About Us
The international refugee protection regime in the world today is premised on a number of international refugee rights instruments.1 Chief amongst these is, of course, the 1951 Convention relating to the Status of Refugees and its 1967 Protocol relating to the Status of Refugees that have been described at the Magna Carta of international refugee law and the “cornerstone of protection” for refugees.2 Over the last 60 years, since the 1951 Convention was first negotiated by states, there have been momentous changes in the definition of the term “refugee” and non-refoulement, the prohibition of returning anyone to a territory where they could face persecution, that have been incorporated into the corpus of international law.3 The UNHCR has asserted that with the help of these treaties they have assisted over 50 million people.4 Nonetheless, it has been noted that the definition of refugee found in the 1951 Convention is limited. Indeed, it has been pointed out that the 1951 Convention takes great pains to eliminate many persons from Convention refugee status, initially, with its geographic and temporal limitations, that were lifted by its 1967 Protocol, its cessation provisions, and the non-inclusion of persons who already receive protection from other organs or agencies of the United Nations, like UNRWA (United Nations Relief and Works Agency for Palestine Refugees in the Near East, www.unrwa.org.), and persons who have been recognized as nationals of a third country, and, finally, those who are found to be "undeserving of Convention refugee status."5
It is axiomatic that Convention refugee status should only be given to persons who are genuinely in need of international refugee protection and who do not have access to international protection elsewhere. For instance, it is argued that persons should not be granted Convention refugee status who already have refugee protection through other UN organs or agencies or who have permanent residence status or citizenship in another country, or persons who have ceased to be refugees because of a durable change of circumstances in their country or countries of nationality that precludes the basis for a well-founded fear of persecution.
Article 1A(2) of the 1951 Convention defines a Convention refugee as having a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership in 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 return to it.”6 Critics of this definition suggest that Convention refugee status should not be limited to “persecution” on the basis of a mere five grounds. Further, is it reasonable to accept that persons should be excluded from Convention refugee status because they are “undeserving” or “unworthy” of international refugee protection?7
This perforce raises a fundamental ethical question: “Should any person ever be deemed ‘undeserving’ or ‘unworthy’ of protection from a well-founded fear of persecution?”8 Moreover, is it reasonable to accept that if the 1951 Convention and the 1967 Protocol are the basis in public international law for a prohibition against persecution and, if so, then can such a prohibition not be applicable to certain persons?
Article 1F of the 1951 Convention states simply:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) 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;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.9
It has been noted that,
Human rights are universal and inalienable; indivisible; interdependent and interrelated. They are universal because everyone is born with and possesses the same rights, regardless of where they live, their gender or race, or their religious, cultural or ethnic background. Inalienable because people’s rights can never be taken away. Indivisible and interdependent because all rights – political, civil, social, cultural and economic – are equal in importance and none can be fully enjoyed without the others. They apply to all equally, and all have the right to participate in decisions that affect their lives. They are upheld by the rule of law and strengthened through legitimate claims for duty-bearers to be accountable to international standards.10
Irrespective of the fact that human rights are universal and inalienable, indivisible, and interdependent and interrelated, the United Nations and the original States that negotiated the 1951 Convention relating to the Status of Refugees came to the conclusion that those who breach another person’s most essential and fundamental human rights and/or their entitlement to a basic respect to their human dignity, shall not be covered under the provisions of this Convention. In short, those who persecute others and create refugees cannot then avail themselves of the protection of the Convention on refugee status. When one breaches the prohibition against persecution and, in effect, creates refugees he cannot, then, in turn, seek to be protected as a Convention refugee. Justice and the “ethic of reciprocity” -- treat others as you would have them treat you -- demands no less. (See our “War Crimes and Refugee Status Conference” website at www.yorku.ca/wcrs/conference.) This does not, however, disqualify those persons from other human rights protection and to a right to the basic respect of their human dignity.
The genesis of this Article 1F Policy and Practice Conference is found in our previous research workshops and conferences on this subject that were held on May 17th, 2010 (www.yorku.ca/wcrs.), and August 16th, 2011 (www.yorku.ca/wcrs/conference.) The current conference builds on these previous research workshops and conferences but is broader in its scope by examining Article 1F in its entirety and not only Article 1F(a), but, (b) and (c) as well. The conference is timely in that it is taking place in the midst of the UNHCR’s review of its 2003 Guidelines on International Protection and the application and interpretation of the Exclusion Clauses.11 One of the principal objectives of this conference, then, is to make a contribution to the UNHCR’s review and updating of its 2003 Guidelines on the Exclusion Clauses of the 1951 Convention.
We are very fortunate to have the Hon. Justice James O’Reilly, Federal Court (Canada), chairing our conference on Article 1F. We are also very fortunate to have some of the leading legal scholars, jurists and practitioners in the field of international refugee law participating in our conference. We are most appreciative and thankful for all those who have agreed to join us at our conference and particularly those who have agreed to serve in our three panels sessions that cover each of the subsections under Article 1F. (Our presenters are found at the "Program" tab and our conference participants are found at the "Participants" tab on this website.)
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1 UNHCR, Collection of International Instruments and Legal Texts Concerning Refugees and Others of Concern. Geneva, Switzerland: United Nations High Commissioner for Refugees, printed by the International Training Centre of the ILO (ITCILO), June 2007.
www.unhcr.org/cgi-bin/texis/vtx/home/opendocPDFViewer.html?docid=455c71de2
(accessed May 5, 2012) This collection includes a list of over 260 instruments and legal texts drawn from a wide cross section of public international law, including: human rights, humanitarian, and criminal law as well as, of course, refugee law.
2 The Editor’s Desk, “The Refugee Convention at 50…” Refugees, Volume 2, Number 123, 2001, p. 2. www.unhcr.org/cgi-bin/texis/vtx/home/opendocPDFViewer.html?docid=3b5e90ea0 50th anniversary of the 1951 Convention. (accessed May 5, 2012)
4 Ibid. This number has surely grown dramatically over the last decade.
5 1951 Convention relating to the Status of Refugees, UN Treaty Series, Vol. 189, p. 137. Article 1, B through F.
7 The Office of the United Nations High Commissioner for Refugees in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Reedited Geneva, January 1992, p. 35, paragraph 147-149.
8 Ibid., states at paragraph 51, “There is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success.” (p. 14) However, it does go on to state that a “threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights – for the same reasons – would also constitute persecution.” (p. 14)
9 1951 Convention relating to the Status of Refugees, UN Treaty Series, Vol. 189, p. 137. Article 1F. [Emphasis added.]
10 United Nations Population Fund (UNPFA), Human Rights, Human Rights Principles, www.unfpa.org/rights/principles.htm. (accessed May 6, 2012).
11 UNHCR, The UN Refugee Agency, Guidelines on International Protection: The Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, 4 September 2003, www.unhcr.org/cgi-bin/texis/vtx/home/opendocPDFViewer.html?docid=3f7d48514. Guidelines on the Exclusion Clauses. (accessed May 6, 2012).