INTERNATIONAL REFUGEE LAW

ASSIGNMENT

TOPIC: ORIGIN AND EVOLUTION OF REFUGEE LAW

Submitted to- Submitted by-

Prof. Vinod Kumar Amit Kumar Yadav 14 LLM’18

Himanshi Gupta 45 LLM’18
Manika 48 LLM’18

NATIONAL LAW UNIVERSITY

DELHI

2018-2019
 1. INTRODUCTION

“Everyone has the right to seek and to enjoy in other countries asylum from persecution.”
Universal Declaration of Human Rights - Article 14(1)

Throughout the world and over the centuries, societies have welcomed frightened, weary
strangers, the victims of persecution and violence. This humanitarian tradition of offering
sanctuary is often now played out on television screens across the globe as war and large-
scale persecution produce millions of refugees and internally displaced persons. Yet even as
people continue to flee from threats to their lives and freedom, governments are, for many
reasons, finding it increasingly difficult to reconcile their humanitarian impulses and
obligations with their domestic needs and political realities. At the start of the 21st century,
protecting refugees means maintaining solidarity with the world’s most threatened, while
finding answers to the challenges confronting the international system that was created to do
just that.

Refugee law is the branch of international law which deals with the rights and duties States
have vis-a-vis refugees. There are differences of opinion among international law scholars as
to the relationship between refugee law and international human rights law or humanitarian
law. The discussion forms part of a larger debate on the fragmentation of international law1.

While some scholars conceive each branch as a self-contained regime distinct from other
branches, others regard the three branches as forming a larger normative system that seeks to
protect the rights of all human beings at all time. The proponents of the latter conception
view this holistic regime as including norms only applicable to certain situations such as
armed conflict and military occupation (IHL) or to certain groups of people including
refugees (refugee law), children (the Convention on the Rights of the Child), and prisoners of
war (the 1949 Geneva Convention III)2.

DEFINITION OF REFUGEE

1
Koskenniemi, Marti (September 2002). "Fragmentation of International Law, Postmodern Anxieties". Leiden
Journal of International Law. 15 (3): 553–579.
2
Yun, Seira (2014). "Breaking Imaginary Barriers: Obligations of Armed Non-State Actors Under General
Human Rights Law – The Case of the Optional Protocol to the Convention on the Rights of the Child". Journal of
International Humanitarian Legal Studies. 5(1–2): 213–257.
According to the original 1951 Refugee Convention and 1967 Protocol, refugee
children were legally indistinguishable from adult refugees. Although the Convention on the
Rights of the Child was not specific to the rights of refugee minors, it was used as the legal
blueprint for handling refugee minor cases, where a minor was defined as any person under
the age of 18. In 1988, the UNHCR Guidelines on Refugee Children were published,
specifically designed to address the needs of refugee children, officially granting them
internationally recognized human rights3.

In 1989, however, the UN signed an additional treaty, the Convention on the Rights of the
Child (CRC), which defined the rights of children and bound its signatories to upholding
those rights by international law4. Although the treaty is not specific to the rights of refugee
minors in particular, it was used as the legal blueprint for handling refugee minor cases,
where a minor was defined as any person under the age of 18. In particular, it extends the
protection of refugee children by allowing participating nations the capacity to recognize
children who do not fall under the strict guidelines of the Convention definition, but still
should not be sent back to their countries of origin. It also extends the principle of non-
refoulement to prohibit the return of a child to their country "where there are grounds for
believing that there is a real risk of irreparable harm to the child.5"

There is a variety of definitions as to who is regarded as a refugee, usually defined for the
purpose of a particular instrument. The variation of definitions regarding refugees has made it
difficult to create a concrete and single vision of what constitutes a refugee following the
original refugee convention. Article 1 of the Convention as amended by the 1967
Protocol defines a refugee as:

"A 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

3
Refugee Children: Guidelines on Protection and Care. See:
https://www.unicef.org/violencestudy/pdf/refugee_children_guidelines_on_protection_and_care.pdf
4
UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty
Series, vol. 1577, p. 3
5
Ibid
of his former habitual residence as a result of such events, is unable or, owing to such fear, is
unwilling to return to it.6"

The 1967 Protocol removed the temporal restrictions, which restricted refugee status to those
whose circumstances had come about "as a result of events occurring before 1 January 1951",
and the geographic restrictions which gave States party to the Convention the option of
interpreting this as "events occurring in Europe" or "events occurring in Europe or
elsewhere". However, it also gave those States which had previously ratified the 1951
Convention and chosen to use the geographically restricted definition the option to retain that
restriction.

The Organisation of African Unity (OAU) Convention Governing the Specific Aspects of
Refugee Problems in Africa adopted a regional treaty based on the Convention, adding to the
definition that a refugee is

Any person compelled to leave his/her country 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 nationality7.

In 1984, a group of Latin American governments adopted the Cartagena Declaration, which
like the OAU Convention, added more objectivity based on significant consideration to the
1951 Convention. The Cartegena Declaration determine that a 'refugee' includes:

Persons who flee their countries because their lives, safety or freedom have been threatened
by generalised violence, foreign aggression, internal conflicts, massive violation of human
rights or other circumstances which have seriously disturbed public order.

Additionally, US Law draws an important distinction between "refugees" and "asylees". A

refugee must meet the definition of a refugee, as outlined in the 1951 Convention and be of
"special humanitarian concern to the United States."Refugee status can only be obtained from
outside the US. If an individual who meets the definition of a refugee, and is seeking
admission in a port of entry is already in the US, they are eligible to apply for asylum status8.

6
"Convention relating to the Status of Refugees". United Nations High Commission for Refugees. See:
https://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfRefugees.aspx
7
Jastram, Kate; Achiron, Marilyn (2001). “Refugee Protection: A Guide to International Refugee Law “,
UNHCR. See: http://archive.ipu.org/pdf/publications/refugee_en.pdf
8
U.S. Citizenship and Immigration Services, “Learn about the Refugee Application Process”, See:
https://www.uscis.gov/humanitarian/refugees-asylum/refugees
The term displaced person has come to be synonymous with refugee due to a substantial
amount of overlap in their legal definitions. However, they are legally distinct, and convey
subtle differences. In general, displaced person refers to "one who has not crossed a national
border and thus does not qualify for formal refugee status.9"

RECOGNITION OF REFUGEES

Improvements in international communication and transportation networks have made it

easier for people to move between countries and continents. The vast majority of countries
encourage international travellers visiting for business, family or tourism reasons. Many
countries also allow for the permanent immigration of selected non-citizens. At the same
time, however, many countries are faced with the problem of undocumented, or even
smuggled, arrivals.

As a general rule, no country is obliged to allow foreigners onto its territory. It is one of the
elements of State sovereignty that a country may decide if and how it will permit non-citizens
to enter.

The exception to this general rule is that States may not return a refugee, in any manner
whatsoever, to the frontiers of territories where his/her life or freedom would be threatened
because of his/her race, religion, nationality, membership of a particular social group or
political opinion (the principle of non-refoulement). This is true even if the refugee entered
the host country illegally. A refugee who poses a danger to the security of the country or to
the community, cannot claim this protection.

Other individuals are specifically excluded from the outset from Convention protection; for
example those with respect to whom there are serious reasons for considering that they are
war criminals or have committed a serious non-political crime.

As regards protection against return under the non-refoulement provisions of the Convention
Against Torture, together with other human rights instruments, there is no category of
excluded persons as such.

9
Malkki, Liisa H. "Refugees and Exile: From "Refugee Studies" to the National Order of Things". Annual Review
of Anthropology. (1995). 24 (1): 495–523.
To protect refugees, a State must know who they are. A State must be able to differentiate
those in need of international protection from other people seeking entry to its territory. How
a State does so will largely depend on whether a claim for asylum can be examined
individually or whether people are arriving in such large numbers that a group determination
is the most practical.

