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Standards of Protection

Standards of Protection

1951 Convention Relating to the Status of Refugees and the 1967 Protocol

The 1951 Convention Relating to the Status of Refugees and the accompanying 1967 Protocol represent a politically partisan view of human rights to the extent that they prioritize civil and political rights over socio-economic and cultural rights. Such prejudice is evident in the textual definition of a refugee as one who flees a violation of civil and political rights only.

Similarly, the 1951 Convention relating to the status of Refugees displays a European bias. The Convention enshrines both temporal and geographic limitations. Article 1B(1)(2) restricts its scope to those events occurring in Europe before 1st January 1951; or events occurring in Europe or elsewhere before January 1951. These limitations were designed so as to allow for the distribution of the refugee burden throughout Europe while at the same time avoid creating a reciprocal binding obligation towards refugees from non-European countries. The 1967 Protocol Relating to the Status of Refugees in Article 1(2) removes both the temporal and geographic limitations of the 1951 Convention. Nevertheless, under Article 1(3) of the Protocol State parties to the 1951 Convention are permitted to make reservations to Article 1(2) and thereby retain a geographic limitation. The Protocol is an independent instrument and states may accede to it without being party to the 1951 Convention. However, the jurisdictional clause in Article IV of the Protocol, which establishes that the settlement of disputes relating to the interpretation or application of the Protocol be settled by the International Court of Justice, is only applicable to those states which are party to both the 1951 Convention and the 1967 Protocol. (Jastram & Newland 2003)

UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992.

Definition of a refugee and the determination of status under the RC.

The discourse of the refugee inevitably conflates with that of refugee status. The question is no longer, "what is a refugee?" but is instead, "who is a refugee?" The legal definition enshrined within the RC is therefore normative in character, and in line with legal thinking, seeks justification on the basis of individual motivation. The category refugee is clearly a construction, useful for political purposes. Indeed, as noted by refugee legal expert Guy Goodwin-Gill, "the purpose of any definition or description of the class of refugees is to facilitate and to justify, aid, and protection; moreover, in practice, satisfying the relevant criteria will indicate entitlement to the pertinent rights or benefits."

The definition of refugee is enshrined within Article 1A(2) of the RC. Omitting the geographic and temporal limitations removed by the 1967 Protocol, the term refugee shall apply to any person 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 of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

There are several important elements within this definition and each shall be discussed in turn.

Well-Founded Fear. The RC requires that an individual asylum-seeker demonstrate a "well-founded fear of persecution" based upon one of the five Convention grounds. Since fear is necessarily subjective, a determination of status will require an evaluation of the applicants statements. Of less importance in status determination procedures is an analysis of the objective conditions in the applicants country of origin. Nevertheless, the well-foundedness requirement obliges the individual applicant to prove that her subjective fear is based upon external or objective facts, which demonstrate that there is likelihood that she will be persecuted upon her return. The subjective fear of a particular individual is not sufficient grounds for the granting of refugee status.

This interpretation was confirmed by the UNHCR in their Handbook on Procedures and Criteria for the Determining Refugee Status under the 1951 Convention and the 1967 Protocol related to the status of Refugees. Paragraph 42 of the said Handbook reads:

As regards the objective clement, it is necessary to evaluate the statements made by the applicant. The competent authorities that are called upon to determine refugee status are not required to pass judgment on conditions in the applicant's country of origin. The applicant's statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation. A knowledge of conditions in the applicant's country of origin-- while not a primary objective--is an important element in assessing the applicant's credibility. In general, the applicant's fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there.

The onus is on the individual asylum seeker to convincingly demonstrate the nexus between subjective fear and objective reasons for such fear. However, practical considerations and the trauma experienced by a person in flight also indicate a corresponding duty upon whoever must ascertain and evaluate the relevant facts and credibility of the applicant. The balance between the state and the individual asylum-seeker in regards to the burden of proof varies greatly between states, ranging from a "degree of probability" to "beyond reasonable doubt."

A crucial element in determining well-foundedness is the degree or lack thereof state protection. As it is left to states' discretion to determine the manner in which refugee status is granted, different states emphasize this criterion differently. According to the Supreme Court of Canada (SCC), whether or not state protection exists is not an independent factor in the Convention definition but on the contrary is an essential part of establishing a basis for refugee status. Countries such as Canada, draw such an interpretation from Article 1(A)(2) of the RC, which states that an individual fleeing persecution according to one of the five grounds and who is "outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country" This presumption is analogous to the requirement in IHRL, that domestic remedies be exhausted prior to submitting a request for vindication at the international level. The intent behind such a requirement is to give the state in question the opportunity to remedy the situation on their own and to fulfill their obligations under international law. While the RC does not require that domestic remedies be exhausted, as do the various supervisory bodies of international human rights treaties, the state is nonetheless presumed to be capable of protecting their citizens unless the applicant provides clear and convincing evidence to the contrary.

The question of the degree or lack thereof state protection is particularly relevant in regards to persecution by non-state actors. The question is whether or not it is sufficient for a claimant to demonstrate a fear of persecution emanating from the behaviour of a non-state actor or must the claimant also demonstrate a failure or absence of state protection. A case in point is Horvath v. Secretary of State for the Home Department, in which the Court ruled that while he [Horvath] had a well-founded fear of violence by skinheads, this did not amount to persecution because he had not shown that he was unable or, through fear of persecution, unwilling to avail himself of the protection of the state.

Persecution. The RC does not define persecution. Nonetheless, it clearly contains two elements: first of all, whether the harm suffered or feared amounts to persecution; and second of all, whether or not the state can be held accountable. There are some scholars and legal experts who maintain that in order for a particular act to constitute persecution under the RC, it must involve the violation of a core human right. There is not, as of yet, any agreement as to which rights might constitute such a core, nor is there one universally agreed upon list of basic human rights.

Conservative views rely upon a narrow interpretation of Article 33 of the RC in order to justify such a restriction. Article 33 specifies that a person may not be returned to a country in which his life or freedom would be threatened. The argument that then follows is that in order to be accepted as a refugee under the RC, the persecution one faces must amount to a violation of ones right to life and/or freedom.

Nevertheless, the preamble of the RC makes reference to the UDHR. While the UDHR is not a binding instrument of IL, it has been recognized as an instrument of customary international law and consequently is binding upon all states. The UDHR is considered to be the minimum standard of duties owed by states not only to their nationals but also to all persons and groups within their jurisdiction. Consequently, the more common view is that a particular action may constitute persecution under the RC if it violates human dignity. The appropriate standard according to such a view is not therefore the right to life and freedom but is more expansive and includes the systemic or sustained violation of human rights in general.

