‘The 1951 Geneva Convention on Refugees and the 1967 Protocol sought to strike a delicate balance between

the needs of those fleeing persecution and the interests of receiving States. The reality now, however, is that
the Convention and Protocol have been overtaken by events and they impose an unacceptable burden on
States receiving those fleeing persecution.’ Discuss.

The statement under consideration predominantly revolves around the rights of refugees, a complex and ever-
changing body of doctrine and principle primarily governed the 1950 Geneva Convention on Refugees and its
1967 Protocol. It is prudent to agree with the first half of the statement as the heart of the Convention was to
strike a balance between the rights of refugees and the interests of the countries of refuge. The second half of the
statement is partially correct in that the Convention and Protocol do impose an increased burden on states
receiving refugees, however, the burden could not be considered unacceptable, especially in light of recent
violations of refugee law. Ultimately, with issues as intricate and complex as refugee law, there must be a
balance, which the Convention attempted to strike but is disregarded by the tendency of states to prioritize
national concerns over international obligations.

Indeed, rights of the refugee raise interesting problems in human rights law. According to Agamben, refugee
movement call into question the organisation of the world into distinct sovereign territories, a fundamental
problem of modern political organisation. Tuitt argues that the status of the refugee challenges the very notion
of a system of formally equally sovereign states because the refugee, as a stateless person, presents a problem to
a system of human rights that depends on the sovereign state. Moreover, as Hannah Arendt points out the
refugee characterizes the modern political condition: the inherently violent nature of the state that can both grant
and deprive citizens of rights. As Arendt argues, human rights are not the product of inherent dignity, but exist
pure because a state might grant and recognise them.

The historical background giving rise to formal refugee rights concerns the immediate aftermath of the Second
World War. The continuing nature of refugee problems in post-war Europe and the appreciation that the refugee
crisis raised human rights issues made the UN keen to improve the international protection of displaced persons.
While the UN Relief and Rehabilitation Agency and International Refugee Organisation were involved in aiding
the hundreds of thousands of displaced people in Europe, there was no coherent body of refugee law to protect
rights therein. Although there were two relevant instruments, the 1933 League of Nations Convention and 1938
Convention Concerning the Status of Refugees coming from Germany, these documents did not provide a
coherent framework for the protection of human rights of refugees as they were binding, and the limited number
of signatories reflects a limited influence. The most paramount development in refugee law was the creation of
the Convention relating to the Status of Refugees, adopted by the UNHCR.

The Convention was largely a compromise as state parties were reluctant to commit to obligations that were too
broad or interfered dramatically with their own internal affairs. Initially, the very definition of refugee status
had a temporal limit, applying only to those becoming refugees as a result of events occurring before 1 January
1951 or optionally to the geographical reach of events happening in Europe, illustrating that states were
unwilling to accept open-ended obligations. However, the 1967 Protocol removed the geographical and
temporal limits of the Convention, proving how States are now burdened more than initially envisioned at the
drafting. The Convention is of utmost importance from a legal perspective because it contains a general

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definition of refugees and also grants them with rights, providing a coherent framework in place of the legal
vacuum as to refugee law.

Perhaps, the most important aspect of the Convention is Article 1 which provides a definition of refugees which
is technical in that it relates back to previous documents. Thus, a refugee is someone who has been considered
a refugee under ‘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 International Refugee
Organisation’, dates which are significant because they provide a link with the pas and ensure the continuity of
international protection of refugees who became the concern of the international community at various earlier
periods. There are a number of elements to the definition. The core sense is a “well-founded fear of persecution”
relating to a broad list of factors including ethnicity, and also social and political concerns. Owing to this fear,
the person claiming refugee status is outside his country of nationality or former habitual residence, and is
unable or unwilling to return. Thus, a refugee is a stateless person, one who cannot call on a state to protect him
or her. There are both subjective and objective tests for refugee status. Determining whether the applicant is in
fear is a subjective test relating to the applicant’s own understanding of the threat that he or she faces, taking
into account the credibility of the applicant especially when the facts are not clear. That this fear be ‘well-
founded’ is objective, a consideration which is equally difficult because it must be related to the context of the
background of the situation. Notably, the UNHCR Handbook gives that being the victim of a natural disaster
does not qualify as a well-founded fear which warrants refugee status. An equally important issue is the
meaning of ‘persecution’. While there is no single definition, interpretations are thrown back to the Convention
itself, with inferences of Article 33 indicating that it means a threat to life or freedom on account of race, religion,
nationality, political opinion or membership of a particular social group. It must be noted that refugee status
may be lost if a refugee voluntarily re-avails protection of their country, the reasons for persecution cease to
exist, or by commission of certain crimes, including crimes against humanity. Indeed, the interpretation and
application of the test for refugee status has been problematic in national jurisdiction, an issue this essay will
discuss below.

