convention) was the first human rights treaty adopted by the UN and is perhaps the most effective of all UN human rights treaties. There are scores of UN-initiated international human rights treaties in force, but they are regarded by most national courts as hortatory documents extolling desirable norms but not as binding legal instructions. At best, such human rights treaties serve as guiding principles for the drafting of national constitutions and as a lode star for high courts of justice in democratic societies. The rules set out in the 1951 Convention, however, are of a different sphere. Although, as a matter of principle, states ‘have the right, as a matter of well-established international law and subject to their treaty obligations … to control the entry, residence and expulsion of aliens’, the restrictions imposed by the 1951 Convention have received universal acceptance, though not necessarily universal compliance.Footnote 1 According to two of the authors, ‘[t]he overall object and purpose of the 1951 Convention is to provide protection by creating an obligation for the contracting parties to ensure that individuals within their jurisdiction are not turned back to countries where they would be exposed to the risk of persecution on the basis of either race, religion, nationality, membership of a particular social group or political opinion’.Footnote 2 This principle is applied on a day-to-day basis by courts, border police, immigration tribunals and officials. The 1951 Convention's definition of a refugee as a person outside his country ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ is part of the immigration code of every democratic state.
These authors refer, at one stage, to the 1951 Convention as the magna carta of international refugee law,Footnote 3 although two other authors emphasise correctly that, despite a common misconception, ‘the 1951 Convention does not contain a right to asylum in the sense of territorial asylum, i.e. it does not oblige States to grant protection in their own territory’.Footnote 4 The European Court of Human Rights (ECtHR) has explicitly ruled: ‘The right to political asylum is not contained in either the Convention or its Protocols’.Footnote 5 The only major obligation it contains is the principle of non-refoulement.
The book under review is a commentary on the 1951 Convention, with a separate chapter on each of its provisions, the chapters having been written by 48 different authors. Each chapter gives a detailed description of the drafting background and travaux préparatoires of the provisions and phrases used in the 1951 Convention. Each chapter commences with the text of the provision, in English and French, followed by a bibliography, an explanation of the function of the provision, the historical development, declarations and reservations, an analysis of UN High Commissioner for Refugees (UNHCR) guidance, the practice of regional organisations, state practice, other relevant norms of international law, the interrelationship of the provision with other provisions of the 1951 Convention and, finally, an analysis of contentious issues relating to the provision. This extensive article-by-article, provision-by-provision study will serve as invaluable source material for researchers but it does not add to the readability of the book. The book might well have been more ‘user friendly’ if it had been arranged on a thematic basis rather than on an article-by-article basis.
The editor, Andreas Zimmermann, has written the introduction and is also the author of some of the commentaries, mostly written jointly with others. A problem that is endemic to books with many authors is that there are considerable differences in style and scholarship between different chapters. There is also a problem of repetition: comments on the drafting of individual terms are not only dealt with in the chapter on the drafting history of the 1951 Convention but also in the general chapter on interpretation, as well as in the specific chapters. Each chapter has its own bibliography and inevitably the same list of books is repeated in more than one bibliography. Since it is not a book to be read as a whole but rather to be consulted on specific issues, such repetition should not be regarded as a serious deficiency of the book, although it adds to the bulk of the volume.
Some chapters tend to be hortatory in the sense that one gets the impression that the authors are human rights specialists, describing what they think should be the best conduct of states in granting the greatest protection to refugees and potential refugees. The intentions of these authors are laudable; however, this emphasis on what the authors consider to be desirable law may leave the practising government lawyer, or perhaps even the presiding judge, wondering what is ‘black letter’ law and what is only lex ferenda.
The 1951 Convention is of particular relevance for jurists who follow Israeli and Jewish affairs, for three distinct reasons. The background to the drafting of the 1951 Convention was, to a large extent, the experience of the Jews in Europe prior to and during the Second World War. This is reflected in the book where one author writes that the 1951 Convention was a response, inter alia, to ‘500,000 fleeing Nazi Germany’,Footnote 6 and another author comments that ‘[t]he greatest failure to act efficiently concerned the modest responses to the persecution of Jews and political opponents in Nazi Germany from 1933 onwards’.Footnote 7 To a large extent the problem of refugees in the inter-war period was that of stateless persons, and another author adds that ‘the category of stateless people included those without nationality who had never moved, especially Jews from the former Russian Empire who lived in the new national States of Eastern Europe and were denied citizenship rights’.Footnote 8 This background, of the tragedies suffered by Jewish refugees, is reflected in the major role played by the Israeli representative in the drafting of the 1951 Convention. The Israeli representative was the jurist Jacob Robinson, who was active in the UN Ad Hoc Committee on Statelessness and Related Problems which performed the initial drafting of the 1951 Convention and was represented at the diplomatic conference itself.
