What now for the 1951 Convention?

The impact of the New York Declaration and the Global Compact on Refugees (GCR) on the 1951 Convention on the Status of Refugees (including the 1967 Protocol) is only just now beginning to become visible. From our perspective, the most important development the GCR constitutes is the alignment of refugee rights with human rights. The GCR commitments link together refugee protection and human rights in an UN instrument which, while not legally binding, sets out the common will of the international community.

It is no secret that many states are failing to deliver to refugees the rights which are set out in the 1951 Convention. For example, the on-going threat of pushbacks to Libya by the EU Member States constituting refoulement in breach of Article 32, the inadequacies of asylum procedures, and the detention of people seeking refugee status in contravention of Article 31.

In addition, these same States are also failing to secure to refugees the human rights which they are obligated to uphold by their ratification of the UN Human Rights Convention. For example, the conditions within refugee camps are a breach of the prohibition on inhuman or degrading treatment, the freedom of movement, and on the treatment of children. This is the backdrop against which the GCR was developed, bringing together the rights protected under the 1951 Convention and the UN Human Rights Conventions.

Bringing together refugee and human rights

There are three main reasons why this is important. Firstly, the provisions within the GCR reflect pre-existing legal standards found in (a) the 1951 Convention (including the 1967 Protocol) as well as (b) the UN Human Rights Conventions most of which were adopted after the conclusion of the Convention and indeed many after the opening for signature of the Protocol.

Among the most important is the Convention Against Torture 1984, which contains a stronger protection against refoulement in Article 3 than that within the 1951 Convention, but many others are important. For instance, Article 13 of the International Covenant on Civil and Political Rights 1966 brings procedural rights to all aliens lawfully on the territory where they are faced with expulsion decisions by the state.

Article 12 of the International Covenant on Economic Social and Cultural Rights 1966 establishes a right to the enjoyment of health which is not present in the 1951 Convention. The UN Convention on the Rights of the Child 1990 establishes a wide range of rights specific to children, which are relevant to all refugee minors, whether accompanied or not. The GCR, thus, provides an important document aligning human rights law with refugee law and the 1951 Convention.

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Pathway to integration and resettlement

Secondly, the GCR directs the 1951 Convention’s responsible institution, the UN High Commissioner for Refugees (UNHCR) to refocus attention away from the provision of rights, towards integration and resettlement programs through the ‘Comprehensive Refugee Response Framework’ (CRRF).

This raises complex questions about the extent to which the existing protections within the 1951 Convention and the UN’s Human Rights Conventions establish standards applicable in these two areas. The aforementioned failings in the protection of refugee rights are addressed to some extent in the GCR which seeks to focus on the programmatic improvement of state action and responsibility-sharing, instead of a purely legal focus on rights and obligations.

However, the gaps in individual protection mechanisms under the existing legal frameworks have not been addressed, and instead, there is a potential shift away from existing mechanisms into programmatic areas where their applicability needs clarification. As a result, there is a greater role for the 1951 Convention to ensure minimum standards remain applicable to refugees in integration and resettlement situations.

Crystallizing refugees’ legal rights

Thirdly, through the ‘juridification’ of the 1951 Convention and the ratification of the UN Human Rights Conventions, the GCR, notwithstanding its programmatic nature, must be part of a process of crystalizing legal rights for refugees.

Increasingly courts around the world take into account the 1951 Convention (and also the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee States, revised in 2011) when determining claims by individuals seeking international protection.

As governments endorse the GCR, and draw up their implementation plans, so they too express a political commitment to fulfill the objectives of the Compact. While not legally binding, the GCR is becoming part of the body of state commitments to which not only administrators should have regard when making decisions on cases, but also courts when the decisions of administrators are challenged in specific cases.

At a time when international refugee law is under considerable threat, having a GCR that amalgamated so many existing rights and obligations were not guaranteed. The role of the 1951 Convention in the implementation of the GCR remains central to its success. Half of the existing, binding law upon which the GCR sits, is contained in the 1951 Convention enshrining the core protections owed to refugees, but the other half, international human rights law, is also critical for refugees.

In the face of continued State disregard for the rights of refugees and the shift by UNHCR towards programmatic, rather than legal standards, the GCR, and by extension the 1951 Convention, must be utilized to ensure greater responsibility is taken for the protection of refugees rights by states.

Read more:

Hirsi Jamaa and Others v. Italy; N.D. and N.T. v. Spain
MSS v Belgium and Greece
RU v Greece
Khlaifia and Others v Italy
GB and Others v Turkey.
R v Uxbridge Magistrates Courts, ex parte Adimi paras 13-26)
General Comment No 1, 2017
Hathaway
Ferris and Gammeltoft-Hansen
Al-Sirri