THE LEGAL FRAMEWORK OF THE INTERNATIONAL

REFUGEE PROTECTION SYSTEM
It is the responsibility of States to protect their citizens. When governments are unwilling or
unable to protect their citizens, individuals may suffer such serious violations of their rights
that they are forced to leave their homes, and often even their families, to seek safety in
another country. Since, by definition, the governments of their home countries no longer
protect the basic rights of refugees, the international community then steps in to ensure that
those basic rights are respected. In the aftermath of World War II, the United Nations General
Assembly created the Office of the United Nations High Commissioner for Refugees
(UNHCR). UNHCR is mandated to protect and find durable solutions for refugees. Its
activities are based on a framework of international law and standards that includes the 1948
Universal Declaration of Human Rights and the four Geneva Conventions (1949) on
international humanitarian law, as well as an array of international and regional treaties and
declarations, both binding and nonbinding, that specifically address the needs of refugees.

2. INTERNATIONAL LAWS AND STANDARDS

 1951 CONVENTION RELATING TO THE STATUS OF
REFUGEES

The Convention Relating to the Status of Refugees is the foundation of international refugee
law. The Refugee Convention defines the term “refugee” (see box on page 9) and sets
minimum standards for the treatment of persons who are found to qualify for refugee status.
Because the Convention was drafted in the wake of World War II, its definition of a refugee
focuses on persons who are outside their country of origin and are refugees as a result of
events occurring in Europe or elsewhere before 1 January 1951. As new refugee crises
emerged during the late 1950s and early 1960s, it became necessary to widen both the
temporal and geographical scope of the Refugee Convention. Thus, a Protocol to the
Convention was drafted and adopted.

 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES

The 1967 Refugee Protocol is independent of, though integrally related to, the 1951
Convention. The Protocol lifts the time and geographic limits found in the Convention’s
refugee definition.

Together, the Refugee Convention and Protocol cover three main subjects:

 The basic refugee definition, along with terms for cessation of, and exclusion from,
refugee status
 The legal status of refugees in their country of asylum, their rights and obligations,
including the right to be protected against forcible return, or refoulement, to a territory
where their lives or freedom would be threatened (see box on non-refoulement, page
14)
 States’ obligations, including cooperating with UNHCR in the exercise of its
functions and facilitating its duty of supervising the application of the Convention

By acceding to the Protocol, States agree to apply most of the articles of the Refugee
Convention (Articles 2 through 34) to all persons covered by the Protocol’s refugee
definition. Yet the vast majority of States have preferred to accede to both the Convention
and the Protocol. In doing so, States reaffirm that both treaties are central to the international
refugee protection system.

REGIONAL LAWS AND STANDARDS

 1969 ORGANIZATION OF AFRICAN UNITY (OAU)

CONVENTION GOVERNING THE SPECIFIC ASPECTS OF
REFUGEE PROBLEMS IN AFRICA

The conflicts that accompanied the end of the colonial era in Africa led to a succession of
large-scale refugee movements. These population displacements prompted the drafting and
adoption of not only the 1967 Refugee Protocol but also the 1969 OAU Convention
Governing the Specific Aspects of Refugee Problems in Africa. Asserting that the 1951
Refugee Convention is “the basic and universal instrument relating to the status of refugees”,
the OAU Convention is, to date, the only legally binding regional refugee treaty. Perhaps the
most important portion of the OAU Convention is its definition of a refugee.

The OAU Convention follows the refugee definition found in the 1951 Convention, but
includes a more objectively based consideration: any person compelled to leave his/her
country because of “external aggression, occupation, foreign domination or events seriously
disturbing public order in either part or the whole of his country of origin or nationality”.

This means that persons fleeing civil disturbances, widespread violence and war are entitled
to claim the status of refugee in States that are parties to this Convention, regardless of
whether they have a well-founded fear of persecution.

 THE CARTAGENA DECLARATION

In 1984, a colloquium of government representatives and distinguished Latin American

jurists was convened in Cartagena, Colombia to discuss the international protection of
refugees in the region. This gathering adopted what became known as the Cartagena
Declaration. The Declaration recommends that the definition of a refugee used throughout the
Latin American region should include the 1951 Refugee Convention definition and also
persons who have fled their country “because their lives, safety or freedom have been
threatened by generalised violence, foreign aggression, internal conflicts, massive violation
of human rights or other circumstances which have seriously disturbed public order”.

Although the Declaration is not legally binding on States, most Latin American States apply
the definition as a matter of practice; some have incorporated the definition into their own
national legislation. The Declaration has been endorsed by the Organization of American
States (OAS), the UN General Assembly, and UNHCR’s advisory Executive Committee.

UN GENERAL ASSEMBLY RESOLUTIONS - THE 1967

DECLARATION ON TERRITORIAL ASYLUM

In 1967, the UN General Assembly adopted a Declaration on Territorial Asylum directed

toward States. The Declaration reiterates that granting asylum is a peaceful and humanitarian
act that cannot be regarded as unfriendly by any other State, and notes that it is the
responsibility of the country of asylum to evaluate a person’s claim for asylum.

NATIONAL LAWS AND STANDARDS

The adoption of national refugee legislation that is based on international standards is key to
strengthening asylum, making protection more effective and providing a basis for seeking
solutions to the plight of refugees. Incorporating international law into national legislation is
particularly important in areas on which the Refugee Convention is silent, such as procedures
for determining refugee status.

THE ROLE OF UNHCR

A humanitarian and non-political organization, UNHCR is mandated by the United Nations

to protect refugees and help them find solutions to their plight. As the problem of
displacement has grown in complexity over the past half century, UNHCR has also grown to
meet the challenge. The Office, founded in 1950, has expanded from a relatively small,
specialized agency with an envisioned three-year lifespan to an organization of over 4,000
staff members with offices in nearly 120 countries and an annual budget of US$1 billion. In
addition to offering legal protection, UNHCR now also provides material relief in major
emergencies, either directly or through partner agencies. In its first fifty years, UNHCR has
protected and assisted more than 50 million people and its work has earned two Nobel Peace
Prizes.

At the international level, UNHCR promotes international refugee agreements and monitors
government compliance with international refugee law. UNHCR staff promote refugee law
among all people who are involved in refugee protection, including border guards,
journalists, NGOs, lawyers, judges and senior governmental officials.

At the field level, UNHCR staff work to protect refugees through a wide variety of activities,
including responding to emergencies, relocating refugee camps away from border areas to
improve safety; ensuring that refugee women have a say in food distribution and social
services; reuniting separated families; providing information to refugees on conditions in
their home country so they can make informed decisions about return; documenting a
refugee’s need for resettlement to a second country of asylum; visiting detention centres; and
giving advice to governments on draft refugee laws, policies and practices.

UNHCR seeks long-term solutions to the plight of refugees by helping refugees repatriate to
their home country, if conditions are conducive to return, integrate into their countries of
asylum, or resettle in second countries of asylum.
THE MANDATE OF UNHCR

The Refugee Convention and Protocol provide States Parties with a legal foundation for
refugee protection. For its part, UNHCR has been given a mandate to provide international
protection to refugees and seek permanent A 22 solutions to their problems through its
Statute, adopted by the UN General Assembly in December 1950.

The Statute sets forth the High Commissioner’s functions, including his/her authority to
protect refugees as defined in terms similar, although not identical, to the Refugee
Convention. Over the years, the General Assembly has expanded UNHCR’s responsibility to
include protecting various groups of people who are not covered by the Refugee Convention
and Protocol. Some of these people are known as “mandate” refugees; others are returnees,
stateless persons and, in some situations, internally displaced persons.

