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Issue No: 191
May 28, 2005

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Who is a refugee under international law?

Hassan Faruk Al Imran

The Second World War not only killed millions people but also made homeless millions people. At that time basic human rights (e.g., right to live, enjoyment of properly, right to seek asylum) were recognised by the United Nation Charter (1945) and the United Nations Declaration on Human Rights (1948) but, nevertheless, the world community realised that theses international instruments were not enough for the protection of the refugees. As a result in the 1951 Refugee Convention was adopted.

Convention refugee definition
Today, the international law on refugees consists of the Statute of the office of the United Nations High Commissioner for Refugees (UNHCR). The Convention relating to the Status of Refugees (Convention), and the Protocol Relating to the Status of Refugees (Protocol).

The Refugee Convention defines 'refugee' as a person with well-founded fear of persecution due to his or her race, religion, nationality, political opinion or membership of a particular social group (Article 1A(2)). At the time these treaties were ratified, international concern was on educated Europeans left homeless after the Second World War as well as those fleeing communism, but the 1967 Protocol made the Convention applicable regardless of place and time.

Hathaway, a well known refugee law scholar, identified six essential elements of the refugee convention definition: 1) alienage; 2) genuine risk; 3) serious harm; 4) failure of States protection; 5) ground for the persecution; 6) needs and deserves protection. However, the core obligation of the convention is 'non-refoulement', i.e. not sending someone in to a situation of persecution ( Article 33(1) of the 1951Refugee Convention).

Photo: muslimwakeup.com

More than two- thirds of the world's states are parties to this treaty, and it is to be said that the remaining states are also legally bound to respect the refugee definition as constituting customary international law. However, it says nothing about the procedures for determining refugee status, and leaves to the states the choice of means as to implementation at the national level. Later, in 1979, a Handbook was issued by UNHCR, which mentions the procedure and criteria for determining refugee status.

Five convention grounds of refugee status
Protection is at the heart of responsibility that the international community bears towards refugees. Protection' here implies both 'internal protection', in the sense of effective guaranties in matters such as life, liberty, and security of the person; and 'external protection', in the sense of diplomatic protection, including documentation of nationals aboard and recognition of the right of nationals to return. The 'right to return', in particular, is accepted as a normal incident of nationality. In order to grant protection individuals have to show that they have a 'well founded of persecution' under one of the five convention grounds, all of which have been correspondingly developed in the field of non-discrimination. The five convention grounds are - race, religion, nationality, political opinion and member of a particular social group.

1. Race
UNCHR Handbook provides, "race …has to be understood its widest sense to include all kinds of ethnic groups that are referred to as "races" in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority with a larger population. Discrimination for reasons of race has found worldwide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution" (paragraph 68).

2. Religion
UNHCR Handbook provides "Persecution for 'reason of religion' may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practice their religion or belong to a particular religious community" (paragraph 72).

Moreover, Article 18 of the 1966 Covenant on Civil and Political Rights, elaborating upon Article 18 of the Universal Declaration of Human Rights (1948), prescribes that every one shall have the right to freedom of thought, conscience and religion, which shall include the freedom to have or to adopt a religion or believe of choice and the freedom to manifest such religion or belief.

3. Nationality
Nationality in Article 1A(2) of the 1951 Convention, usually interpreted broadly, to include origins and the membership of particular ethnic, religious, cultural, and linguistic communities. The UNHCR Handbook notes, the term 'nationality' is not to be understood only as 'citizenship'. It also refers to membership of an ethnic or linguistic group and may occasionally overlap with the term 'race'. Persecution for reasons of nationality may consist of adverse attitudes and measures directed against a national (ethnic, linguistic) minority and in certain circumstances the fact of belonging to such a minority may in itself give rise to a well founded fear of persecution (paragraph 74).

4. Political Opinion
The 1951 Refugee Convention also adduces fear of persecution for reasons of 'political opinion'. 'Political opinion' actual or imputed is probably the least disputed of all the grounds included the convention definition, not list because it implies some direct relationship to the state.

The UNHCR Handbook outlines what constitutes 'political opinion' as a ground for persecution: Holding political opinions different from those of the Government is not in itself a ground for claiming for refugee status, and an applicant must show he has a fear of persecution for holding such opinions. This presupposes that the applicant holds opinions not tolerated by authorities, which are critical of their policies or methods. It also presupposes that such opinions have come to the notice of the authorities or are attributed by them to the applicant (paragraph 80). Persecution for reasons of political opinion implies, therefore, that an applicant holds an opinion that either has been expressed or has come to the attention of the authorities.

