1.  Treaty Definitions

2  The fundamental legal instrument for the protection of refugees is the 1951 Convention relating to the Status of Refugees (‘Refugee Convention’), modified by the 1967 Protocol relating to the Status of Refugees (‘Refugee Protocol’). Both the Refugee Convention and the Refugee Protocol are in force for 144 States, with a slight difference of States Parties as of March 2010. There are further legally binding international provisions relating to the situation of refugees or their status, eg Art. 44 Geneva Convention relative to the Protection of Civilian Persons in Time of War (‘Geneva Convention IV’ [adopted 12 August 1949, entered into force 21 October 1950] 75 UNTS 287; Geneva Conventions I–IV [1949]), which deal with refugees and displaced persons, and Art. 73 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts ([adopted 8 June 1977, entered into force 7 December 1978] 1125 UNTS 3; Geneva Conventions Additional Protocol I [1977]), which stipulates that refugees and stateless persons shall be protected persons under parts I and III Geneva Convention IV.

3  Art. 1 (1) Convention relating to the Status of Stateless Persons ([adopted 28 September 1954, entered into force 6 June 1960] 360 UNTS 117) defines the term ‘stateless person’ as a person who is not considered a national by any State under the operation of its law (Nationality). It further prescribes the standards of treatment to be accorded to stateless persons. The Agreement relating to Refugee Seamen of 23 November 1957 grants specific protection to a special group of refugees. The non-binding Declaration on Territorial Asylum, United Nations General Assembly (‘UNGA’) Resolution 2312 (XXII) of 14 December 1967, lays down a series of fundamental principles in regard to territorial asylum (Asylum, Territorial) stating that the granting of territorial asylum ‘is a peaceful and humanitarian act and that, as such, it cannot be regarded as unfriendly by any other State’ (at para. 4).

6  Within the Organization of American States (OAS), two legal instruments of 28 March 1954 relate to refugees: the Convention on Diplomatic Asylum (Asylum, Diplomatic) and the Convention on Territorial Asylum (so-called Caracas Convention). The notion of refugee used in these conventions is close to the notion used in the Refugee Convention. A broader notion of refugee is endorsed by the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (‘SARPA Convention’). Taking into account the definition of the Refugee Convention, Art. 1 (2) SARPA Convention defines a refugee as a ‘person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence’. Refugee protection is not centred on the reason for persecution but on the individual need of the refugee to be protected. This notion, however, does not correspond with an enlargement of the rights of the refugee.

7  Basic components of a general refugee definition may be identified in accordance with the Refugee Convention, providing for a minimum standard of treatment of refugees. For the purposes of international law, the crucial element of the definition is the identification of the relevant grounds of persecution in order to qualify a person as refugee and give rise to State obligations towards the person.

2.  Grounds and Criteria of Persecution

8  For the purposes of the Refugee Convention, a person is persecuted if life, freedom, or other substantial rights of the person are endangered or threatened by measures or a menacing situation which can be ascribed to a State or a State-like entity. Thus, persecution is a concept based on the possible or actual violation of substantial rights of the refugee. Persecution is mostly intentional, but the violation of the individual sphere of a refugee can also be caused by a situation without an intentional measure directed against the refugee. Persons can be persecuted as victims of armed conflicts, of violence motivated by ethnic conflicts (Ethnicity) or other political and social upheavals. The prerequisites and the scope of persecution are subject to discussion.

9  The definition of persecution in Art. 7 (2) lit. g Rome Statute of the International Criminal Court ([adopted 17 July 1998, entered into force 1 July 2002] 2187 UNTS 90) is limited to the intentional and severe deprivation of fundamental rights, since—for the purposes of the Rome Statute—persecution is part of the concept of crimes against humanity committed by individuals against other individuals. However, the question of individual guilt of a person is different from the question of responsibility of a State and the protection of the victims of persecution (Individual Criminal Responsibility; State Responsibility). The purpose of the Refugee Convention is the protection of refugees, implying a wider notion of persecution.

