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Who is a Refugee? The Convention Definition: Universal or Obsolete?
Transcript of Who is a Refugee? The Convention Definition: Universal or Obsolete?
Jerzy Sztucki Universal or Obsolete? Article 1 of Convention (1951)/Protocol of 1967:
any person who is outside their country of origin and unable or unwilling to return there or to avail themselves of its protection, on account of a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group, or political opinion. Stateless persons may also be refugees in this sense, where country of origin (citizenship) is understood as “country of former habitual residence” Limitations: ‘well-founded fear’ ;
‘membership of a particular social group’ might have different interpretations and are fairly vague.
Another question not reflected in the Convention definition is that of the status of family members. Changes at the regional level... The OAU (Organization of African Unity) Convention adds in its article: The term ‘refugee’ shall also apply to every 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 in order to seek refuge in another place outside his country of origin and nationality. Actual changes in the Convention Definition... Non-war born migration... Some migration takes place with the purpose of seeking economic betterment rather than protection. - Cold War Product;
-Obsolete In the later period of the 20th and the beginning of the 21st century refugee flows spread along more non-European countries conditioned by the collapse of USSR, by Iranian Revolution, Afghan events and others. The Convention definition was too flexible and general! More states signed the 1967 Protocol, but the contents of the Convention Definition has remained the same. Similarly, in the context of central America the 1984 Cartagena Declaration on Refugees proclaims that ‘it is necessary to consider enlarging of the concept of a refugee’ and ‘the convention should include among refugee persons those who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order’. The Note on International Protection, 1995:
Persons fleeing or remaining outside a country for reasons pertinent to refugee status qualify as Convention refugees, regardless of whether those grounds have arisen during conflict.
The UNHCR training manual declares:
“The international refugee law, like humanitarian law, is in fact a branch of human rights law.” In the 1994 Note on International Protection, a switch was made from the ‘well-founded fear for persecution’ on certain grounds, to the ‘need for international protection as a defining concept’, for it is this vital need for international protection that most clearly distinguishes refugees from other aliens’. In 1993 the UN Refugee Convention Conclusion No. 73 ‘supported the recognition as refugees of persons whose claim to refugee status is based upon a well-founded fear of persecution, through sexual violence, for reasons of race, religion, nationality, membership of a particular social group or political opinion’. UNHCR provides that the term ‘refugee’ comprises:
(i) those recognized as such by states parties to the Convention and/or the Protocol; (ii) those recognized as such under the OAU Convention and the Cartagena Declaration; (iii) those recognized by UNHCR as ‘mandate refugees’; (iv) those granted residence on Humanitarian grounds; and (v) those granted temporary protection on a group basis. Since 1970s European countries introduced formal screening procedures, and with this there emerged a new notion, that of ‘asylum seekers’, that somehow blurred the notion of ‘refugee’.
As the outcome of this screening process, ‘asylum seekers’ are not formally protected by any provision of the Convention. The determination of refugee status is declaratory, not constitutive, which comes to say that a person does not become a refugee as a consequence of recognition, but is recognized because he or she is a refugee. SOUTH NORTH The question put forth cannot be answered in an unambiguous manner which might serve as a basis for virtually uniform’ manner. Judging from the ‘refugee reality’ it’d be better, maybe, if states in practice follow the common sense and ‘recognize the social humanitarian nature of the problem of refugees’ and apply the Convention definition in accordance with the ‘object and purpose’ of the Convention, rather than approach it in a legalistic manner. Universal or Obsolete? Discussion Questions
Let’s think of a pregnant woman who lost her husband during a conflict fleeing to a neighboring country which recognizes her as refugee and grants her an asylum. If she gives birth to the child in a month’s period (still being in the receiving country) will this child be a refugee as well?
According to the Convention, a refugee flees, or simply put, moves from a country to another. Does the Convention definition apply to this case?
Should another child from the same country of origin but born in the country of origin be treated similarly in the receiving state?