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A 'Timeless' Treaty Under Attack: The Bad Guys
In 1951, so-called ‘agents of persecution’ were generally assumed to be states. Now, refugees more often flee areas where there is no functioning government, where they are victims of shadowy organizations, rebel movements or local militia. A few governments insist that actions by these ‘nonstate agents’ cannot be considered ‘persecution’ under the Convention. Others reason that if a country tolerates, is complicit in, or cannot prevent persecution by non-state agents, then refugee status should be granted to the victims. Given the Convention’s silence on the issue, UNHCR believes the source of the persecution is less a factor in determining refugee status than whether mistreatment stems from one of the grounds stipulated in the Convention. Last year, the European Court of Human Rights reaffirmed that persecution by non-state agents is still persecution by ruling that returning asylum seekers to situations in which they could face persecution violates the European Convention of Human Rights, whatever the origin of the persecution. Some states argued that the Convention only applies to individuals (“…the term ‘refugee’ shall apply to any person who…”); therefore, the provisions of the Convention do not apply to large groups of people seeking asylum in a country en masse, which is increasingly the case. Humanitarian jurists say that nothing in the definition implies that it refers only to individuals and underline that when the Convention was drafted, its intended beneficiaries were, in fact, large groups of people displaced by World War II. The Convention’s provisions present a complex legal challenge. While some articles are absolute, many are flexible enough to allow the treaty to live and evolve, through interpretation, as times and circumstances change. Equally, the Convention’s silence on a number of issues, including asylum, gender and burdensharing, has ignited heated debate in recent years among governments, legal scholars and UNHCR.
Although the Universal Declaration of Human Rights asserts the right of persons to seek and enjoy asylum, the Convention makes no mention of such a right, nor of any obligation on countries to admit asylum seekers. The Convention does protect those refugees who lost, left behind or could not obtain proper documentation and so entered a potential asylum country unlawfully. States are obliged not to impose penalties on those people as long as “they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” The only reference to states’ responsibilities in admitting refugees appears in the drafters’ Final Act. They recommended “that Governments continue to receive refugees in their territories and… act in concert in a true spirit of international cooperation in order that these refugees may find asylum and the possibility of resettlement.”
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