10  Originally, the concept of persecution referred to State persecution. Still, State authorities are responsible for many cases of persecution, causing individuals to flee their countries. However, non-State actors can also be held responsible, for example in civil wars or in a failing State situation (Failing States). As the Refugee Convention does not limit the concept of persecution, the well-founded fear of persecution can be a result of any danger to individual integrity and human dignity resulting in a lack of protection in the territory the refugee leaves to seek refuge elsewhere.

11  The list of the five grounds of persecution laid down in Art. 1 A (2) Refugee Convention limits the concept of persecution. Although the Refugee Convention creates a specific regime, other international instruments may be consulted in interpreting the terms (see Art. 31 Vienna Convention on the Law of Treaties [1969] 1155 UNTS 331). With regard to race, the definition of Art. 1 (1) International Convention on the Elimination of all Forms of Racial Discrimination ([opened for signature 7 March 1966, entered into force 4 January 1969] 660 UNTS 195) contributes to the determination of the notion in refugee law. Racial discrimination can be based on race, colour, descent, or national ethnic origin (Racial and Religious Discrimination). Persecution on grounds of religion has a long history. The violation of the freedom of religion as set forth by Art. 18 International Covenant on Civil and Political Rights (1966) (‘ICCPR’) constitutes a breach of international law (Religion or Belief, Freedom of, International Protection). Violations of Art. 18 ICCPR can lead to a qualification as refugee under the Refugee Convention. Nationality in Art. 1 A (2) Refugee Convention does not only refer to the situation that a State persecutes its own nationals, but can be interpreted as including origins and even the membership of particular ethnic, religious, cultural, and linguistic communities. This overlaps with the persecution on account of the membership of a particular social group. Cross-over effects occur with the international protection of minorities (Minorities, International Protection). With respect to the wide notion of social groups, this ground of persecution implies an extensive interpretation. The self-perception of a person as member of a social group may play an important role. Therefore, criteria for the membership of a social group may be sexual orientation or the linguistic or economic background. Part of the concept is the gender-related persecution of women (see also Women, Rights of, International Protection). Even if details may be of controversial character, the persecution due to the membership of a particular social group represents an evolving concept which enables States and international organizations to include recent social developments into refugee law. However, a possible restrictive State practice should be taken into account. With respect to persecution due to political opinion, the Refugee Convention can be understood as a safeguard for the right to freedom of opinion and expression (Opinion and Expression, Freedom of, International Protection). This right is laid down in Art. 19 Universal Declaration of Human Rights (1948) (‘UDHR’) and in Art. 19 ICCPR. As the expression of a political opinion is linked to political activity, members of the political opposition or a minority in their respective home States can refer to this reason of persecution.

12  There can be other grounds for persons to flee their home States than the grounds set forth in Art. 1 A (2) Refugee Convention. Persons may leave their home on grounds of war or famine, natural disasters, over-population, or mass expulsions of populations (Forced Population Transfer). Purely economic reasons do not entitle to refugee status (Migration). However, in combination of several reasons motivating a person to leave his home and to seek refuge, one of the relevant grounds of Art. 1 A (2) Refugee Convention may play an important role, eg in the combination of economic reasons and membership of a particular social group. Then, it is possible to qualify the person as a refugee under the Refugee Convention.

3.  Asylum Seekers and Refugees

13  The concept of refugee law includes the protection of asylum seekers. However, the scope of asylum in relation to refugee protection cannot be easily determined. Diplomatic asylum and territorial asylum are granted by a sovereign State to protect a foreign national against the exercise of jurisdiction by another State (see Asylum [Colombia/Peru] [1950] ICJ Rep 266 at 274–75). The asylum seeker needs protection because there is an individual fear of persecution. This concept of asylum is laid down in Art. 14 UDHR and in the 1967 Declaration on Territorial Asylum. However, not even these non-binding international instruments detail the reasons for granting asylum and the content of the protection of asylum seekers. In contrast, the Refugee Convention lists the relevant grounds of persecution and sets forth a regime of high complexity on the position of the refugee in the State of refuge.

