McGill Law Journal ~ Revue de droit de McGill
THE 1969 AFRICAN REFUGEE CONVENTION:
INNOVATIONS, MISCONCEPTIONS, AND OMISSIONS
Marina Sharpe*
This paper provides a critical overview of
the 1969 African refugee convention, beginning
with a survey of its legal innovations. It then
addresses the most misunderstood of themthe
unique refugee definitionin depth, with an
emphasis on dispelling the common misconcep-
tion that it is particularly expansive. Finally, it
investigates the 1969 Conventions silence re-
garding refugees civil and political, and socio-
economic rights, and how it works as the re-
gional complement to the 1951 global refugee
convention in that regard.
Cet article donne un aperu critique de la
convention sur les rfugis africains de 1969,
dbutant par un survol de ses innovations juri-
diques. Il aborde ensuite la plus incomprise
d’entre ellesson unique dfinition de rfugi
en profondeur, en mettant l’accent sur la dissi-
pation de l’ide fausse, mais trs rpandue, que
cette dfinition est particulirement large. En-
fin, larticle examine le silence de la Convention
de 1969 sur les droits civils et politiques ainsi
que socio-conomiques des rfugis, et la faon
dont elle fonctionne comme le complment r-
gional la convention mondiale des rfugis
de 1951 cet gard.
* D.Phil. candidate and Trudeau Scholar, Faculty of Law, University of Oxford. The au-
thor is grateful to Professor Guy Goodwin-Gill for his feedback on a draft of this paper
and to two anonymous McGill Law Journal referees for their insightful comments.
Citation: (2012) 58:1 McGill LJ 95 ~ Rfrence : (2012) 58 : 1 RD McGill 95
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Introduction
I.
Innovations
A. Overview of the 1969 Convention
B. A Unique Refugee Definition
C. Advancing an Individual Right to Asylum?
D. Broadened Non-refoulement?
E. Formalization of Responsibility Sharing, Temporary
Protection, and Voluntary Repatriation
II. Misconceptions
A. Continued Relevance of All 1969 Events?
B. Extent of the Article I(2) Refugee Definitions Objectivity
1. Subjectivity and the 1951 Convention
2. Subjectivity in the Test for Refugee Status Under the
1969 Convention
C. Group Determination of Refugee Status
III.
Omissions
A. The 1951 Convention as Lex Specialis
B. Equality
C. The Law of Treaties and General International Law
1. Successive Treaties Relating to the Same Subject
Matter
2. The General Rule of Interpretation
3. Supplementary Means of Interpretation
4. General Principles of International Law
Conclusion
THE 1969 AFRICAN REFUGEE CONVENTION 97
Introduction
As a refugee protection crisis engulfs Africa,1 the Organization of Afri-
can Unitys 1969 OAU Convention Governing the Specific Aspects of Refu-
gee Problems in Africa (1969 Convention)2 has remained largely beyond
serious scrutiny. Understandably, in the wake of the conventions adop-
tion, attention focused on its remarkable legal innovations.3 However, al-
most half a century later and amid declining standards of refugee protec-
tion in Africa, the discussion has scarcely moved on. When it receives any
attention at allwhich usually occurs around significant anniversaries4
the 1969 Convention is either uncritically praised5 or else analysis re-
mains focused on its novelties,6 in particular the unique refugee defini-
tion, at the expense of scrutiny of that definition or of the broader protec-
1 Among the works describing this crisis are Jeff Crisp, No Solutions in Sight: The
Problem of Protracted Refugee Situations in Africa in Itaru Ohta & Yntiso D Gebre,
eds, Displacement Risks in Africa: Refugees, Resettlers and Their Host Population
(Kyoto, Melbourne: Kyoto University Press, Trans Pacific Press, 2005) 17; Robin
Ramcharan, The African Refugee Crisis: Contemporary Challenges to the Protection of
Refugees and Displaced Persons in Africa (2000) 8 African Yearbook of International
Law 119; Bonaventure Rutinwa, The End of Asylum? The Changing Nature of Refugee
Policies in Africa (2002) 21:1-2 Refugee Survey Quarterly 12; Guglielmo Verdirame &
Barbara Harrell-Bond, Rights in Exile: Janus-Faced Humanitarianism (New York:
Berghahn Books, 2005).
