Refugees and international law

The UN Convention Relating to the Status of Refugees(the Refugee Convention) is the primary international legal document relating to refugee protection. It defines who is a refugee and outlines the rights of refugees and the legal obligations of states towards refugees and asylum seekers.

The Refugee Convention was adopted at a United Nations conference on 28 July 1951 and entered into force on 22 April 1954. The Refugee Convention was originally designed to respond to the needs of European refugees in the years following World War II. As such, it applied only to persons who had become refugees as a result of ‘events occurring before 1 January 1951’ and allowed signatories to only protect refugees originating from Europe.

In 1967, the Protocol Relating to the Status of Refugees removed the geographic and time limitations of the original Convention, broadening its scope to create capacity to respond to new refugee situations. The protocol entered into force on 4 October 1967.

Definition

The Refugee Convention defines a refugee. A recognised refugee must satisfy the following criteria:

  • the person must be outside their country of origin;
  • the reason for their flight must be a fear of persecution;
  • this fear of persecution must be well founded (ie they must have experienced it or be likely to experience it if they return);
  • the persecution must be due to one or more of the five grounds listed in the definition; and
  • they must be unwilling or unable to seek the protection of their country.

The definition also includes a qualifier which excludes any person who has committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside their country of refuge or any other act contrary to the purposes and principles of the United Nations.

Hot Tip

The five grounds for persecution listed in the Refugee Convention are race, religion, nationality, membership of a particular social group or political opinion.

Rights of refugees

The Refugee Convention also recognises that refugees hold certain rights. Some of these are universal human rights recognised in other treaties. For instance, the Convention requires States parties to accord to refugees:

  • the same rights as citizens in relation to freedom of religion, intellectual property, access to courts and legal assistance, rationing, public relief, access to elementary education, labour rights and social security;
  • treatment which is as favourable as possible and at least as favourable as that accorded to foreign nationals, in relation to the acquisition of property, self-employment, practising as a professional, access to housing and access to secondary and tertiary education; and
  • treatment which is at least as favourable as that accorded to foreign nationals with respect to freedom of association, wage-earning employment and freedom of movement.

The following Articles are the most relevant in the Australian context:

Article 31: Refugees unlawfully in the country of refuge

This Article prohibits States from imposing penalties on refugees who, when coming directly from a territory where their life or freedom was threatened, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and can show good cause for their illegal entry or presence. According to UNHCR, this includes both refugees coming straight from their country of origin and refugees coming from any other territory where their protection, safety and security cannot be assured.

This Article recognises that refugees have a lawful right to enter a country for the purposes of seeking asylum, regardless of how they arrive or whether they hold valid travel or identity documents. As such, what would otherwise be considered illegal or unlawful actions (eg entering a country without a visa) should not be treated as such if a person is seeking asylum.

Article 31 also prohibits State parties from restricting the freedom of movement of refugees who arrive without authorisation, with the exception of restrictions necessary for regularising their status. Australia’s Temporary Protection Visas (TPVs) denied people the right to re-enter Australia if they left, no matter what the reason or destination of their travel.

Article 33: Non-refoulement

This Article outlines that State parties must not forcibly expel or return (refouler) any person to a situation where their life or freedom may be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. The principle of non-refoulement has become part of customary international law and is considered to be binding on all states, even those which have not signed the Refugee Convention.

States parties to the Convention

The Refugee Convention currently has 147 States parties. This includes three States which are party only to the 1951 Convention and three States which are party only to the 1967 Protocol. All other states are parties to both instruments. (See more information about the Refugee Convention on the UNHCR website.)

Australia was among the earliest States parties to the Refugee Convention, acceding to the treaty on 22 January 1954. Australia ratified the 1967 Protocol on 13 December 1973.