The second reason for particular interest is that Israel, in common with many other developed nations, today faces the legal and moral dilemma of an influx of immigrants – mostly illegal and mainly from Africa – who claim status as political refugees but many of whom are in fact seeking a better economic future. The third relevant issue is the significant absence of the Palestinian Arab refugees from the ambit of the 1951 Convention.
An interesting legal aside is that the 1951 Convention has a dispute settlement clause granting jurisdiction to the International Court of Justice (ICJ).Footnote 9 No reservations were permitted to this clause;Footnote 10 thus the 1951 Convention is one of the few instruments by which Israel is still bound to the jurisdiction of the ICJ by a compromissory clause.
The 1951 Convention embodies two categories of rights granted to refugees: the right of non-refoulement – that is, the fundamental right of non-return to a persecuting state – and an enumerated list of civil, political and social rights to which they are entitled while they are in the state to which they fled. As far as states were concerned, the 1951 Convention was intended to be an ‘instrument of burden sharing’,Footnote 11 with the then newly created post of the UNHCR as the organ for coordinating international efforts.
The chapters in the book are set out with reference to the articles of the 1951 Convention and in the order in which they appear in the Convention. However, rather than reviewing the book's comments on each article, this reviewer has found it more convenient to review the major thematic features of the 1951 Convention, as reflected in the book.
2. Defining the Term ‘Refugee’
One author writes that the question of defining a refugee is ‘the single most important provision of the 1951 Convention’. The author explains that the term ‘refugee’ was drafted in such a way as to exclude ‘internally displaced refugees’, ‘migrants of purely economic or personal convenience’, ‘accidental victims of natural disasters and environmental problems’, or persons who were stateless or fleeing a ‘violent society’ but were not subject to discriminatory persecution.Footnote 12 The commentary concludes that a person is a refugee even if the well founded fear of persecution commences only after he or she has left his home country.Footnote 13 Two authors quote authorities as holding that the phrase ‘the fear of persecution must be well founded’ is interpreted as the applicant has either actually been a victim of persecution, or can show good reason why he or she fears persecution, based on ‘objective reasons’. Other authorities favour a combined subjective and objective approach.Footnote 14 To this reviewer it would seem logical to apply an objective criterion: namely, objective reasons to assume that a reasonable person would ‘fear’ persecution. Three of the authors say that it is not contested that the burden of proof is on the applicant who claims the fear of persecution.Footnote 15
Another issue dealt with by the commentators is what constitutes ‘persecution’ and whether it is relevant that the asylum seeker could prevent triggering acts of persecution by refraining from certain behaviour or by refraining from expressing polemic views. Two authors conclude, I believe correctly, that such behaviour by the applicant for refugee status is not relevant and that ‘a severe violation of any basic human right substantiates a refugee claim, if the core of the right is affected and the violation infringes human dignity’.Footnote 16 The 1951 Convention does not refer explicitly to ‘gender specific’ persecution, but the question has arisen whether forms of violence, usually against women, such as rape, forced marriages or female genital mutilation, amount to persecution within the context of the Convention. Two authors point out that the UNHCR considers such acts to be within the ambit of the 1951 Convention, and that a number of states have incorporated it into their internal guidelines.Footnote 17 A further issue is persecution on the ground of sexual orientation: two authors point out that it is still ‘an emerging field’, but that the UNHCR guidance notes refer to it and a number of countries accept it as a basis for asylum claims.Footnote 18 It is relevant that a draft law on immigration, presented to the Israeli Knesset by Knesset Member Meir Shitreet and others, explicitly includes this as a possible ground for granting asylum.Footnote 19 Draft evasion as such is not mentioned in the 1951 Convention, nor is it recognised in the UNHCR Handbook on Procedure; however, the UNHCR does accept that such evasion might be recognised if it involves service in a conflict ‘which has been condemned by the international community’. Two authors refer, in this context, to military service that would involve commission of war crimes or crimes against humanity,Footnote 20 pointing out that there has been a change with regard to acceptance of conscientious objection as a ground for granting refugee status. Although none of the international human rights instruments recognise the right of conscientious objection, such a right has been recognised by the UNHCR and some states.Footnote 21
