According to the International Organization for Migration’s (IOM) World Migration Report 2018 “the total number of people estimated to have been forcibly displaced globally is the highest on record,”[1] with 2016 data indicating 22.5 million “refugees” and 40.3 million “internally displaced persons” (people displaced within the borders of their countries of birth).[2] The Office of the United Nations High Commissioner for Refugees (UNHCR) reports higher numbers of refugees in 2017: 25.4 million refugees, 3.1 million asylum seekers waiting for decisions on their asylum applications, and 40 million internally displaced people.[3]
Refugees are theoretically afforded the same protections under the provisions of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees[4] regardless of the country in which they seek asylum. The Convention and protocol contain provisions that set forth:
- “the basic definition of who is (and who is not) a refugee and who, having been a refugee, has ceased to be one;”[5]
- “define the legal status of refugees and their rights and duties in their country of refuge;”[6]
- “[o]ther provisions dealing with the implementation of the instruments from the administrative and diplomatic standpoint.”[7]
The definition of a refugee in the Convention and protocol seems clear:
Any person who “owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”[8]
The UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (hereinafter Handbook and Guidelines) indicates that:
“A person is a refugee within the meaning of the . . . Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.”[9] [Emphasis supplied]
However, notwithstanding the terms of the convention and protocol, there are significant challenges in practice because refugee determinations vary from jurisdiction to jurisdiction. The convention and protocol did not set up any international court, tribunal, or committee to handle the “adjudication and resolution of differences in states’ interpretation of key terms in the Convention.”[10] Furthermore, although the UNHCR is required to “supervise the application of the provisions of the . . . Convention, [it] has no authority to mandate any particular interpretation of the Convention definition.”[11] This leaves the adjudication of an individual’s refugee status to domestic law in each of the parties to the convention “with not only different legal systems, but distinct social and other lenses through which the theoretically common Convention definition might be viewed.”[12] In addition, neither the convention nor the protocol “specifically regulate” how refugee status is to be determined by parties to the treaty and protocol.[13] According to the UNHCR’s Handbook and Guidelines “[i]t is therefore left to each Contracting State to establish the procedure that it considers most appropriate, having regard to its particular constitutional and administrative structure.”[14]
The UNHCR, along with others who focus on refugee law, have developed guidelines to assist in the application of the provisions of the refugee convention more consistently across jurisdictions. While such guidelines do not have the force of law, they are a useful tool for refugee law practitioners, domestic judges, and scholars.
The UNHCR issues “Guidelines on International Protection” which are published on the UNHCR’s website and in its Handbook and Guidelines. The guidelines are UNHCR’s “legal positions on specific questions of international refugee law.”[15] They “are intended to provide legal interpretative guidance for governments, legal practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee status determination in the field.”[16]
The University of Michigan Program in Refugee and Asylum Law, directed by Professor of Law James C. Hathaway, has also been involved in the development of guidelines on various aspects of refugee law in the form of the “Michigan Guidelines.” As indicated in the program’s website, the Michigan Program has “hosted eight Colloquia on Challenges in International Refugee Law, which brought leading academic experts and practitioners from around the world . . . [together] to identify a strategy for confronting a cutting-edge problem in refugee protection.”[17] These colloquia have created eight sets of guidelines on refugee and asylum law that are published in open-access format in the Michigan Journal of International Law. The colloquia are held at regular intervals and participants include judges, international lawyers and scholars, as well as law students who work together to achieve consensus on different aspects of refugee law. While the Michigan Guidelines are perhaps not as well known as the UNHCR’s legal positions, they are a valuable addition to the development of consistent standards in refugee law and practice.
The following are the Michigan Guidelines published to date; all reflect the consensus of the colloquium participants:
“The Michigan Guidelines on the Internal Protection Alternative.” Mich. J. Int’l L. 21, no. 1 (1999): 134-41. (First Colloquium on Challenges in International Refugee Law, held at the University of Michigan Law School, Ann Arbor, Michigan, on April 9-11, 1999.)
“The Michigan Guidelines on Nexus to a Convention Ground.” Mich. J. Int’l L. 23, no. 2 (2002): 210-21. (Second Colloquium on Challenges in International Refugee Law, held at the University of Michigan Law School, Ann Arbor, Michigan, on March 23-25, 2001.)
“The Michigan Guidelines on Well-Founded Fear.” Mich. J. Int’l L. 26, no. 2 (2005): 492-503. (Third Colloquium on Challenges in International Refugee Law, held at the University of Michigan Law School, Ann Arbor, Michigan, on March 26-28, 2004.)
“The Michigan Guidelines on Protection Elsewhere.” Mich. J. Int’l L. 28, no. 2 (2007): 207-21. (Fourth Colloquium on Challenges in International Refugee Law, held at the University of Michigan Law School, Ann Arbor, Michigan, on November 10-12, 2006.)
“The Michigan Guidelines on the Right to Work.” Mich. J. Int’l L. 31, no. 2 (2010): 293-306 (Fifth Colloquium on Challenges in International Refugee Law, held at the University of Michigan Law School, Ann Arbor, Michigan on November 13-15, 2009.)
“The Michigan Guidelines on the Exclusion of International Criminals.” Mich J. Int’l L. 35, no. 1 (2013): 3-13. (Sixth Colloquium on Challenges in International Refugee Law, held at the University of Michigan Law School, Ann Arbor, Michigan, on March 22-24, 2013.)
“The Michigan Guidelines on Risk for Reasons of Political Opinion.” Mich. J. Int’l L. 37, no. 2 (2016): 233-41. (Seventh Colloquium on Challenges in International Refugee Law, held at the University of Michigan Law School, Ann Arbor, Michigan, on March 27-29, 2015.)
“The Michigan Guidelines on Refugee Freedom of Movement.” Mich. J. Int’l L. 39, no. 1 (2018): 5-17. (Eighth Colloquium on Challenges in International Refugee Law, held at the University of Michigan Law School, Ann Arbor, Michigan, on March 31-April 2, 2017.)
Barbara H. Garavaglia
Director and Librarian
University of Michigan Law Library
[1] World Migration Report 2018, p. 2-3
[2] Id.
[3] UNHCR Figures at a Glance and UNHCR Trends at a Glance.
[4] As of April 2015, 148 countries are parties to the 1951 convention and/or the 1967 protocol. States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol.
[5] Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, 6. (UNHCR, Reissued Geneva, DECEMBER 2011)
[6] Id.
[7] Id.
[8] 1951 Convention and Protocol Relating to the Status of Refugees, Art. I, sect. A.2
[9] Handbook and Guidelines, p. 9
[10] J. Hathaway and M. Foster, co-authors. The Law of Refugee Status. 2nd ed., 3. (Cambridge: Cambridge University Press, 2014)
[11] Id., p. 3 [Footnotes omitted]
[12] Id.
[13] Handbook and Guidelines, p. 37.
[14] Id.
[15] Id., p. 1
[16] Id., p. 79
[17] The Michigan Guidelines website
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