2 10 September 1969, 1001 UNTS 45, 8 ILM 1288 (entered into force 20 June 1974) [1969
Convention]. Many commentators use OAU Convention. 1969 Convention is pre-
ferred here because the OAU no longer exists.
3 See e.g. Ousmane Goundiam, African Refugee Convention [1970] 2 Migration News 7;
Paul Weis, The Convention of the Organisation of African Unity Governing the Specific
Aspects of Refugee Problems in Africa (1970) 3:3 Revue des droits de lhomme 449
[Weis, The Convention].
4 See e.g. George Okoth-Obbo, Thirty Years On: A Legal Review of the 1969 OAU
Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa
(2001) 20:1 Refugee Survey Quarterly 79; Joe Oloka-Onyango, Human Rights, the
OAU Convention and the Refugee Crisis in Africa: Forty Years After Geneva (1991) 3:3
Intl J Refugee L 453 [Oloko-Onyango, Forty Years After]; Micah Bond Rankin,
Extending the Limits or Narrowing the Scope? Deconstructing the OAU Refugee
Definition Thirty Years On (2005) 21:3 SAJHR 406; MR Rwelamira, Two Decades of
the 1969 OAU Convention Governing the Specific Aspects of the Refugee Problem in
Africa (1989) 1:4 Intl J Refugee L 557; Ray Wilkinson, Thirty Years Later… Refugees
2:115 (1999) 4.
5 Rankin, supra note 4 at 410. See e.g. Jennifer L Turner, Liberian Refugees: A Test of
the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in
Africa (1994) 8:2 Geo Immig LJ 281.
6 See e.g. Rainer Hofmann, Refugee Law in the African Context (1992) 52 Heidelberg J
Intl L 318; Christopher J Bakwesegha, The OAU and African Refugees in Yassin El-
Ayouty, ed, The Organization of African Unity After Thirty Years (Westport, Conn:
Praeger, 1994) 77.
98 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tion framework that the convention establishes.7 Africa is the only region
of the developing world to have adopted a binding, regional refugee legal
instrument, and it hosts almost a quarter of the worlds refugees,8 yet the
1969 Convention remains poorly understood or misunderstood.9
This article on the 1969 Convention seeks to contribute to remedying
this problem. It is characterized by its alternative approach. While recog-
nizing the 1969 Conventions significant contributions to refugee protec-
tion in Africa, this paper focuses equally on what the 1969 Convention is
notin terms of both widely held misconceptions about it and omissions
from itas opposed to the usual approach that focuses almost exclusively
on what the 1969 Convention is. The paper begins by surveying the ele-
ments of the 1969 Convention that are commonly hailed as its major legal
innovations: its unique refugee definition, its progressive development of
an individual right to asylum, the broadened nature of non-refoulement
under the convention, and its formalization of responsibility sharing, a
type of temporary protection, and voluntary repatriation. This part pro-
vides an overview of the convention while at the same time surveying
much of the literature on the 1969 Convention. The paper then goes on to
address the most misunderstood of these innovationsthe unique refugee
definitionin greater depth, with an emphasis on dispelling the most
common misconception surrounding the definition: that it is much broad-
er than the refugee definition found in the 1951 Convention Relating to
the Status of Refugees10 (1951 Convention). Finally, the paper investigates
a glaring yet often overlooked omission: the 1969 Conventions silence re-
garding refugees civil and political, as well as socio-economic rights, and
how the African convention works as the regional complement11 to the
universal refugee instrument in that regard. In so doing, this paper ar-
gues that refugees recognized only under the 1969 Convention (whether
for practical reasons or because they do not meet the 1951 Convention
refugee definition) are nevertheless entitled to the same standards of
7 Pieces by Okoth-Obbo (supra note 4), Edwards (Alice Edwards, Refugee Status
Determination in Africa (2006) 14 African Journal of International and Comparative
Law 204 [Edwards, Refugee Status Determination]), and Rankin (supra note 4) are
notable exceptions.
