Legal and Protection Policy Research Series: Article 31 of the 1951 Convention Relating to the Status of Refugees

from UN High Commissioner for Refugees
Published on 31 Jul 2017 View Original

The aim of this paper is to clarify the correct interpretation of Article 31 of the 1951 Convention Relating to the Status of Refugees (the 1951 Refugee Convention). 1 The interpretation proposed is based on the binding international precepts relating to treaty interpretation, as reflected in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT), as discussed in the next section.2

This paper draws on the contemporary practice around Article 31 by States parties to the 1951 Refugee Convention and/or its 1967 Protocol,3 clarifying where those interpretations are correct, and where State practice appears to depart from the obligations in Article 31. The aim of the paper is ultimately to inform UNHCR when developing guidelines on Article 31.
In terms of identifying pertinent State practice, particular attention is given to higher court rulings of national courts interpreting Article 31. The role of national courts in international refugee law is crucial, given the absence of a centralized adjudicatory body for international refugee law.4 In that endeavor, an attempt has been made to survey jurisprudence and other State practices extensively.5 UNHCR offices were asked to provide information on the law and practice pertaining to Article 31 globally. We received responses pertaining to the law and practice of 23 States, and also conducted independent surveys of case law and legislation. In total, this paper highlights the law and practice in 41 States.

This study also draws on various UNHCR statements and interventions relating to Article 31. Formal UNHCR interpretative guidance, while not binding, draws its authority from the 1951 Refugee Convention, in particular UNHCR’s supervisory role over the Convention enshrined in Article 35 thereof.6 In addition, it is informed by various scholars’ accounts of Article 31, notably that of Goodwin-Gill prepared in 2001 for UNHCR’s Global Consultations on International Protection. 7 Goodwin-Gill’s analysis in turn informed the 2001 Expert Roundtable’s Summary Conclusions on Article 31 of the 1951 Convention (‘2001 Expert Roundtable Summary Conclusions’). 8 Also frequently cited in this paper is the analysis of Noll in the Zimmermann commentary on the 1951 Refugee Convention,9 and the work of Hathaway, in particular the account of Article 31 in The Rights of Refugees in International Law.