Resource Person: marina [dot] sharpelaw [dot] ox [dot] ac [dot] uk (Marina Sharpe)
Marina Sharpe is a DPhil candidate and Trudeau Scholar at the University of Oxford. Her thesis is about refugee protection in Africa. She was called to the bar of England & Wales in 2010 and to the New York bar in 2006, and spent almost three years in private practice at Cravath, Swaine & Moore LLP in New York and then London. Prior to this, she worked as a legal advisor with the Refugee Law Project of Makerere University in Kampala, and later returned to Uganda as legal officer of the International Refugee Rights Initiative. Marina has also worked with AMERA-Egypt, Fahamu and the University of Oxford’s Refugee Studies Centre, and regularly undertakes consultancy work for organizations including Amnesty International, the European Bank for Reconstruction and Development and UNHCR. Marina co-founded and served as a director of the non-governmental organization Asylum Access. She has taught courses at the Universities of London and Sherbrooke and has guest lectured at the Universities of Oxford and Tripoli, as well as at Georgetown and Yale. Marina holds degrees in civil and common law from McGill University, an MSc in development management from the London School of Economics and a BA in economics and international development studies from McGill. Her work has been published in the International Journal of Refugee Law, the Journal of Refugee Studies, the McGill Law Journal and Refuge, among others.
Analytical Overview of the 1969 (OAU) Convention for the SRLAN
The 1969 Convention governing the Specific Aspects of Refugee Problems in Africa1 (‘1969 Convention’) is the regional legal instrument governing refugee protection in Africa. It was adopted on 10 September 1969 at the sixth ordinary session of the Organization of African Unity, now African Union (AU). It entered into force on 20 June 1974 after ratification by one third of the Member States. It has since been signed or ratified by 50 of the 53 Member States of the AU.2 The 1969 Convention is a relatively short instrument, containing a preamble and 15 articles. Each substantive article is analysed in turn below.
Article I: Refugee Definition
The first article provides two refugee definitions: one replicating the 1951 Convention relating to the Status of Refugees3 (‘1951 Convention’) definition and a second unique definition. The 1951 Convention defines a refugee as someone with a well- founded fear of persecution on the basis of his or her race, religion, nationality, membership of a particular social group or political opinion. The 1969 Convention includes that definition4—minus the 1 January 1951 date limit that most states later agreed, by way of a Protocol5, not to apply—and provides at article I(2),
the term refugee shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.6
This unique definition explicitly introduces objective criteria, based on the conditions prevailing in the country of origin, for determining refugee status, and ‘requires neither the elements of deliberateness nor discrimination inherent in the 1951 Convention definition’.7 Both definitions are employed by UNHCR in its operations in Africa.8
Article I also includes paragraphs on cessation9 and exclusion.10 Each paragraph closely follows the 1951 Convention, with three additions. The additional cessation clauses provide that the 1969 Convention shall cease to apply to any refugee who has ‘committed a serious non-political crime outside his country of refuge after his admission to that country as a refugee’11 or has ‘seriously infringed’ the 1969 Convention’s purposes and objectives.12 A further point of distinction is that the 1969 Convention does not include the clause present in the 1951 Convention mitigating against cessation in respect of a refugee who can ‘invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality’.13 The additional exclusion clause adds ‘acts contrary to the purposes and principles of’ the AU as a further ground of exclusion.14
Article II: Asylum
Article II relates to asylum. The 1951 Convention does not establish any right to asylum. The Universal Declaration of Human Rights, by contrast, enshrines the right of individuals to ‘seek and enjoy’ asylum,15 but stops short of recognising any right to asylum at international law. The United Nations (‘UN’) Declaration on Territorial Asylum16 is similarly circumscribed, representing the result of an abortive international effort to recognise and codify a right to asylum. The grant of asylum thus remains within the exclusive discretion of states; as they have no obligation to grant it, individuals have no right to asylum corresponding to their right to ‘seek and enjoy’ it.
While the 1969 Convention reflects this international consensus, it nevertheless significantly ‘strengthens the institution of asylum’17 by providing that Member States, ‘shall use their best endeavours consistent with their respective legislations to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin or nationality’.18 This urging of states to grant asylum is ‘a further inroad into the traditional international law perspective which has tended to regard asylum as an exclusive right of the sovereign state, and certainly not a right to be enforced by an individual against a state’.19 The Convention does not stop there; mirroring part of the preamble to the UN Declaration on Territorial Asylum, it characterises the grant of asylum as a ‘peaceful and humanitarian act’ that ‘shall not be regarded as an unfriendly act by any Member State’.20 The language encouraging states to grant asylum is, however, only recommendatory, and is expressly limited by the reference to domestic legislation. This explains why the 1969 Convention incrementally advances, but does not enshrine, a right to asylum.