8 According to the US Committee for Refugees and Immigrants, as of 31 December 2008,
there were 2,959,900 refugees in Africa, out of a global refugee population of 13,599,900
(Refugees and Asylum Seekers Worldwide, online: World Refugee Survey: 2009
9 See Edwards, Refugee Status Determination, supra note 7 at 207; Rankin, supra note
4 at 407, 415.
10 28 July 1951, 189 UNTS 137, Can TS 1969 No 6 (entered into force 22 April 1954) [1951
Convention].
11 1969 Convention, supra note 2, art VIII(2).
THE 1969 AFRICAN REFUGEE CONVENTION 99
treatment as refugees recognized under the 1951 Convention. Taken to-
gether, this papers survey of the innovations in, misconceptions about,
and omissions from the 1969 Convention provides a unique critical over-
view of the African refugee protection regime.
The critical approach adopted here should not be taken to suggest that
the 1969 Convention should be interpreted in any way other than in good
faith and in line with its object and purpose,12 the humanitarian nature of
which is made explicit in the conventions preamble.13 Rather, the over-
arching purpose of this paper is to form part of a movement toward more
serious, critical legal engagement with the 1969 Convention and with ref-
ugee protection in Africa more generally. There is a remarkable dearth of
critical legal analysis of the 1969 Convention,14 which is all the more stark
in relation to the sheer volume of analysis to which the 1951 Convention
has been subject.15 Serious academic analysis of the 1969 Convention is a
critical component of full engagement with it as a tool of refugee protec-
tion. Indeed, Rankin maintains that the failure to provide an interpretive
framework for the 1969 Convention may ultimately undermine the flexi-
bility of the [refugee] definition by limiting the situations in which it can
be applied.16 If the 1969 Convention begins to receive even a fraction of
the critical attention that has been devoted to its universal counterpart, it
will represent an important contribution to the legal protection of refu-
gees in Africa at a time when such a contribution is sorely needed.
12 See Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, art 31(1),
Can TS 1980 No 37 (entered into force 27 January 1980) [VCLT].
13 Preambular paragraph 1 describes signatories as [n]oting with concern the constantly
increasing numbers of refugees in Africa and desirous of finding ways and means of al-
leviating their misery and suffering as well as providing them with a better life and fu-
ture. Preambular paragraph 2 recognizes the need for an essentially humanitarian
approach towards solving the problems of refugees (1969 Convention, supra note 2).
14 See Edwards, Refugee Status Determination, supra note 7 at 207; Rankin, supra note
4 at 407, 415.
15 See e.g. Michelle Foster, International Refugee Law and Socio-economic Rights: Refuge
from Deprivation (Cambridge, UK: Cambridge University Press, 2007); Guy S Goodwin-
Gill & Jane McAdam, The Refugee in International Law, 3d ed (Oxford: Oxford
University Press, 2007); Atle Grahl-Madsen, The Status of Refugees in International
Law, vols 1 & 2 (Leiden: AW Sijthoff, 1966, 1972); James C Hathaway, The Law of
Refugee Status (Toronto: Butterworths, 1991) [Hathaway, Refugee Status]; P Weis,
Legal Aspects of the Convention of 25 July 1951 Relating to the Status of Refugees
[1953] Brit YB Intl L 478; Andreas Zimmermann, ed, The 1951 Convention Relating to
the Status of Refugees and Its 1967 Protocol: A Commentary (Oxford: Oxford University
Press, 2011).
