Introduction

The 1951 Convention Relating to the Status of Refugees was the first comprehensive attempt to define refugees and charted a detailed guideline for host countries to ensure the adequate protection and preservation of the rights of all refugees. The document was initially limited in its temporal and spatial scope as it covered the period before 1 January 1951 and confined its mandate to European refugees. The 1967 Protocol Relating to the Status of Refugees expanded the Convention’s scope, making it the most relevant international legal regime for addressing the contemporary global refugee crisis.

According to the United Nations High Commissioner for the Refugees (UNHCR), 82.4 million individuals were forcibly displaced worldwide by the end of 2020 due to persecution, conflict, violence, human rights violations, and events seriously disturbing public order^[1]. Of these forcibly displaced persons, 26.4 million are refugees, over 20 million of whom are under the mandate of the UNHCR^[2]. The scale of global displacement and forced migrations solidify the importance and indispensable nature of the 1951 Convention. Indeed, the Convention has evolved through the decades while remaining fundamental to the refugee protection regime. Despite its limitations, states, and regional and international organisations have tried to rely on the principles outlined in the Convention to formulate policies and agreements on the rights and protection of refugees.

As new political, social, economic, developmental, and environmental challenges emerge in an increasingly globalised world, the process of refugee creation has increased manifold. In 2021, the Convention marked its 70th year of coming into force. People, institutions, and countries have long debated the relevance and limitations of the Convention, criticising its diminishing impact and application. This can be attributed to allegations that some developed countries have flouted the norms set by the Convention, such as Australia^[3] or the US^[4].

In recent years, the Syrian refugee crisis has captured global attention due to the number of asylum seekers and the inhumane conditions of the arduous journey they make. This has propelled political discourse on the precarious situation of refugees as well as on the rising fear among the native populations in destination countries over security and demographic changes. Recent events in Europe^[5] and North America have exposed existing negative sentiments towards migrants and asylum seekers, which has translated into a rise in right-wing populism and nationalist fervour.

The resultant criticism of the refugee regime and the unequal distribution of refugees globally led the UN General Assembly to adopt the New York Declaration for Refugees and Migrants in 2016, followed by two global compacts. But the COVID-19 pandemic has resulted in further hindrances in ensuring refugee protection. As the 1951 Convention completes 70 years in practice, renewed focus is needed to assess the significance and shortcomings of the existing refugee protection regime. Do the definitions and frameworks set forth by the Convention encapsulates the sociopolitical realities of the 21st century? To what extent can the universal mechanisms of refugee protection address the issues of local geographies? In understanding the limitations from historical narratives, this volume aims to analyse the importance of local geographies while dealing with the universal framework of refugee protection regime.

Historical Backdrop

The beginning of the 20th century was marked by a fall of empires. In 1917, the Russian Empire fell following the Bolshevik Revolution, leaving over a million people displaced across Europe. The League of Nations was compelled by the International Committee of the Red Cross to address the refugee issue and institute a framework for recognising their rights^[6]. The Office of the High Commissioner for Refugees was constituted to aid refugees, help them find work, provide protections, and form legal solutions. At the end of the First World War, the borders of imperial states disappeared, and new political and social structures based on democratic ideals took shape across Europe. The creation of nation-states on ethnically and culturally homogenous grounds created a new wave of refugees in Europe.

In 1922, Fridtjof Nansen, the first High Commissioner for Refugees, instituted travel documents for the Russian refugees, thereby providing them a legal identity and enabling them to move between nation-states until accepted by a willing state. The ‘Nansen passport’, as the document came to be known, was eventually extended to Armenian refugees in 1924 and Christian refugees in the subsequent years^[7]. The institutional and legal frameworks of the refugee protection regime can be traced back to these travel documents. In the following years, temporary pacts and conventions related to refugees were agreed upon. The instruments determined the legal status of a refugee and created categories of refugees based on their country of origin. In 1938, a centralised body binding the various instruments of refugee protection came into being as the office of the High Commissioner for Refugees under the protection of the League^[8].