UNHCR’s mandate is now, therefore, significantly more extensive than the responsibilities
assumed by States Parties to the Refugee Convention and Protocol. One of the challenges
facing refugees and countries of asylum today consists of bridging the “protection gap”
which exists in situations where UNHCR seeks to protect persons with respect to whom
concerned States do not recognise that they have a responsibility under any of the refugee
instruments.

PERSONS OF CONCERN TO UNHCR

“Persons of concern to UNHCR” are all persons whose protection and assistance needs are
of interest to UNHCR. They include:

 Refugees under the Refugee Convention

 Persons fleeing conflict or serious disturbances of the public order (i.e., refugees
under the OAU Convention and Cartagena Declaration definitions)
 Returnees (i.e., former refugees)
 Stateless persons
 Internally displaced persons (in some situations)

UNHCR’s authority to act on their behalf is either based on the 1951 Convention and the
OAU Convention, the Cartagena Declaration, or on UN General Assembly resolutions.
STATELESS PERSONS

A stateless person is someone who is not considered to be a national by any State under the
operation of its law. He/she may be, but is not necessarily, a refugee. There are millions of
stateless persons around the world.

In 1996, the UN General Assembly called on UNHCR to promote accession to the two
international conventions on statelessness and to provide governments with technical and
legal advice on their nationality legislation. UNHCR thus works with governments drafting
nationality legislation, helps coordinate emerging legal systems, assists and advises on
individual and group cases of statelessness, and helps negotiate treaties related to
statelessness.

UNHCR’s involvement with stateless persons is based on the strong links between
statelessness and displacement. For example:

 Displacement can cause statelessness (when, for example, a person’s displacement is

followed or accompanied by a redrawing of territorial boundaries).
 Displacement can be a consequence of statelessness (when stateless and
denationalized populations are forced to leave their usual place of residence).
 Statelessness can be an obstacle to the resolution of refugee problems (when, for
example, countries refuse to readmit former refugees on grounds of statelessness).

Statelessness is a problem that States should resolve. Governments must take steps to ensure
they do not withdraw or withhold the benefits of citizenship from whole sections of the
population who can demonstrate a genuine and effective link with that country and who,
without State action, would otherwise be stateless.

INTERNALLY DISPLACED PERSONS

Globally, an estimated 20-25 million persons live displaced within the borders of their home
countries. These are people who have fled their homes, often during a civil war, but have not
sought refuge in other nations. In general, internally displaced persons have many of the same
protection needs as refugees but, since they have not crossed an international border, they are
not covered by the Refugee Convention or by UNHCR’s Statute.
International concern for the plight of internally displaced persons has acquired a degree of
urgency in recent years as greater numbers of people, uprooted by internal conflict and
violence, are exposed to danger and death. However, there is no single international agency,
nor is there an international treaty, that focuses on internal displacement. As a result, the
international response to internal displacement has “Internally displaced persons are persons
or groups of persons who have been forced or obliged to flee or to leave their homes or places
of habitual residence, in particular as a result of or in order to avoid the effects of armed
conflict, situations of generalized violence, violations of human rights or natural or human
made disasters, and who have not crossed an internationally recognized State border. Large
numbers of internally displaced persons receive no humanitarian assistance or protection at
all. The international community is now exploring ways to provide more sustained and
comprehensive protection and assistance to this group of people.

UNHCR has a concern in internally displaced persons because the causes and consequences
of their forced flight are frequently linked closely with those of refugees. This concern,
arising from UNHCR’s humanitarian mandate and endorsed by successive UN General
Assembly resolutions may take the form of UNHCR activity to:

 Advocate on behalf of internally displaced persons

 Mobilize support for them
 Strengthen the organization’s capacity to respond to their problems
 Take the lead in protecting and assisting them in certain situations

UNHCR has been involved with internally displaced persons periodically since the early
1970s, whenever the UN General Assembly or the Secretary-General called upon it to
participate in UN humanitarian operations in which UNHCR has particular expertise and
experience. But the scale and scope of UNHCR’s activities on behalf of internally displaced
persons have increased dramatically in recent years. As of this writing, UNHCR is providing
protection and assistance to some 5.2 million internally displaced persons around the world.

UNHCR works on behalf of internally displaced persons only if certain criteria, set by the
UN General Assembly in 1993, are met. UNHCR must have:

 A request or authorization from the General Assembly or other competent principal

organ of the United Nations
 The consent of the concerned State and, where applicable, other entities in the conflict
  Access to the affected population
 Adequate security for UNHCR staff and implementing partners
 Clear lines of responsibility and accountability with the ability to intervene directly on
protection matters
 Adequate resources and capacity

UNHCR’s strategy is oriented toward solutions. The agency will give priority to
involvement in situations in which a political solution is already underway or is being
contemplated. UNHCR works closely with the UN Emergency Relief Coordinator and other
organizations in the area to promote a common understanding of their respective roles and
responsibilities in assisting internally displaced people.

3. INTERNATIONAL REFUGEE ORGANIZATION

A. Factual Background
When World War II came to an end the international community was faced with an enormous
problem of displaced persons and refugees. The suggestion to establish an intergovernmental
organization to assist and protect was discussed during the San Francisco Conference
establishing the United Nations (UN). Although the majority of the displaced persons could
already be repatriated in 1945 (Repatriation), more than 1,500,000 individuals remained,
requiring further action.

B. Establishment
The Constitution of the IRO (‘IRO Constitution’) was adopted by the UN General Assembly
(United Nations, General Assembly) in Resolution 6(I) of 15 December 1946, to replace the
Inter-Governmental Committee for Refugees (‘IGCR’; established in 1938 to help refugees
from Germany and Austria) and the United Nations Relief and Rehabilitation Administration
(UNRRA).10 The IRO was established as a UN specialized agency (United Nations,
Specialized Agencies) and its Constitution should enter into force with the signature or
accession of 15 States. Awaiting the entry into force of the IRO, the UN General Assembly
established the Preparatory Commission for the International Refugee Organization

10
International Monetary Fund Press Release 21, August 5, 1947.
(‘PCIRO’), the activities of which started on 31 January 1947. The IRO Constitution entered
into force on 20 August 1948.

Only 18 States became full members of the organization: Australia, Belgium, Canada, the
Republic of China, Denmark, the Dominican Republic, France, Guatemala, Iceland, Italy,
Luxembourg, the Netherlands, New Zealand, Norway, Switzerland, the United Kingdom, the
United States of America (‘US’) and Venezuela.11

The controversies between Eastern and Western States on issues related to displaced persons
and refugees had begun already within the UNRRA Council and were accentuated when
drafting the IRO Constitution. The Eastern Bloc12 considered that individual concerns should
not be taken into account, and that all persons displaced during the war should be repatriated.
The Western States, on the other hand, were of the opinion that individual interest must be
considered and that repatriation with a few exceptions should only take place on a voluntary
basis. It became impossible to find a compromise, and the resolution whereby the IRO was
established was adopted by 30 votes in favour, 5 against, and as many as 18 abstentions.
From the outset it was decided that the activities of the organization should be of a temporary
nature. However, there was no time limit in the IRO Constitution.

