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UNHCR Home | 1951 Convention |
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A 'Timeless' Treaty Under Attack: Developing Protection (Cont.)
Arguably the Convention’s most important provision—the obligation by governments not to expel or return (refouler) an asylum seeker to a territory where (s)he faced persecution—was also fought over at length. Diplomats questioned whether non-refoulement applied to persons who had not yet entered a country and, thus, whether governments were under any obligation to allow large numbers of persons claiming refugee status to cross their frontiers. Though the principle of non-refoulement is now generally recognized as so basic it is considered part of customary law, the particular debate continues. In a controversial 1993 decision, the United States Supreme Court concluded that immigration officials did not strictly contravene the Convention when they seized and repatriated boatloads of Haitian asylum seekers in waters outside U.S. territory. But in the type of intricate legal opinion that might baffle anyone but a lawyer, the Supreme Court also acknowledged that the Convention’s drafters “may not have contemplated that any nation would gather fleeing refugees and return them to the one country they had desperately sought to escape; such actions may even violate the spirit of Article 33”, which forbids forcible return. The conference ended on 25 July 1951 and the Convention was formally adopted three days later, but much hard work still lay ahead. There was interminable fine tuning and hard bargaining. As late as 1959, UNHCR’s representative in Greece cabled Geneva in despair: “I doubt whether I have ever in my life asked so many times the most different persons for one and the same thing as I have pressed in Greece for the ratification of the Convention. Still the prospects are not brilliant.”
In a letter to UNHCR in 1956, India outlined its domestic refugee concerns and concluded, “In view of this, the government of India do not propose to become a party to the above mentioned Convention for the present.” India, the second most populous country in the world, has still not acceded to the Convention, though it is, ironically perhaps, a member of UNHCR’s Executive Committee, which helps establish global refugee policy. Despite the hiccups and hesitations, in December 1952, Denmark became the first country to ratify the Convention. After five additional states—Norway, Belgium, Luxembourg, the Federal Republic of Germany and Australia—had also acceded, the Convention officially came into force on 22 April 1954. For the first time, there was a global instrument that represented a major improvement on pre-World War II treaties and advanced international law in several important ways.
The 1951 Convention contains a more general definition of the term refugee and it accords them a broader range of rights. Influenced by the 1933 Refugee Convention and the 1948 Universal Declaration of Human Rights, the 1951 instrument allows refugees the freedom to practice religion and provide religious education to their children, access to courts, elementary education and public assistance. In the field of housing and jobs, a refugee should be treated at least as favorably as other nationals of a foreign country. Conversely, the Convention also spelled out the obligations of refugees toward host countries. “Too often, the refugee was far from conforming to the rules of the community,” a French delegate said at the time of the drafting in pushing for such an outline. “Often, too, the refugee exploited the community.” The instrument stipulated who is not covered by its provisions in its ‘exclusion clause’ (people who commit war crimes, for instance) and when the Convention ceases to apply in its cessation clauses. For the first time it created a formal link between the treaty and an international agency, UNHCR, which was given authority to supervise its application. Crucially, more states helped draft the treaty—and have since ratified it—than have supported any other refugee instrument. Despite its compromises and its limitations “what was done for refugees through the Convention was a major achievement in the humanitarian field,” according to Ivor C. Jackson, who worked for UNHCR for 30 years, including as deputy director of the organization’s Department of International Protection.
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