Alternative Standards Specific to Refugees - The Regional Level
The standards for the definition of Refugee and the protection that ensues from such a categorization are not limited to those enshrined in the 1951 Convention. Indeed, many scholars maintain that the RC is inadequate in todays day and age. Of particular importance are the 1969 OAU Refugee Convention and the 1984 Cartagena Declaration. Judge Arboleda, at the Inter-American Court of Human Rights, argues that: "the internationally accepted refugee definition has proven inadequate to deal with the problems posed by the millions of externally displaced persons in the third world." As a result, regional definitions, such as those presented by the CD and the OAU Convention have been advanced. They represent, in the words of Arboleda, "concrete attempts to adapt international refugee law to existing refugee problems." Likewise, standards drawn from the body of International Humanitarian Law are being cited in efforts to expand the scope of protections afforded to asylum-seekers and refugees.
Human rights standards in the context of Africa are enshrined in the 1969 African Charter on Human and Peoples Rights. Of importance is that the Charter covers economic, social and cultural rights as well as civil and political rights. The African Charter also covers third generation rights and gives due importance to the assumption that a person has duties as well as rights in a given community. Also of note is the 1990 African Charter on the Rights and Welfare of the Child extends state obligations. Article 23 of this Charter specifically provides for the protection of refugee children. It reaffirms the importance of family unity and obliges states to undertake efforts aimed at family reunification. Interestingly, the protections enshrined in Article 23 are also afforded to internally displaced children, including those displaced by natural disaster and breakdown of economic and social order.
Of utmost importance in terms of refugee protection is the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa, known as the OAU Convention. This Convention must be viewed in relation to human rights instruments such as the African Charter on Human and Peoples Rights. The obligation of states to receive and secure refugees may arguably extend to all OAU countries, regardless of whether they are signatories to the 1969 Convention.
The 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa
The drafters of the OAU Convention sought to complement rather than replace the 1951 Convention. This is reflected in Articles 9 and 10 of the Preamble, which stress that the 1951 Convention constitutes the basic and universal instrument relating to the status of refugees (Article 9 Preamble). Cognizant of the political climate in which the RC was drafted, the drafters of the OAU Convention sought to de-politicize the issue of refugee crises as well as the concept of asylum. This is reflected in Article 2(2), which states: The grant of asylum to refugees is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any Member State. Moreover, Article 2(6) states that for reasons of security, countries of asylum shall, as far as possible, settle refugees at a reasonable distance from the frontier of their country of origin. This provision was intended to discourage the setting up of refugee camps on borders, thereby increasing tensions and friction between the sending and receiving states.
In relation to other protective instruments, the Convention is somewhat lacking in some areas. For instance, the Convention does not contain any provision specifically prohibiting discrimination on the basis of gender (Article 4). Nor does it contain provisions dealing with internally displaced persons (IDPs), insofar as IDPs are not compelled to leave his place of habitual residence in order to seek refuge in another place outside of his country of origin or nationality [Article 1(2)]. In this sense, the 1969 Convention does not address the gap of protection for IDPs that is also present in the 1951 Convention.
While the Convention contains specific provisions providing for burden-sharing between member states (Article 2(4)), this has not been reflected in reality. The Convention does allow scope for prima facie refugee determination in situations of mass influx, particularly relevant in the African context. Since the adoption of the 1969 OAU Convention, there have been few additional legal or judicial developments. The development of refugee law and the enhancement of the protection of refugees within Africa have been largely left in the hands of national governments and domestic courts.
Unique aspects of this Convention, as compared with the 1951 UN Refugee Convention and 1967 Protocol are, inter alia:
It contains an absolute prohibition of refoulement, unlike the 1951 UN Refugee Convention, which allows for an exception to be made in times of national emergency or when national security is at stake.
It contains a prohibition of subversive activities (Article 3(1)(2)).This clause is considered essential in the African context given the increasing militarization and politicization of refugee camps. The Convention does not provide for a sanctions regime to deal with breaches of this article.