C. Functions
The IRO was responsible for care and maintenance of persons under its mandate. In that
respect the organization differed from the pre-war refugee organizations, whose task was
mainly to co-ordinate international co-operation, to provide a satisfactory legal status, and to
issue travel documents13. The term ‘refugee’ applied to particular situations, such as the
turmoil following the Russian revolution, and was based on nationality. The pre-war
organizations seldom provided assistance. Being responsible for care and maintenance of
persons it became of vital importance to the IRO to decide whether or not a person was of the
concern of the organization. As a consequence the IRO Constitution lay down a detailed
definition of any person, being of concern to the IRO (Annex I). It became necessary to
establish a particular eligibility procedure, in which it was determined if an applicant was
entitled to IRO protection and assistance. Eligibility boards were established in most field

11
LW Holborn, The International Refugee Organization: A Specialized Agency of the United Nations; Its History
and Work 1946–1952 (OUP London 1956).
12
Warsaw Treaty Organization
13
Supra 3
offices. There were also offices or control centres which received applications from refugees
and which were located where they would afford refugees within the area as much
opportunity as possible of applying for IRO assistance. An excluded applicant could appeal
against the decision to the Review Board for Eligibility Appeals. When the number of appeal
cases accumulated and made it impossible for the board to decide all cases, zonal review
commissions were established. By the adoption of the IRO Constitution the term ‘refugee’
became individualized.

The term ‘displaced person’ applied to a person who had been deported from, or had been
obliged to leave his or her country of nationality or country of former habitual residence14
(country of origin) as a result of the actions of the National Socialist15 or Fascist regimes or
of regimes which took part on their side in World War II, or of the quisling or similar regimes
which assisted them against the Allied Powers.

The term ‘refugee’, as defined in the IRO Constitution, was divided into four paragraphs.

- The first paragraph applied to persons, outside their country of origin, and who were
victims of the National Socialist or Fascist regimes or of the other enemy regimes,
Spanish Republicans, and other victims of the Falangist regimes as well as persons
who were considered as refugees before the outbreak of World War II for reasons of
race, religion, nationality, or public opinion16.

- The second paragraph applied to persons, who could not be classified as displaced
persons, and who were outside their country of origin, and who, as a result of events
subsequent to the outbreak of World War II were unable or unwilling to avail
themselves of the protection of the governments of their countries of nationality.
Accordingly, the term refugee also applied to persons who had left their country of
origin after World War II.

- The third paragraph applied to persons who, having resided in Germany or Austria,
and being of Jewish origin or foreigners or stateless persons, and who were victims of

14
Forced Population Transfer by Alfred de Zayas; Max Planck Encyclopedia of Public International Law
15
National Socialism and International Law by Detlev Vagts; Max Planck Encyclopedia of Public International
Law
16
Racial and Religious Discrimination; Religion or Belief, Freedom of, International Protection by Theo van
Boven; Max Planck Encyclopedia of Public International Law
 National Socialist persecution, were in one of those countries as a result of enemy
action or of war circumstances, provided they had not firmly resettled therein (see
also Anti-Semitism). The third paragraph meant an exception to the principle that a
refugee must be outside the country of origin.

- The fourth paragraph applied to unaccompanied children who were war orphans or
whose parents had disappeared and who were outside their country of origin.

Refugees and displaced persons could only be the concern of the IRO if they could be
repatriated or if they had expressed ‘valid objections’17to returning to their country of origin.
Valid objections included persecution or fear of persecution, because of race, religion,
nationality, or political opinion, provided their opinions were not contrary with the principles
of the UN. Objections of a political nature could also be valid provided the IRO considered
them to be valid. The criterion ‘valid objections’ was more lenient for victims of the National
Socialist or Fascist regimes and pre-war refugees: they could be the concern of the IRO,
provided they could invoke compelling family reasons arising out of previous persecution, or
compelling reasons of infirmity or illness. The objections had to be expressed definitely and
after receiving full knowledge of the facts, including adequate information from the
government of the country of origin.

If an applicant invoked valid objections the IRO seems not to have distinguished between
those who were displaced persons and those who were considered to be refugees. In practice
the term displaced persons was of relevance only in such cases, when the person voluntarily
wanted to be repatriated.

Refugees and displaced persons could cease to be the concern of the IRO, for instance, when
they had returned to their country of origin, or when they had acquired a new nationality.
They also ceased to be of concern when they had unreasonably refused to accept the
proposals of the organization or when they were making no substantial effort towards earning
their living, if it were possible for them to do so.

Persons could also be excluded from being the concern of the IRO. Most important was that
war criminals, quislings, and traitors should be excluded. The exclusion clause also applied to
a person who had assisted the enemy in persecuting the civilian population of countries which

17
Annex I Part I Sec. C IRO Constitution
had become members of the UN, or who had voluntarily assisted the enemy forces since the
outbreak of World War II in their operations against the Allied Powers. Ordinary criminals,
who were extraditable by were excluded. Another excluded category was persons of German
ethnic origin, who had left or moved to Germany during or after the war or might be
transferred to that country (Volksdeutsche).

Eligibility was to be determined in accordance with the IRO Constitution. As time passed
several policy changes took place, partly due to the escalation of the Cold War (1947–91).
The jurisprudence of the Review Board for Eligibility Appeals evolved in line with the IRO’s
policy of greater leniency deciding eligibility. Most important was a more tolerant view with
respect to persons who had assisted the enemy forces. The previous policy meant that solely
the action of the individual was decisive and could lead to exclusion, while later, taking into
account the increased knowledge of the background and motives for various national groups,
the moral intention of the individual was taken into account. It was in particular applicants
from the Baltic States that were favoured by this revision of policy.

In the first place the IRO should encourage the early return of displaced persons to their
country of nationality. With respect to persons for whom repatriation was impossible, the
IRO should facilitate their re-establishment in countries of temporary residence, or find
countries willing to admit refugees for resettlement.

D. Organization and Finances

The structure of the IRO was similar to other specialized agencies: the General Council,
comprising one representative from each Member State, which was the ultimate policy-
making body; the Executive Committee, comprising representatives from nine countries,
which should give effect to the policies of the General Council and should adopt policy
decisions of an emergency nature between sessions of the General Council; and a Secretariat,
headed by a Director-General, appointed by the General Council.

Under regulations made by the General Council the Director-General appointed the staff. The
IRO headquarters were based in Geneva. Offices and missions were established in 22
countries. At the height of its operations the total number of staff amounted to some 5,600
employees.
The 18 Member States contributed to the administrative, operational, and large-scale
resettlement expenditures of the IRO. Over the period of its existence these States contributed
almost US$400 million, with additional income of US$40 million from, inter alia, UNRRA
and IGCR funds.18

E. Activities
The aim of the IRO was assistance and protection first and foremost of more than 1,500,000
persons displaced after World War II, who were not yet repatriated or resettled. Most of them
were lodged in refugee camps in the three Western zones of Germany19, in Austria, Italy, and
the Middle East. Those living out-of-camp in other areas, mainly countries of Western
Europe, could receive cash assistance. The IRO provided care and maintenance in the camps.
Housing was to meet minimum standards. Adequate food and clothing, medical care, and
education opportunities to children and vocational training were essential. Counselling and
adaptation to a new life became important elements of the IRO’s activities.

A function of the IRO was the re-establishment of refugees in countries of temporary

residence, so-called local settlement. Many refugees remained in the country of residence and
never called upon the assistance of the IRO and were able to adapt themselves to conditions
as they found them. Others were impatient and began to make their way into the local
economy of the country in which they happened to live. Accordingly, the responsibilities of
the IRO for local resettlement were left with refugees with limited opportunities for
resettlement, altogether amounting to some 65,000 persons.

Resettlement, i.e. the transfer of refugees to third States, became the most important function
of the organization. In total IRO found resettlement opportunities for about 1 million persons,
most of them resettled in overseas countries (US, Australia, and Canada).