14  Asylum implies a long-term stay; accordingly, in most cases, the admission to residence and asylum guarantees the asylees a set of rights. The prohibition of refoulement on the other hand is linked to the time of the existing risk of persecution and only encompasses a minimum standard of State obligations. An asylum seeker may be denied asylum, but the State may be obliged to grant protection under refugee law, for example as a de facto refugee. From the point of view of State sovereignty, asylum is a more intensive concept than the protection of refugees. This assumption is recognized in the preamble of the Refugee Convention. Therefore, States are reluctant to take over the obligations and to acknowledge the right to asylum as an individual right. The Refugee Convention provides for the criteria of refugee status and imposes concrete obligations on States Parties. However, the State obligations do not necessarily amount to a set of rights for refugees similar to asylum.

4.  Internally Displaced Persons

15  According to data given by the UNHCR most of the persons in the world fleeing their home are internally displaced persons, moving within the frontiers of a country. The International Organisation of Migration (‘IOM’, www.iom.int) has collected data and estimates that in 2007 there were about 26 million internally displaced persons in at least 52 countries as a result of conflict. They do not satisfy the criteria of Art. 1 A (2) Refugee Convention as they are not outside the country of their nationality. Internally displaced persons flee their home on similar grounds as refugees, but they stay in the territory of their home country and do not seek refuge in another State. The responsibility of the State for its nationals continues to exist, even if State authorities do not want, or are not able, to protect the person (Responsibility to Protect). In most cases, internally displaced persons fear for their lives and personal security in situations of natural disasters, of conflicts, or even civil wars. If the State is not able to protect its nationals within its frontiers, they need protection which can only be granted by other States and the international community (see also Humanitarian Intervention). There is no fundamental difference between internally displaced persons and international refugees regarding the humanitarian problems. Internally displaced persons need protection because their individual human rights are endangered. Insofar as internally displaced persons need protection in a refugee-like situation, they fall under the responsibility of the UNHCR. There are several programmes to help internationally displaced persons. In 2008, UNHCR ran programmes like the Iraq Situation Response (US$ 261.1 million), the China Earthquake Response (US$ 5 million), and especially internally displaced persons programmes in Africa, eg in the Democratic Republic of the Congo (US$ 30.5 million; Congo, Democratic Republic of the), Liberia (US$ 3.2 million), Somalia (US$ 26.1 million; Somalia, Conflict), Uganda (US$ 15.4 million), Chad (US$ 15.9 million), Zimbabwe (US$ 10 million ; Rhodesia/Zimbabwe), Côte d’Ivoire (US$ 1.1 million), Central African Republic (US$ 3 million), and Kenya (US$ 19.2 million).

5.  De Facto Refugees and Clandestines

16  De facto refugees are refugees, especially asylum seekers, whose applications are pending or were denied and who cannot be expelled due to humanitarian reasons (Aliens, Expulsion and Deportation). They have neither the formally recognized status of a refugee according to the Refugee Convention nor a status of asylum according to other international or national legal instruments. Although the notion ‘de facto refugees’ is not mentioned by the Refugee Convention, some provisions of the Refugee Convention apply to every refugee falling under a State’s jurisdiction or having entered its territory. However, they may be accorded a specific status or the State of refuge may generally legalize the stay of a group of de facto refugees fulfilling certain preconditions. Their legal and personal situation depends on the municipal law of the State of refuge. De facto refugees enjoy human rights, but human rights do not necessarily entail the right of residence or the right to work. The State of refuge decides on the conditions of their residence and on their equipment with rights.