As the introductory chapter points out, application of the 1951 Convention is carried out by the courts in different countries and there will inevitably be different interpretations. A person may be recognised as a refugee in one country but not in another. Even among EU member states ‘judges rarely use each other's decisions to guide their own decision making in the refugee context’.Footnote 22 One author points out that the UNHCR ‘has a supervisory role in overseeing the implementation and application of the 1951 Convention. However, this does not extend to a mandate to provide authoritative rulings or opinions on the meaning of particular treaty terms’.Footnote 23
The ECtHR has played a central part in enforcing the rule of non-refoulement set out in the 1951 Convention. One author states that, although the European Charter of Human Rights contains no reference to a right of asylum, the ECtHR has ruled that member states are obliged to grant refoulement protection as a rule of customary law.Footnote 24 The definition used by the ECtHR is, in fact, wider than that of the 1951 Convention because it includes persecution by non-state actors.Footnote 25 The book also addresses the asylum policy of the EU, which derives from the 1951 Convention but extends it to persons fleeing from ‘situations of armed conflict’Footnote 26 and provides for temporary protection in situations of mass influx.Footnote 27 The EU is not itself a party to the 1951 Convention, although one author writes that ‘[i]t is generally accepted that the rights enshrined in the 1951 Convention and its 1967 Protocol, to which all Member States are party, form part of this body of fundamental rights and are considered to be general principles of EU law’.Footnote 28
As regards persecution by non-state actors, two authors reach the conclusion that conduct by non-state actors may be considered to be persecution for the purposes of the 1951 Convention if ‘the state concerned fails to protect the victim’.Footnote 29 This reviewer is not sure whether it would not have been more correct to state that the issue here is really the acquiescence or passivity of the state concerned rather than the behaviour of the non-state actor.
On the question of when a refugee ceases to be a refugee under the 1951 Convention, two authors point out that acquiring a new nationality brings refugee status to an end only if the new nationality provides ‘effective protection’.Footnote 30 Persons who have committed crimes against peace, war crimes, crimes against humanity or ‘serious non-political crimes’ are not entitled to refugee status.Footnote 31 The authors state that if the applicant is being prosecuted because of his or her race, religion, political views and so on, ipso facto the crime he or she is accused of has a political nature and the applicant would not lose the right to be considered a refugee.Footnote 32 As to the definition of ‘serious’, the authors criticise rigid definitions such as that of the UK, which refers to an offence punishable by five years' imprisonment or more.Footnote 33 The authors also approve of the UNHCR position that the seriousness of the crime must be measured in proportion to the danger of persecution. The authors also, however, quote a contrary US Supreme Court ruling that once a serious crime has been committed, there is no need to evaluate the danger of political persecution.Footnote 34
3. Non-Refoulement
The principle of non-refoulement is that ‘[s]tates are not allowed to return refugees to territories where there is a risk that their lives or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion’. Three authors describe this principle as non-derogable and as ‘the cardinal principle of protection of the [1951] Convention’.Footnote 35 These authors state that ‘[t]he conclusion that the principle of non-refoulement has acquired the status of international customary law is supported by most contemporary authors’. They also examine whether it has even acquired the status of a peremptory norm (jus cogens), but do not reach a conclusion.Footnote 36 The authors examine the question of whether extradition can be considered as being covered by the 1951 Convention and they concur with the conclusion reached by Lauterpacht and Bethlehem that extradition does fall within the scope of the prohibition of non-refoulement.Footnote 37 They also point out that many extradition treaties contain a clause similar to the rule of the non-refoulement principle, prohibiting extradition where the extradition request has been made for the purposes of prosecuting a person on account of his race, religion, nationality or political opinion.