Particular problems concerned so-called hard core cases. There were refugees who for
reasons of old age or ill health, would require continuing institutional care. There were also
families, who because they did not possess the qualifications which would have made them
acceptable to countries of immigration, were considered to have only limited opportunities

18
United Nations Weekly Bulletin, 11, p. 638.
19
Germany, Occupation after World War II ; Germany, Legal Status after World War II
for resettlement. The situation for many of those refugees remained unsolved when the IRO
was dissolved, and became the responsibility of the UN High Commissioner for Refugees.20

A most important part of the IRO’s tasks was legal and political protection. In the first place
that meant responsibility concerning the determination of eligibility. The IRO also became
entitled, frequently through bilateral agreements, to protect refugees—an entitlement which
otherwise pertains to nations with regard to their nationals. In this context the IRO fulfilled a
quasi-consular function (Consular Functions). The refugees should be protected from
discrimination, and, as much as possible, granted economic and social rights and freedom of
movement. The IRO could intervene on behalf of refugees who for some reason were
detained, and they could be assisted with respect to access to the labour market. The IRO
assisted refugees in national asylum procedures. The activities of the IRO were gradually
wound up in 1951.

F. Assessment
The activities of the IRO fell victim to the Cold War. Only 18 States became full members.
Several States which voted in favour of establishing the IRO never signed the IRO
Constitution. On the other hand, a few States which had abstained became members or
accepted refugees for resettlement. The IRO never became the universal organization that had
been hoped for. Accordingly, in 1950 it was decided to replace the IRO with another
temporary organ, the UNHCR, which was established as a subsidiary body of the UN General
Assembly.

The IRO had great significance for the UNHCR. Not only did the international community
take more active measures to solve the world’s refugee problem by providing material
assistance and legal protection, inter alia, by establishing missions in countries where there
were refugees. The definition of the term ‘refugee’, as laid down in the Statute of the Office
of the UNHCR21 and in the Convention relating to the Status of Refugees ([signed 28 July
1951, entered into force 22 April 1954] 189 UNTS 150) was strongly influenced by the
practice that was evolved by IRO eligibility boards.

20
Refugees, United Nations High Commissioner for [UNHCR]
21
UNGA Res 428 [V] [14 December 1950] GAOR 5th Sess Supp 20, 46 Annex
4. INSTITUTION OF THE OFFICE OF THE HIGH
COMMISSIONER OF RFUGEES (UNHCR).

The United Nations appointed UNHCR by General Assembly resolution 319 (IV) of
December 3, 1949, to continue to provide protection for refugees after the International
Refugee Organisation came to an end. Over the years, the mandate of the Office of UNHCR
has been successively extended.

In the 1980s, the legal competence of UNHCR rests primarily on two international
instruments: the 1950 Statute of the United Nations High Commissioner for Refugees ("the
Statute")22 and the 1967 Protocol relating to the Status of Refugees ("the Protocol")23. The
most notable exception from this list of instruments is the 1951 Convention relating to the
Status of Refugees ("the Convention"),24 which is of fundamental importance to the history of
the law relating to refugees and asylum and to the practice of UNHCR, but is of limited
continuing vitality. In addition, there are a number of resolutions which have amplified, if not
extended, the High Commissioner's competence.

Nature of UNHCR

UNHCR's authority is moral. It entails no significant legal sanctions. Strictly speaking, the
mandate of UNHCR is found in the Statute, which is the annex to a General Assembly
resolution (i.e., GA Resolution 428 (V) of December 14, 1950). As such, the Statute is
recommendatory and not binding upon States. There are limitations on the procedures that
UNHCR can adopt. A potential country of refuge is under no obligation to permit UNHCR to
operate within its territory. UNHCR is neither a supranational nor a sovereign body. He must
operate within an actual or potential host State and with the consent of that State. The strict
legal ambit of his functions is closely circumscribed, arising largely from his "duty of
supervising the application" of relevant treaties. He may also, on occasion, invoke principles
of customary international law, such as the principle of non-refoulement. He is not given
extensive legal powers, although the legal repercussions of his activities and the class of
individuals affected may be broad. At the same time, the Statute commands the general

22
General Assembly Res. 428 (v) of Dec. 14, 1950, Annex.
23
606 U.N.T.S. 267.
24
189 U.N.T.S. 137. Consult the Statute, Convention and Protocol in UNHCR, Collection of international
Instruments Concerning Refugees, (2nd edn., 1979: hereinafter, "Instruments"), pp. 3
support of States, and the High Commissioner is universally respected in the exercise of his
functions. The Statute calls for cooperation between States and the High Commissioner and
this has frequently been reiterated by the General Assembly, ECOSOC and other bodies.

5. 1951 REFUGEE CONVENTION AND ITS 1967

PROTOCOL
The Convention Relating to the Status of Refugees, also known as the 1951 Refugee
Convention, is a United Nations multilateral treaty that defines who is a refugee, and sets out
the rights of individuals who are granted asylum and the responsibilities of nations that grant
asylum. The Convention also sets out which people do not qualify as refugees, such as war
criminals. The Convention also provides for some visa-free travel for holders of travel
documents issued under the convention. Although the Refugee Convention was agreed
in Geneva, it is considered incorrect to refer to it as "the Geneva Convention" because that
term is more widely understood as referring to any of four treaties regulating armed conflict.

The Refugee Convention builds on Article 14 of the 1948 Universal Declaration of Human
Rights, which recognizes the right of persons to seek asylum from persecution in other
countries. A refugee may enjoy rights and benefits in a state in addition to those provided for
in the Convention.25

History

The Convention was approved at a special United Nations conference on 28 July

1951. Denmark was the first state to ratify the treaty on 4 December 1952, which entered into
force on 22 April 1954. It was initially limited to protecting European refugees from before 1
January 1951 (after World War II), though states could make a declaration that the provisions
would apply to refugees from other places.

The 1967 Protocol removed the time limits and applied to refugees "without any geographic
limitation", but declarations previously made by parties to the Convention on geographic
scope were grandfathered.26

25
Convention relating to the Status of Refugees, Article 5
26
Treaty Series - Treaties and international agreements registered or filed and recorded with the Secretariat of
the United Nation". 606 (8791). United Nations. 1970: 268.
As at 1 July 2013, there were 145 parties to the Convention, and 146 to the Protocol.27 Most
recently, the President of Nauru, Marcus Stephen, signed both the Convention and the
Protocol on 17 June 201128 and acceded on 28 June 2011. Madagascar and Saint Kitts and
Nevis are parties only to the Convention, while Cape Verde, the United States of
America and Venezuela are parties only to the Protocol. Since the US ratified the Protocol in
1968, it undertook a majority of the obligations spelled out in the original 1951 document
(Articles 2-34), and Article 1 as amended in the Protocol, as "supreme Law of the Land."29

The rights promulgated by the Convention generally still stand today. Some have argued that
the complex nature of 21st century refugee relationships calls for a new treaty that recognizes
the evolving nature of the nation-state, population displacement, environmental migrants, and
modern warfare.30 Nevertheless, ideas like the principle of non-refoulement (Article 33) are
still applied today, with the 1951 Convention being the hallmark of such rights.

Definition of refugee

Article 1 of the Convention defines a refugee as this:31

As a result of events occurring before 1 January 1951 and owing to 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.

The U.N. Protocol Relating to the Status of Refugees which entered into force on 4 October
1967, defined the term refugee to mean any person within the definition 1951 Convention as
if the words “As a result of events occurring before 1 January 1951 and ...” were omitted.32

27
Chapter V – Refugees and Stateless Persons. United Nations Treaty Series.
28
UNHCR: States Parties to the Convention and Protocol
29
Joan Fitzpatrick, "The International Dimension of U.S. Refugee Law", 15 Berkeley J. Int'l. Law 1, Berkeley Law
Scholarship Repository, 1997
30
"Nauru's UN move on refugee convention adds to pressure on Labor", The Australian, 17 June 2011
31
United Nations High Commission for Refugees. (2012). Text of Convention
32
Protocol Relating to the Status of Refugees of 31 January 1967 - English text, Article I § 2.
Several groups have built upon the 1951 Convention to create a more objective definition.
While their terms differ from those of the 1951 Convention, the Convention has significantly
shaped the new, more objective definitions. They include the 1969 Convention Governing the
Specific Aspects of Refugee Problems in Africa by the Organisation of African Unity (since
2002 African Union) and the 1984 Cartagena Declaration, while nonbinding, also sets out
regional standards for refugees in Central America, Mexico and Panama.