17  The sans-papier or ‘clandestines’ are persons who have left their home State and live in another State without possessing a formal legal admission of the authorities. They enter the territory by breaching the entry regulations or they enter the territory legally, but overstay in breach of immigration regulations. Clandestines do not possess a legal status under national or international law except for human rights. They enjoy individual rights under the international instruments of human rights protection but in practice they do not claim these rights in court since they fear expulsion. The problems of irregular migration are part of the general discussion on migration. De facto refugees and clandestines may fall under the scope of international labour law (Labour Law, International), especially under the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ([adopted 18 December 1990, entered into force 1 July 2003] 2220 UNTS 3; Migrant Workers).

1.  Refugee Status

28  The recognition of refugee status by a State is of declaratory character, but it may often be necessary to assure an adequate protection of the refugee. States may grant the rights linked to the refugee status only if there was a formal determination of the status. Before the authorities of the State can take this decision, it has to be examined if the person satisfies the relevant criteria, especially if a ground of persecution provided for by Art. 1 A (2) Refugee Convention is given. During the procedure, the refugee is in most cases physically present in the State and enjoys procedural rights. The State of refuge is obliged to guarantee fairness and a minimum standard of substantial rights. Fair and effective procedures are an essential element in the full application of the Refugee Convention. The right to free access to the courts laid down in Art. 16 Refugee Convention can only be effectively exercised if the procedure for the determination of refugee status is fair. As the Refugee Convention does not explicitly provide for procedural rules, the content and realm of the procedural rights can not be easily identified and State practice is not coherent. In many countries, the UNHCR participates in the procedures or, at least, tries to influence the procedure of determination of refugee status.

2.  The Principle of Non-refoulement

3.  Rights of Refugee Status

35  Refugees lawfully staying in the territory enjoy non-discrimination in relation to the nationals of the State with respect to public relief and assistance (Art. 23 Refugee Convention) or relating to aspects of labour legislation and social security (Art. 24 Refugee Convention). This group of refugees also enjoys the most favourable treatment accorded to nationals of a foreign country concerning the right to association (Art. 15 Refugee Convention; Association, Freedom of, International Protection) and on behalf of wage-earning employment (Art. 17 Refugee Convention). Refugees lawfully staying in the territory enjoy a treatment as favourable as possible and, in any event, not less favourable than that generally accorded to aliens regarding the right to self-employment (Art. 18 Refugee Convention), the right to exercise liberal professions (Art. 19 Refugee Convention) or regarding housing (Art. 21 Refugee Convention; Housing, Right to, International Protection). Refugees having their habitual residence in the State possess a non-discriminatory position concerning artistic rights and intellectual property (Art. 14 Refugee Convention; Intellectual Property, International Protection). If they enter the territory of the State of protection and fall under the State’s effective jurisdiction, refugees are entitled to exercise their freedom of religion (Art. 4 Refugee Convention), the State shall issue them identity papers (Art. 27 Refugee Convention), and they shall not be expelled save on grounds of national security or public order (Art. 32 (1) Refugee Convention). A number of core rights apply to refugees with no further qualification. The State applies the provision of the Refugee Convention without discrimination as to race, religion, or country of origin (Art. 3 Refugee Convention) and it accords to a refugee exercising his property rights a treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances (Art. 13 Refugee Convention; Property, Right to, International Protection). Every refugee has free access to courts (Art. 16 Refugee Convention) and enjoys the same treatment as accorded to nationals with respect to elementary education (Art. 22 Refugee Convention). Finally, the duty of non-refoulement obliges States not to return refugees to a place where they risk being persecuted for a reason laid down in the Refugee Convention (Art. 33 Refugee Convention).

4.  Subsidiary Protection

36  Subsidiary protection is granted to persons who do not fulfil the criteria of Art. 1 A (2) Refugee Convention. It can guarantee the right not to be expelled. The relationship between subsidiary protection and refugee protection is not explicitly determined. Persons in a refugee-like situation and asylum seekers who fail to qualify as refugees under the Refugee Convention do nevertheless fall under the scope of international refugee law. As the Refugee Convention does not explicitly govern the granting of subsidiary protection, the safeguards and entitlements provided for by subsidiary protection widely depend on the interpretation of international law by States.