Nevertheless, it is clear in the wording of Article 1A of the RC, that in order to qualify as a refugee, persecution must involve discrimination on one of the five grounds enumerated therein. The RC is inherently forward looking and consequently the persecution feared may be actual or potential. There is no requirement that an individual must have suffered past persecution. In addition, the UNHCR specifies in their Handbook on Procedures and Criteria for the Determining Refugee Status under the 1951 Convention and the 1967 Protocol related to the status of Refugees that an individual subjected to various measures in and of themselves not persecutory (i.e. discrimination in other forms), may qualify as a refugee under the RC on cumulative grounds.

Evidently, there is no clear answer to the question of what constitutes persecution under the RC. Each case must be evaluated independently and both the psychological and personal characteristics of the applicant, as well as the objective conditions in their country of origin, must be taken into account by decision-makers.

Persecution vs. Hardship. With the RC definition in hand respective states set about determining who is a "legitimate" refugee and who is not. The former is forced to flee, while the latter is generally assumed to have left of their own free will. Under the RC, refugee status is not accorded to those who flee intolerable economic conditions. It is not accorded to those who flee famines and/or environmental catastrophes. It is not accorded to those who live in desperate poverty. These individuals are sometimes labeled as economic migrants. This distinction between political refugees on the one hand and economic migrants on the other draws the line between those who can claim a right to special urgency and those who are left to their own devices.

Indubitably, such a distinction evolves out of the drafters apparent bias towards civil and political rights. The RC definition does not address many possible reasons for flight. Nevertheless, there is some inherent flexibility within the RC that may allow for so-called economic migrants to qualify as refugees, through the principle of discrimination and its links to the concept of persecution as stipulated within the RC. If an applicant can demonstrate that the economic hardship she experiences is a result of discriminatory oppression, a violation of human rights in the nature of persecution may be established. However, according to a literal interpretation of Article 33 of the RC, a claimant would be obliged to demonstrate that the alleged violation of an economic or social right was severe enough to constitute a threat to their life and/or liberty.

Moreover, the RC in Articles 17-24 clearly enshrines several so-called economic and social rights. Nevertheless, such rights are accorded only to those refugees lawfully staying in the territory of the state of asylum. Lawfully staying could perhaps be equated with having lawfully entered a country, and refers to the fact that the individual must have entered with proper documentation, identification, and so forth and that the state is aware of the persons presence. However, it must be distinguished from lawful presence. An individual with lawful presence would require a residency permit or be in the country within a time-frame authorized by the Government of the state concerned. That an individual must be lawfully staying infers that these rights ought to be accorded not only to refugees (who would be lawfully present) but also to asylum-seekers, who are lawfully present. Note that refugees are not to be punished for illegal entry. The denial of economic, social rights on account of unauthorized entry would constitute a violation of Article 31 of the RC.

While the economic and social rights enshrined in the RC are subject to limitations, such that states are only obliged to treat refugees and asylum-seekers in a manner no different than that in which they treat their nationals , under IHRL, a state is obliged to take positive action towards the full realization of economic and social rights of all peoples within its jurisdiction. Article 2(1) of the ICESCR obliges states to:

Undertake to take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Consequently, violations of the rights enshrined in the ICESCR may amount to persecution if the claimant can demonstrate that the state took retrogressive measures. This obligation is not limited to nationals but rather a state owes this obligation to all of those individuals and groups within its jurisdiction. The ICESCR does not allow for discrimination on the basis of citizenship. Consequently, whether or not a state is party to the RC it must comply with this obligation as enshrined within the ICESCR.

Persecution vs. Prosecution. A refugee is someone who flees actual or potential injustice in the form of persecution. She is not one who is a fugitive from justice. Consequently, flight to avoid punishment for having committed an ordinary common law offence is not generally recognized as a basis for refugee status under the RC. Even if the law under which the claimant is being prosecuted is not a law that is recognized in the country of asylum or if the punishment is harsh compared to that given in the country of asylum, prosecution does not necessarily amount to persecution given that the law applies to all persons within the jurisdiction of the sending state.

In deciding whether a particular law or punishment amounts to persecution, decision-makers in the country of asylum must evaluate the national laws of the sending state with the view of discerning whether or not they are in accordance with IHRL and the states obligations there under. The purpose of the evaluation is not to make a value judgment in regards to the aims pursued by a particular law , but rather is to distinguish whether or not its application is discriminatory. If an otherwise neutral piece of legislation is applied in a discriminatory manner, persecution may be established.

Such an evaluation is dependent upon the jurisprudence developed by the human rights treaty bodies. Note that restrictions upon an individuals rights are permissible under IHRL, given certain criteria. Restrictions must be legally prescribed, must be deemed necessary, and must be applicable to all individuals in an equal manner.

"Unable or Unwilling." Generally speaking, the agents of persecution are members of the state apparatus, either government officials or military personnel. In such a situation, the unwillingness of the state to provide protection to the claimant is self-evident. The claimant cannot seek the protection of their government because they are being, or are likely to be, victimized by that same government or its agents.

What then of the situations in which the agents of persecution are non-state actors, such as rebels, insurgents and so forth? The question is whether or not it is sufficient for a claimant to demonstrate a fear of persecution emanating from the behaviour of a non-state actor or must the claimant also demonstrate a failure or absence of state protection?

Of particular relevance in regards to the nature of state obligations is General Comment ICESCR No.3, which clarifies that states party to instruments of IHRL have obligations both of conduct and of result. Their duties are three-fold: 1) to respect; 2) to protect; 3) to fulfill. The obligations to protect and to fulfill require that states not only refrain from activities that would violate the human rights of individuals/groups within their jurisdiction, but in addition that they take preventive measures so as to protect those same rights from the violating behaviour of private agents.

In Ward v. SCC, a distinction was made between unable and unwilling. The Court defines "unable" as physically or literally unable, and interprets "unwilling" to refer to those situations in which protection from the state is not wanted for some reason, though not impossible. Some people have interpreted this distinction to imply that unable refers to stateless peoples, whereas unwilling refers to refugees and asylum-seekers. Nevertheless, the UNHCR in their Handbook, maintain that the terms unable and unwilling apply both to stateless peoples and refugees alike.

The term unwilling refers to those who refuse to avail themselves of national protection, and must therefore be read in conjunction with owing to such fear. If an asylum-seeker is able to avail herself of national protection it is unlikely that she will be able to establish that she is outside of her country of origin owing to a well-founded fear. In availing herself of national protection, she cannot be considered a refugee under the RC. A claimant may be unwilling to avail herself of national protection because of state complicity in the face of persecution by non-state actors. In such a situation, persecution by non-state actors may be established within the meaning of Article 1 RC, provided that the claimant demonstrate a failure to protect on behalf of the state. To clarify, the state cannot be expected to protect all individuals within their jurisdiction from any and all harm. The obligation is one of conduct rather than result. If there is a real risk of persecution, the state is obliged to take steps to protect.