Perhaps the most celebrated feature of the 1969 OAU Convention is its expanded definition of who is a refugee. In comparison to the 1951 Convention, the OAU definition focuses more on the objective circumstances which compel flight. The fear of danger is not linked to the individual's personal subjective reaction to a perceived adversity. In addition, the definition includes accidental situations not based on deliberate state action. Likewise, the source of danger need not be actions of the state or of its agents. In so doing, the OAU definition highlights the causal element of refugee situations, the jeopardy of human rights of those fleeing, as opposed to emphasizing the motive for flight, as is done in the 1951 Convention.
The OAU definition permits prima facie group determination, eradicating the requirement that an individual establish a personal and individual risk of persecution.
It is the first international instrument to codify the principles of voluntary repatriation. Article 5 demonstrates that the drafters of the Convention envisioned that repatriation would take place in an organized manner, planned and supported by both sending and receiving states. However, the UNHCR has stated that the majority of refugees return of their own initiative. There is no provision stipulating that there must be a fundamental change in circumstances and human rights standards in the home country, prior to promoting, encouraging, or even allowing for repatriation to occur.
- 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa. http://www.africa-union.org/Official_documents/Treaties_%20Conventions_%20Protocols/Refugee_Convention.pdf
- Lawyers Committee for Human Rights. African Exodus: Refugee Crisis, Human Rights, and the 1969 OAU Convention, 1995 (executive summary) http://www.humanrightsfirst.org/pubs/descriptions/africa.exe.htm
- Rutinwa, B. The End of Asylum? The Changing Nature of Refugee Policies in Africa" New Issues in Refugee Research, no. 5, 1999. http://www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RESEARCH&id=3ae6a0c34&page=publ
The most progressive element of the Inter-American system of protection is the refugee definition enshrined within the 1984 Cartagena Declaration. However, international protection within the region must also be understood in the context of the protection of human rights at the Inter-American level. Of utmost importance is the inclusion within the American Convention on Human Rights (Article 22(7)) of the right to seek and be granted asylum. The UDHR grants individuals only the right to seek asylum. The importance of Article 22(7) of the ACHR cannot be over-stated. All states signatory to the ACHR are obliged to afford protection to asylum-seekers, regardless of whether they are signatories to the Cartagena Declaration. The collective expulsion of refugees and asylum-seekers is also prohibited according to Article 22(9) of the ACHR.
1984 Cartagena Declaration
The CD was drafted in order to complement and build upon the protection already afforded to some by the 1951 Convention. It was heavily influenced by the Organization for African Unity's (OAU) 1969 Convention on the Specific Aspects of Refugee Problems in Africa, improving upon some of its provisions, and retracing steps in others. With the advent of the CD, the terminology of IRL was significantly changed. The definition was broadened, while simultaneously expanding states' obligations towards a wider variety of individuals and groups. Conclusion No.3 of the CD reads as follows:
the definition or concept of a refugee to be recommended for use in the region is one in which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order.
Basis for the Granting of Refugee Status. The 1951 Refugee Convention requires that an individual asylum seeker demonstrate a "well-founded fear of persecution" based upon one of the five Convention grounds. The onus is on the individual asylum seeker to convincingly demonstrate the nexus between subjective fear and objective reasons for such fear. This linkage between subjective fear and objective conditions was completely eradicated in the OAU Convention refugee definition, which leaves open the possibility that the basis or rationale for the harm may be indeterminate.
The CD refugee definition represents something of a compromise between the all-inclusive OAU Convention definition, which defers to an individual's perception of peril and the Convention standard. It accepts claims in which the rationale for harm is indeterminate, however this acceptance is qualified. In Conclusion No.3, it is stipulated that an individual must demonstrate that they have "fled their country because their lives, safety or freedom have been threatened" In other words, an individual must be personally at risk. Under the CD, it is implied that an individual or group of applicants must demonstrate that there is a "prospective" threat to their lives, security, or liberty. However, the "threat" provided for in the CD refugee definition establishes a threshold that is significantly lower than the "well-founded fear" element of the 1951 Convention.