With the passage of time and the emergence of new refugee situations, the need was
increasingly felt to make the provisions of the 1951 Convention applicable to such new
refugees. As a result, a Protocol relating to the Status of Refugees was prepared, and entered
into force on 4 October 1967.33 The UNHCR is called upon to provide international
protection to refugees falling within the competence of his Office.34 Definitions of those
persons to whom the High Commissioner’s competence extends are very close to, though not
identical with, the definition contained in the 1951 Convention.35

Rights and responsibilities of parties to the Refugee Convention

In the general principle of international law, treaties in force are binding upon the parties to it
and must be performed in good faith. Countries that have ratified the Refugee Convention are
obliged to protect refugees that are on their territory, in accordance with its terms. 36 There are
a number of provisions that States parties to the Refugee Convention must adhere to.

Refugees shall

 abide by the national laws of the contracting states (Article 2)

The contracting states shall

 exempt refugees from reciprocity (Article 7): That means that the granting of a right
to a refugee should not be subject to the granting of similar treatment by the refugee's

33
Schoenholtz, Andrew I. (11 June 2015). "The New Refugees and the Old Treaty: Persecutors and Persecuted
in the Twenty-First Century"
34
United Nations High Commission for Refugees 2011 § E(14).
35
United Nations High Commission for Refugees 2011 § E(15).
36
Protocol Relating to the Status of Refugees of 31 January 1967 - English text, Article I § 2.
 country of nationality, because refugees do not enjoy the protection of their home
state.37

 be able to take provisional measures against a refugee if needed in the interest of

essential national security (Article 9)

 respect a refugee's personal status and the rights that come with it, particularly rights
related to marriage (Article 12)

 provide free access to courts for refugees (Article 16)

 provide administrative assistance for refugees (Article 25)

 provide identity papers for refugees (Article 27)

 provide travel documents for refugees (Article 28)

 allow refugees to transfer their assets (Article 30)

 provide the possibility of assimilation and naturalization to refugees (Article 34)

 cooperate with the UNHCR (Article 35) in the exercise of its functions and to help
UNHCR supervise the implementation of the provisions in the Convention.

 provide information on any national legislation they may adopt to ensure the
application of the Convention (Article 36).

 settle disputes they may have with other contracting states at the International Court
of Justice if not otherwise possible (Article 38)

The contracting states shall not

 discriminate against refugees (Article 3)

 take exceptional measures against a refugee solely on account of his or her nationality
(Article 8)

 expect refugees to pay taxes and fiscal charges that are different to those of nationals
(Article 29)

 impose penalties on refugees who entered illegally in search of asylum if they present
themselves without delay (Article 31), which is commonly interpreted to mean that
their unlawful entry and presence ought not to be prosecuted at all38
37
UNHCR: Refugee protection: A Guide to International Refugee Law, 2001
  expel refugees (Article 32)

 forcibly return or "refoul" refugees to the country they've fled from (Article 33). It is
widely accepted that the prohibition of forcible return is part of customary
international law. This means that even States that are not party to the 1951 Refugee
Convention must respect the principle of non-refoulement.39 Therefore, States are
obligated under the Convention and under customary international law to respect the
principle of non-refoulement. If and when this principle is threatened, UNHCR can
respond by intervening with relevant authorities, and if it deems necessary, will
inform the public.40

Refugees shall be treated at least like nationals in relation to

 freedom to practice their religion (Article 4)

 the respect and protection of artistic rights and industrial property (Article 14)

 rationing (Article 20)

 elementary education (Article 22)

 public relief and assistance (Article 23)

 labour legislation and social security (Article 24)

Refugees shall be treated at least like other non-nationals in

relation to

 movable and immovable property (Article 13)

 the right of association in unions or other associations (Article 15)

 wage-earning employment (Article 17)

 self-employment (Article 18)

 practice of the liberal professions (Article 19)

 housing (Article 21)

38
UNHCR: Refugee protection: A Guide to International Refugee Law, 2001
39
The Problem with the Prosecution of Refugees. University of Oxford, Faculty of Law
40
Supra 30
  education higher than elementary (Article 22)

 the right to free movement and free choice of residence within the country (Article
26)

Noncompliance

Although the Convention is "legally binding" there is no body that monitors compliance.
The United Nations High Commissioner for Refugees (UNHCR) has supervisory
responsibilities, but cannot enforce the Convention, and there is no formal mechanism for
individuals to file complaints. The Convention specifies that complaints should be referred to
the International Court of Justice.41 It appears that no nation has ever done this.

An individual may lodge a complaint with the UN Human Rights Committee under
the International Covenant on Civil and Political Rights, or with the UN Committee on
Economic, Social and Cultural Rights under the International Covenant on Economic, Social
and Cultural Rights, but no one has ever done so in regard to violations of the Convention.
Nations may levy international sanctions against violators, but no nation has ever done this.

At present, the only real consequences of violation are 1) public shaming in the press, and 2)
verbal condemnation of the violator by the UN and by other nations. To date these have not
proven to be significant deterrents.42

PROTOCOL

The 1967 Protocol broadens the applicability of the 1951 Convention. The 1967 Protocol
removes the geographical and time limits that were part of the 1951 Convention. These limits
initially restricted the Convention to persons who became refugees due to events occurring in
Europe before 1 January 1951.

6. Convention Definition of refugee laws

International refugee law protects people who seek asylum from persecution, and those who
have been recognized as refugees. It comprises several international legal instruments – the

41
Convention relating to the Status of Refugees, Article 38.
42
Rose Moloney, "Does Australia's refugee policy breach UN rules?" Crikey Clarifier, Nov 29, 2012.
most important being the 1951 Refugee Convention and its 1967 Protocol – as well as
customary law.

International Refugee law is a set of rules and procedures that aims to protect, first, persons
seeking asylum from persecution, and second those recognized as refugees under the relevant
instruments. Its legal framework provides a distinct set of guarantees for these specific groups
of persons, although, inevitably, this legal protection overlaps to a certain extent with
international human rights law as well as the legal regime applicable to armed conflicts under
international humanitarian law.

“Refugee Law is an aspect of human rights law which is designed to set out in which
circumstances states will extend protection to persons in fear of persecution”43 Complicity in
International Criminal Law and Canadian Refugee Law: A comparison.

Evolving definition and expanding notion of refugee in the

contemprory international legal discourse

The Refugee Convention is one of the cornerstones of the larger human rights system for
protecting vulnerable persons and yet it is also a very narrow instrument, protecting a very
specific group of persons. This duality is reflected in refugee protection generally where, on
the one hand, states appear to believe in a moral, humanitarian imperative to protect
individuals seeking refuge, yet, on the other hand, they are reluctant to permit entry to all
those persons falling under their responsibility. When we consider the contemporary
definition of refugee, and how customary international law may supplement the definition of
refugee, we see this same division of interests. If we were motivated strictly by human-
centered interests, we would find a broadening of the definition, although perhaps with
limited state compliance. If we were motivated strictly by state-centered interests, we might
find a narrowing of the definition, although perhaps abandoning desperate individuals truly in
need.44

Interpretation of the definition in the refugee convention

43
Rikhof, Joseph.Exclusion at a crossroads: The interplay between international criminal law and refugee law in
the area of extended liability (2011)

44
Woster,William Thomas.(2012).the evolving definition of the refugee in the contemporary international law
The beginning for any inquiry into the definition of a refugee is the Refugee Convention and
its protocol.1 The Refugee Convention specifies that a person qualifies as a refugee if (1) the
person has already been considered a refugee under prior treaty arrangements2 or (2) the
person is outside the country of his nationality (or not having a nationality) and is unable or
unwilling to avail himself of the protection of that country due to a well-founded fear of
being persecuted for reasons of race, religion, nationality, membership in a particular social
group or political opinion.45

Evolution of a definition under customary international law

As mentioned above, the Refugee Convention has not been amended either explicitly or
through practice to provide for a revised definition of refugee46; however, customarily it is
interpreted in an expansive fashion, relying heavily on its object and purpose. In fact, in
some instances cited above, the qualification as a refugee may have been supplemented
beyond the express terms of the Convention.