For Reasons of Race, Religion, Nationality, Membership in a Particular Social Group or Political Opinion. In order to qualify as a refugee within the meaning of the term established in the RC, a claimant must demonstrate a well-founded fear of persecution based upon one of the five grounds listed above. For reasons of implies that the applicant must demonstrate that the harm feared or suffered was invoked on account of one of the five grounds. This necessitates some evaluation of the motives of the perpetrator. This is confirmed in domestic refugee law jurisprudence, in cases such as R.A. vs. BIA, 11 June 1999 and INS v. Elias-Zacarias.

Race. The term race is not defined in the RC. However, considering the fact that the drafters of the RC intended to include Jewish people fleeing persecution at the hands of the Nazis, race must be interpreted broadly so as to include ethnic, cultural, and linguistic groups. This assumption is confirmed in the UNHCR Handbook. Such an interpretation of race is also in conformity with that provided in CERD, Article 1(1).

Religion. Both the UDHR and the ICCPR enshrine the right to freedom of thought, conscience, and religion, which includes the freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching. The right to religion implies its negative corollary: the right to not practice a religion.

The right to religion and to manifest ones religion is subject to certain limitations, as prescribed by Article 19(3)(a)(b) ICCPR. According to this Article, restrictions must be provided by law and be necessary :

a) For respect of the rights or reputations of others

b) For the protection of national security or of public order (order public), or public health or morals.

This demonstrates a recognition of the fact that in a democratic society, comprised of peoples with diverse faiths and beliefs, some restrictions are necessary so as to reconcile the diverging interests of different groups and to ensure that everyones rights are respected.

In addition, the UNHCR clarifies that: mere membership in a religious group is not sufficient to establish a basis for refugee status. On the contrary, an applicant must demonstrate the linkage between the actual or perceived threat and their own self-defined or externally ascribed religious beliefs.

Nationality. Like many of the other terms used in the RC, nationality is not defined. According to UNHCR, nationality in the context of the RC is not synonymous with citizenship and must be interpreted in a broad manner so as to include membership in an ethnic or linguistic group. The term overlaps considerably with that of race. Such an interpretation is also enshrined in Article 10(1)(c) of the European Council Directive.

The term serves to protect those individuals who are of a minority ethnic, cultural or linguistic group. Under IHRL, minority groups are entitled to additional protections when and where necessary. Article 27 ICCPR is of particular importance, and taken in tandem with the non-discrimination clause of Article 26, if violated may constitute a basis for refugee status. See Hopu and Bessert v. France.

Furthermore, the term nationality offers protection for those who are residents in a country of which they are not citizens, such as refugees or stateless persons. In such instances, their country of origin may be their state of habitual residence. The term also offers protection to those who are denied full citizenship rights, such as Palestinians living in Israel.

Persecution based upon political opinions may converge with that of persecution based upon nationality in those situations when conflicts between national groups are combined with political movements. Such is often the case in states who are composed of previously sovereign territories where people continue to define themselves according to the predecessor state and are, as a result, persecuted.

Membership in a Particular Social Group. The RC does not define what this term means or which groups it intends to include. As a result, some scholars, such as Arthur C. Helton, have suggested that it is a catch-all category, intended to protect all future victims of persecution. Given that the RC is forward-looking, and is concerned with future injustices rather than past harm, Helton suggests that social group was intended to grant the RC some flexibility in including new forms of persecution.

Nevertheless, as elucidated by the SCC in Ward, IRL is intended to be subsidiary to national protection and therefore the RC cannot be interpreted as an instrument intended to provide protection to all suffering individuals . The RC was drafted by self-interested states and was developed out of a desire to control refugee and immigration flows. As such, built-in restrictions exist. It might also be argued that a non-qualified, catch-all category interpretation of the term social group perhaps exaggerates the intentions of the RC.

Moreover, a social group under the RC cannot be defined simply by the nature of the persecution suffered. Domestic jurisprudence suggests that a nexus between the fear of persecution and the unwillingness and/ or inability of the state to offer protection must be demonstrated. A case in point is domestic abuse. It is not sufficient for an applicant to claim refugee status based upon her membership in the social group of battered women. However, could she demonstrate that the state had done nothing to offer protection to women and that law enforcement officials refuse to apprehend and punish perpetrators, then the applicant would have a stronger basis to claim persecution. In addition, an applicant must demonstrate that the perpetrator was motivated, at least in part, by the asserted group membership. This view was affirmed in Canadian jurisprudence in the case of Ward.

Similarly emerging from domestic jurisprudence, the concept of ejusdem generis has gained prominence in the definition of what constitutes a social group. This principle literally translates as of the same kind and was enunciated most clearly in Matter of Acosta and the US Board of Immigration Appeals. In Acosta, the Court found that in order to qualify as persecution based upon membership in a social group, the social group in question had to display shared, innate, and immutable characteristics, such as sex, colour, or kinship. However, the term is broad enough to include such shared characteristics that while not immutable, are so fundamental to an individuals identity and/or conscience that they cannot be asked to change it. The particular kind of characteristic remains to be determined on a case-by-case basis. This jurisprudence is affirmed by UNHCR, who defines a social group as :

A group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of ones human rights.

What is excluded from such a definition are those groups defined by a characteristic which is changeable or from which disassociation is possible, so long as neither option requires renunciation of basic human rights"

Gender. Of increasing salience within discussions related to the viability of the RC to contemporary concerns is the inclusion of gender as a basis for persecution. UNHCR admits that the RC has been interpreted through a framework of male experiences. With the exception of a few cases involving rape, national jurisprudence rarely refers to female-specific cases of persecution, such as infanticide, dowry-related violence, female genital mutilation, domestic violence, forced abortion, compulsory sterilization, and trafficking. It is important to note that gender persecution must not necessarily involve direct physical attacks on a womans physical integrity. The UNHCR outlined in their Handbook and also in their Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, that discrimination may amount to persecution if it leads to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on the right to earn ones livelihood, the right to practice ones religion, or access to available educational facilities.

Despite the fact that UNHCR encourages asylum countries to recognize gender-based persecution as a ground for claiming asylum, and to ensure that asylum procedures are sufficiently gender-sensitive, the Office does not argue for the inclusion of gender as an independent ground under the RC. They maintain that the RC is inherently flexible and that the five listed Convention grounds can be interpreted through a gender lens. The idea is that persecution on account of gender must be tied to reasons of race, religion, nationality, political opinion, or membership in a particular social group.

