On this day, in 1954, the Convention on the Status of Refugees (the Refugee Convention) signed 28.07.1951, entered into force. Incorporating fundamental norms regarding who is a refugee, and setting out the rights and responsibilities of refugees as well as the responsibilities of receiving states, the convention was a landmark in establishing international standards for the treatment of refugees, based on principles of humanity. The convention was originally adopted to deal with the aftermath of World War II and the displacements it caused by persecution and war, but got universal coverage with the 1967 Protocol. Despite criticism arguing that it is outdated or that it is an instrument for abuse, the cycle of war and systematic human rights violations continue to confirm the relevance and importance of the convention and the protocol today, over half a century later.
Together with international human rights law and international humanitarian law, international refugee law aims at the protection of the life and dignity of each and every person. International refugee law has, however, since its inception been primarily concerned with the duties of the receiving states. This is perhaps a result of a necessary division of labor in international law. It has, however, led the discourse and work of international refugee law to be primarily about the duties and the policies of the receiving state, and not about the duties and policies of the refugee producing state- the source state. Hence, refugee law continues to be law that lags behind- it is marked by post-problem attention instead of including attention to the root of the problem- namely the domestic situation that forces some persons to flee their home country. Refugee law needs not only to be met by humanitarian concerns but equally by political considerations at the root. As we mark the 60th anniversary of the Refugee Convention, it is time to ask whether a better protection of the life and dignity of each person, including each refugee, requires that international refugee law includes attention to the root of the problem, and expands its horizon to include attention to the domestic legal order of source states.
This is nothing particularly radical, it is already part of international human rights law, but it seems somehow to have been forgotten along the way when discussing international refugee law. The Refugee Convention itself confirms that the primary duties lie with the source country by referring to the Universal Declaration of Human Rights (UDHR) in its preamble and to the principle that human beings shall enjoy fundamental rights and principles without discrimination. TO ensure these rights is the duty of every state. Indeed, if all states took these duties seriously, there would be far less refugees in the world.
Furthermore, the definition of refugee in the Refugee Convention provides us with some additional guidelines in how to approach the source country problem in so far as it is related to the domestic legal order. Article 1(a)(2) of the convention defines a refugee as an individual who is outside her country of nationality or habitual residence, who is unable or unwilling to return due to a well-founded fear of persecution based on her race, religion, nationality, political opinion, or membership in a particular social group. Under this definition, internally displaced persons, including for example persons fleeing natural disasters and generalized violence are not considered refugees under the convention.
This definition is important because it corresponds to the international human rights obligations of every state under the UDHR and under the covenants. It tells us that countries that do not make a serious attempt to reform their legal orders to comply with international human rights law inevitably will produce refugees. This includes legal orders that justify discrimination based on the above-mentioned grounds, and legal orders that severely restrict fundamental freedoms such as freedom of expression , freedom of assembly and political participation. Often such restrictions come hand in hand with strict enforcement and persecution, for example as crimes against the state, either legally or extra-legally.
By forcing members of their own population to flee their country and seek refuge in other countries, the legal orders of source countries cease to be merely a domestic matter. They are translated into an international matter due to the border-crossing effects, which are painfully human in nature. This requires global attention, and it requires the attention of international refugee law.