While the 1969 Convention’s contribution to the advancement of a right to asylum may be characterised as modest, its role regarding non-refoulement—a major aspect of the concept of asylum—is somewhat more significant. The general rule of non-refoulment provides that an individual should not be returned to a state where he or she is likely to face persecution, other ill-treatment or torture. This principle is codified in, or has been judicially read into, a number of international refugee21 and human rights instruments.22 Some commentators have even elevated the norm to the status of customary international law.23 In the context of non-refoulement under refugee law, the norm, as articulated at article 33(1) of the 1951 Convention, prohibits states from returning a refugee to territory where there is a risk that his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. The second prong of article 33, however, permits a national security exception.24
The 1969 Convention’s non-refoulement provision closely follows article 3(1) of the UN Declaration on Territorial Asylum. It provides,
[n]o person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2.25
This is broader than the 1951 Convention’s non-refoulement provision in four important respects, however in most cases the 1969 Convention does not expand non-refoulement by as much as is often posited.
First, the 1969 Convention does not include a national security exception like the one found in its universal counterpart. In this respect the 1969 Convention indeed expands non-refoulement, however it does not render it absolute, as many scholars have suggested.26 Pursuant to articles I(4)(f) and (g), the application of the 1969 Convention, and hence protection from refoulement, ceases if the individual concerned commits a serious non-political crime outside the country of refuge after admission as a refugee or seriously infringes the Convention’s purposes and objectives. This, according to D’Sa, implies that the 1969 Convention, like the 1951 Convention, allows expulsion in limited circumstances, ‘although the [AU] appears to deal with the latter somewhat indirectly’.27
Second, the 1969 Convention’s non-refoulement provision applies at frontiers, while the 1951 Convention makes no such explicit provision, nor was such a scope of application likely intended at the time of drafting. This has led commentators to view non-refoulement under the 1969 Convention as broader than under the 1951 Convention.28 State practice since 1951 has, however, caught the universal refugee regime up to the standard set by the 1969 Convention. According to Goodwin-Gill and McAdam, ‘[b]y and large, States in their practice and in their recorded views, have recognized that non-refoulement applies to the moment at which asylum seekers present themselves for entry, either within a State or at its border’.29 At present, therefore, the 1969 Convention’s conception of non-refoulement is no broader than that of the 1951 Convention as far as applicability at frontiers is concerned.
Third, van Hövell tot Westerflier notes that under the 1969 Convention, non-refoulement applies to ‘persons’, whereas under the 1951 Convention it applies only to ‘refugees’.30 However, even under the 1951 Convention, non-refoulement applies equally to asylum seekers, ‘at least during an initial period and in appropriate circumstances, for otherwise there would be no effective protection’.31 Outside such initial period or to the extent that such appropriate circumstances do not prevail, the 1969 Convention may indeed protect a broader class of persons from refoulement than does its universal counterpart, but positing that this is the case in a general sense misunderstands the applicability of non-refoulement under the 1951 Convention.
The fourth way in which non-refoulement is at least textually broader under the 1969 Convention stems from the range of harm non-refoulement protects against. Article 33(1) of the 1951 Convention protects refugees from refoulement to territories where their ‘life or freedom’ would be threatened. Article II(3) of the 1969 Convention, by contrast, protects refugees from return to territories where their ‘life, physical integrity or liberty’ would be threatened. Assuming that freedom and liberty are analogous, the 1969 Convention explicitly protects persons from one additional type of harm: threats to physical integrity. In practice, however, protection from threats to physical integrity are likely implicitly included in protection from threats to life.
Article II also articulates a very early notion of responsibility sharing, providing,
[w]here a Member State finds difficulty in continuing to grant asylum to refugees, such Member State may appeal directly to other Member States and through the [AU], and such other Member States shall in the spirit of African solidarity and international cooperation take appropriate measures to lighten the burden of the Member State granting asylum.32
Such ‘appropriate measures’ include regional resettlement, financial support and political responsibility sharing. Each possible method of responsibility sharing has, however, has been constrained in practice by the limited resources of African states.