Gender as Social Group. When neither law nor religion dictates the measures imposed on women, and yet state protection is not forthcoming, classifying women as a social group may be the best strategy. The Executive Committee UNHCR in their Conclusion No. 39, encourages States to:

adopt the interpretation that women asylum-seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they live may be considered as a "particular social group" within the meaning of Article 1 A(2) of the 1951 United Nations Refugee Convention.

According to such an interpretation of social group, sexual orientation may also constitute a basis for refugee status if the claimant is subjected to harm on account of their failure to conform to societal sexual norms and expectations.

The classification as a particular social group is particularly relevant to women to the extent that a great deal of the harms suffered by women are suffered within the private sphere. For this reason, it is important to note that certain actions may amount to persecution despite the fact that it is non-state actors who inflict them. If the State condones or is systematically neglectful in their duty to protect people under their jurisdiction, complicity within the meaning of persecution can be established. A case in point is Ward v SCC, in which the Court found that: Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.

The Specifics of Categorization. Within the social group women, courts have hitherto been inclined to create sub-groups. For example in Cheung v. MEI, the Court had to decide whether women in China who have more than one child and are faced with forced sterilization constituted a social group. Likewise, in Mayers v. MEI, the social group in question was: Trinidadian women who are subject to wife abuse. Such sub-groupings are problematic. First of all, they are tautological. Second of all, and more importantly, they imply the existence of past persecution/abuse. The RC does not require past persecution as a prerequisite to establishing a well-founded fear of future persecution. Moreover, it is questionable the extent to which such sub-groups are recognized by society as being different or as having a distinct identity. That a group must establish their distinct identity and that the rest of society recognizes the distinctiveness of this identity is an explicit condition of qualifying as a social group within the EC Directive.

Furthermore, the creation of such sub-groups tends to conflate gender persecution with persecution on the grounds of gender. As noted by scholar Audrey Macklin, persecution as a woman is not synonymous with persecution because one is a woman. The former involves acts that involve sex-specific harm, i.e. rape. The latter involves, for example, flogging for refusing to wear a veil.

Obstacles. Conservative views are against the inclusion of gender as a basis for refugee status, claiming that any and all women will flood the borders of receiving countries. They claim that women as a social group is too large to fit and on account of its size cannot be accommodated within the term as used in the RC. Such concerns raise the question of whether the ubiquity and frequency of gender-based violence detracts from its status as persecution? In considering whether or not to grant refugee status to those individuals and groups who flee situations of civil war, national courts have decided that if the violence is widespread and indiscriminate, than an individual does not qualify. The applicant must demonstrate that he or she suffered or will suffer in a discriminatory manner. Likewise, it must be shown that the harms experienced or feared are above and beyond what has been experienced by the population at large.

In a similar fashion, the UNCHR clarifies that: the characterization of woman as a social group does not mean that all women are automatically entitled to refugee status. A woman claimant must still demonstrate the causal link between her well-founded fear of persecution and the grounds for such a fear. However, the mere size of the social group is not a sufficient reason to discount the notion of women as a particular social group.

Nevertheless, the inclusion of gender within the category of social group as a ground for refugee status could create a rather controversial situation. Macklin cites the 1993 UN Human Development Report, which found that there is no country that treats its women as well as it treats its men. If discrimination forms the basis for deciding whether a particular action or law is persecutory, then the decisive issue is to distinguish between those situations that amount to mere discrimination, and those that amount to discrimination so severe as to amount to persecution. Given that all countries discriminate towards women, national courts would be obliged to compare the discrimination suffered in the country of origin with that suffered in the country of asylum. Cultural differences would become paramount and would be the deciding factor in deciding whether or not a particular action/ law was persecutory. IRL would therefore become a hodge-podge of5 diverse, culturally relative findings and jurisprudence. Such irregularities within IRL are not beneficial for asylum-seekers and the process of refugee status determination would become even more subjective than it already is. Moreover, as pointed out by Macklin, pursuing gender as a basis for refugee status results in a situation where virtually all countries are refugee-producing. (Macklin 1995)

UNHCR Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees.

Victims of HIV/Aids. By the end of 1999 there were an estimated 32 million adults around the world with the HIV virus or AIDS. Similarly, there were some 11 million children who had either lost both parents to AIDS or who had they themselves been infected with the HIV virus. HIV/AIDS does not recognize borders and UN Secretary-General Kofi Annan has described its impact as no less destructive than that of war itself. While the issue of reproductive health and HIV/AIDS has received some attention on the global agenda, it has received much less attention in regards to refugee populations. Refugees with HIV/AIDS are often refused entry and the benefits of international protection on the basis of their health. A case in point is a 1990 US law, sponsored by Senator Jesse Helmes, which stipulates that individuals with HIV/AIDS cannot immigrate to the United States. That many countries are now considering HIV/AIDS as a new exclusion clause for refugee status is truly deplorable.

Interestingly, in the case of D. v. UK, the European Court of Human Rights found that the deportation of D., who was infected with HIV/AIDS, to the island of St. Kitts where there were no medical facilities to assist him, amounted to cruel, inhuman treatment within the meaning of Article 3 of the ECHR. By analogy, the refusal to provide international protection to a bona fide refugee because they were infected with HIV/AIDS would constitute a violation of the principle of non-refoulement.

Furthermore, there have been some progressive Judges who are increasingly referring to HIV/AIDS victims as members of a social group. In opposition to the US law mentioned above, an Immigration Judge (IJ) in New York issued a decision granting asylum on the basis that the applicant, a person living with HIV, is a member of a "particular social group" subject to persecution in his home country because of such membership. The applicant, a native and citizen of Ivory Coast and Togo who discovered his HIV-positive status after suffering a seizure while in the United States, was able to demonstrate to the IJ's satisfaction that treatment for HIV infection is scarce or non-existent in Ivory Coast and Togo, that hospitals and families shun HIV-positive persons, and that they are generally isolated and ostracized as a group. The IJ granted asylum and withholding of deportation, finding that the AIDS epidemic in Africa is a "serious problem" and that the respondent "would in fact be persecuted because of his membership in a social group."

Political Opinion. The mere adherence to a political opinion that contrasts with that of the authorities is not in and of itself, sufficient to qualify as a basis for refugee status under the RC. The applicant must demonstrate that their beliefs are not or will not be tolerated by the authorities. It is noteworthy that the term used is political opinion rather than political activity. The implication is that according to the RC, a claimant is not obliged to have acted upon their political beliefs in order to qualify for refugee status. Nevertheless, there must be evidence that the potential persecutors could be aware of the claimants opinions and that if expressed, such opinions would not be tolerated. Fear of persecution may not be discounted on the basis that if the claimant were to keep silent, they would avoid detection and consequently persecution. The right to freedom of expression is a fundamental human right.

This basis for refugee status applies, therefore, not just to those individuals with an obvious political affiliation, such as members of a political party, but also applies to those who are at risk of internal political forces and those whose opinions may be implicit in their conduct.

