INTRODUCTION

The 1951 Convention relating to the Status of Refugees is the foundation of international refugee
law. It defines the term “refugee” establishes the principle that refugees should not be forcibly
returned to a territory where their lives or freedom would be threatened and sets out the duties of
refugees and States’ responsibilities toward them. The Convention was drawn up shortly after the
Second World War, and its authors were focused on refugee problems existing at that time. The
definition of a refugee contained in the 1951 Convention refers to persons who became refugees
as a result of events occurring before 1 January 1951, and States had to declare whether they
would apply that definition only to events that took place in Europe or also to events in other
parts of the world. As new refugee crises emerged around the globe during the 1950s and early
1960s, it became clear that the temporal and geographical scope of the 1951 Convention needed
to be widened. The 1967 Protocol to the Convention was adopted to do this.The 1967 Protocol
is independent of, though integrally related to, the 1951 Convention. The Protocol removes the
temporal and geographic limits found in the Convention. By acceding to the Protocol, States
agree to apply the core content of the 1951 Convention (Articles 2–34) to all persons covered by
the Protocol’s refugee definition, without limitations of time or place.

Most States have preferred to accede to both the Convention and the Protocol. In doing so, they
reaffirm that both treaties are central to the international refugee protection system. The 1951
Convention and 1967 Protocol are the modern embodiment of the age-old institution of asylum.
Their strength remains their universal and non-discriminatory character and the fundamental
values they reflect.

The 1951 convention defines refugee as someone who:

 Has a well-founded fear of being persecuted because of his or her: Race; Religion;
Nationality; Membership of a particular social group; or Political opinion.
 Persons who flee their countries “because their lives, safety or freedom have been
threatened by generalized violence, foreign aggression, internal conflicts, massive
violation of human rights or other circumstances which have seriously disturbed public
order”.
 Is outside his or her country of origin or habitual residence;
 Is unable or unwilling to avail him- or herself of the protection of that country, or to
return there, because of fear of persecution; and
 Is not explicitly excluded from refugee protection or whose refugee status has not ceased
because of a change of circumstances.
 A person is a refugee as soon as the criteria contained in this definition are fulfilled. In
other words, a person does not become a refugee because of a positive decision on an
application for protection. Recognition of refugee status is declaratory: it confirms that
the person is indeed a refugee. While this may sound like a technicality, it is the reason
why asylum-seekers should not be returned to their countries of origin until their claims
have been examined.