Generalized Violence, Foreign Aggression, and Internal Conflicts as grounds. The CD marks a step forward in the development of IRL by formalizing the general consequences of armed conflict as a basis for refugee status. This is not to say that previous to the establishment of the CD, individuals fleeing risks emanating from such situations were not afforded protection. State practice has repeatedly accommodated these victims. Nevertheless, the inclusion of such individuals and groups under the RC required a liberal interpretation of the text of the treaty. The broadened definition of the CD provides textual clarity, thereby preempting efforts by states to prevent individuals who are fleeing their countries because of civil war, internal violence, or general disregard for human rights from acquiring protection under the 1951 Convention.
Human Rights Grounds. The grounds for granting asylum stipulated in the CD referring to massive violations of human rights is in some ways analogous to the general term persecution used in the RC, neither of which provide a definition for the term. Given the general qualification in the CD that any violation must threaten life, liberty, or security, it can be assumed that the drafters assumed that massive violations of human rights or persecution fundamentally includes the threat of deprivation of life or physical freedom. Yet, the International Conference on Central American Refugees (CIREFCA), in its Principios y Criterios, stipulates that massive violations of human rights can and does include other rights, including economic, social, and cultural rights provided that a link is made to the subjective element of "threat to life, liberty, or security." Therefore, measures such as the imposition of serious economic disadvantage, denial of employment opportunities, the denial of access to education, professions, and so forth ought to be included as measures that could potentially lead to the granting of refugee status.
Cessation and Exclusion in the Cartagena Declaration. Some have argued that the CD is too expansive because, inter alia, it contains no cessation or exclusion clauses. While it is true that no specific provisions are included, this does not imply that cessation and exclusion do not apply to refugees under the CD. According to the Executive Committee of UNHCR (ExComm), the underlying rationale for cessation clauses is that: refugee status should not be granted for a day longer than was absolutely necessary, and should come to an endif, in accordance with the terms of the Convention or the Statute, a person had the status of de facto citizenship, that is to say, if he really had the rights and obligations of a citizen of a given country. That an individual may cease to be protected under the CD is implied by the Declaration's affirmation of voluntary repatriation of refugees in Conclusion No.12. In addition, Conclusion No.3 indicates that the CD simply adds to the elements of the RC. Cessation clauses are provided for in Article 1C of the RC and exclusion clauses in Article 1F. The text of the CD indicates that these same provisions apply to individuals applying under the CD. Indeed, all that the CD really does is broaden the inclusion clauses, by expanding the definition.
The CD was inspired by the OAU 1969 Convention on the Specific Aspects of Refugee Problems in Africa, which contains cessation and exclusion clauses in Article 1(4) and 1(5) respectively. That the OAU Convention is expressly mentioned as a "precedent" for the CD indicates that the CD would include those cessation and exclusion provisions provided for in that instrument to the extent that they were regionally appropriate (i.e. excluding Arts. 1(4)(f)(g) and (5)(c), which are purely regional in character).
Finally, the inclusion clauses of the Declaration can be applied " a contrario sensu." In other words, when the conditions that gave rise to flight disappear, refugee status ceases, unless the individual has particular reasons to maintain their status. In order to determine the validity of such reasons, recourse must be had to the RC. Cessation clauses are implied in the CD: if the conditions that caused flight have fundamentally changed, the refugee is no longer a refugee, and all things being equal, can be required to return home like any other foreign national. If the conditions have fundamentally changed, yet the individual applicant wishes to maintain their refugee status, they must demonstrate that a nexus exists between the facts and the particular individual applicant such that a "well-founded fear of persecution" exists. In order to establish this, decision-makers in respective countries must consider Art. 1 of the 1951 Convention and all of its implications.