According to the UNHCR, a clear distinction must be made between those who flee persecution based upon political opinion, and those who flee punishment of politically motivated acts. Insofar as the punishment is in conformity with the general law of the country concerned and is not applied in a discriminatory manner, then fear of prosecution will not constitute as a valid basis for refugee status.

"Is Outside the Country of His Nationality." Refugee protection is intended to be a surrogate for national protection. There exists within IRL, a presumption in favour of the State. As stated in Ward: it should be assumed that the state is capable of protecting a claimant. UNHCR confirms that: international protection cannot come into play as long as a person is within the territorial jurisdiction of his home country. This view has been reformulated into the concept of internal flight alternative, (IFA) otherwise known as internal relocation alternative, or internal protection alternative (IPA).

Until the 1980s the risk of persecution faced by an applicant was evaluated in relation to their country of origin as a whole. Formerly, Western states were eager to accept refugees from countries of the Eastern bloc and in addition, refugees were seen as an excellent source of labour for countries of asylum. However, the European refugees of the 1950s-1970s have increasingly been replaced by refugees who are culturally, racially, and politically distinct from the peoples of the Western world. Mounting xenophobia led to the drying-up of Western states post WWII generosity towards refugees and led to increasing restrictions upon admission.

In addition, many of the conflicts that have flourished since the 1980s are regional. Civil wars and internal disturbances are now more common than are the monolithic aggressor states, such as Stalins Soviet Union. This change in the nature of the conflict and the identity of the agents of persecution has resulted in situations in which while one part of the country may be dangerous, another part of the country may be reasonably well-protected. An applicant for refugee status may, therefore, be at risk of persecution in one part, but not in all, of their country of origin.

Both of these factors have led to the emergence of IFA as a principle of IRL. While there is no direct reference to IFA within the RC, the fact that refugee law is intended to be subsidiary to national protection and pursuant to the phrase outside the country of his nationality in Article 1A(2) of the RC, the RC has been interpreted to imply that an applicant must exhaust all possibilities of availing herself of national protection prior to claiming refugee status in another country. This would necessarily involve seeking vindication of ones rights internally prior to externally. This strict, textual interpretation of the RC is problematic.

Internal Flight/Protection Alternative Test. The Vienna Convention on the Law and Interpretation of Treaties (VCLT) affirms that a treaty must be read in accordance with its object and purpose. The object and purpose of the RC is clarified by the human rights tenets included within the Convention. Refugees have the right to leave their country of origin and to seek asylum and protection elsewhere. They are entitled to the right not to be returned to situations of danger (Art.33). While the right to asylum is not explicit within the RC (see section 1), it is implied by the non-penalization of illegal entry (Article 31), the prohibition of expulsion (Art.32), and the principle of non-refoulement (Art. 33). The notion that an applicant who faces a well-founded fear of persecution must first seek internal protection in all parts of their country of origin, contrasts with those rights specifically enshrined within the RC. As a result, UNHCR denies that IFA is a principle of refugee law. Rather, the UNHCR draws attention to paragraph 91 of their Handbook as an accurate rendering of RC legal principles regarding IFA. Paragraph 91 reads as follows:

The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.

Such a rendering has not been universally accepted by all state and national legislatures.

Minimum Standards of Protection within an IFA. Since an applicant may be denied the protection in the putative asylum state, it must be demonstrated that the protection they will be afforded in the IPA is at least in conformity with the minimum standard of protection enshrined within the RC. The onus to prove that this is the case rests with the putative asylum state. The preamble of the RC refers to the UDHR, and as such, the minimum standard proposed by the RC could be interpreted to include the enjoyment of all fundamental rights and freedoms without discrimination. However, the RC does not require states party to it to fulfill such an obligation. Rather Article 3 RC enshrines a more general duty for states to apply the provisions of the Convention without discrimination. The rights and duties enshrined in Articles 2-33 of the RC do not oblige States to ensure refugees and asylum-seekers the full enjoyment of their human rights, but rather only oblige them to accord refugees treatment that is at least as favourable as that accorded to their nationals

An authoritative guide on the standards of a potential IFA is that produced by the Program in Refugee and Asylum Law at the University of Michigan Law School, entitled the Michigan Guidelines on Internal Protection Alternatives. The Michigan Guidelines on IPA establishes three criteria by which protection ought to be measured prior to deciding upon the feasibility of an IPA. The first refers to whether or not the IPA represents an antidote to the persecution feared. The second refers to whether the applicant is certain to be free from persecution in the IPA, or whether the site of the IPA simply represents a reduced risk of persecution. And third, asks if the local conditions in the IPA at least meet the minimum standard of protection afforded by the RC (i.e. most favourable treatment accorded to nationals). (Storey 1998)

Michigan Guidelines on IPA.

"Who not having a Nationality and Being outside the country of his former habitual residence." IRL in general and the RC in particular are intended to afford protection to those who lack it from their own governments. What however, of those individuals who have no government, per se? To have a government means to be a citizen of a particular state. Stateless persons can make no such possessive claim. Hathaway therefore astutely poses the question whether stateless persons are necessarily and by definition refugees, to the extent that they do not enjoy any national protection? Or, on the contrary, are stateless persons excluded from refugee status because their predicament is a result not of a failure on the part of a national government to protect them but rather is the result of not having any state whose duty it is to protect them?

The RC does not explicitly mention stateless persons and the rights and protection that they ought to be afforded. According to Hathaway, they were deliberately excluded from the Convention as they were thought by the drafters to represent a less urgent cause than that of refugees. Since the drafting of the RC, the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness were drafted, providing protection and enshrining rights specifically for stateless persons.

In order to qualify for refugee status, a stateless person must establish that she enjoys a relationship with a state, similar to that of a citizen to her national state. For this reason, the RC included the phrase: country of his former habitual residence. The logic is that this country, that of his former habitual residence, would be the country to which he would be returned should his application for refugee status fail. This is a particularly relevant point of reference when considering states obligation to respect the principle of non-refoulement.

According to Hathaway, the pertinent issue on which the determination of refugee status hinges is the applicants right to return. If a stateless refugee has no country of habitual residence and no country of nationality, then she has no right to return and cannot therefore qualify as a refugee under the RC. She would have to seek protection under the Convention on Statelessness, which indubitably grants fewer rights and benefits than does the RC. That being said, states have an obligation to respect, protect, and fulfill the human rights of all individuals within their jurisdiction, both citizen and stateless alike.

