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May 02, 2023


Topic: Who is a Refugee under the 1951 Convention relating to the status of Refugees?


Geneva Convention, or the Convention Relating to the Status of Refugees, or the 1951 Refugee Convention, is the main multilateral treaty of the United Nations (UN) that not only defines the term refugee but also brings out the rights that the individuals get when they are granted asylum, along with stating the responsibilities that a nation gets once it grants asylum. The Geneva Convention was adopted in 1951 and was the result of the two devastating world wars that left the world in a state of turmoil. In the context of international refugee protection, this convention takes centre stage. This is because the matter is still very relevant in the present world and even more than it was before.  

The Geneva Convention was the result of a special conference of the UN and was adopted on 28th July 1951, and entered into force on 22nd April 1954. This convention brings clarity to the definition of refugees. This is in the sense of who will be deemed as a refugee and who will not be treated as one. It also brings out the rights, assistance and protection that the refugees have to receive. For the Office of the United Nations High Commissioner for Refugees (UNHCR), the Geneva Convention acts as the primary legal base. Initially, the convention was restricted to geographic and temporal terms, where the only focus was placed on the refugees that were in Europe post-WWII. The scope of this convention was expanded later on in 1967, and this was done with the Protocol relating to the Status of Refugees. At present, there are one hundred and forty-six State parties that the Convention has, which includes nations like Germany. In the context of the protection of refugees, this continues to be the most significant international document.  

This document seems like a powerhouse in the context of refugee protection due to the strength it has attained since it was first brought forth, and the high number of participants that have boarded this ship. However, this convention has faced a lot of criticism. This is not only in the context of the convention failing to live up to its objectives but also in the context of it being outdated for the present time. It is stated that the convention was brought decades ago and a lot has changed since then. Even the manner in which the refugees have been defined under the act shows the old-age view on who is deemed as a refugee. In order to understand these contentions in a better manner, this discussion takes a journey on exploring the very definition of refugees as is given under the Geneva Convention. In doing so, the criticism that this definition has garnered, along with the reasons to show how this definition needs an update, basis the present scenario, will be elucidated.

Refugee Under Convention

The Geneva Convention acts out as a remarkable document that has created a system of international protection for individuals who need it. Looking at it from the international law perspective, this Convention gives a person the status of being a refugee when they have lost the protection from the state of which they hold the nationality or the state of their origin. For being a refugee, it is thus necessary to show failure or loss of protection from the state, which makes it crucial for such a person to be given this protection. In order to admit a person as a refugee, the recognition of the part played by the state is crucial. A person is granted refugee in the territory of another nation only when it is a genuine case and the person genuinely needs protection. This is why the international standards were developed so as to put forth the criteria that were needed for accepting a claim of refugee status and to allow for the determination of such a claim. The needful standards have been covered under Article 1 of this convention.

The article begins by showing the criteria, which would lead a person to be termed a refugee. A person would be deemed as a refugee under this convention when he has been considered to be a refugee based on the “Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the Refugee Organisation”. Here the article clarifies that the decisions that were taken in the context of the non-eligibility during the period of its activities, by the International Refugee Organisation, would not prevent the refugee status from being accorded to such an individual who meets the criteria laid down in paragraph 2 of this section.

The events that took place before 01st January 1951, coupled with the rational fear of prosecution based on the reasons of membership of a specific political opinion or social group, nationality, religion, or race, a person can claim refuge in an outside nation. The refuge is essentially sought out of the nation for which such person holds the nationality. Further, such a person is not able to avail of the protection of such nation, or owing to such fear is not willing to avail such protection would qualify in the context of being a refugee. This can also be granted to a person who does not have the nationality and is out of the nation that was their earlier habitual resident because of certain events, or where such person is not willing to return to their habitual residence nation due to fear of such events. Where a person holds the nationality of more than one nation, the country of his nationality would refer to the nations where he is a national. Further, the individual would not be considered as not having the protection of the nation of his nationality where there is the absence of a valid reason for such well-founded fear was present and where such a person does not avail the protection of the country of which he is a national.

Article 1(B) clarifies the meaning of the words `events occurring before 1 January 1951, as have been covered in Article 1(A). these were making reference to either the events that took place before 01st January in Europe or the ones that occurred in Europe or elsewhere. Every contracting state is required to make a declaration regarding the meaning that they apply to this term, so as to set the obligations under this Convention. This has to be done in the context of making a declaration at the time of accession, signature or ratification. Where the contracting state has adopted the alternative that has been stated in the first option, they can get their obligation extended by referring to the second option at any time, by simply issuing a notification that has been addressed to the Secretary-General of the United Nations.

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