- Gros-Espiell, Hector, Sonia Picado, Leo Valladares Lanza. Principles and Criteria for the Protection of and Assistance to Central American Refugees, Returnees, and Displaced Persons in Central America. 2 International Journal of Refugee Law 1 (1990). http://www.hrcr.org/docs/American_Convention/oashr.html
- Cartagena Declaration, 1984. http://www.asylumlaw.org/docs/international/CentralAmerica.PDF
The expanded refugee definitions established within the African and Inter-American systems was not replicated at the European level. In contrast, Europe has sought to restrict the application of the existing RC. Many bona fide refugees are not granted refugee status but are instead granted humanitarian status, and exceptional leave to remain; statuses which do not accord the same level of protection as does the RC. European states are increasingly implementing non-arrival policies, designed to prevent asylum-seekers from entering without proper documentation. Examples include visa requirements and carrier sanctions. For those few asylum-seekers who do manage to arrive at their borders, European states have adopted what UNHCR refers to as diversion policies. Most common amongst such policies is the development of safe third country lists. Furthermore, many states have resorted to implementing deterrent procedures, such as the automatic detention of asylum-seekers, the denial of social assistance, and the restriction of access to employment.
Whereas the right to seek and obtain asylum is provided for in the African and Inter-American regions, the European Convention on Human Rights [ECHR] does not contain even ar reference to the right to asylum. As a result, the right to seek asylum is not a right, which asylum-seekers can seek to vindicate at the European Court of Human Rights, the supervisory body of the ECHR. Asylum-seekers and refugees have, however, been successful in hampering European states efforts at deportation by linking the general prohibition of non-refoulement with the right to be free from torture, cruel, inhuman, or degrading treatment, which is enshrined in Article 3 of the ECHR.
Council Directive on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted
As Western European countries attempt to achieve closer economic and political integration, so too have they sought to harmonize immigration and asylum policies in the hopes that this will lead to better burden sharing among EU member-states. With the expiration of the 1997 Treaty of Amsterdam and the subsequent adoption of the European Council Directive, such harmonization in the area of asylum procedures is well on its way to being complete.
Upon the expiration of the Treaty of Amsterdam, the Council developed and the EU member countries adopted the Council Directive on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection. The Directive came into force on 20 September 2004. The Directive is binding upon all Member States, save Denmark. States are obliged to bring into force the domestic legislation necessary prior to the 10 October 2006. The Directive also outlines the minimum standards of rights and benefits attached to the protection granted and also the benefits that accrue to family members of refugees or benefits of subsidiary protection. Whereas EU Member States re-affirmed the importance accorded to absolute respect to seek asylum at the European Council Meeting in Tampere in 1999, the right to enjoy or be granted asylum was conspicuously omitted from the Directive.
Positive Aspects of the Directive. The Directive outlines only those minimum standards to which Member States must adhere and the Council confirms in preambular paragraph 8 that: It is in the very nature of minimum standards that Member States should have the power to introduce or maintain more favourable provisions. Moreover, the establishment of such minimum conditions is a positive step towards improving asylum procedures in those countries, which are new members of the EU and whose current asylum procedures do not meet even these minimum standards.
The Directive constitutes the first international legally-binding treaty, which establishes a duty for Member States to grant subsidiary protection (SP) to those in need of protection. Furthermore, the Directive defines acts of persecution in a broad manner. Article 9(1)(a) does not limit persecution to threats to life or freedom, but rather refers more broadly to severe violations of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR. Sub-paragraph 2 establishes a non-exhaustive list of the various forms which persecution can take. Gender-specific and child-specific violence are mentioned, as is disproportionate or discriminatory prosecution. That the list is not exhaustive is illustrated by the use of the term inter alia in the introductory sentence of sub-paragraph 2. Similarly, Article 30 establishes provisions aimed specifically at protecting unaccompanied minors. Furthermore, the principle that assessments should be carried out on an individual basis is also something to be applauded.
Article 11 deals with cessation clauses under the Directive. The clauses mirror those enshrined within the RC. However, sub-paragraph 2 makes explicit what is not in the RC, and that is that in order to apply the ceased circumstances provisions, the changes in the applicants country of origin must be of a non-temporary and significant character. Such a clarification is welcome. Nevertheless, many critics argue that the minimum standards agreed upon in the Directive amount to a meeting of the minds at the lowest common denominator. Indeed, several of the provisions are cause for serious concern as they represent a denigration of the protection standards afforded under the RC.