The Convention provides some important rights to refugees and sets out obligations of states in this regard.
Indeed, Article 3 gives that the Convention must be applied to refugees without any form of discrimination, and
Article 4 obliges states to treat refugees as favourably as their nationals. These duties are the minimal obligations
that a state owes to its refugees, but Article 5 stresses that that Convention should be read as limiting the
‘benefits’ which might be granted to a refugee. This is to be read alongside Article 2 which articulates a set of
general obligations that a refugee owes to the country of refuge, namely conforming to its laws and regulations.
Moreover, the Convention articulates sets of rights of refugees, ranging from those of employment, as covered
in Chapter III, groups of rights relating to welfare, and social and economic rights, (Chapter IV). Chapter V
concerns important administrative rules. One of the key provisions is Article 33 which prohibits refoulement,
that is it prohibits receiving states from returning refugees to the frontiers of territories where his life or freedom
would be threatened, unless as provided by the exception in 33(2), the refugee presents a threat to security or
danger to the country expelling him. This is perhaps the most impeding provision of the Convention as it obliges
state parties to receive those feeling persecution and provide for them, without having regard for the own
financial state or resource limitations of the state in question, as such imposing an unacceptable burden therein.
Such a burden is further illustrated by provisions such as Article 31 and 32, the former prohibits a state from

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placing a penalty on a refugee who has entered unlawfully while the latter prohibits states from expelling a
refugee once he is lawfully within a territory. Both obligations portray a lack of states to defend their national
interests or govern their sovereign state as they think best, giving preference instead to a situation of flight
created by another state.

The enforcement of the Convention is governed primarily by Chapter VI, wherein Article 35 provides that
contracting parties must cooperate with the Office of the UN High Commissioner for Refugees, providing
reports relating to the laws and regulations passed to implement the Convention and as to the conditions of
refugees in their territories. It is of paramount importance that there is no procedure for inter-state or individual
complaints, thus, providing no practical contours for the abstract ideas enunciated in the Convention. Another
inadequacy of the Convention is how it does not go into great detail about the protection of women and girl
refugees and family reunification. In relation to the former, figures of the UNHCR 2005 show that nearly half of
the world’s refugee population is female. In the 1990s, the ECOSOC called on governments and NGOs to keep
this issue current and increase efforts to protect females, which can be linked to Article 3 of CEDAW which
requires the furthering of fundamental rights and freedoms of women. CEDAW is also of relevance as the
problems faced by women refugees are similar to the problems faced by women generally, ranging from physical
violence and discrimination to the fact that male distributors of food and other relief foods require sexual favours
in exchange. The main source of principles is Executive Committee Conclusions which, while not legally
binding, are important statement of policy and interpretation that underlie the UNHCR Handbook. These
sources build on the Article of the Convention that, whilst they prohibit discrimination, do not go into detail
about the forms of special protection required by women and girls. As such, refugee law does not recognize that
women face gender-specific forms of violence and abuse. Indeed, family reunification, which is not preserved
in the Convention, raises similar points. However, the Final Act of the Conference that adopted the Convention
does address the issue, and most states do observe this Final Act even if they are not parties to the Convention.
There are also important Executive Committee Conclusions that relate to this area with the key principle being
that the head of the family is granted refugee status, then family dependents are accorded similar status.
Nevertheless, the fact remains that these are huge issues specific to refugee law which are catered to by the
Convention.

The application of the Convention has been problematic in some national jurisdictions, for instance consider the
way English courts have interpreted the test for determination of refugee status and the standard of evidence
required therein. The landmark case here is ex parte Sivakumaran (1988), where it was given that whether there
was a well-founded fear of persecution within the meaning of Article 1A(2) was to be determined by an objective
test, taking into account the circumstances existing in the country of the refugee’s nationality, and the applicant
must show that there was a reasonable degree of likelihood that he would be persecuted for one of the reasons
referred to in Article 1 if returned. On the facts, there was no such real risk if the applicants were returned to Sri
Lanka, hence, their asylum appeal was rejected. Some have argued that this is a very stringent test, for instance,
the Court of Appeal itself had argued that it would allow a refugee who had genuine fears, albeit objectively
unfounded, to claim refugee status, qualifying it in that the genuine fear would have to be of a person of
reasonable courage, notably not even elaborating what are the reasonable fears of a person of reasonable
courage. However, the House of Lords rejected this argument and returns to the Convention to stress that the

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protection should be afforded to those who have a genuine fear that can be objectively demonstrated, thus,
making it harder to claim refugee status.

Indeed, it is now settled law that an asylum seeker must prove, to a reasonable degree, that he would face
persecution. The question of what standard of proof should be used was at issue in Karanakaran (2000), in which
the applicant had been internally displaced from his home on the Jaffna peninsula to the city of Columbo. The
question before the Court was wehther international relocation is a legitimate alternative to asylum for a person
who otherwise ranks as a Convention refugee. The Home Secretary argued that while there was a well-founded
fear of persecution, the applicant did not fear persecution in Columbo and thus should be returned there, while
the applicant argued that this was unreasonable as he had no work, house, or family there. As to the question of
how evidence is to be judged, Sedley J gave that a claim to asylum is not like a claim made in civil litigation, but
rather an administrative process which cannot be modelled on the latter. Rather than treat facts as established
on a civil standard, the evidence offered must be treated as a whole. The issue was explained further in Kaja
(1995), as not being a process of civil litigation but evaluative of all evidence to the Sivakumaran standard.
Clayton elaborates that the asylum seeker does not have to bear the burden of proof and that it is a public law
exercise in the need for protection rather than an exercise in proving facts to a standard.