SECURITY IMPLICATIONS
The growing concern amongst States concerning security issues and the fight against terrorism
has exacerbated restrictive policies on asylum and refugee protection. Such policies had already
been implemented in many countries, including many in the years before the tragic events of
September 11, 2001. The perverse act of equating refugees to terrorists arises from a lack of
knowledge concerning the criteria used to determine refugee status, as well as from ignorance to
the fact that terrorism and violence create refugee outflows. Refugees do not cause terrorism,
but they are its victims.
Security concerns amongst states have affected the protection of refugees, particularly in three
specific areas:
• Access to national territory,
• The process for determining refugee status,
• The exercise of rights and the search for durable solutions.
With respect to access to national territory, people in need of protection are now subject to the
indiscriminate application of stricter immigration controls, which are increasingly applied in
countries of origin, transit countries, and on the high seas. Persons are subject to scrutiny based
on their nationality, religion, or country or region of origin. These situations represent additional
limitations on a refugee’s ability to enter a territory in search of protection.
Additionally, administrative detention is used with increasing frequency with those seeking
asylum, including, in some countries, the application of automatic detention provisions based on
the nationality, origin, or religion of the applicant, which violates the requirement that detention
be exceptional in nature, the principle of non-discrimination (Article 3, Convention Relating to
the Status of Refugees of 1951), and
Security considerations are also negatively impacting the interpretation and the definition of
refugee status through the use of increasingly restrictive criteria of Inclusion Clauses. Refugees
have not been defined by virtue of their nationality since the adoption of the Refugee
Convention of 1951, which defines the key element to justify a person seeking refugee status as
a “well-founded fear of persecution”, in connection with one of the “protected grounds”.
However, some countries now take the refugee’s manner of entry into the country, nationality,
ethnic origin, and region of origin into account when determining refugee status.
The Refugee Convention of 1951 establishes that some refugees may not benefit from
international protection, because they either do not need it or do not deserve it (Exclusion
Clauses). However, the UNHCR has observed that, in some countries, Inclusion Clauses have
been applied in a manner so restrictive so as to render the application of Exclusion Clauses
unnecessary.
It is troubling that, in the interest of security, Exclusion Clauses are actually being applied
before determining whether applicants meet the definitional requirements set forth in the
Convention Relating to the Status of Refugees of 1951. Accordingly, UNHCR reiterates that, in
order to safeguard the right of asylum and the international protection regime for refugees, it is
necessary to apply the Inclusion Clauses first and only afterwards analyse the possible
application of the Exclusion Clauses. It is first necessary to establish whether a person meets all
the elements set forth in the refugee definition, then to analyse whether the person needs or
deserves international protection.
Notwithstanding the limited and restrictive nature of the Exclusion Clauses in the refugee
definition, some countries have introduced lax terms and new motivations for their
implementation. Thus, it is a cause for concern that some countries intend to use the concept of
“national security” as if it were a new exclusion clause and a new cause for denying refugee
status, in contravention of Article 1.F of the Convention Relating to the Status of Refugees of
1951.
The legitimate security concerns of States were not alien to the framers of the Convention
Relating to the Status of Refugees of 1951, which is precisely why they established that, in
certain circumstances, some people do not need or deserve international protection. While the
Exclusion Clauses are absolute and restrictive in their interpretation, States that invoke “national
security” to deny refugee status, as if it were a new “Exclusion Clause,” are in fact violating the
spirit and the provisions of the 1951 Convention.

In the same vein, the UNHCR reiterates that the security exception to the prohibition of
expulsion or return (principle of non-refoulement), set forth in the second paragraph of Article
33 of the Convention Relating to the Status of Refugees of 1951, is not an additional ground for
exclusion, but rather an exception only to be invoked by the State in exceptional circumstances.
Finally, it is clear that security considerations may affect the exercise of fundamental rights of
refugees, such as the search for lasting solutions to their problems. Indeed, an uninformed public
opinion, or manipulation of information for populist ends, can generate xenophobia and
discrimination against refugees from a certain nationality, a particular ethnicity or a specific
religion. Security considerations also affect the local integration of refugees and the quotas
established by States that regulate the number of resettled refugees they will accept.
LEGITIMATE SECURITY INTERESTS AND THE CONVENTION RELATING TO
THE STATUS OF REFUGEES OF 1951
Since security is a right of both the State and the refugees seeking protection therein, it is
important to consider how this mutual linkage is reflected in the Convention Relating to the
Status of Refugees of 1951. The legitimate security concerns of States are not inconsistent with
the international protection of refugees, but are adequately covered in several specific provisions
of the Convention Relating to the Status of Refugees of 1951.
The Convention Relating to the Status of Refugees of 1951 establishes the definition of a
refugee, the rights and obligations of refugees, and the general framework for their treatment
and protection. By identifying the elements or criteria of the refugee definition, Article 1 of the
1951 Convention reminds us that refugees must not only be in need of international protection,
but must also be deserving of it. Article 1.F. safeguards the legitimate security concerns of the
State by establishing who, despite having met the definitional requirements for refugee status,
nevertheless does not deserve international protection. In this regard, Article 1.f. of the
Convention Relating to the Status of Refugees of 1951, states:
The provisions of this Convention shall not apply to any person with respect to whom there are
serious reasons for considering that:
• He/she has committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provision in respect of such crimes; •
He/she has committed a serious non-political crime outside the country of refuge prior to his/her
admission to that country as a refugee;
• He/she has been guilty of acts contrary to the purposes and principles of the United Nations.
Accordingly, a State has every right to ensure that those who meet the Inclusion Elements of the
refugee definition are not involved in any of the grounds for exclusion. Stated differently, States
can ensure that those with the profile of a refugee also deserve international protection. It is
precisely for this reason that, to ensure State security and full respect for the right of asylum, it
is in a State’s best interest to utilize fair and efficient refugee status determination mechanisms
to identify those who need and deserve international protection.
In order to safeguard the integrity of asylum and the peaceful, apolitical and humanitarian
character of this institution for international protection, States may, under certain circumstances,
cancel or revoke refugee status. It may be that the States erred or were misled when making the
refugee status determination. Similarly, a refugee may commit certain acts in the country of
asylum, or in a third country, whose gravity could give States good reasons to withdraw his or
her refugee status, even if said status was validly issued. Legitimate cancellation of refugee
status arises when the State is satisfied that the refugee committed fraud or lied when presenting
the facts on which his or her application was based, or when an Exclusion Clause would have
been applied had all the relevant facts of his case been known. Similarly, a State may validly
revoke refugee status in cases where the person, having received said status, commits a crime
against peace, a war crime or a crime against humanity, or when he or she is guilty of acts
contrary to the purposes and principles of the United Nations.
Also, the State has every right to punish a refugee who commits a crime on its territory. Refugee
status does not imply immunity, nor can it encourage impunity. If a refugee does not respect or
violates the laws in the country of asylum, he or she is subject to the application of the same
measures and sanctions as nationals or any other foreigner living under the jurisdiction of the
State.
Consequently, a coherent and consistent interpretation of the refugee definition allows a balance
between the legitimate security interests and the humanitarian needs of those who require and
deserve international protection. The rigorous application of inclusion and exclusion clauses of
the refugee definition safeguards the legitimate interests of States and allows them to identify
those who need and deserve international protection and those who do not. Accordingly, it is in
the best interest of States to have domestic legislation concerning refugees, as well as
operational procedures for the fair and efficient determination of refugee status.