Definition of a Refugee. Article 2(c) of the EC Directive adopts a very similar definition of a refugee that is enshrined within Article 1A of the RC. However, in contrast to the latter, which applies to any person, the definition of refugee in the Directive is confined to third party nationals or stateless persons. Effectively this excludes from consideration a national of any EU Member State. Article 2(f) contains the same restriction for those entitled to SP.
Article 2(d) specifies that refugee status implies the recognition of a Member state of an applicant as a refugee. In other words, while the Directive stipulates refugee status is declaratory, in order to first be categorized as such, a particular applicant must satisfy the criteria laid out in Article 2(b).
This is particularly relevant to those categorized as deserving of subsidiary protection. These are individuals who do not satisfy the conditions of what is a refugee as stipulated in 2(b) and the RC, and whose status therefore is not declaratory, but rather is dependent upon a particular states consideration of their situation. Subsidiary protection status (SPS) means that one is eligible for protection but is not legally entitled to such protection, as is a bona fide refugee. The substance of the relevant provisions in the Directive further demonstrates the tenuous situation of those characterized as having SPS.
Assessment of Applications for International Protection. Article 4(3)(d) refers to those claims which are manifestly unfounded. In asylum proceedings, the Court must determine whether the actions taken in the country of residence give rise to a well-founded fear of persecution or whether they are merely a pretext for application. This notion of a pretext was developed in the Australian jurisprudence, specifically Somaghi v. Minister of Immigration, Local Government, and Ethnic Affairs. Here the Appeal Judge stated that: "... a person whose sole ground for refugee status consists of his own actions in his country of residence designed solely to establish the circumstances that may give rise to his persecution if he should return to the country of origin..." According to Article 20(7) of the Directive, an applicant would also be excluded for the same reasons from the benefits of SP.
Nevertheless, this notion of pretext confuses the issue. The central question remains whether or not the applicant has, at the moment of application, a genuine fear that she would be persecuted upon return. According to the object and purpose of IRL, which is to protect refugees, whether or not the applicant engineered the circumstances or whether they were engaged in good faith is irrelevant.
An individual will not be eligible for international protection if they are able or willing to seek protection from their national government. This is enshrined within the RC and is the key to understanding international protection as a subsidiary form of protection. Only States are legally bound to offer adequate protection. However, according to Article 7(b) of the Directive, an actor of protection includes parties or organizations, including international organizations, controlling the State or a substantial part of the territory of the state. This is particularly problematic when an asylum state is considering rejecting a claim on the basis of there being an IFA. Similarly, Article 8(1) of the Council Directive establishes the existence of an IFA as a basis for the rejection of a claim.
Exclusion Clauses. Article 12 of the EC Directive deals with exclusion clauses and represents a regression of the protections afforded in the RC. Article 1F(b) of the RC excludes from refugee status those who have committed a serious, non-political crime outside the country of asylum. Those applicants who commit a serious, non-political crime within the territory of the asylum state are entitled to due process and are subject to the legal proceedings established within that country. In contrast, Article 12(2)(b) of the Council Directive stipulates that if an applicant commits a serious, non-political crime within the territory of the state of asylum, but prior to having been accorded refugee status, precisely prior to having been issued a residence permit, then the exclusion clause applies. This results in a curious situation in which, while preambular paragraph 14 establishes refugee status as declaratory, Article 12(2)(b) implies that refugee status is accorded only once a state has issued a residence permit. Therefore, all of the rights and benefits that accrue from refugee status and to which refugees are entitled under IRL are suspended until such a time as the state issues a residence permit.
Similarly, those individuals applying for SP can be excluded for having committed a serious crime. This clause is not qualified by non-political nor is it situated, in that the crime need not be committed outside of the country of asylum. Consequently, a person who is entitled to SP due to the threats which they face may be excluded from such protection for having committed any type of crime, including political ones, either in the country of origin, the country of asylum, or any transit state. If the crime was committed within the territory of the asylum state or transit state, presumably the individual would not be entitled to due process rights but rather would simply be excluded from protection. This is in violation of Articles 14 and 16 of the ICCPR which obliges states to ensure for all individuals within its territory and subject to its jurisdiction.
