The normative context in defining ‘refugees’

Contextual challenges in recognizing refugees

The Refugee Convention articulates that for any person to be qualified to be a refugee that person must have been outside from the country of his nationality due to the fact of a well-founded fear of being persecuted for reasons of race, religion, nationality, member of a particular social group or for having a particular political opinion. However, the Convention also in its stand approves that any person who has already been considered as a refugee under any treaty arrangements prior to this Convention would also be considered as refugees. The definition provided in the Convention is comprehensive, in a way that considers the cultural changes, and the interpretation includes the fear of persecution not only by the state actors but also by non-state actors.

However, there are also a number of restrictions, such as if a person voluntarily re-availed him or herself of the protection of his/her country of nationality, or has voluntarily reacquired the nationality of their state, the definition of refugees would not be applicable.  Further, if the state ceased to exist under the ‘cessation’ clauses, although according to the UNHCR, such clause required to be invoked sparingly, there is a possibility where the person may not fit within the definition provided by the Convention.  Nonetheless, the provision in the Convention so far has been interpreted broadly, in a way that the refugee status will not be considered to be ceased as long as the situation in the state of origin remains a danger.

Irrespective of these restrictions, the Convention remains as the central pillar, customarily interpreted in reflecting its objective and purpose of it – protecting individuals in need. Although in cases the general instability was found as a factor which is inconsistent to the prevent cessation of status, particularly due to the effect of persecution, it has also been considered as a viable internal alternative, which demonstrates that the customary interpretation of the Convention is limited. In other cases, the general instability was found as a ground for subsidiary protection that said, although the Convention fails to provide the required protection, still the state is obliged to grant such protection. Further, the Convention contemplates that irrespective of the condition of persecution remains a qualification, an individual could still qualify as a refugee given the fact there are compelling reasons arising from the previous persecution, commonly referred as ‘exemption from cessation.’ This exception applies only to the ‘statutory’ refugees, i.e. individuals who are eligible as refugees under the Article 1A (1) of the Convention: who were prior to the Convention were recognized as refugees. Further, the state practice is also contributing in extending the ‘exemption from cessation’ in protecting Convention refugees, irrespective of the fact, that the UNHCR noted clearly that such interpretation is not required by the Convention.

Nonetheless, the extent of the state practice creates now the customary norm, requiring this application, to be a purposive one. However, limitation applies under the exclusion clauses from the protection of non-refoulment to anyone qualify as a refugee under the serious reasons for consideration for have committed a crime against peace, war crime or crime against humanity or poses a compelling threat to national security or public order to the security of the country of refuge, where the individual who has already qualified as a refugee would subsequently lose the status. Note, however the exclusion clauses themselves have exceptions, such as child soldiers, decided in the case of AG v Zaoui by the Supreme Court of New Zealand, reflected on refoulment that goes hand and hand with the jus cogens status on preventing torture, noted that “[t]he prohibition on refoulment to torture has the  status of a peremptory norm or jus cogens with the consequence that article 33.2 [of the Refugee Convention] would now be void to the extent that it allows for [refoulment in such circumstances].” This implication of flexible application of the Convention was not only followed throughout the judicial decisions but also by legislative actions such as by the Council of Europe on the Recommendation 773, which recommended the European Union members to apply the definition of refugee liberally as amended by the Protocol of the Convention.

Evolution of a definition under the customary international law

As discussed above although the Convention has not amended explicitly in revising the definition of refugees, it has been customarily broadly interpreted as to justify the object and purpose. Although there has been an argument that the definition of refugees does not appear under the customary international law, but under treaty law, authors alike Hailbronner believes that the international obligation to grant protection to the victim is a ‘wishful legal thinking’, thus reflection through the state practice is a viable option. The American Society of International Law also produced that the human rights instruments are required to be read as a whole, thus protection prescribed in the Convention could be applicable to persons who enjoy any sort of non-refoulment. Thus, non-refoulment is a general principle, which Bazo also agrees that any individual who has the right to be protected under the international law must be covered by the definition of refugees. However, these arguments would be only valid if there are an extensive state practice and opinio juris to support the argument.