5.  Refugees and Human Rights

38  There are relevant provisions on refugees in human rights instruments. The Universal Declaration of Human Rights stipulates some habeas corpus rights which are applicable without discrimination (Art. 9 UDHR), the right to seek and to enjoy in other countries asylum from persecution (Art. 14 UDHR), the right to a nationality (Art. 15 UDHR), and the right to freedom of movement and residence within the borders of each State (Art. 13 UDHR; Movement, Freedom of, International Protection). The latter right is also provided for in Art. 12 ICCPR. The two Covenants are based on the non-discriminatory character of human rights. According to Art. 2 (1) ICCPR, each State Party must ensure the rights in the ICCPR to ‘all individuals within its territory and subject to its jurisdiction’. Referring to this provision, the Human Rights Committee has adopted General Comment No 15: The Positions of Aliens under the Covenant ([9 April 1986] GAOR 41st Session Supp 40, 117), in which it holds that the ICCPR does not recognize the right of aliens to enter or reside in the territory of a State Party. Yet it also states that in certain circumstances the ICCPR may afford protection to an alien ‘even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise’ (No 5 General Comment No 15).

39  The protection of children seeking refuge is guaranteed by Art. 22 Convention on the Rights of the Child (‘CROC’ [adopted 20 November 1989, entered into force 2 September 1990] 1577 UNTS 3). The duty of States to protect the family unity of refugees is in general affirmed by State practice, and the necessary opinio iuris can be derived from legal material. The obligation of States to protect the family is laid down in Art. 23 ICCPR and relating to family unification in Art. 10 CROC. The obligations of States do not necessarily result in an individual right of a family member.

40  The European Court of Human Rights (ECtHR) holds the view that States have the right to control the entry, residence, and expulsion of aliens (Vilvarajah v the United Kingdom [ECtHR] Series A No 215 at 34 para. 102). There is no right to political asylum in the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) or its Protocols. Nevertheless, the ECtHR holds that the rights safeguarded by the ECHR can provide for a legal position of aliens implying far-reaching State obligations towards refugees.

41  Within the scope of Art. 3 ECHR, the ECtHR has strengthened the protection of aliens from torture or inhuman or degrading treatment or punishment (eg Chahal v UK [ECtHR] Reports 1996-V 1831 at 21 para. 74); see also Human Dignity, International Protection). It is well established in the case-law of the ECtHR that expulsion or any other kind of removal by a State Party may engage the responsibility of that State. If substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Art. 3 ECHR in the receiving country, Art. 3 ECHR implies the obligation not to expel the person in question to that country (see Soering Case [ECtHR] Series A No 161 at 35 paras 90–91; Cruz Varas v Sweden [ECtHR] Series A No 201 at 28 paras 69–70). In favour of third-country nationals, the right to family life guaranteed in Art. 8 ECHR can—on exceptional conditions—encompass the right to remain in a country (Dalia v France [ECtHR] Reports 1998-I 76 at 91 para. 52; Boultif v Switzerland [ECtHR] Reports 2001-IX 119 at 130 para. 46). For specific situations, the ECtHR holds that the right to family life provides for the right to legalize the stay by granting a formal residence permit or a similar document (Sisojeva v Latvia [ECtHR] App 60654/00 paras 104–107; in this case, the Grand Chamber struck the application in its judgment of 15 January 2007; in Rodrigues da Silva v Netherlands [ECtHR] Reports 2006-I 223, the Grand Chamber rejected the application on 3 July 2006).