Refugees "sur place"

The RC does not distinguish between those individuals who have fled the prospect of persecution and those who, already abroad, cannot return to their country of origin for fear of persecution. The latter are referred to as refugees sur place. Such a situation generally occurs when there has been a fundamental change of circumstances in the individuals country of origin, such as civil war, or when the nature of the individuals activities since having left their country would place them at risk of persecution upon return. The applicant must demonstrate that their actions have or are likely to come to the attention of the authorities in their country of origin and that such actions once discovered, would not be tolerated.

Cessation clauses

The cessation clauses in Article 1C of the RC describe the situations under which a refugee ceases to be a refugee and thereby loses her claim to international protection. As noted by the UNHCR in their Handbook, of the six clauses, the first four reflect a change in circumstances resulting from the individuals own behaviour/ actions. The last two, (5) and (6) are brought about by a change of circumstances in the refugees country of origin, such that the basis for her claim to international protection no longer exists. These are referred to as the ceased circumstances clauses. According to the Executive Committee such clauses are not to be applied lightly and that in order to invoke one, "there must have been a change in the refugee's country of origin, which is fundamental, durable, and effective. Fundamental changes are considered as effective only when they remove the basis of the fear of persecution."

The clauses listed in Article 1C represent an exhaustive list and consequently, UNHCR warns that they ought to be used restrictively. No other reason may be given by a state to withdraw an individuals refugee status. This is an important reminder given the current practice of states to use the availability of an IFA as a basis for the denial of refugee status.

Moreover, there is no cessation clause listed in the RC that refers to those individuals who may represent a danger to national security or to public order. This is important especially since the adoption of the European Council Directive in which Article 14(4)(a)(b) suggests that a refugee may cease to enjoy the rights and benefits of refugee status if it is determined by the Member state that she constitutes a danger to the security of the Member State or a danger to the community of the Member State. Such a clause is not in line with and in fact represents a denigration of the state obligations enshrined in the RC, to which all EU Member states are party.

Exclusion clauses

Given that exclusion clauses deny a person international protection and will likely result in their deportation to their country of origin or perhaps to a third country, such clauses can only be considered after having considered the inclusion clauses listed in Article 1A of the RC. The principle of non-refoulement requires this insofar as an applicant who has established a well-founded fear of persecution may not be returned to a situation of danger. The exclusion clauses are enumerated in Article 1 D, E, and F of the RC.

Article 1D is fairly straightforward. It excludes any individuals who receive protection and assistance from any UN agency, other than the UNHCR. Such protection was previously provided by the United Nations Korean Reconstruction Agency (UNKRA), and is currently provided by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).

It is important to note that, in regards to UNRWA, the agency is only working in certain areas of the Middle East, and that consequently any Palestine refugee outside the Middle East or in an area of the Middle East where UNRWA is not mandated to operate, must be given due consideration in refugee status applications.

Article 1E applies to those individuals who might otherwise have qualified as a refugee under the RC but who have been granted protection, and certain rights and freedoms in a third country. Such individuals may be residents of a third country, yet they are not full citizens of that country.

The most contentious exclusion clause is probably Article 1F, which refers to those individuals who are not considered to be deserving of international protection. This clause helps to preserve the asylum system and to prevent it from being used as a means of escape for fugitives from justice. While UNHCR warns that such clauses have an exceptional quality and therefore ought to be invoked in a restrictive manner, their use has become increasingly more common in the wake of the September 11, 2001 terrorist attacks on the United States of America. That they are to be used in a restrictive manner is evidenced by the burden of proof placed upon states. An asylum state must demonstrate that there are serious reasons for considering that the applicant falls under one of the categories mentioned. Such a threshold is higher than that of Article 33(2) RC, which obliges states to demonstrate only reasonable grounds. Nevertheless, the threshold remains quite low to the extent that there is no requirement that the applicant be formally charged or convicted in their country of origin. Suspicion alone, provided that it is based upon serious reasons is sufficient to exclude an applicant from international protection.

He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes. The RC adheres to the definitions of these crimes as established by the International Law Commission and enshrined within the Rome Statute. A discussion of these definitions is necessary so as to adequately grasp the scope of this exclusion clause.

Crimes against peace. A crime against peace involves the planning of and/or participation in an unlawful war. Prior to 1928, war was, by definition, legal, to the extent that it was considered to be a legitimate means of foreign policy. However, in 1928 the General Treaty for the Renunciation of War as an Instrument of National Policy, known as the Kellogg-Briand Pact, was signed. Nonetheless, while war was generally prohibited it remained lawful in certain specific situations: (1) wars of self-defence; and (2) war as an instrument of international policy- i.e. the Just War doctrine. With this as a basis, the UN set out to draft a Charter that could overcome some of the Pacts shortcomings. The end result was Article 2(4) of the UN Charter.

The definition of Use of Force. Article 2(4) of the UN Charter defines the use of force as force directed against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the UN. If the qualifications of territorial integrity and political independence are taken separately, there is considerable likelihood that one will arrive at a rigid interpretation of the article, thereby blunting its effect. For example, the use of force by State A within the boundaries of State B, may not be considered to represent a violation of territorial integrity so long as State B does not physically lose a piece of its territory.

Likewise, in regards to political independence, consider the situation if State A exercises force in rescuing some of its nationals from State B by sending in military troops. State A might argue that as soon as their nationals are safe they will leave, and that consequently their continuing military presence does not constitute a violation of the political independence of State "B." As these examples demonstrate, if Art. 2(4) is not read as a whole, then a legion of loopholes are likely to emerge. Individual applicants who may indeed be guilty of having used force in contrast to the UN Charter may then slip through the cracks and be granted refugee status.

Perhaps the most important qualification in the definition is that regarding manners inconsistent with the UN. This qualification obliges that Art. 2(4) be read together with Art.1 of the UN Charter, in which the purpose of the UN is defined as the maintenance of international peace and security. Similarly, Art. 2(4) is inseparable from Art.2(3) in which States are urged to seek peaceful resolution to their disputes. Reading Art.2(4) as a whole demonstrates that there was no intention in the UN to restrict the all-embracing prohibition of the threat or use of force. Given the wording of Art. 2(4), some states have interpreted it as a green light for the use of force that does not violate either territorial integrity or political independence and furthermore is not against the purpose of the UN. The classic example is the use of force in the name of human rights. These invasions represent a revamped version of the just war doctrine. However, no state is empowered to use force unilaterally, in the name of human rights or any other matter. According to the Charter, the UNSC alone is legally competent to authorize forcible humanitarian intervention.

War crimes. War crimes have been punished within domestic law since the beginning of criminal law and were the first to be prosecuted pursuant to IL. While first defined in the Hague Conventions and the Nuremberg Charter, they have subsequently been defined in the 1998 Rome Statute. The category of war crimes includes within its cope those isolated acts committed by individual soldiers acting without direction or upon guidance from superiors. The scope of the category is, however, limited by Article 8.1which states that: in particular when committed as part of a plan or policy or as part of large-scale commission of such crimes. The inclusion of the words in particular implies that states who wish to deny refugee status to those individuals who participated in or planned war crimes, must demonstrate that such crimes were intended to be widespread.