Article 14 of the Council Directive is also cause for concern to the extent that it widens the exclusion clauses provided for in the RC. Article 14 permits the refusal of refugee status on national security grounds, prior to conducting an assessment into the claimants application.
Qualification for SP. Individuals who are threatened with serious harm are entitled to SP. Serious harm is defined in Article 15 and includes capital punishment or execution, torture, cruel, inhuman or degrading treatment, and serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict. Note the qualifying term is individual. The implication is that if a large number of people are affected, then serious harm within the meaning of Article 15 of the Directive will not be established. The rationale for this is not simply that a large number of people are affected but rather is due to the indiscriminate nature of the harms inflicted or feared.
Additionally problematic is the absence of any mention of systemic or sustained violation of human rights as a basis for a claim of serious harm. The inclusion of such a term would have been consistent with Member States obligations under the ECHR and other international human rights treaties.
Moreover, persecution for a Convention reason can and does occur in the situations described in Article 15. The concern is that such individuals will not be granted the refugee status to which they would be entitled, but rather would simply be granted SP under Article 15. SPS is a residuary status and does not offer the same level of protection and benefits as are offered bona fide refugees. SPS should be granted only to those who clearly fall outside of the Convention/Directive definition.
Content of International Protection. Article 21 of the Directive deals with non-refoulement. The Directive re-affirms the importance of this principle and links it by way of the phrase in accordance with other international obligations with provisions of IHRL. Article 21(1)(2) permits derogation from the principle, in a manner similar to the RC. However, a state may not refoule someone if they are to face torture, cruel or inhuman or degrading treatment. The reference to other international obligations infers as much. Under IHRL, non-refoulement is a principle from which no derogation is justified under any circumstances.
Throughout this section of the Directive, the rights accruing to refugees are ensured at a much higher degree than are those accruing to individuals with SPS. The Directive affirms the importance of family unity (Article 23) and yet does not contain any provision detailing the right to family reunification for those with SPS. Furthermore, the Directive leaves it to state discretion whether to accord rights and benefits to close relatives of the main beneficiary. The requirement that such family members must have lived with and be entirely or mainly dependent upon the main beneficiary limits the notion of family to a significant degree.
Articles 24 through 29 deal with economic and social rights of those individuals with refugee status and those with SPS. In all cases, the rights of the latter are significantly reduced in comparison to the rights of the former. Article 26 limits the rights of individuals with SP to access employment. Member states are permitted to take into account the current labour market prior to authorizing an individual with SP to engage in employment. Likewise, individuals under SP may receive only limited social assistance benefits and limited health care. Their access to integration programmes is also limited by the fact that access is authorized selectively, depending upon the states determination of propriety. Similarly, the duration of their residence permits may be curtailed. This clearly demonstrates the denigrated nature of the protection afforded to those with SP as opposed to those accorded refugee status.
- Key cases:
- R v. Hammersmith & Fulham London Bourough Coucil, 17 Feb. 1997
- R v. SOS Home Department Exparte Krishnan Rajaratnam [29 July 1997]
- R v. Secretary of State for Social Services ex parte Joint Council for the Welfare of Immigrants 
- UNHCR. The Evolution of Asylum Policy in Europe. The State of the Worlds Refugees 2000, 161-162. http://www.unhcr.org/pubs/sowr2000/sowr2000toc.htm
- Preambular paragraph 14, European Council Directive 2004/83/EC of 29 April 2004. http://europa.eu.int/eur-lex/pri/en/oj/dat/2004/l_304/l_30420040930en00120023.pdf
- European Council of Refugees and Exiles. Information Note on the Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. IN1/10/2004/ext/CN http://www.ecre.org/statements/qualpro.pdf
- European Convention on Human Rights http://www.hrcr.org/docs/Eur_Convention/euroconv.html