Magazine article Forced Migration Review

Legal Protection Frameworks

Magazine article Forced Migration Review

Legal Protection Frameworks

Article excerpt

The large-scale displacement associated with the recent popular uprisings in North Africa both reinforces and challenges the role of legal protection mechanisms.

For more than 60 years the 1951 Convention relating to the Status of Refugees (1951 Refugee Convention) has provided the cornerstone of international protection for displaced persons. It is an important source of protection for many of those fleeing popular uprisings in North Africa, having been ratified by many of the destination countries, such as Egypt, Tunisia, Algeria, Italy and Malta.1

The broader context of North African displacement, however, highlights some of the limitations of the Convention's rather narrow and technical definition of a refugee, which may exclude many people genuinely in need of protection. Persons fleeing generalised violence or armed conflict, such as occurred in Libya for example, will frequently fall outside the Convention's definition because of their inability to establish a link between the risk of harm they face and one of the five stated grounds of persecution [see box]. In addition, the Convention's refugee definition is confined to persons with a wellfounded fear of persecution only in relation to their country of nationality. So-called 'third-country nationals' - including migrant workers and refugees from other countries living and working in North African states at the time of the uprisings - are unable to claim protection under the Refugee Convention in relation to their fear of harm in those states.

For persons falling outside the scope of the Refugee Convention, a number of subsequent developments in the protection of forced migrants may provide an alternative source of protection. The 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 OAU Convention) is one such source, designed to address aspects of African refugee protection not adequately addressed by the 1951 Convention.3 Significantly, the 1969 OAU Convention's definition of a refugee extends protection to include any 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" (Art 1 (2)).

This more readily encompasses displacement caused by situations of widespread conflict, such as in Libya.

Like 1951 Convention refugees, refugees under the 1969 Convention also benefit from the principle of nonrefoulement, which prevents them from being returned to a territory where their "life, physical integrity or liberty" would be threatened. They also arguably benefit from the broad range of refugee rights set out in the 1951 Convention; although the 1969 Convention itself does not contain a comparable list of rights, its explicit intention to provide a 'regional complement' to the former presents a strong case for the provision of equal rights to refugees under both definitions.

While the scope of the 1969 Convention's refugee definition is broader than its 1951 counterpart, it imposes protection obligations on African states only, and does not extend to the more than 45,000 people who fled across the Mediterranean Sea to Europe, who must rely on the narrower 1951 Convention definition for refugee status. And even within Africa, OAU Convention refugees may be denied the opportunity to access durable solutions such as resettlement, which is generally only available to refugees under the 1951 Convention.

Refugee status under both the 1951 and 1969 Conventions is also subject to the instruments' respective exclusion and cessation provisions, whereby a refugee's protected status may be denied where the refugee has committed a war crime, crime against humanity or other serious non-political crime,4 or may be removed where "the circumstances in connection with which he was recognized as a refugee have ceased to exist"5. …

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