42  Interpreting the law of the European Union, the European Court of Justice ruled in its judgment of 27 June 2006 (C–540/03 European Parliament v Council of the European Union [2006] ECR I-05769) on some aspects of Council Directive 2003/86/EC on the Right to Family Reunification but also stressed in its judgment the human rights dimension and the State obligations in international law, especially stemming from the CROC.

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Select Documents

• Agreement relating to Refugee Seamen (signed 23 November 1957, entered into force 27 December 1961) 506 UNTS 125.
• Arrangement relating to the Legal Status of Russian and Armenian Refugees (signed 30 June 1928, entered into force 5 March 1929) 89 LNTS 53.
• Cartagena Declaration on Refugees Refugees (adopted 22 November 1984) OEA/Ser.L/V/II.66/doc.10 Rev (1984) 190.
• COE Committee of Ministers ‘Recommendation to Member States on the Harmonisation of National Procedures relating to Asylum’ (5 November 1981) CM/Rec (1981) 16.
• COE Committee of Ministers ‘Recommendation to Member States on the Protection of Persons Satisfying the Criteria in the Geneva Convention Who Are Not Formally Recognised as Refugees’ (25 January 1984) CM/Rec (1984) 1.
• COE Committee of Ministers ‘Resolution on Asylum to Persons in Danger of Persecution’ (29 June 1967) CM/Res (64) 14E.
• COE European Agreement for the Abolition of Visas for Refugees (signed 20 April 1959, entered into force 3 September 1960) 376 UNTS 85.
• COE European Agreement on Transfer of Responsibility for Refugees (signed 16 October 1980, entered into force 1 December 1980) 1249 UNTS 383.
• Convention concerning the Status of Refugees Coming from Germany (signed 10 February 1938, entered into force 26 October 1938) 192 LNTS 59.
• Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45.
• Convention on Diplomatic Asylum (concluded 28 March 1954, entered into force 29 December 1954) 1438 UNTS 104.
• Convention on Territorial Asylum (concluded 28 March 1954, entered into force 29 December 1954) 1438 UNTS 129.
• Convention relating to the Status of Refugees (signed 28 July 1951, entered into force 22 April 1954) 189 UNTS 150.
• Convention relating to the International Status of Refugees (signed 28 October 1933, entered into force 13 June 1935) 159 LNTS 199.
• Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts between Member States in Receiving such Persons and Bearing the Consequences Thereof [2001] OJ L212/12.
• Council Directive 2003/9/EC of 27 January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers [2003] OJ L31/18.
• Council Directive 2003/86/EC of 22 September 2003 on the Right to Family Reunification [2003] OJ L251/12.
• Council Directive 2004/83/EC of 29 April 2004 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 [2004] OJ L304/12.
• Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status [2005] OJ L326/13.
• Council of the European Union ‘Council and Commission Action Plan Implementing the Hague Programme on Strengthening Freedom, Security and Justice in the European Union’ [2005] OJ C198/1.
• Council Regulation (EC) 343/2003 of 18 February 2003 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in One of the Member States by a Third-country National [2003] OJ L50/1.
• Council Regulation (EC) 2725/2000 of 11 December 2000 concerning the Establishment of ‘Eurodac’ for the Comparison of Fingerprints for the Effective Application of the Dublin Convention [2000] OJ L316/1.
• Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-country Nationals [2008] OJ L348/98.
• European Council ‘The Hague Programme: Strengthening Freedom, Security and Justice in the European Union’ (4-5 November 2004).
• Protocol relating to Refugee Seamen (signed 12 June 1973, entered into force 30 March 1975) 965 UNTS 445.
• Protocol relating to the Status of Refugees (signed 31 January 1967, entered into force 4 October 1967) 606 UNTS 267.
• UNGA Res 2312 (XXII) ‘Declaration on Territorial Asylum’ (14 December 1967) GAOR 22nd Session Supp 16 vol 1, 81.
• UNHCR ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees’ (1 January 1992) UN Doc HCR/IP/4/Eng/REV 1.