1. Introduction

Article 35 of the 1951 Convention Relating to the Status of Refugees (1951 Convention) provides that "Contracting States undertake to cooperate with the Office of the United Nations High Commissioner for Refugees . . . and shall in particular facilitate its duty of supervising the application of the provisions" of the Convention. In an effort to contribute to ongoing discussions on important aspects of refugee policy and practice, the Office of the United Nations High Commissioner for Refugees (UNHCR) issued information papers on "Readmission Agreements, 'Protection Elsewhere' and Asylum Policy" in August 1994 and on "Fair and Expeditious Asylum Procedures" in November 1994. This document is intended to provide UNHCR's position on the interpretation of certain elements of the refugee definition contained in Article 1 of the 1951 Convention.

The complexity of situations which give rise to flows of persons in need of international protection has raised basic questions regarding the interpretation of Article 1 of the 1951 Convention. It seems clear from the travaux préparatoires and from the historical context that the Convention's provisions were intended to be given an interpretation consistent with the generous spirit in which they were conceived. The refugee definition was meant to have an inclusive meaning rather than a restrictive one, in accordance with the fundamental objective of providing international protection to all who need it. The refugee definition should be applied in a generous manner within the framework of fair and efficient individual refugee status determination procedures. The essential criterion for extending international protection is the absence of adequate national protection.

2. Basic principles

International principles of refugee law derive mainly from the 1951 Convention and in particular from its Articles 1, 3, 31 and 33, and from the Final Act of the 1951 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, International Human Rights Instruments and Humanitarian Law. The right to seek and enjoy asylum from persecution in other countries is set forth in Article 14 (1) of the Universal Declaration of Human Rights. Further authoritative guidance for the interpretation and application of the fundamental principles of international refugee law is contained in Resolutions of the General Assembly of the United Nations, Conclusions of the Executive Committee of the High Commissioner's Programme, and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook).

Also of relevance for the interpretation of the 1951 Convention are the travaux préparatoires leading to the elaboration of the 1951 Convention and the adoption of the Statute of the Office of the United Nations High Commissioner for Refugees (General Assembly Resolution 428 (V) of 14 December 1950). Most recently, the Note on International Protection, submitted by the High Commissioner in October 1994 to the forty-fifth session of the Executive Committee (A/AC.96/830), addresses in detail the concept of international protection in its current context.

3. Interpretation of the refugee definition

The 1951 Convention is an international treaty in the sense of the 1969 Vienna Convention on the Law of Treaties and, as such, is to be interpreted in good faith, and in light of its object and purpose. Article 35 of the 1951 Convention entrusts the High Commissioner with the task of supervising the application of the provisions of that Convention. Over time, however, States Parties to the Convention have given divergent interpretations to various provisions of the Convention, including Article 1. However, it should be kept in mind that a positive and humanitarian approach should continue to be taken by States in implementing the 1951 Convention definition in a manner fully compatible with the objective and purpose of the 1951 Convention and the Protocol. The following paragraphs analyze some elements of the refugee definition where differences of interpretation have been noted by UNHCR.

4. Grounds of persecution

UNHCR reaffirms that all the grounds named in the 1951 Convention for persecution continue to be relevant, and that it is immaterial whether the persecution arises from any single one of these reasons or from a combination of two or more of them. The concept of race has to be understood in its widest sense to include all kinds of ethnic groups. With regard to religion as a ground for persecution, it should be borne in mind that the Universal Declaration of Human Rights and the International Covenant on Human Rights proclaim the right to freedom of thought, conscience and religion. The term nationality is not to be understood only as citizenship, but also refers to membership of an ethnic or linguistic group, and may overlap with the term "race". With regard to political opinion, it is not always necessary that opinions have been expressed for persecution to occur; political opinion may, rightly or wrongly, be attributed to the individual, leading to persecution. Social groups may be defined either by pre-existing criteria, or by some common characteristics in a victimized group (as typified by some forms of gender-based persecution).

5. Absence of national protection

It is generally accepted by States and reflected in State practice that a refugee claim under Article 1 of the 1951 Convention can be established if the State is the agent of such persecution. This is equally the case when persons are exposed to persecution by non-governmental entities which have some link with the State, or whose activities are encouraged or tolerated by the State.

However, persecution may also emanate from entities for which no link with the State can be established and which the State is unable to control. The essential issue in establishing the basis and justification for the extension of international protection is the fact of an absence of national protection against persecution, whether or not this deficiency can be attributed to an affirmative intention to harm on the part of the State. Persecution that does not involve State complicity is still, nonetheless, persecution. In such cases, it must be concluded that the State is not in a position to give effective protection to its national who has a well founded fear of persecution, and that international protection is the only available option for the person involved.

Clearly, the spirit and purpose of the 1951 Convention would be contravened and the system for the international protection of refugees would be rendered less effective if it were to be held that an asylum-seeker should be denied protection unless a State could be held accountable for the violation of his/her fundamental human rights by a non-governmental actor. It is essential that international protection is extended to such refugees and that the principle of non-refoulement is fully respected.