4. Procedure for Determination of Status
The 1951 Convention does not provide the procedure for determining refugee status. As two authors point out, the 1951 Convention ‘defines those on whom the applicable provisions confer protection … it does not set out procedures for the determination of refugee status as such’.Footnote 38 Nevertheless, the authors conclude that there is customary international law that determines a minimum international standard for procedures to determine refugee status. The authors reach the conclusion that the minimum international requirement is that all persons should have access to a fair and effective procedure for the determination of his or her claim. Such a procedure requires, according to the authors, a right of appeal to a ‘court or tribunal’.Footnote 39 The applicant is entitled to a ‘personal interview’, to be represented by counsel and the right to contact the UNHCR.Footnote 40 ‘States must also ensure that precise and up-to-date information available from various sources, such as the UNHCR and knowledgeable NGOs as to the general situation prevailing in the countries of origin of applicants of asylum is made available’. Decisions must be given in writing, in a language the applicant may reasonably be supposed to understand, must state the reasons for the decision and information as to how to challenge the decision.Footnote 41 The applicant is entitled to stay in the country unless he or she is found not to be a refugee.Footnote 42 The authors discuss the issue of ‘safe country of origin’ whereby some countries have lists of states that enjoy a non-rebuttable presumption of safety. The opinion of the authors is that even a state on such a list can, in certain circumstances, nevertheless be considered to warrant a right of non-refoulement.
5. Status Pending a Decision
Applicants for refugee status are entitled to remain in the territory of the state concerned until their application has been decided.Footnote 43 The authors do not regard detention of applicants as a violation of their right to remain in the state until their status is determined, commenting that ‘[t]here is a widespread practice among States either to detain applicants for asylum, mainly for having illegally entered the country, or to assign them to special facilities such as reception or registration centers which they may not leave during part, or the entire, examination procedure’. The conditions of detention, however, must be adequate in accordance with accepted standards of human rights.Footnote 44
6. The Concept of Safe Third Country
The authors refer to the widespread practice, particularly among Western states, of denying refugee status to persons who arrive through a ‘safe third country’. The authors are of the opinion that denying refugee status in those circumstances is legal only if the third country granted the applicants the opportunity to claim refugee status, the applicant can access the third country legally, and that when they are in the third country, they will be guaranteed a fair and effective determination procedure and effective protection.Footnote 45 According to three of the authors, the refugee may not be expelled to a third country ‘where the refugee would be at risk’ or ‘any country where a person has reason to fear persecution’ or ‘the territory of any country where the refugee would not be persecuted but is at risk of being removed to a country of persecution’.Footnote 46 These authors summarise the rule as being that ‘[t]he authorities of the sending State have to ensure beforehand that the person is not at risk of refoulement in the third country’ or that ‘he or she will not be removed from there to a country of persecution’.Footnote 47 The intention is to prevent what two of the authors describe as ‘chain deportations’.Footnote 48
7. Interception at Sea
The 1951 Convention contains one, limited, provision relating to the rights of refugee seamen.Footnote 49 The book uses this one article as an entry for a fascinating survey of ‘refugees at sea’. The historical review commences with a mention of the St Louis ‘carrying 930 Jewish refugees which was turned back in 1939 by Cuba, the US and Canada; half of those refugees were later killed by the National Socialist persecutors’.Footnote 50 On the difficult question of whether the 1951 Convention applies to situations at sea, the author of this chapter reaches the categorical conclusion that the principle of non-refoulement ‘is not limited to the exercise of sovereignty on the territory’.Footnote 51 This conclusion bases itself on the various rulings by international courts that human rights treaties apply extraterritorially wherever the state in question has effective control over the person involved. However, the author concedes that state practice is not consistent and that the US Supreme Court declined to prohibit the US policy of turning back Haitians on the seas outside US territorial waters.Footnote 52 The author points out that as a result of strict controls ‘access to a country of destination may sometimes be possible only via the sea’. The author refers to the Italian ‘push-back policy of [intercepting] boats on the high seas and [transferring] passengers back to Libya’.Footnote 53 The author also refers to the long-standing duty to rescue persons in peril at sea and examines the question of disembarking persons so rescued. The International Maritime Organization has recognised that problems with disembarkation could pose ‘a risk to the readiness of shipmasters to rescue persons in distress at sea’. Shipowners are required to deliver such persons in distress to a ‘place of safety’, but there is no legally binding obligation on a state to allow disembarkation unless human lives are at risk.Footnote 54 The author writes that ‘with regard to situations of rescue or interception at sea, the question of whether any act of a State can give rise to its responsibility under international human rights and refugee law may be left open’.Footnote 55 However,Footnote 56
[i]n situations of rescue at sea by a ship exercising public authority, i.e. Police boats, ships of border control services, or military ships, the taking on board of persons rescued from distress at sea leads to a situation in which the respective persons are under the authority and effective control of the flag State of the intercepting ship. This prompts the application of the non-refoulement obligation.