Regarding the state practice in expanding the definition of refugees, the reason for the primary expansion is because of civil wars, ethnic and communal conflicts and natural disasters, and of the acceptance that the international law can expand itself through custom. The Statue of the International Court of Justice prescribes that ‘evidence of a general practice accepted as law is law’ based on two elements: state practice which is described as a widespread and consistent practice of the states and opinio juris, the subjective belief of the state that engages in that practice, believing it as a requirement, not as an option. In this context, the statistics reveal that according to the UNHCR around 9 million individuals who have been identified as refugees, deserve protection, which from the state practice guidance provided in the case of North Sea Continental Shelf and of the history of the states to recognize and receive refugees to their respected nations represent the widespread practice, further be recognized not only through the subjective believe that it is the responsibility to protect refugees under the outgrown opinion juris, but also an international obligation under the treaty provisions such as Conventions Against Torture (CAT), and of the peremptory norm, jus cogens.

Defining Refugee through International Agreements

Although number of international instruments address the refugees in various stands, the Convention of the Organization of African Unity (OAU) on Refugees expands the definition of refugees includes, the people who displace due to the ‘external aggression, occupation, foreign domination or events seriously disturbing public order.’ Although there have been arguments that the intention of the drafters of the Convention was reflecting the post-colonial context, the fact that the Convention was signed by a number of largest recipients of refugees including Kenya, Uganda, Sudan, Zambia, Egypt and Tanzania makes the validity of the claim of the Convention in expanding the definition of refugees. In one step further, the states such as South Africa, Tanzania and Uganda adopted the Convention into their municipal laws impacts on the state practice, form a customary international law in expanding the scope of the definition of refugees. As such, the Bangkok Principles on the Asian -African Legal Consultive Organization also claims similar expansion in the definition of refugees, specially accepts the concept of refugees sur place, also claims the definition to cover any individual who was expelled from a state where his or her life or liberty is threatened for the reasons of race, colour, nationality, ethnic origins, etc.

The Cartagena Declaration focused on the forced migrants in Central and South America noted that Article 1(2) of the OAU Convention as the starting point of defining refugees, the declaration was although not legally binding in nature, endorsed by the Organization of American States, the UNHCR Executive Committee, further cited in the Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americans. It was signed and ratified by most of the American states, including Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua and Venezuela. The Mercosur Rio de Janeiro Declaration further provided expanded definition includes not only to the individual whose life is threatened for the reasons of race, colour and nationality etc., as provided in the previously discussed declarations, but also the victims of a generalized violation of human rights. The declaration itself expresses the state practice by accepting the geographically diverse practice to support the existence of the customary international law.

The Refugee Convention, its Protocol of 1967, and the Protocol relating to the Status of Refugees 2001 attribute the expanded version of the definition of refugees, also affirms the important of the human rights and regional refugee protection instruments which by doing it expresses the obligation of the states to carry the burden for the stronger existence of opinio juris.

There has been also the subsidiary protection provided in the international agreements based on the context of persecution, often those individuals protected are referred as de facto refugees: the refugees who need are seen as legitimate, however, they would not qualify under the Convention. However, looking at the intention of the drafters of the Convention, it is expressed that the provisions of the Convention can be interpreted in a way to cover these expanded group of persons. However, there has been debate about this status, which was particularly addressed by the European Union in the context when considering the minimum standard of the directive failed to cover subsidiary protection. Although the directive models the Article 1(F) of the Convention, there has been no legal obligation to follow the terms, nor required to be supplemented by humanitarian assistance. Nonetheless, there are a number of international treaties calls for the subsidiary protection, such as the International Covenant on Civil and Political Rights (ICCPR) and the CAT in particular, the Article 3 which prohibits refoulment of a person, ‘where there are substantial grounds for believing that he would be in danger of being subject to torture.’

The European Convention on Human Rights and the American and African Charters make similar provisions on torture, establishes that the protection must be given to an individual when he is in ‘real risk.’ The EU Minimum Standards Directive 2004 particularly requires the member states to receive asylum application on the basis of the subsidiary protection who cannot go back to the country of origin because of serious harm, which includes death penalty or execution, torture and inhuman treatment or any other form of serious and individual threat to the civilian’s life by indiscriminate violence caused by the international or non- international armed conflict.

