In order to recognize the right of people to seek asylum from persecution in another country, the 1951 Convention Relating to the Status of Refugees was introduced in order to determine refugee rights, state responsibility and refugee protection. The Convention was lauded for establishing a system for refugee protection, however, experts have divided opinions with its continuous use in the 21st century. There are experts stressing the need to repeal the Convention due to its outdated, inconsistent and limited nature. Other experts argued that the Convention should be retained due to the possibility of revitalizing the reform and the concessions that some of its policies are still used today. This literature review will expound on the arguments for the repealing or retention of the 1951 Convention.
Retaining the 1951 Convention
Three arguments are currently raised by supporters of the 1951 Convention with regards to its retention. First, the 1951 Convention is still used today as a legal basis for accepting refugees and asylum seekers and complimented by new laws. Countries such as Germany and France, according to Catherine Phuong (2003), uses the definition of refugees written in the 1951 Convention when granting asylum and refuge to applicants as seen in the 1998 Immigration and Asylum Act of France and Germany’s Dublin Convention . In terms of complimenting new laws, governments see the 1951 Convention as a basic framework to develop their own policies that is often times compatible with the Convention as argued by Claire Reid (2005). In her book for the Oxford Refugee Studies Center, new Conventions such as the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa was created to complement rather than replace the overall 1951 Convention as seen in its Preamble . The International Think Tank Chatham House (2005) quoted renowned Refugee Law expert Guy Goodwin-Gill as he noted that despite all the criticisms posed to the 1951 Convention, states still acknowledge its relevance and resilience even after 50 years of its adoption .
Removing the 1951 Convention would also make it difficult for these new laws to function as many of the new conventions or laws have based their policies from the Convention. In the first place, UNHCR Director Erika Feller (2001) argued that the 1951 Convention cannot be held accountable for its flaws and failures given the fact it was not meant as a response mechanism or a permanent settlement. Nonetheless, if it is removed because of its lapses, the possibility of making a similar policy with the same value may become difficult . Tom Clark of the Inter-Church Committee for Refugees – Canada and Francois Crepeau of the University of Montreal (1999) also raised the same argument cited by Feller, arguing that it is difficult to interpret, monitor or apply new human rights and refugee policies without the 1951 Convention .
Finally, the Convention can still be refurbished to fit the current refugee situation. The article written by James Hathaway for the University of Michigan (2007) argued that reinvigorating international refugee laws such as the 1951 Convention is not difficult primarily because these laws are reconcilable with state interest and responsibility. With the proper decorum and understanding of refugee protection, it is easy to get states to agree in reforming refugee law and set limits. The article also argued that governments must move away from state-by-state implementation of refugee law and move towards a ‘common but differentiated responsibility’ to solve the issue . In her article, Lauren Michelle Ramos from the Vanderbilt University Law School (2011) argued that the vagueness of some parts of the Convention was intentional to permit further reforms to be done to the Convention .
Repealing the 1951 Convention
On the other hand, repealing the 1951 Convention is seen by experts as a necessity given several premises. First, the 1951 Convention is outdated given the extent in which the Convention was created and the changing in refugee movements since it was introduced. For the attendees of the International Law Programme Discussion Group of Chatham House (2005), the Convention was originally intended for Europe throughout the Cold War as a single solution for European asylum seekers in the period. Most of its provisions, especially Articles 2 to 34, were also euro-centric. Its provisions were concentrated on social and welfare rights, education and access to liberal professions . Critics today, as cited by Qadar Bakhsh Baloch (2006), argued that while the Convention worked perfectly until the end of the Cold War, its drafters did not consider the migratory movements around the globe. According to the article, the United Nations estimated that at least 125 million people throughout the globe are outside their homelands seeking better protection and safety .
The definition of the 1951 Convention is also heavily criticized considering its perception on refugees. Eugene Quinn (2011) stated that the Convention identifies refugees as ‘a person who is unable or unwilling to return to his or her country of nationality, owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group or political opinion.’ While the definition was correct in the 1950s, this definition is still narrow given the other probably causes for a person’s fear of his homeland. Issues such as environmental conditions, poverty, mass livelihood collapse, state failure and even economic conditions fall outside the current definition of refugees stipulated in the 1951 Convention . In his article, Pierre-Michel Fontaine (1996) added that the 1951 Convention’s definition of refugees does not include internally displaced persons who were forced to leave their homes. Fontaine also highlighted in his article that the provisions of the Refugee Convention is very limited when it comes to determining refugee right. While the Convention allows refugees access to primary education, it does not provide provisions when it comes to accessing secondary and tertiary education. Observers, as noted by Fontaine, believe that the right to education – from primary, secondary to tertiary level – should not be restricted to refugees. The Convention also fails in highlighting the rights of vulnerable groups such as women, children and war refugees .
