Who is a refugee
The 1951 Convention relating to the Status of Refugees was adopted in response to the mass displacement in Europe after the Second World War. It defines a refugee as a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside their country of nationality and is unable or, owing to that fear, unwilling to avail themselves of its protection. The definition was originally limited to events before 1951, but the 1967 Protocol removed the time and geographical limits. Economic migrants and internally displaced persons fall outside it.
The principle of non-refoulement
Article 33(1) of the Convention provides that no contracting state shall expel or return a refugee "in any manner whatsoever" to the frontiers of territories where their life or freedom would be threatened. Known by the French term non-refoulement, it is the cornerstone of refugee protection.
- Scope: it covers asylum seekers before formal recognition, prohibits chain refoulement through third countries where they would be at risk, and bars rejection at the border.
- Exceptions (Article 33(2)): protection may not be claimed by a person who is a danger to the security of the country or who, having been convicted of a particularly serious crime, is a danger to the community.
- Human-rights protection: Article 3 of the Convention against Torture and the ICCPR prohibit return to a risk of torture without exception, offering wider protection than the Refugee Convention.
- Extraterritorial reach: in Hirsi Jamaa and Others v. Italy (2012) the European Court of Human Rights held that intercepting migrants on the high seas and returning them to Libya violated the European Convention on Human Rights.
Other protection principles
- No penalties for illegal entry (Article 31): refugees coming directly from persecution who present themselves without delay are not punished for unlawful entry.
- Non-discrimination (Article 3) and standards of treatment in education, work and social security.
- International solidarity and burden-sharing: UNHCR supervises the Convention's application and supports durable solutions such as voluntary repatriation, local integration and resettlement.
Korea's Refugee Act
Korea acceded to the Refugee Convention in 1992 and, with the Refugee Act promulgated in 2012 and in force from 1 July 2013, adopted the first stand-alone refugee law in Asia. The Act provides for non-refoulement, refugee status determination and humanitarian stay permits, although the low recognition rate and port-of-entry screening remain contested. The starting point of universal human rights is the Universal Declaration of Human Rights.
References
- Convention relating to the Status of Refugees (adopted 28 July 1951), 189 UNTS 137; Protocol relating to the Status of Refugees (1967), 606 UNTS 267.
- Goodwin-Gill, G. S., & McAdam, J. (with Dunlop, E.) (2021). The Refugee in International Law (4th ed.). Oxford: Oxford University Press.
- European Court of Human Rights (Grand Chamber). Hirsi Jamaa and Others v. Italy, Application no. 27765/09, judgment of 23 February 2012.