7. Exclusion and Cessation Clauses of International

Refugee Laws
The international refugee instruments governing refugee law lay out criteria for the
recognition of refugees. They also establish criteria by which individuals may be excluded
from international protection. The term "exclusion clauses" refers to legal provisions
designed to achieve this effect. Article 1F of the 1951 Convention includes a number of
exclusion clauses;
 “The provisions of this Convention shall not apply to any person with respect to whom
there are serious reasons for considering that:

45
Refugee convention Art 1 A(2)
46
A.G. v. Zaoui, N.Z.S.C. 38.
 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;47
 he has committed a serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee;
 he has been guilty of acts contrary to the purposes and principles of the United Nations.”
2. Heightened interest in the possible use of exclusion clauses has followed a number of
international developments, of which the conflicts in former Yugoslavia and Rwanda are
obvious examples. As a consequence of those events, attention has been focused on the
capacity of international mechanisms to identify and exclude undeserving claims, while
furnishing international protection to genuine refugees. This paper elaborates on the function
of exclusion clauses in refugee law, and their practical application.

A. Rationales of exclusion clauses

The exclusion clauses enumerated in Article 1F of the 1951 Convention operate to disqualify
persons from the benefits of refugee status by reason of serious transgressions committed, in
principle, prior to seeking asylum. The idea of an individual “not deserving” protection as a
refugee is related to the intrinsic links between ideas of humanity, equity, and the concept of
refuge. The primary purposes of these exclusion clauses are to deprive the perpetrators of
heinous acts and serious common crimes, of such protection, and to safeguard the receiving
country from criminals who present a danger to that country’s security. If the protection
provided by refugee law were permitted to afford protection to perpetrators of grave offences,
the practice of international protection would be in direct conflict with national and
international law, and would contradict the humanitarian and peaceful nature of the concept
of asylum. From this perspective, exclusion clauses help to preserve the integrity of the
asylum concept.48

B. General principles governing application of exclusion clauses

48
Mohemmed,justin.(2014)Exclusion in International Refugee Law: 20th Century Principles for 21st Century
Practice?, Norman Paterson School of International Affairs – Carleton University
Under the 1951 Convention, responsibility for establishing exclusion lies with States.
UNHCR is competent in this regard, under its Statute. According to Article 1F of the 1951
Convention, persons are excludable where “there are serious reasons for considering” that
they have committed the offences in question. States should, therefore, have substantially
demonstrable grounds for invoking an exclusion clause. Decisions on exclusion should be
clear and reasoned, and the claimant should be afforded a fair hearing, in view of the
inherently serious effect of invoking exclusion clauses. In principle, decisions on exclusion
may properly be made only in the context of a full examination of the grounds for a refugee
claim.
The exclusion clauses are carefully enumerated in the 1951 Convention, and describe those
situations in which persons who fulfil the positive requirements of recognition as refugees are
nonetheless constrained from being recognized as such. Denying protection against return to
the country of origin to someone with a well-founded fear of persecution can result in their
continued persecution, or even worse. Use of these exclusion clauses is, therefore, an extreme
measure. Exclusion clauses must be interpreted within narrow limits and in a manner which
does not undermine the integrity of international protection.
The Categories of Excludable Offences and Individual Liability
The three categories of excludable acts and crimes specified in Article 1F of the Convention
are: crimes against peace, war crimes and crimes against humanity, serious non-political
crimes, and acts contrary to the purposes and principles of the United Nations.

A. Crimes under article 1F(a) of the 1951 Convention; crimes against

peace, war crimes and crimes against humanity
These crimes are defined in a wide variety of legal sources, notably the 1945 Charter of the
International Military Tribunal (the London Charter, Article 6) and the Statutes of the
International Tribunals established to prosecute persons suspected of genocide and breaches
of humanitarian law in Rwanda and former Yugoslavia.4 All three crimes under this
exclusion clause are included in the draft statute for the proposed permanent international
criminal court, namely genocide, crimes against humanity, war crimes and crimes against
peace. Some excludable crimes may fall under more than one category, such as genocide,
which can be considered both a war crime and a crime against humanity.49
(i) Crimes against Peace
This category of crimes relates to the planning or waging of a war of aggression, or a war in
violation of international treaties. In 1974, the General Assembly defined "aggression" as "the
use of armed force by a State against the sovereignty, territorial integrity or political
independence of another State, or in any manner inconsistent with the Charter of the United
Nations", and this definition is retained in the International Law Commission's Draft Code of
Crimes against the Peace and Security of Mankind.5 As crimes against peace threaten the
territorial integrity of States, excludable persons under this Article must represent States or
State-like entities in the context of international armed conflicts.
(ii) War Crimes
This category refers to violations of international humanitarian law or the laws of armed
conflict. Article 6(b) of the London Charter includes within this category, murder or ill-
treatment of civilian populations and of prisoners of war, the killing of hostages, or any
wanton destruction of cities, towns or villages, or devastation that is not justified by military
necessity. Other acts identified as war crimes are the "grave breaches" specified in the 1949
Geneva Conventions and Additional Protocol 1, namely wilful killing, torture or other
inhuman treatment (including biological experiments), wilfully causing great suffering or
serious injury to body or health; indiscriminate attacks affecting civilians or those known to
be hors combat; and forced population transfers. The 1993 Statute of the International
Tribunal for former Yugoslavia also includes an extensive definition of war crimes. War
crimes may be perpetrated against civilian or military victims in both internal and
international armed conflicts, and individual liability for war crimes does not require a link
between the culprit and a State or a State-like entity.
(iii) Crimes Against Humanity50
These include inhumane acts such as murder, extermination, enslavement, deportation
committed against any civilian population before or during a war. These and other crimes,
such as torture, rape, and persecution, committed as part of a widespread or systematic attack
against any civilian population on national, political, ethnic, racial or religious grounds, also
constitute crimes against humanity. Genocide, as defined in Article II of the 1948 Convention

49
GUIDELINES ON INTERNATIONAL PROTECTION: Application of the Exclusion Clauses: Article 1F of the 1951
Convention relating to the Status of Refugees
50
Gilbert,geoff .Current issues in the application of the exclusion clauses
on the Prevention and Punishment of the Crime of Genocide, is a crime against
humanity.6 Crimes against humanity are characterized by their deliberate and targeted nature,
by their especially heinous nature, and, in the case of genocide, by the intent to destroy a
particular group, in whole or in part. Unlike war crimes and crimes against peace, crimes
against humanity may also be committed in peacetime or in a non-war context, making this
the broadest of the categories under Article 1F(a) of the 1951 Convention.