The author concludes that on the high seas ‘any form of coercion constitutes a measure of effective control of the person affected and consequently triggers the application of the non-refoulement principle’.Footnote 57 He adds that ‘the intercepting State must make sure that when pushing off its course a ship with persons on board seeking or likely to be in need of international protection, those persons either do not face a danger of persecution in their country of origin … or can find protection in a third State’.Footnote 58
8. Non-Prosecution for Illegal Entry
An interesting and innovative feature of the 1951 Convention is the stipulation that refugees ‘coming directly from a territory where their life or freedom was threatened in the sense of Article 1’ of the 1951 Convention should not be prosecuted for illegal entry.Footnote 59 The 1951 Convention does, however, permit detention and the author of this chapter points out that such detention can be ‘far more onerous and intrusive’ than regular penalties.Footnote 60 The author attempts to define the difference by reference to the objects of penal law, namely ‘retribution and deterrence’. If these are the object of the detention then it is in violation of the 1951 Convention.
The author of this chapter interprets the word ‘refugee’ in this context as applying not only to refugees but also to applicants for refugee status unless or until their application has been denied;Footnote 61 however, it is not clear how much state practice there is that supports this interpretation.
9. The Palestinian Refugees
The Palestinian refugees were implicitly excluded from the ambit of the 1951 Convention as the ‘Convention shall not apply to persons who are at present receiving from organs or agencies of the UN other than the UNHCR protection or assistance’.Footnote 62 The authors point out that there were differing motives for the exclusion. The Arab states ‘wanted to maintain the special status granted to Palestinian refugees based, in essence, on their repatriation’.Footnote 63 Article 34 of the 1951 Convention stipulates that ‘[t]he Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees’. The Arab states clearly would not have seen this as being satisfactory as far as the Arab refugees were concerned. The Western states wanted generally to limit the scope of the Convention. One author points out that it was Louis Henkin, the US representative to the Ad Hoc Committee, who argued against a universal refugee definition, since it would have been like ‘a blank cheque’ and ‘drew attention to the 600,000 Arabic (Palestinian) refugees whom the UN already cared for’.Footnote 64
10. Refusing Entry at the Frontier
A question to which apparently there is no clear-cut answer is whether a state can refuse entry at its frontier. Two authors reach the categorical conclusion that ‘rejection at the frontier is not allowed if the person affected claims to be a refugee’.Footnote 65 Three other authorsFootnote 66 refer back to the drafting of the 1951 Convention where
Switzerland pointed out that, in its understanding, the draft article [Article 33] did not contain an obligation of States to admit refugees at the border solely because they could not be returned to a country where their life would not be threatened. In its opinion, the 1951 Convention applied only to refugees lawfully resident in a country. This statement was challenged by the representative of Israel who pointed out that most States favoured a different interpretation.
These authors hold that ‘from the moment the refugee has approached a border guard or post, he or she is under the (effective) control of the country of refuge’.Footnote 67 Other authors in the book point out that the criterion should be whether the applicants are in fact under the effective control of the state in question. In Ammur the ECtHR determined that a person in the international area of a Paris airport was in France even though he was outside the French border control checkpoint.Footnote 68 It could be debated whether potential applicants who are on the outside of a border fence and are still technically on the territory of another state are, in fact, under the effective control of that state. Some of the authors appear to be stretching the ‘effective control’ criterion even further by criticising the requirement for visas. They criticise the ‘increasing demand by countries for visas from States that are war-torn and refugee producing’, since such visa requirements ‘are regularly enforced by carrier sanctions’ and thus, in practice, ‘refugees are banned from any but illegal entry to potential host States’.Footnote 69 Another author comments that ‘the ethical position taken by the signatories of 1951 has been undercut by the contemporary statecraft of extraterritorial border control’.Footnote 70 A valid contrary argument could be that it is perfectly legitimate for states to demand visas for persons from some countries and not from others.