The state practice and the opinio juris have also been recognized in the context of refugees by the practice and mandate of the UNHCR that contributes to the formation of customary international law. It is because the organization embodies the state practice through being represented by the state delegates, or where the state cites the mandate of the organization being supervisory expresses opinio juris that the legal standards applied by the organization are accurate and the delegation by the states to the UNHCR could determine the status of refugees. In this context, the practice of the UNHCR cannot be dismissed, a representative opinio juris that is effective.

The Council of Europe through its Recommendation 18 of 2001 and by case laws such as in the case of Elgafaji v. Staatssecretaris van Justitie, Case C-465/07, 2009 E.C.R., argues for the qualification for the subsidiary protection which does not require to be a specifically targeted for harsh treatment, but as far is it fulfill ‘serious and individual treat’ due to the indiscriminate violence. It is to note that the EU did not broaden the definition of refugees, but provides legal standings for subsidiary protection, an expression of the opinio juris for the subsidiary protection.

Normative restrictions on the definition of refugees

Although the above discussion expresses that the definition of refugees has been expanded in a way to cover individuals, not just those facing the risk of persecution, there are also the existence of the negative impact of the customary international law that narrows the definition, particularly when there is a treaty provision which contrasts to the intention of the customary international law in this matter in particular.

One method the states adopted in narrowing the scope of the application of refugee law is by interpreting the territorial application of the Convention, which affects the determination of when an individual is outside his country of nationality. For an example, the US Supreme Court ruled that the Convention is not applicable outside the territory of the United States, whereas Russia interpreted in the same manner, along with interpreting the definition of territory.

The second method is by providing alternative relocation. Courts found when there is a possibility for the individual to relocate within the state of nationality, the application for refugee status can be rejected. However, in this context states found it from two approaches. First is to see whether there is genuine access to the areas of domestic protection, where the state can ensure the protection is meaningful, and the protection is not unpredictable. The second approach is comparing the situation of the area where the individual currently situated and the characteristic of the proposed area of protection, which is the approach the UK finds through the case laws since the first approach does not go along with the EU Council Directive 2004/83/EC.

The third method of the states enforce is applying the third country or safe country of origin tests to refuse the claims for asylum, in the basis that if the individual is coming from a country that has been deemed safe, then there is no requirement to provide asylum.

The fourth method is enforcing prohibitions on applying for recognition of refugee status through regulations under certain circumstances. Although it in first hand appears as it does not narrow the definition of refugees, but the fact the burden of proof is placed on the applicant that he has no disqualifying act or condition such as in the cases of terrorist suspects, such as in the case of Bundesrepublik Deutschland v. B, Case C- 57/09, 1990 E.C.R. and Bundesrepublik Deutschland v. D., Case C-101/09, 2010, severely affects the scope of being defined as a legitimate refugee. Further, broadly interpreting the acceptable criteria that the Convention spells out for refusing the refugee status, have certainly undermined the scope of the Convention, that indirectly impact in the definition and scope of refugees.

The fifth method is providing diplomatic assurances while refusing to accept the refugees, which is still remaining controversial. It was argued against by the UN Special Rapporteur on Torture as an ineffective approach has been used by states. The MOU signed by the UK with Jordan, Libya and Lebanon to provide blanket assurance is a clear example of it, which the Council of European Commissioner for Human Rights argued that “[t]he weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances, there is clearly an acknowledged risk of torture or ill-treatment.”

In these contexts, this essay concludes that although normatively the definition of refugees has extended, the governments have been using different mechanisms in restricting the scope of it by not willfully restrict the definition, or contrast the customary international law, but by going around the definition, that has substantially weakened the entire legal scope of the extension of the definition so far has been built up by the customary international law.

Janakan Muthukumar
Janakan Muthukumar
Janakan Muthukumar is a young academic, currently undertakes a research project at the University of Toronto on G7 commitments on International Security. He holds an LLM in International Law from the University of London, UK and a Master in Human Rights and Democratisation at the University of Sydney, Australia. His research focuses on armed conflicts, counterterrorism and counterproliferation.