5. Membership of a particular social group
Under the refugee definition 'membership of a particular social group' is the fifth ground of refugee status. The UNHCR Handbook includes a definition of 'social group' which is notable for its breadth and simplicity; "a particular social group normally comprises person of similar background, habits or social status." (paragraph 77). Whilst noting that mere 'membership of a particular social group' will not normally be enough to substantiate a claim of refugee status, the UNHCR Handbook thus accepts that "there may, however, be special circumstances where mere membership can be sufficient ground to fear persecution." (paragraph79). Recently, in a land-mark decision in Shah and Islam the UK court gave more specific definition of 'membership of a particular social group.' The UK court held that Pakistani women, against whom false adulty allegation was given, are member of a particular social group as they were unprotected and discriminated by the State.

The Refugee claimant must apprehend a form of harm which can be characterised as 'persecution'. As it is noted in the UNHCR Handbook, the phrase a 'well founded fear of persecution is central to the definition of a refugee and is said to exist if the applicant can establish, to a reasonable degree that his continued stay in his country of origin has become intolerable. This fear may be based on personal experience, or on the experience of persons similarly situated (paragraph 42 & 43).

Surprisingly, persecution is not defined in the 1951 Convention or any other international instrument. The UNHCR recognised that there is no universally accepted definition of persecution, but from Article 33 of the Convention it may be inferred that 'a threat to life or freedom' or one of the five enumerated grounds is always persecution. The Handbook further acknowledges: "Other serious violations of human rights for the same reason would also constitute persecution." (paragraph 51).

Is the 1951 refugee definition deficient?
The 1951 Convention relating to the Status of Refugees has already celebrated its fiftieth anniversary. With just one 'amending' and updating Protocol adopted in 1967 it continues as the central feature in today's international regime of refugee protection. However, the 1951 Convention is often said to be a relic of a bygone era. Signs of decrepitude are identified in its failing focus it's inability to accommodate the 'new' refugees from ethnic violence and gender based persecution; in its deafness to national, regional and international security concerns; in its inflexibility when faced with the changing nature of flight and movement.

Hathaway identified various well known problems of interpretation from the refugee definition; e.g. the question of whether the 'well foundedness' of an individual's fear of persecution is to be determined on the basis of subjective and /or objective criteria; to what extent persecution is directed against some members of a group justifies other members fears of being persecuted themselves; and how these grounds for persecution are to be interpreted.

Moreover, the feminists view was critical; they pointed out that the Refugee Convention does not cover gender persecution. Women are neglected by the Convention, and their experiences are not reflected in the Convention as it was written by the male's point of view. The feminist argued that women's persecution is different from man and it is not reflected in the refugee definition because a woman may be persecuted as a woman (e.g. rape, female genital mutilation) for the reasons of gender. As a result the question begged is whether the Convention responsive the gender persecution, or whether a specific definition is needed for the women refugees. Furthermore, the refugee definition does not include 'economic migrant' or 'natural disaster'.

Later, in 1991, The United Nations High Commissioner for Refugee issued Guidelines for women asylum claimants rather than changing the existing refugee Convention. This proves that the refugee Convention is a 'living instrument' which also covers the women refugee claimant under the category of 'membership of social particular group.' Other countries (e.g. Canada, Australia, US, UK) also issued their own Guidelines. These Guidelines provide a framework for analysing and interpreting the claims of women asylum seekers as well as guidance for interviewing women applicants and assessing the evidence they present. Two broad categories of gender- related claims are identified: those where the persecution constitutes a type of harm that is particular to applicant's gender, such as, rape or female genital mutilation, and those where the persecution may be imposed because of the applicant's gender, for example, because of the women's violation of societal norms. Moreover, in practice, jurisprudence of different countries has been developed, which ensures that gender-persecution is a ground for refugee status.

Finally, after the Second World War world community established the UN, declared the Universal Declaration of Human Rights; later adopted the 1951 Refugee Convention, the 1967 Protocol, the 1979 Refugee Handbook, and the 1991 UNHCR Gender Guidelines. Moreover, some countries already adopted own national Guidelines for woman refugees. All these had been done for better protection of life, to ensure human rights. However, under the 1951 Refugee Convention, still natural disaster and economic migrants are not subject of refugee status. Moreover, at present, many countries, e.g. UK, US, are imposing lots of restriction on refugee status by the name of state security and terrorism. Therefore, we are waiting for the future when all 'genuine' refugee claims will get justice.

The author is a Barrister.


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