PROVISIONS WITHIN 1951 CONVENTION VIS-À-VIS SECURITY INTEREST

Provisional Measures (art. 9 of the Convention Relating to the Status of Refugees of 1951).
Article 9 of the 1951 Convention Relating to the Status of Refugees allows States, in times of
war or other grave and exceptional circumstances, to apply those provisional measures they
deem essential for national security in the process of determining refugee status. States may
continue to apply such measures even to a previously recognized refugee, when necessary for
national security.
Administrative detention of an asylum seeker or refugee should always be the exception, not the
rule. The exceptional character of detention is reaffirmed in Article 9, noted above. However,
the legitimate interests of States have been properly safeguarded in times of war or grave and
exceptional circumstances, in the interests of national security, since this article permits the
arrest and detention of a person when determining his or her refugee status, or even after having
given that status, provided that the measures taken are necessary for national security.
Accordingly, in valid circumstances, the State may invoke reasons of national security with
respect to an asylum seeker or refugee and effectuate his or her arrest and detention. It bears
repeating that this is an exceptional measure and should not be used as an excuse or legal
justification for the detention of asylum seekers and refugees.
Travel Documents (art. 28 of the Convention Relating to the Status of Refugees of 1951).
Article 28 of the Convention Relating to the Status of Refugees of 1951, allows State parties to
deny issuance of travel documents to refugees wishing to move outside their territory for
compelling reasons of national security or public order.
Again, it bears repeating that this is an exceptional measure, as it is clear that the issuance of
personal documentation, including the refugee travel document, is in the self-interest of the State
and promotes its security by allowing it to know and clearly identify those who have said status
within its territory.

Expulsion of Refugees (art. 32 of the Convention Relating to the Status of Refugees of

1951).
In accordance with the 1951 Convention Relating to the Status of Refugees and the International
Covenant on Civil and Political Rights (art. 13), a State may lawfully expel a refugee from his or
her territory in the interests of national security, when the decision conforms with due process
requirements. The same Article 32 of the 1951 Convention, as well as the International
Covenant on Civil and Political Rights (art. 13), provide for exceptions to the guarantees of due
process in deportation proceedings where compelling reasons of national security exist.
However, the refugee should be guaranteed a reasonable opportunity to arrange for legal entry to
a third country.
In contrast, the American Convention on Human Rights does not establish national security as
grounds for the deportation of aliens who are lawfully within the territory of a State, nor does it
provide exceptions to the guarantees of due process in deportation proceedings.