B. Individual liability for crimes under article 1F(a)

A crime against peace requires a connection between the individual’s actions and a State or
State-like entity in the context of an international conflict. In contrast, exclusion for war
crimes and crimes against humanity may derive from internal conflict and does not require an
individual’s connection with State authority. As such, the actions of guerrillas, rebels, militias
or armed civilians may be scrutinized for exclusion as crimes against humanity and war
crimes.
A person may be excludable if he or she knew of the excludable offence and its criminal
nature, intended to commit it, and exercised a moral choice to be involved.7 This exclusion
clause may be invoked against a superior officer who had knowledge of offences committed
by a subordinate and failed to take steps to prevent them. Subordinates cannot claim "superior
orders" as a defence to exclusion, unless disobedience to the orders would have incurred
grave danger for them or their family, and unless the danger to them exceeds the physical
harm inflicted by them.
Excludability may not simply be presumed. If an individual requests asylum after having held
positions of authority in a regime known to be responsible for serious human rights
violations, exclusion may follow only if a fair enquiry establishes the elements of knowledge,
intention and moral choice on the part of the individual concerned. The exclusion of members
of organizations which commit crimes or advocate violence should be approached in the
same way. Other relevant considerations include the individual’s position in the hierarchy of
the organization, and the extent to which membership was obtained voluntarily.
The measure of personal involvement required to establish exclusion must also be
considered. While the exclusion clause will not apply to a passive observer of a crime, a
person whose actions contribute to the crime, through orders, incitement or significant
assistance, may be excluded. In one case, persons who willingly stood guard and took notes
during torture sessions were properly disqualified from refugee status. By the same token, the
exclusion clauses would apply to a medical practitioner who prepares and checks torture
victims, or an administrator who prepares blacklists of candidates for genocide or ethnic
cleansing.

C. Serious non-political crimes - Article 1F(b)51

This Article excludes persons whose past criminal acts in another jurisdiction are especially
egregious. The “seriousness” of a crime may depend on such factors as the extent of physical
or property harm it causes, and the type of penal sentence it attracts within the particular legal
system. Rape, homicide, armed robbery, and arson are examples of offences which are likely
to be considered serious in most States. It is important to recall that the intention of this
Article is to reconcile the aims of rendering due justice to a refugee, even if he or she has
committed a crime, and to protect the community in the country of asylum from the danger
posed by criminal elements fleeing justice. This Article should be seen in parallel with
Article 33 of the 1951 Convention, which permits the return of a refugee if there are
reasonable grounds for regarding the refugee as a danger to the security of the country or
who, having been convicted by a final judgement of a particularly serious crime, constitutes a
danger to the security of that country.
The serious crime must also be non-political, which implies that other motives, such as
personal reasons or gain, predominate. Increasingly, extradition treaties specify that certain
crimes, notably acts of terrorism, are to be regarded as non-political for the purpose of those
treaties, although they typically also contain protective clauses in respect of refugees. For a
crime to be regarded as political, its political objective must also, for purposes of this
analysis, be consistent with the exercise of human rights and fundamental freedoms. Crimes
which deliberately inflict extreme human suffering, or which violate jus cogens rules of
international law, cannot possibly be justified by any political objective.
Even if the serious and non-political nature of a crime is established, a "balancing test" must
be applied before this exclusion clause may be invoked. This test ensures that exclusion does
not result in greater harm to the offender than is warranted by the alleged crime. Thus, its
seriousness should be weighed against the level of persecution likely to be faced by the
offender in the country of origin. If the persecution feared is so severe as to endanger the
offender's life or liberty, then only an extremely grave offence will justify the application of
this exclusion clause.

51
https://www.refworld.org/topic,50ffbce5160,50ffbce517e,,0,,CASELAW,.html
Article 1F(b) requires that the crime in question was committed “outside the country of
refuge...prior to his admission” to the country of asylum. This could be the country of origin,
or another country. It can never be the country where the applicant seeks recognition as a
refugee. Refugees who commit serious crimes within the country of refuge are not subject to
the exclusion clause. They are subject to that country’s criminal law process and to Articles
32 and 33(2) of the 1951 Convention, in the case of particularly serious crimes. While Article
1F(b) offers no guidance as to the role of expiation, practice has been to interpret it as
applying chiefly to fugitives from justice, and not to those who have already served their
sentences, unless they are regarded as continuing to constitute a menace to a new
community.52

D. Acts contrary to the purposes and principles of the United Nations -

Article 1F(c)
Under this Article, persons "guilty of acts contrary to the purposes and principles of the
United Nations" are excludable.Given the fact that the United Nations Charter is addressed
primarily to States members and to the Organization itself, it is suggested that, by their
nature, these purposes and principles can only be violated by persons who have been closely
linked with the highest authorities in a State or State-like entity. In one application of Article
1F(c), a former president was properly excluded from refugee status for his role in extreme
human rights violations during his presidency. The remarks of some delegates at the
Conference of Plenipotentiaries drafting the 1951 Convention indicate that this Article
reflects the notion that persecutors themselves should not be protected as refugees. At the
same time, concern was also expressed that the vagueness of the provision might be open to
abuse.

III. Challenges in the Application of Exclusion Clauses

In a climate of numerous challenges to asylum, exclusion clauses should not become another
avenue by which deserving cases are denied access to international protection. To minimize
the possibilities of misuse, the application of exclusion clauses must always be attended by
fair procedures, with clear rules governing their usage.
Circumstances of mass influx present particular dilemmas in this area. Individual status
determination for all asylum-seekers may be physically impossible, yet the award of prima

52
UNHCR Statement on Article 1F of the 1951 Convention, https://www.unhcr.org/4a5edac09.pdf
facie refugee status means, in some situations, that the persecutors may receive a measure of
international protection along with the victims of persecution. During mass arrivals, the
fundamental humanitarian imperative of preserving life dictates that asylum and material
assistance initially take precedence over the need to identify persons undeserving of refugee
status. It is crucial, however, that the process of considering the excludability of individuals
begin as soon as possible. Refugee status may be withdrawn if facts justifying an individual's
exclusion subsequently come to light.53

The flight of nearly two million Rwandan refugees in 1994 illustrated the extreme difficulties
of assessing excludability in situations of mass influx. From the outset, it was common
knowledge that the influx included senior officers of the previous Rwandan Government and
army, members of the Interahamwe militias and their civilian supporters, who had
collaborated or participated in crimes against humanity. The State concerned is responsible

for disarming combatants entering neutral territory, and for ensuring the civilian character of
refugee camps. It is clear that assessments of the applicability of the exclusion clauses would
have been greatly facilitated if, in accordance with international and humanitarian law, armed
elements and their command structures had been physically separated upon arrival. The
opportunity to affect this detachment was greatest at the outset of the influx, when the suspect
elements had yet to consolidate themselves within the camps. Over time, the absence of an
enforcement capacity rendered separation and the apprehension of suspects more difficult.
There is a need for the international community to regard the exclusively civilian character of
refugee camps and principles of exclusion as imperatives which can and must be
simultaneously pursued with the objectives of humanitarian assistance. One lesson of the
Rwandan refugee crisis is that these vital elements should be inseparable, particularly in
situations of mass influx.

The exclusion clauses help maintain the integrity of the institution of asylum, by not
according the rights and benefits attached to the possession of refugee status to persons
bearing the taint of grave rights violations or serious criminal conduct. Clearly, it is desirable
that there be consistency in the interpretation and application of exclusion clauses, in a

53
Current issues in the application of the exclusion clauses , https://www.cambridge.org/core/books/refugee-
protection-in-international-law/current-issues-in-the-application-of-the-exclusion-
clauses/5A331C007FC1A55977CF163BDDD41B38
climate of cooperation between States and UNHCR. Exclusion clauses form part of the
definition of who has the right to enjoy asylum. For this reason, the principles governing their
application include safeguards which minimize the possibility of abuse of refugees' and
asylum-seekers' rights, and which seek to reinforce the obligation of non-refoulement. The
fundamental core of these principles is that the international interests served by exclusion
clauses may not be pursued at the expense of the rights of genuine refugees, or at the cost of
diminishing the basic precepts of international protection.