As Europe was trying to manage and resettle those displaced during the First World War, violence descended on the Jews in Germany between 1933 and 1939. In 1940, as France, the Netherlands, Denmark, Belgium, and Luxemburg were occupied by the German army, Switzerland became the only safe haven for the displaced Jews in Central Europe. Switzerland came under massive migration pressure, consequently tightening its borders^[9], ^[10]. Unfortunately, the racially discriminated Jews were not recognised as refugees, and were only accepted at the discretion of the state.

During the occupation of German forces and in the aftermath of the Second World War, millions of people were displaced from their homes. The allied powers tasked the United Nations Relief and Rehabilitation Agency with repatriating and resettling those displaced^[11]. The establishment of the United Nations in 1945 dissolved the League of Nations and its institutional arms. The International Refugee Organization was tasked by the UN with the responsibility of assisting refugees but was replaced in 1949 by the UNHCR^[12] with a mandate to supervise refugee resettlement, repatriation, assimilation, and integration across Europe. It is in this background that the 1951 Convention was formulated to set the norms for refugee protection.

The Convention: Features, Scope and Limits

Drafted under the aegis of the UN, the provisions of the Convention did not have a global appeal, evidenced by the language in the Convention that refers to the events in Europe before 1951. This exclusionary language, which limited the Convention’s scope to European refugees^[13], drew widespread criticism during its drafting process^[14]. Therefore, the Convention contained a temporal and geographic limitation. The formation of post-colonial independent states in the Indian subcontinent (India and Pakistan in 1947 and Bangladesh in 1971) also led to a humanitarian crisis with millions displaced. Importantly, all three countries are non-signatories to the Convention. The decolonisation of Africa, formation of new independent states and civil conflicts gave rise to the need to extend the geographical purview of the Convention, and the limitation was rectified by the 1967 Protocol.

The Convention defines the status of a refugee, their rights, and the responsibilities of the state in granting them protection. It also provides the obligations of the refugee to the host state. An important feature of the Convention is the universal definition provided for the term ‘refugee’—an individual who has “a well-rounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and “is unable or unwilling to return to his country of nationality.” While this definition met the needs of the past decades, it is exclusionary to the people subjected to protracted wars and conflicts in present times. “A well-rounded fear of persecution” implies a direct threat to the person seeking asylum. As the Convention fails to provide a definition for the word “persecuted,” it excludes those who are fleeing violence, conflicts, and human rights violations, threats from non-state actors, food insecurity, and climate and environment disasters. Additionally, the Convention has also been referred to as having “excluded women from the international right to protection from persecution”^[15]. As the idea of protection is central to humanitarianism, it is indeed necessary to revisit the efficacy of the Convention in contemporary circumstances.

The most important principle in the 1951 Convention is that of ‘non-refoulment’, provided in Article 33 (1). If the life or freedom of the refugee is threatened in their country of origin, states that are signatories to the Convention are obligated to not return or expel such individuals. This provision has been adapted as a customary international law and is also applicable to non-signatory states. Thus, all refugees are protected by the principle of non-refoulment, irrespective of the ascension or ratification to the Convention by the host country.

In this context, the precarious situation of Rohingya is worth noting, as it has become a severe concern in recent times. The Rohingya, described by the UN as the world’s most persecuted people, have faced heightened fears of attack in Myanmar where they are not considered as citizens. Despite being recognised by the UNHCR as refugees, they are not formally granted rights as refugees in either Bangladesh or India, where they have sought asylum. This situation gives rise to one important question since nationality and citizenship are state prerogatives—since neither India nor Bangladesh are formal signatories to the international refugee conventions, how relevant are the existing laws in rendering protection to refugees in this part of the world?

Notably, the 1951 Convention is supplemented by other international conventions, regional agreements, national legislations, and judicial decisions, which together form the international refugee protection regime. These include the Convention Governing the Specific Aspects of Refugee Problems in Africa, and the Cartagena Convention that covers Latin America and Mexico. These conventions provide a broader definition of refugees, widening the ambit of refugee protection in these regions by integrating the principles into national policy frameworks.

The Volume at a Glance

This volume intends to revisit the relevance of the 1951 Convention in today’s world. To mark the significance of this important document, the essays in this compendium analyse various dimensions of the universal refugee protection regime. The volume is divided into three segments—Understanding the Relevance of the 1951 Convention; Refugee Protections and Local Geographies; and the Rohingya: Precarities of a Stateless People—to include perspectives from diverse geographies (South Asia, Middle East, Africa, Europe, and Australia) and various aspects of the global refugee protection framework. This compilation aims to be a valuable addition to the current debate on the relevance of universal refugee protection regimes.