For the governments, the provisions set by the 1951 Convention – as cited by the analysis of IRIN News (2012) – are very broad in nature. Governments argue that the broad definition disables them from determining whether refugees should be permitted to see refuge or sent for deportation. Some even complain that people are applying for asylum to escape immigration controls given these refugee’s intentions . Additional criticisms such as the consequences of the Convention on receiving countries and its clauses on refugee returns were also raised. Adrienne Millbank (2000) for the Social Policy Group stated that the Convention’s non-refoulement obligation clause does not take into consideration the potential impacts of the policy to the receiving country. Refugee settlement alone is very expensive given the resources that must be available for these refugees and the extent of the humanitarian program. Each refugee also differs in needs and assistance, which makes it difficult for governments to set a base price for their aid. In a political extent, the Convention does not take into consideration the state’s system and the political environment of the receiving state .
Finally, there are newer laws that can replace the 1951 Convention and even establish specific Conventions depending on the refugee class. Professor Geoff Gilbert (2004) stated that the European Union was able to create a harmonized set of policies for refugee protection that is efficient and encompassing that can compete with the 1951 Convention. From the Treaty of Amsterdam in 1997, the EU was able to establish asylum and immigration policies that would encompass refugee control and review, burden-sharing between the members of the European Union, favorable reception and refugee conditions, and the protections of refugee rights . Some experts, such as Harvard Law lecturers Bonnie Docherty and Tyler Giannini (2009), indicated that it would be prudent to create a separate convention based on the refugee class. In their article, the authors proposed a separate convention for Climate Change or environmental refugees which the 1951 Refugee Convention does not include in its protection. Having a separate Convention would be prudent considering the extent of the issue of climate change and the lack of framework to sustain the migration movements affected by these environmental problems. The authors also argued that creating a separate convention for environmental refugees should be done because of the limitations the 1951 Convention has towards climate change. Authors also cited that having a separate convention would put responsibilities even in the host state and not just in the receiving state .
The arguments raised in this literature review highlights the complex nature of refugee protection in the 21st century as seen in the issues surrounding the 1951 Convention. On the one hand, retaining the 1951 Convention should be considered primarily because it is still considered a valid guideline for refugee protection and policy creation that can be improved through reform. Removing the Convention outright would only create questions with regards to the validity of refugee laws and decisions due to the lack of legal basis. On the other hand; however, the Convention must be repealed not only because it is currently outdated but it is also inconsistent on its principles for refugee determination, protection and state responsibilities. If it is left active and even unchanged, it may cause complexities for refugee protection in the long run. Given these raised arguments, this researcher believes that while the 1951 Convention no longer fits the current context and must be repealed in order to create policies that would be flexible enough keep up with the changing nature of refugee movements around the world.
Baloch, B. Q., 2006. International refugee system in crisis. The Dialogue: A Quarterly Research Journal, 1(1), pp. 118-141.
Chatham House, 2005. The Refugees Convention: why not scrap it?. [Online] Available at: https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/ilp201005.pdf[Accessed 13 November 2014].
Clark, T. & Crepeau, F., 1999. Mainstreaming Refugee Rights. The 1951 Refugee Convention and International Human Rights Law. Netherlands Quarterly of Human Rights, 17(4), pp. 389-410.
Docherty, B. & Giannini, T., 2009. Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees. Harvard Environmental Law Review, Volume 33, pp. 349-403.
Feller, E., 2001. International refugee protection 50 years on: The protection challenges of the past, present and future. IRRC Editorial, 83(843), pp. 581-606.
Fontaine, P.-M., 1996. The relevance of the 1951 Geneva Convention Relating to the Status of Refugees. Australian International Law Journal, Volume 6, pp. 69-79.
Gilbert, G., 2004. Is Europe Living Up to Its Obligations to Refugees?. European Journal of International Law, Volume 15, pp. 963-987.
Hathaway, J., 2007. Why Refugee Law Still Matters. Melbourne Journal of International Law, 8(1), pp. 89-103.
IRIN News, 2012. Analysis: Has the Refugee Convention outlived its usefulness?. [Online] Available at: http://www.irinnews.org/report/95144/analysis-has-the-refugee-convention-outlived-its-usefulness[Accessed 14 November 2014].
Millbank, A., 2000. The Problem with the 1951 Refugee Convention. [Online] Available at: http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0001/01RP05#problems[Accessed 14 November 2014].
Phuong, C., 2003. Persecution by Non-state Agents: Comparative Judicial Interpretations of the 1951 Refugee Convention. European Journal of Migration and Law, Volume 4, pp. 521-532.
Quinn, E., 2011. The Refugee Convention Sixty Years On: Relevant or Redundant?. Working Notes, Issue 68, pp. 19-25.
Ramos, L. M., 2011. A New Standard for Evaluating Claims of Economic Persecution Under the 1951 Convention Relating to the Status of Refugees. Vanderbilt Journal of Transnational Law, 44(499), pp. 500-524.
Reid, C., 2005. International Law and Legal Instruments. Oxford: University of Oxford Refugee Studies Centre.