6. Internal flight alternative

The underlying assumption for the application of the notion of internal flight alternative is a regionalized failure of the State to protect its citizens from persecution. Under such circumstances, it is assured that the State authorities are willing to protect a person against persecution by non-State agents, but they have been prevented, or otherwise are unable to assure, such protection in certain areas of the country. Therefore, the notion should not, in principle, be applied in situations where the person is fleeing persecution from State authorities, even if the same authorities may refrain from persecution in other parts of the country.

A decision concerning the existence of an internal flight alternative should be based on a profound knowledge and evaluation of the prevailing security, political and social conditions in that part of the country. An effective internal flight alternative can only exist when the conditions correspond to the standards deriving from the 1951 Convention and other major human rights instruments. Above all, an internal flight alternative must be accessible in safety and durable in character. The possibility to find safety in other parts of the country must have existed at the time of flight and continue to be available when the eligibility decision is taken and the return to the country of origin is implemented.

Due to the complexity of the issues involved, the concept of internal flight alternative should not be applied in the framework of accelerated procedures.

7. Treatment of draft evaders and deserters

Conscientious objection, draft evasion and desertion may give rise to situations of persecution in the sense of Article 1 of the 1951 Convention. Traditionally, UNHCR has considered this to be the case where a draft evader or deserter would suffer disproportionate punishment on account of his/her race, religion, nationality, political opinion, or membership of a particular social group, or where performance of military service would be contrary to the applicant's genuine political, religious, or moral convictions. UNHCR further considers that draft evaders and deserters could also be refugees under the 1951 Convention if they were to be punished for their refusal to participate in military action which is condemned by the international community, or which is characterized by serious or systematic violations of international humanitarian law.

8. Civil war refugees

Owing to the growing number of asylum claimants fleeing countries in the throes of civil war or internal conflict, the issue of whether Article 1 should apply to such persons has gained much importance. Persons fleeing or remaining outside a country for reasons pertinent to refugee status are to be considered refugees in the sense of the 1951 Convention definition, regardless of whether these reasons arise in a civil war situation, in international armed conflict or in peace time. There is nothing in the definition itself which would exclude its application to persons caught up in civil war.

UNHCR agrees with the position that asylum-seekers whose reasons for flight are based solely on their area of residence being stricken by war are not covered by the 1951 Convention. It is appreciated, however, that many conflicts take place against a political background which may involve serious violations of human rights, including the targeting of particular ethnic or religious groups. In a situation of internal armed conflict, the aims of the warring parties, including a government's need to protect itself, do not justify the use of indiscriminate shelling or bombardment, torture or arbitrary punishment against certain sectors of the population. Such acts may be considered, therefore, as giving rise to refugee status under the 1951 Convention. The determination of refugee status will require a careful examination of the specific circumstances surrounding the applicant's claim, including an assessment of the nature of the conflict.

9. Cessation and exclusion clauses

Article 1C covers cases where the protection of the 1951 Convention is no longer necessary, and Article IF covers the exclusion of certain refugees from protection due to their conduct, under certain well defined circumstances.

The basis for applying the cessation clauses in Article 1C are elaborated in Executive Committee Conclusion 69 (XLIII) (1992). In particular, it is underlined that where cessation is invoked following a change of circumstances in the country of origin, States must carefully assess the fundamental character of the changes in the country of nationality or origin, including the general human rights situation, as well as the particular cause of fear of persecution, in order to make sure in an objective and verifiable way that the situation which justified the granting of refugee status has ceased to exist. The Executive Committee emphasized that an essential element in such assessments is the fundamental, stable and durable character of the changes. States, in implementing decisions on cessation, should in all circumstances deal humanely with the consequences for the affected individuals or groups, and countries of asylum and countries of origin should together facilitate the return, to ensure that it takes place in a fair and dignified manner. Moreover, it is recalled that an exception is written into the application of the cessation clause; it shall not apply to persons who have compelling reasons arising out of previous persecution for refusing to reavail themselves of the protection of their country.

Given the negative consequences of the application of Articles 1C and 1F, both are to be interpreted restrictively. In applying Article lF(b) pertaining to the commission of a serious non-political crime outside the country of refuge prior to admission, UNHCR has consistently underlined the importance of striking a balance between the nature of the offence presumed to have been committed by the applicant, and the degree of persecution feared.

10. Standard of proof and evaluation of credibility

It has already been pointed out that State practice varies considerably as regards assessment of the need for international protection. While the applicant must furnish the relevant facts of his or her case, the very nature of circumstances which lead to flight from persecution is such that the requirement of evidence should not be too strictly applied. While the burden of proof remains with the applicant, UNHCR calls upon States to apply generously the principle of the benefit of the doubt when the applicant's general credibility has been established.

 

UNHCR Geneva
March 1995

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