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Endnotes

^[1] UN High Commissioner for Refugees, Global Trends: Forced Displacement in 2020, Copenhagen, UNHCR, 2021,

^2] Global Trends: Forced Displacement in 2020

^[3] Australia’s Refugee and Humanitarian Program comprises two sub-programmes: the onshore protection programme and the offshore resettlement programme. The onshore protection programme is available to asylum seekers who arrived in Australia on a valid visa. The offshore resettlement programme contains three categories: refugee, special humanitarian, and community support programme. Since 13 August 2012, any person arriving in Australia by sea without a valid visa can be moved to the Manus Island (in Papua New Guinea) or Nauru for processing, even if they applied for asylum immediately on arrival in the country. Since July 2013, successive Australian governments have stated that no refugees from Nauru or Manus will ever be resettled in Australia. Some refugees may be able to remain on the islands on a temporary or permanent basis, although integration prospects are limited. Rights experts have termed this offshore processing regime as a breach of international human rights standards. For more, see Kaldor Centre for International Refugee Law, “Australia’s Refugee Policy: An overview,” UNSW.

^[4] Individuals entering the US through its southern land border are regarded as ineligible for asylum if they pass through another country first and did not seek asylum there irrespective of if they had access to effective international protection in those transit countries. The UNHCR is deeply concerned about this rule. For more, see “UNHCR deeply concerned about new U.S. asylum restrictions,” UNHCR, July 15, 2019, https://www.unhcr.org/news/press/2019/7/5d2cdf114/unhcr-deeply-concerned-new-asylum-restrictions.html

^[5] The scepticism towards accepting migrants and refugees in Western Europe has resulted in deadly implications for asylum seekers. To reduce the number of refugees arriving in Europe, the EU struck a controversial deal with Turkey aiming to prevent crossings over the Aegean Sea, by detaining anyone arriving on Greek islands under the threat of deportation. That had been the main route for most migrants reaching Germany after journeying through Balkan countries to reach Western Europe. For more, see Lizzie Dearden, “Refugee Crisis: Number of Asylum Seekers Arriving in Germany Drops By 600,000 In 2016,” The Independent, January 11, 2017.

^[6] Elizabeth White, “The Legal Status of Russian Refugees, 1921–1936,” Comparativ 27, no. 1 (2017), https://doi.org/10.26014/j.comp.2017.01.02 https://doi.org/10.26014/j.comp.2017.01.02

^[7] UNHCR, Convention relating to the Status of Stateless Persons: Its History and Interpretation.

^[8] Shauna Labman, “Looking Back, Moving Forward: The History and Future of Refugee Protection,” Journal of International and Comparative Law 10, no. 1 (2010).

^[9] The reasons for rigid border measures and stringent policies on deportation and the fear of the native population being replaced echoed in the narratives of European right-wing and nationalist parties. The tightened border measures meant that the displaced people could travel to Switzerland only for the purpose of transit to another country, provided travel to another country was guaranteed. The absence of such guaranteed travel would result in deportation. Because of this policy, approximately 90,000 Jews were directly or indirectly sent to concentration camps.

^[10] Gerald Knaus, “Welche Grenzen brauchen wir? Zwischen Empathie und Angst – Flucht, Migration und die Zukunft von Asyl (Which Borders do we need? Between Empathy and Fear – Refuge, Migration and the Future of Asylum) (Munich: Piper Verlag, 2020).

^[11] Labman, “Looking Back, Moving Forward: The History and Future of Refugee Protection”

^[12] Labman, “Looking Back, Moving Forward: The History and Future of Refugee Protection”

^[13] Paul Weis, “The Development of Refugee Law”, Michigan Journal of International Law 27, no. 3 (1982).

^[14] Edwin O. Abuya et al., “The neglected colonial legacy of the 1951 convention”, International Migration, Volume 59, no. 4 (2021),

^[15] Nahla Valji, “Women and the 1951 Refugee Convention: Fifty Years of Seeking Visibility,” Refuge: Canada’s Journal on Refugees 19, no. 5 (2001),

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