Prohibition on Expulsion or Return (art. 33 of the Convention Relating to the Status of

Refugees of 1951)
The principle of non-refoulement is the cornerstone of international refugee law and is based on
the idea that a State should always refrain from placing a refugee, by expulsion or return, at the
frontiers of a territory where his or her life or freedom would be at risk because of his or her
race, religion, nationality, membership of a particular social group or political opinion.
However, the principle of non-refoulement allows for exceptions under the Convention
Regarding the Status of Refugees of 1951 where there are reasonable grounds to believe that the
refugee in question may be regarded as a danger to the security of the host country.
It is important to reiterate that this is an exceptional measure applied only in grave situations, and
is never to be considered as an additional Exclusion Clause. Even if the State can validly apply
the exception to the principle of non-refoulement contemplated in the second paragraph of
Article 33 of the Convention Relating to the Status of Refugees of 1951, provisions of other
human rights instruments could also be relevant and applicable.
The Convention Relating to the Status of Refugees of 1951 fairly balances the legitimate security
interests of states and the humanitarian considerations relating to refugee protection. As we
strengthen the effective implementation of this instrument through the adoption of national
legislation on refugees and the establishment of just, fair, and efficient operational mechanisms
for the determination of refugee status, States will have better tools to ensure their safety while
maintaining full compliance with their international obligations regarding the protection of
refugees.

A WAY FORWARD
Security-related fears do not constitute the only barrier to generous refugee policies. Concerns
over social cohesion, social order, native employment and economic prospects also underlie
anti-refugee sentiment. In recent years refugee-related terrorism concerns have been particularly
tenacious in the United States, Europe, Kenya, and elsewhere, contributing to the backlash
against refugees and the uneven and parsimonious response to the global refugee crisis.
Refugee protection and national security are inextricably linked needs. Both reflect a desire for
safety and security. However, they approach this aspiration from different perspectives and have
different emphases. Refugee protection arises from an ethic of solidarity rooted in a belief in
human dignity and equality. It reflects the enlightened self-interest of states in a “stable and
moral world, one in which peace and respect for human rights are pervasive and firmly
rooted”.8In its thick sense, national security refers to more than national defines and homeland
security. It speaks to the protection of “a people, territory and way of life”.
Rather than a threat, robust refugee protection and migration policies can positively influence
three “core areas of state power: economic, military and diplomatic”.They can advance a state’s
economic interests because in a globalized, interconnected world “no nation can prosper, or
even achieve modest economic success, without ready contact with the rest of the world”. In
addition, they can help to meet labour needs,improve the productivity and prospects of
millions,and contribute to the development of source and destination nations. Refugee protection
and legal migration policies can also further the rule of law by minimizing irregular migration,
curbing the use of human smugglers, limiting the risk of trafficking, and making life more
difficult for terrorists who depend upon and often profit from smuggling networks.
Refugees and migrants can also make crucial contributions to the struggle against terrorism.
Indeed, following the 9/11 terrorist attacks, law enforcement and intelligence experts recognized
the need to engage communities in which terrorists might attempt to hide, to draw on
immigrants as a source of intelligence and support, and to enlist them in counterterror efforts.
REFERENCES
1. MURILLO, Juan Carlos. The legitimate security interests of the State and international
refugee protection. Sur, Rev. int. direitos human. [online]. 2009, vol.6.
2. Donald Kerwin. How Robust Refugee Protection Policies Can Strengthen Human and
National Security, Journal on Migration and Human Society.
3. Kjærum, Morten. “Refugee Protection between State Interests and Human Rights: Where Is
Europe Heading?” Human Rights Quarterly, vol. 24, no. 2, 2002, pp. 513–536.