Hence, it is clear that while the Convention effectively provides for rights of refugees and serves as a coherent
statement of law, its application in national legal systems is problematic to say the least. It is perhaps due to the
difficulty to apply the Convention, the fact that it has relatively weak enforcement mechanisms (lack of inter-
state or individual complaints procedure), and that it does not cater to certain key issues such as the problems
faced by women refugees, that there is widespread abuse of refugee rights. One of the most prominent violations
of rights of refugees is US President Trump’s travel ban against Muslims, which is also discriminatory contrary
to the ICERD, and the construction of a wall along the Mexican border. These policies clearly violate the US’s
obligations under the 1951 Convention as they effectively prevent those will well-founded fears of persecution
from taking refuge in the US and in effect allow the US to refoule, contrary to Article 33. Further, according to a
Human Rights Watch report, Pakistani authorities have carried out a campaign of abuses and threats to drive
out nearly 600,000 Afghani refugees since July 2016, who now face armed conflict, destitution, and displacement
in Afghanistan. This is clear contravention of Pakistan’s responsibilities under the Convention not to expel any
refugee lawfully in the state (Article 32) or to return a refugee to a place where he may face persecution (Article
33). Furthermore, as pointed out by Professor Urfan Khaliq, another area of concern is that UK’s decision to quit
membership of the EU was in part motivated by ‘too much immigration’, a notion which is problematic because
it again reflects the attempts of a state party to put its own interest of finance and resources above the
international duty to those fleeing persecution. UK’s disregard of the Convention is also prevalent in the recent
Immigration, Asylum, and Nationality Act 2006 which significantly decreases the rights of refugees in many
areas, most notably limiting and restricting the rights of appeal. Overseas processing centres are also in breach
the Convention. The reforms therein are not driven by a respect for refugees’ rights bur by a need to tightly
control the number of refugees entering the UK and to limit the overall cost of the immigration system. Most
notably, In light of these violations, it is evident that despite the legal edifice that exists to protect the rights of
refugees, states have chosen to prioritize their national concerns over their international obligations, leading to
widespread violations of the Convention.

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Indeed, the other side of the story would suggest that states are being unnecessarily burdened. Let us take the
example of those fleeing the Syrian civil war. Many are escaping to Jordan and Lebanon, and the region’s two
smallest countries with weak infrastructure and limited resources are nearly at a breaking point under the strain.
In August 2013, many escaped into Northern Iraq who now is struggling to meet the needs of these refugees
alongside more than 1 million internally displaced Iraqis. An increasing number of Syrians who are escaping
into Turkey are overwhelming urban host communities and creating new cultural tensions. Conceded that these
states do face extra costs and struggles, these are not more pressing than the rights of those fleeing persecution.
Wouldn’t giving preference to temporary financial and cultural concerns over the basic right to life of those in
danger undermine everything human rights law has done and stands for? Moreover, the problem is not just that
refugees exist but that they are forced to seek help from weak states as the powerful West has shown a consistent
reluctance to intervene.

Of paramount relevance here is the oil and power crises in Sudan which is a primary illustration of both the
causes of a refugee crisis and how it is worsened by a lack of political will to intervene. Human rights have very
little meaning to the Northern government of Sudan and to oppositional groups and guerrilla armies. The
Sudanese civil war, which can be traced back the discovery of oil in 1978, between the African non-Muslims and
Arabised Muslims, who hold power, plays host to vast abuses of human rights giving rise to a refugee crisis.
The two UN resolutions calling on the Northern government to disband its militias has been ignored. The US,
the EU, and other Western powers stand by and lack the political will to intervene. The fact that the genocide in
Sudan is off the world’s political agenda shows the willingness of powerful states to downplay human rights,
whether of refugees or not, in favour of other policy goals.

Ultimately, the heart of the 1951 Convention was so strike a balance between the rights of those fleeing
persecution and the states that would be receiving them. While these states do have to face some hurdles, these
can in no way be deemed to be an unacceptable burden, firstly in light of the pressing basic rights of those in
danger, and secondly in light of the various recent violations of refugee law. In fact, the problem is not that
refugee crisis exist, but that states continue to prioritize their national concerns over international obligations,
and states with the needed resources and manpower, such as the West, have shown a lack of political will to aid
those fleeing persecution. As such, it is not that the Convention places an unacceptable burden on states but that
states are unable to accept the burden placed, and thus devise their own way of shirking international
responsibility, at the expense of refugees.

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