Three of the authors relate to the issue of a mass influx and reach the conclusion that, despite the heavy burden it may impose on the state, the rule against non-refoulement ‘is applicable in situations of mass influx. Its applicability is not dependent on international assistance, or on burden or responsibility sharing’.Footnote 71
11. Other Rights of Refugees
In addition to the core principle of non refoulement, the 1951 Convention also sets out a list of human rights, including freedom of religion that must be granted to refugees and in some cases to applicants for refugee status. The basic provision of the 1951 Convention prohibits ‘discrimination as to race, religion or country of origin’.Footnote 72 This is interpreted as being limited to discrimination ‘among and between’ refugees,Footnote 73 although a separate article provides that refugees be granted at least ‘the same treatment as is accorded to aliens generally and irrespective of reciprocity’.Footnote 74 Refugees are entitled to access to courts,Footnote 75 housing,Footnote 76 elementary education,Footnote 77 public relief,Footnote 78 labour legislation and social security,Footnote 79 Although the 1951 Convention, in certain circumstances, allows the state to restrict the right of refugees to work, one author points out ‘the practice of industrialized States in granting rights to work immediately upon recognition of status … gives rise to an expectation of such a right, if not the creation of a [regional] customary practice’.Footnote 80
Refugees must be granted identity papersFootnote 81 and, if they are ‘lawfully staying’ in the territory, they are entitled to receive travel documentsFootnote 82 – the successor to the ‘Nansen’ certificates that often were the life-saving document of Jewish refugees on the outbreak of the Second World War. The author points out, I believe correctly, that ‘[h]istorically, the issuance of travel documents to refugees has been one of the most important aspects of international protection of their legal status’.Footnote 83 It is interesting that Israel is apparently the only state, apart from Zambia, to have made a reservation to the article on travel documents. The gist of the Israeli reservation was that issuing travel documents to refugees is at the discretion of the Minister of Interior.Footnote 84 Given that the obligation to provide travel documents applies only to persons who have been granted refugee status and who are ‘lawfully’ in the country, and the article allows for exceptions for ‘compelling reasons of national security or public order’, it is not clear therefore whether the Israeli reservation was really necessary. In practice, Israel is liberal in its policy of issuing travel documents to persons who are not recognised as refugees.
Refugees are entitled to freedom of movement and to choose their own place of residence; however, these rights are reserved only to refugees who are ‘lawfully’ in the territory.Footnote 85 However, in the author's opinion it is sufficient that the initial entry was lawful and there is no requirement that the refugees be lawful residents.Footnote 86 The author holds that this right applies also to asylum seekers (namely, persons who have not yet been granted refugee status), although he points out that EU law does allow the imposition of restrictions and, in his opinion, ‘Member States of the EU are far from fulfilling their international obligations as far as refugee law is concerned’.Footnote 87 Refugees may not be expelled ‘save on grounds of national security and public order’.Footnote 88 The author of this chapter comments that the article ‘incorporates a political compromise’,Footnote 89 explaining that at the time the Convention was drafted the expulsion of refugees was often arbitrary and that in the UK, for example, decisions were made by the Home Secretary and the refugee had ‘no right to be represented, no right of appeal’. The intention of the article on the restrictions applying to expulsion was therefore to provide for ‘due process, a right to be heard, a right to appeal and a right to be represented’.Footnote 90
12. Conclusion
By the nature of the book and its massive scale it will not serve as a light read for even the most dedicated of international lawyers. The book will, however, serve as an indispensable and authoritative guide for courts, lawyers and government officials dealing with the status of refugees. Those seeking guidance on actual state practice and judicial rulings will find them meticulously recorded; this is in addition to the wealth of material reflecting the views of human rights specialists as to how the 1951 Convention should be liberally interpreted. The book is a must for every good international law library.
