The 1951 Refugee Convention: Implementation, Exemptions, and Practical Effects

    Helloooo delegates! This blog post, the second in the series on the 1951 Refugee Convention, will explore Articles 5, 6, and 7 of the Convention. Articles 5, 6, and 7 outline requirements for implementation and ensure that the Convention cannot be weaponized against refugees. Article 5 stipulates that refugees cannot be denied protections solely on the basis that they are not explicitly listed within the Convention. This is a fairly common practice in international treaties to account for future political, social, and economic changes that might affect the application of the treaty. In other words, under Article 5, “refugees may by virtue of the Convention get a more favourable position than they otherwise would have had, while on the other hand the Convention shall not be able to serve as an excuse for reducing or taking away rights and benefits which otherwise are granted to refugees by certain States" (1).

    Article 6 defines the term “in the same circumstances.” The Convention frequently requires that states afford refugees the same rights enjoyed by those of the states’ nationals. Article 6 ensures that refugees are subjected to the same laws as nationals of similar circumstances but are also given additional consideration in situations where their refugee status makes it impossible for them to fulfill the criteria as normal. This is because many states require certain shared criteria (age, educational qualifications, etc.) to satisfy various laws. For example, most states have a legal driving, voting, and drinking age. In these cases, the legal requirements “may be satisfied by a refugee just as well as by any other person (e.g. age, sex, health, etc.)" (2). As such, refugees are subject to the same requirements. However, some requirements, such as those requiring proof of nationality or proof of a degree, could be impossible or difficult for refugees to fulfill under their circumstances. In these cases, refugees must be given alternative means to prove their identity, where nationality is required, or competency, in the case of educational thresholds. 

    Article 7, exemption from reciprocity, ensures that states cannot shirk their responsibilities as a result of reciprocity. Reciprocity is a concept in international law that states that, because State A offers certain benefits or rights to citizens of State B, State B must offer those same benefits and rights to State A’s citizens in return. Reciprocity is the basis of most international legal agreements, creating a concept known as self-enforcement. Treaties are considered to be self-enforcing when each party gains something from the other party in return. For example, trade agreements are self-enforcing: if one party deviates from the agreement by cutting off trade, all parties are unable to enjoy the full benefits of the treaty because the trade is no longer reciprocal. These agreements are self-enforcing, as states are incentivized to abide by the treaty at the risk of losing certain benefits. This concept is important because human rights treaties are usually not self-enforcing. If one state deviates from a human rights treaty, there is no bearing on another states’ ability to fulfill its human rights obligations. In terms of refugee laws, this means that if one state fails to protect the rights of refugees, it should not impact another state’s ability to do so. Because of the lack of reciprocity, there is little incentive for states to abide by refugee law. Accordingly, under Article 7, the responsibilities outlined under the Convention are exempt from reciprocity; essentially, states party to the agreement must observe the law under all conditions, even if other states do not. This also means that states cannot deny refugees certain rights on the basis that their originating country did not provide them either. For example, if a refugee from State A is seeking asylum in State B because they were denied the right to practice their religion, State B cannot deny them the same right on the basis that their originating country also failed to provide the right, or, for lack of a better analogy, “you can’t miss what you never had.” In general, Article 7 adds to other provisions that ensure that states are obligated to protect refugees no matter the situation or the refugee’s originating circumstances.

    Taken together, Articles 5, 6, and 7 are designed to prevent states from using the 1951 Convention as an excuse to deny rights that are not explicitly listed in the Convention or from denying refugees certain rights just because other states failed to do so. These articles use a lot of legal and political jargon and can be confusing; we do not expect you to be experts on the entirety of the Convention but hope this will help you understand the general requirements for refugee status and the rights and responsibilities that refugees and states have to each other. If you want further clarification on the meaning and the implementation of the 1951 Convention, the UNHCR has a great commentary on the Convention that explains each of the articles in greater detail. The document is linked below. As always, please feel free to comment on this blog post to share any questions, comments, or ideas you have!
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If you are interested in reading the text of the 1951 Convention and 1967 Protocol, see here: Convention and Protocol Relating to the Status of Refugees

If you are looking for clarification on the provisions of the text and more information on its practical effects, see here: COMMENTARY ON THE REFUGEE CONVENTION 1951 ARTICLES 2-11, 13-37
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(1) COMMENTARY ON THE REFUGEE CONVENTION 1951 ARTICLES 2-11, 13-37
(2) Ibid.