Temporary protection is also addressed by article II. It describes a variety of practices. Indeed, Fitzpatrick describes it as ‘a magic gift, assuming the desired form of its enthusiasts’ policy objectives’.33 Her description is reflected in the dual meaning attributed to the notion of temporary protection articulated in the 1969 Convention. The concept finds expression at article II(5), which provides, ‘[w]here a refugee has not received the right to reside in any country of asylum, he may be granted temporary residence in any country of asylum in which he first presented himself as a refugee pending arrangement for his resettlement’. This was interpreted by the Centre for Refugee Studies of York University as implying that the nature of the protection granted under the 1969 Convention was of limited duration.34
The version of temporary protection actually posited by the 1969 Convention does not, however, imply limited protection. Rutinwa explains that article II(5) ‘applies to persons who have been recognised as refugees but for one reason or another have not been granted the right of residence for any duration at all. It is not intended to determine the duration of residence for all refugees who have been recognised and granted asylum’.35 Furthermore, ‘where a person is resettled from one African country to another on account of the first country not being able to continue to provide him or her asylum, the function of resettlement in this case is not to terminate but to continue the refugee status of that person but in a different country’.36 Put this way, it becomes clear that the 1969 Convention’s notion of temporary protection is more akin to responsibility sharing than it is to later versions of temporary protection designed to limit states’ obligations towards refugees. Under the 1969 Convention, it is the sojourn in the first country of asylum, not the protection, which is temporary.37
While the notion of temporary protection articulated by the 1969 Convention is a humanitarian one, it seems premised on an idea that is fundamentally less so. Article II(5) exists to remedy a situation where a refugee has received asylum but no corresponding right of residence. That a refugee could be recognised as such but could also be lawfully deprived of a right of residence must be queried, as a state’s realisation of its obligations under the 1951 Convention, which applies co-extensively with the 1969 Convention, clearly depends on the refugee’s presence in the territory of the state of asylum. Indeed, article II(1), in urging states to grant asylum, conceives of such asylum in terms of reception and securing the ‘settlement’ of refugees.
Finally, article II(6) provides that for reasons of security, host states shall settle refugees ‘at a reasonable distance from the frontier of their country of origin’.
Article III: Prohibition of Subversive Activities
The third article articulates refugees’ duty to respect the laws and regulations of the host state, echoing article 2 of the 1951 Convention, and prohibits them from engaging in subversive activities against any AU member state. Article III is operationalised by the cessation clause described above, which terminates the refugee status of an individual who commits a serious non-political crime after the acquisition of such status.
Article IV: Non-discrimination
Article IV on non-discrimination in the application of the Convention follows article 3 of the 1951 Convention, however discrimination is prohibited on the additional grounds of nationality, membership of a particular social group or political opinion.38
Article V: Voluntary Repatriation
Article V of the 1969 Convention addresses voluntary repatriation. Its first paragraph articulates the core principle: ‘[t]he essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will’. This is an important corollary of article II’s provisions on asylum, particularly article II(3) on non-refoulement. The clauses that follow the core principle are premised on the assumption that the conditions for safe return have been met and detail the duties of countries of asylum and origin and refugee assisting agencies. The sending state, in collaboration with the receiving state, must ‘make adequate arrangements for the safe return of refugees who request repatriation’,39 while the country of origin must ‘facilitate their resettlement and grant them the full rights and privileges of nationals of the country, and subject them to the same obligations’.40 The Convention mandates countries of asylum, countries of origin, voluntary agencies and international and inter-governmental organisations to assist refugees with the process of return,41 providing in particular that states of origin should use the news media and the AU to invite refugees home and provide assurances regarding the circumstances prevailing there, and host countries should ensure that such information is received.42 Article V also provides that upon return, refugees must not be penalised for having fled.43
The 1969 Convention is the first and remains the only international legal instrument to formally insist on the voluntariness of refugee repatriation, however it is worth noting that the concept appears in UNHCR’s statute,44 the result of a UN General Assembly resolution adopted 19 years prior to the 1969 Convention. Its originality aside, article V(1) is a ‘powerful statement of principle’45 which is hailed as representing an early articulation of a principle that went on to represent a cornerstone of the international regime for refugee protection.46 Unfortunately, it has been misinterpreted to suggest that repatriation is the primary solution for refugees on the continent. Rutinwa explains that in fact, article V is ‘much more about elaborating the principles and the modalities of effecting voluntary repatriation than a prescription of it as the only solution’.47
Article VI: Travel Documents
Article VI, like article 28 of the 1951 Convention, mandates contracting states to provide refugees with travel documents. In view of article II(5) on temporary protection, article VI(2) provides, ‘where an African country of second asylum accepts a refugee from a country of first asylum, the country of first asylum may be dispensed from issuing a document with a return clause’.48
Articles VII and VIII: Cooperation
Articles VII and VIII relate to state cooperation with the AU and the office of the United Nations High Commissioner for Refugees (‘UNHCR’), respectively. Article VIII(2) provides that the 1969 Convention ‘shall be the effective regional complement in Africa’ of the 1951 Convention, which means, among other things, that refugees recognised only under article I(2) of the 1969 Convention are entitled to the refugee rights enumerated in the 1951 Convention.
The final seven articles are technical provisions.
1 Convention governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45 (1969 Convention).
2 Eritrea, Sao Tome & Principe and the Saharawi Arab Democratic Republic have neither signed nor ratified the 1969 Convention. Djibouti, Madagascar, Mauritius, Namibia and Somalia have signed but not ratified the Convention.