Crimes against Humanity. While the Rome Statute does list the sorts of activities that constitute crimes against humanity, the list is not an exhaustive one. The clause other inhumane acts leaves the Statute open for further development. This was used in the Akayesu decision by the ICTR to include the crime of forced nakedness of Tutsi women under the category crimes against humanity. However, under the Rome Statute this clause is limited by the clause: of a similar character intentionally causing great sufferring, or serious injury to body or to mental or physical health. The concept of crimes against humanity is furthermore, limited because of the threshold that must be demonstrated by prosecutors, or in this case, by decision makers during the refugee status determination procedures.

The threshold for crimes against humanity has several components. First of all, the act must be part of a widespread or systematic attack. Second, the attack must be directed at civilians, thereby distinguishing it from war crimes which are directed against combatants or civilians. Third, it must be carried out, pursuant to or in furtherance of a State or organizational policy to commit such attack. This phrase reflects the increasing awareness that many atrocities in times of conflict are committed by non-State actors. Fourth, the perpetrator must have knowledge of the attack. This is otherwise referred to as mens rea, or intent requirement. The special intent required under the definition of crimes against humanity does create several potential loopholes for perpetrators of such atrocities who seek international protection as a refugee.

Self-defence. In the context of individual criminal responsibility, Article 31(1)(c ) of the Rome Statute precludes individual criminal responsibility if the person who committed the acts, acted:

reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proprotionate to the degree of danger to the person or the other person or porperty protected.

An ayslum applicant who attempts to deny criminal responsibility and therefore qualify for refugee status must demonstrate that the threat against which they were defending themselves is imminent and real. Implied within the term essential used in Article 31(1)(c ) is the notion that self-defence must be taken as a last resort. Furthermore, in an act of self-defence, the means used must be proportional to the harm inflicted.

Force majeure. Criminal responsibility for states may be precluded be reasons of force majeure. The International Law Commissions Draft Articles on the Responsibility of States for Internationally Wrongful Acts explains the meaning of this phrase as, the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.

In the context of individual criminal responsibility, Article 31 (1)(d) of the Rome Statute is pertinent. It confirms that a person shall not be criminally responsible if:

The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: i) made by other persons; ii) constituted by other circumstances beyond that persons control.

According to Hathaway, the threat must be such that: "a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong." If an asylum applicant causes greater harm to others than he himself fears, force majeure is not an available excuse. In Ramirez v. Canada, it was found that the harm to which he [Ramirez] would have exposed himself by some form of dissent or non-participation was clearly less than the harm actually inflicted on the victims. Consequently his application for refugee status was denied.

Lack of Knowledge of Wrongfulness. The third way in which an individual who participated in illegal acts could preclude his guilt was if he or she were to plead ignorance or a lack of knowledge of the wrongfulness of the act. Such an exception cannot be applied in regards to crimes against humanity, which by their very nature preclude any potential doubt as to their wrongfulness. The ILC in the Draft Articles, affirms that nothing can preclude the wrongfulness of a state, or in this case an individual, if the action involves the violation of a preemptory norm of general international law or international human rights law. A case in point is A, B, & C v. Chief Executive Department of Labour, Federal Court of New Zealand, in which a former Peruvian police officer was denied refugee status based upon his previous participation in torture and other crimes against humanity. The court clarified that under no circumstances is torture justifiable. Similarly, in the Tadic decision, the ICTY found that crimes in question were so heinous that no one could have pretended that they were ever legally justifiable.

Superior Orders. The preclusion of individual criminal responsibility is codified in Article 33 of the Rome Statute, which states that:

The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility, unless:

a) the person was under a legal obligation to obey orders of the Government or the superior in question

b) The person did not know that the order was unlawful;

c) The order was not manifestly unlawful.

In the context of IRL, the question of compulsion to obey has several features. In the case Equizabal v. Canada it was argued that the defence of obedience to superior orders based on compulsion is limited to imminent, real, and inevitable threats to the subordinate's life ... The determinative issue then, is how to determine when threats become so imminent, real, and inevitable that they rise to the level of compulsion that disables a subordinate from forming a culpable state of mind. The notion of manifestly unlawful was further fleshed out in Equizabel as an order that: offends the conscience of every reasonable right-thinking person, it must be an order which is obviously and flagrantly wrong."

Key Cases:
Equizabal v. Canada (Minister of Employment and Immigration), File No. A-443-93, 26 May 1994, para. 23.
Rome Statute of the International Criminal Court, 1998
International Law Commission, Draft articles on Responsibility of States for internationally wrongful acts adopted by the International Law Commission at its fifty-third session (2001).

"Serious Non-Political Crime." Article 1F(b) of the RC excludes from its ambit, those individuals who have committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. According to the UNHCR, the aim of this provision is to protect countries of refuge from the dangers of admitting serious criminals. Both the nature and the purpose of the crime must be evaluated in order to determine whether the crime was non-political, committed for reasons of personal gain, or in contrast whether it was committed in order to fulfill political objectives. In order to constitute a political crime there must be a close causal link between the actions taken and the objective and purpose stated. Similarly, it is the political element that must be predominant. In regards to a serious non-criminal crime, the RC stipulates that it must have been committed outside of the country of refugee, which usually implies that it has been committed in the applicants country of origin. If the crime is committed within the territory of the country of refuge, the applicant is subject to due process and the laws of that country.

Admittedly, it is difficult to define crime in a manner that would be acceptable to all peoples from different cultures and societies. The UNHCR has sought to define it in a broad enough manner so as to accommodate cultural variations of the term, while at the same maintain a narrow enough definition so that the clause remains exceptional. The crime must be a capital crime or a a very grave punishable act.

A political crime may, in addition, only be considered as such, if the crime committed is in proportion to the stated objective and purpose. When acts are of a particularly horrific nature, the proportionality will be incredibly difficult to prove.

Likewise, decision-makers in the country of refuge are obliged to strike a balance between the nature of the presumed offence and the degree of persecution feared by the applicant. If an applicant has a well-founded fear of persecution, than the crime committed must be grave in order to exlude her. Moreover, if it is determined that she has a well-founded fear of persecution, the principle of non-refoulement prohibits the country of refuge from returning her to her country of origin, despite the fact that she is subject to exclusion.

The nature of the alleged offence must be carefully examined in order to discern whether the applicant is a fugitive from justice or on the contrary, whether her criminal character is outweighed by her status as a bona fide refugee.