3 Convention relating to the Status of Refugees (adopted 28 July 1951, entered in to force 22 April 1954) 189 UNTS 137 (1951 Convention).
4 1969 Convention (n 1) art I(1).
5 Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 (1967 Protocol) art 1(2).
6 1969 Convention (n 1) art I(2).
7 Ruma Mandal, 'Protection Mechanisms Outside the 1951 Convention ("Complementary Protection")' (2005) UNHCR Legal and Protection Policy Research Series accessed 8 December 2010, 13.
8 UNHCR, 'Note on Internation Protection' A/AC96/830 (7 September 1994) .
9 1969 Convention (n 1) art I(4).
10 1969 Convention (n 1) art I(5).
11 1969 Convention (n 1) art I(4)(f) (emphasis added).
12 1969 Convention (n 1) art I(4)(g).
13 1951 Convention (n 3) art 1C(5).
14 1969 Convention (n 1) art I(5)(c).
15 UNGA, 'Res 217A (III)' 10 December 1948 (UDHR) art 14(1).
16 UNGA 'Res 2312 (XXII)' 14 December 1967.
17 Rainer Hofmann, 'Refugee Law in the African Context' (1992) 52 Heidelberg Journal of International Law 318, 324.
18 1969 Convention (n 1) art II(1).
19 Medard RK Rwelamira, 'Some Reflections on the OAU Convention on Refugees: Some Pending Issues' (1983) 16 Comparative and International Law Journal of Southern Africa 155, 170.
20 1969 Convention (n 1) art II(2).
21 See, for example, 1951 Convention (n 3) art 33; 1969 Convention (n 1) art II(3).
22 See, for example, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered in to force 26 June 1987) 1465 UNTS 85 (CAT) art 3; Internation Covenant on Civil and Political Rights (adopted 16 December 1966, entered in to force 23 March 1976) 999 UNTS 171 (ICCPR) art 7.
23 See, for example, Elihu Lauterpacht and Daniel Bethlehem, 'The Scope and the Content of the Principle of Non-Refoulement: Opinion' in Erika Feller, Volker Turk and Frances Nicholson (eds), Refugee Protection in Internation Law: UNHCR's Global Consultations on International Protection (CUP 2003) 140-163; contra: James Hathaway, 'Leveraging Asylum' (2009) 45 Texas International Law Journal 503.
24 1951 Convention (n 3) art 33(2).
25 1969 Convention (n 1) art II(3).
26 See, for example, Georges Abi-Saab, 'The Admission and Expulsion of Refugees with Special Reference to Africa' (2000) 8 African Yearbook of International Law 71, 90; Mandal (n 7) 15.
27 Rose D'Sa, 'The African Refugee Problem, Relevent International Conventions and Recent Activities or the Organization of African Unity' (1984) 31 Netherlands International Law Review 378, 388
28 See, for example, Abi-Saab (n 26) 89; Nierum S Okogbule, 'The Legal Dimensions of the Refugee Problem in Africa' (2004) 10 East African Journal of Peace and Human Rights 176, 184; UNHCR, The State of the World's Refugees 2000: Fifty Years of Humanitarian Action (OUP 2000) 57.
29 Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn OUP 2007) 208.
30 WJEM van Hovell tot Westerflier, 'Africa and the Refugees: the OAU Refugee Convention in Theory and Practice' (1989) 7 Netherlands Quarterly of Human Rights 172, 176.
31 Goodwin-Gill and McAdam (n 29) 232.
32 1969 Convention (n 1) art II(4).
33 Joan Fitzpatrick, 'Temporary Protection of Refugees: Elements of a Formalized Regime' (2000) 94 American Journal of International Law 279, 280.
34 The Refugee Research Unit, Centre for Refugee Studies, York University, in Bonaventure Rutinwa, 'Prima Facie Status and Refugee Protection' (2002) UNHCR New Issues in Refugee Research Working Paper No 69 accessed 8 December 2010, 16.
35 Rutinwa (n 34) 16.
38 The 1951 Convention prohibits discrimination on the grounds of race, religion or country of origin (1951 Convention (n 3) art 3).
39 1969 Convention (n 1) art V(2).
40 1969 Convention (n 1) art V(3).
41 1969 Convention (n 1) art V(5).
42 1969 Convention (n 1) art V(4).
44 UNGA, Res 428 (V)' 14 December 1950 [chap 1, art 1].
45 Jean-Francois Durieux and Agnes Hurwitz, 'How Many is Too Many? African and European Legal Responses to Mass Influx of Refugees' (2004) 47 German Yearbook of International Law 105, 130.
46 Voluntary repatriation is one of the trifecta of 'durable solutions' for refugees; the others are local integration and resettlement.
47 Rutinwa (n 34) 16.
48 1969 Convention (n 1) art VI(2).