"Acts Contrary to the Purposes and Principles of the United Nations." Article 1F(c ) of the RC excludes from consideration those individuals convicted of acts contrary to the purposes and principles of the United Nations. The purpose of the UN is enshrined in the preamble of the UN Charter and includes the affirmation of faith in fundamental human rights and human dignity. Member states are to save succeeding generations from the scourge of war, to establish and maintain the conditions for justice, to respect IL and obligations rising from therein, and to promote social progress. Acts that violate such purposes and principles are the very acts already listed in paragraphs (a) and (b) of Article 1F of the RC. Individuals who commit war crimes, crimes against humanity or serious non-political crimes are clearly individuals who have committed acts contrary to the purposes and principles of the UN. It is states that are responsible for the obligations enshrined in the preamble of the UN Charter. As such, acts contrary to such purposes are acts that are committed by state authorities. Such an interpretation is confirmed by UNHCR in their Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees. This clause is aimed at those individuals who previously had been in positions of authority and were involved in committed persecutory acts, and who then became themselves refugees.

Penalties (Article 31 of the Refugee Convention)

The particular situation of refugees is such that they may be obliged to enter a country illegally. They are escaping actual or potential persecution and consequently are not always able to secure the visas, identity papers, etc. that are necessary to enter a country of asylum legally. This is recognized by the UNHCR and also by all of those states who are party to the RC. Article 31 states that:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

Article 31 specifically mentions only refugees. However, UNHCR has reports that refugees recognized by their Office as mandate refugees are not recognized as such by the country of asylum and are subsequently detained on the basis of illegal presence. In addition to refugees, this provision must be interpreted to include asylum-seekers so as to avoid emptying the clause of any meaning. Furthermore, refugee status is of declaratory nature.

"Penalties." Penalties are not defined in Article 31(1). However, according to the Vienna Convention on the Law of Treaties a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Consequently, the object and purpose of Article 31(1) is the prohibition of penalties imposed upon refugees for illegal entry. The implication then is that the term penalties be interpreted in a broad manner so as prohibit both penal and administrative penalties.

Illegal Entry or Illegal Entrance. The penalties prohibited are those imposed as a result of illegal entry or illegal entrance. According to Goodwin-Gill, illegal entry involves the use of false or falsified documents, the use of methods of deception, and clandestine entry, such as entrance as by smugglers, traffickers, or as a stowaway. That a refugee must have good cause for illegal entry refers to the element of well-founded fear. Given that she fled with such a fear in mind, it is only logical that she may not have had the opportunity to gather the documents necessary to legalize her entry. Illegal presence, on the other hand implies that the applicant arrived lawfully but remained illegally, for example after the elapse of permitted time.

"Directly." That the refugee must arrive directly ought to be interpreted according to the specifics of each case. Due to various risks during the journey, a refugee may have had to stop in other countries along the way. Similarly, that the refugee must present herself without delay to the relevant authorities is also a term that can only be defined with reference to the facts and circumstances of the particular case. The putative state of asylum must consider the extent to which the refugee had access to advice in the state in which they previously were and whether or not that state was a transit country.

Detention. Despite the fact that penalization of refugees and asylum-seekers is prohibited under IRL and that detention clearly qualifies as a penalization, states have increasingly resorted to such a practice. Asylum-seekers may be detained either during the pre-admission state or held in an anticipation of transport to a safe third country, as stipulated in the EU Dublin Convention for example. If a government is concerned that the applicant constitutes a threat to national security or public order, pursuant to Article 32(1) RC, the applicant may also be detained. Many states consider detention as a legitimate response to actual or perceived abuse of the immigration system or perceived threats to national security. This practice has been consistently criticized by the UNHCR and the Executive Committee:

The Executive Committee deplores that many countries continue routinely to detain asylum-seekers (including minors) on an arbitrary basis, for unduly prolonged periods, and without giving them adequate access to UNHCR and to fair procedures for timely review of their detention status; notes that such detention practices are inconsistent with established human rights standards and urges States to explore more actively all feasible alternatives to detention.

Arbitrariness. The Executive Committees comments emphasize the notion of arbitrariness and inconsistencies with established human rights standards. Arbitrary detention violates the universal human right to liberty and security of person. Article 9(1) of the ICCPR specifies that: no one shall be subject to arbitrary arrest and detention. Arbitrariness is described in the ICCPR Article 9 as a detention that it not established by law, of which the detainee is not informed of the reasons for his or her arrest, during which the detainee is not brought promptly before a judge and during which he is not brought to trial or released within a reasonable time. Similarly, UNHCR specifies that in regards to the detention of asylum-seekers, detention may be arbitrary if it is not in accordance with the law, if it is not proportional or if it is for an indefinite period of time. While some states have established a maximum amount of time for detention, after which the applicant must be released if no decision has been made regarding her admission or removal, other countries have established no such limit. Examples of the latter include Denmark, Finland, the Netherlands, and the United Kingdom. In addition, detention must be subject to judicial or administrative review.

Justifiable detention. It is important to note that Article 31(2) does establish limited bases for justifying the detention of asylum-seekers and refugees. The clause can only be interpreted, however, to imply detention of an administrative nature. According to the UN Standard Minimal Rules for the Treatment of Prisoners, administrative prisoners ought to be kept separate from criminal detainees. Nevertheless, states frequently do not comply with this regulation, resulting in the detention of asylum-seekers together with common criminals. That detention has become common practice means that states often do not have the institutional capacity to house the detainees. Consequently, regular prisons are regularly used.

In addition to being in accordance with the UN standards, detention conditions must also be in accordance with those standards established in IHRL. Article 9(1)(4) ICCPR refer to the right to liberty and security of person. Sub-paragraph (1) establishes the negative obligation upon states not to arbitrarily arrest or detain someone. Positive obligations are also imposed, to the extent that the state must establish a functioning legal system so that they are in accordance with their obligations under sub-paragraph 4. Moreover, the HRC confirmed that the obligation to treat detained individuals with respect and dignity and to create the modalities and conditions of detention so as to ensure such respect is not dependent upon the material resources of a particular state. Similarly, the HRC affirms that Article 9(4) ICCPR must be read together with Article 2(3) ICCPR, the right to an effective remedy.

Justifiable bases as enumerated in the Executive Committees 1986 Conclusion on Detention of Refugees and Asylum-Seekers include: to verify identity; to determine the elements of the claim; to deal with cases where refugees have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order. In order for a state to justify detention, the reasons why must be clearly established in national law, which in turn must be in accordance with international human rights law and IRL. Importantly, there should be a legislative presumption against detention. In other words, detention ought to be a practice of last resort. (Goodwin-Gill 2003)

Executive Committee, UNHCR. Detention of Asylum-Seekers and Refugees: The Framework, the Problem and Recommended Practice. EC/49/SC/CRP.13.
Last updated Aug 17, 2011