16 Supra note 4 at 415.
100 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
I. Innovations
The 1969 Convention is the regional legal instrument governing refu-
gee protection in Africa. It was adopted on 10 September 1969 at the sixth
ordinary session of the OAUs Assembly of Heads of State and Govern-
ment, when it was signed by forty-one heads of state or government. It
entered into force on 20 June 197417 after ratification by one-third of OAU
member states.18 It has since been ratified by forty-five of the fifty-four
member states of the African Union (AU),19 the successor organization to
the OAU.
A. Overview of the 1969 Convention
The 1969 Convention is a relatively short instrument, containing a
preamble and fifteen articles. The first article provides two refugee defini-
tions, which are discussed in detail below,20 and includes paragraphs on
cessation21 and exclusion.22 These two paragraphs closely follow the 1951
Convention provisions, with three additions. Two additional cessation
clauses provide that the 1969 Convention shall cease to apply to any refu-
gee who has committed a serious non-political crime outside his country
of refuge after his admission to that country as a refugee23 or has seri-
ously infringed the 1969 Conventions purposes and objectives.24 A fur-
ther point of distinction is that the 1969 Convention does not include the
clause present in the 1951 Convention preventing cessation in respect of a
refugee who can invoke compelling reasons arising out of previous perse-
cution for refusing to avail himself of the protection of the country of na-
tionality.25 Finally, an additional exclusion clause adds acts contrary to
the purposes and principles of the OAU as a further ground for exclu-
sion.26
17 A day that later became both Africa, and World, Refugee Day.
18 1969 Convention, supra note 2, art XI.
19 Eritrea, So Tom & Principe, the Sahrawi Arab Democratic Republic (SADR), and
South Sudan have neither signed nor ratified the 1969 Convention; nor is Morocco a
party to the convention, having withdrawn from the OAU in 1985 after the SADR was
accepted as a member state. Djibouti, Madagascar, Mauritius, Namibia, and Somalia
have signed, but not ratified, the convention.
20 See Parts I.B and II.
21 1969 Convention, supra note 2, art I(4).
22 Ibid, art I(5).
23 Ibid, art I(4)(f).
24 Ibid, art I(4)(g).
25 1951 Convention, supra note 10, art 1C(5).
26 1969 Convention, supra note 2, art I(5)(c).
THE 1969 AFRICAN REFUGEE CONVENTION 101
Article II of the 1969 Convention relates to asylum; each of its para-
graphs is addressed in detail below.27 The third article articulates refu-
gees duty to respect the laws and regulations of the host state, echoing
article 2 of the 1951 Convention, and prohibits them from engaging in
subversive activities against any OAU member state. States party to the
convention undertake to support this duty by prohibiting refugees resid-
ing in their respective territories from attacking any State Member of the
OAU, by any activity likely to cause tension between Member States.28
The prohibition on subversive activities is operationalized by the cessation
clauses described above, which terminate the refugee status of an indi-
vidual who commits a serious non-political crime after the acquisition of
such status or who has seriously infringed the 1969 Conventions purposes
and objectives. Article IV, on non-discrimination in the application of the
convention, follows article 3 of the 1951 Convention, however discrimina-
tion is prohibited on the additional grounds of nationality, membership of
a particular social group, or political opinion.29 The fifth article relates to
voluntary repatriation, which is addressed in detail below.30 Article VI,
like article 28 of the 1951 Convention, mandates that contracting states
provide refugees with travel documents. In view of article II(5), on tempo-
rary protection, which is discussed in detail below, article VI(2) provides,
Where an African country of second asylum accepts a refugee from a
country of first asylum, the country of first asylum may be dispensed from
issuing a document with a return clause. Articles VII and VIII relate to
state co-operation with the OAU and the office of the United Nations High
Commissioner for Refugees (UNHCR), respectively. Article VIII(2) pro-
vides that the 1969 Convention shall be the effective regional comple-
ment in Africa of the 1951 Convention. This clause is analyzed in detail
below.31 The final seven articles are technical provisions.
It is apparent that many of the 1969 Conventions eight substantive
provisions represent significant departures from the 1951 Convention.
This reflects the 1969 Conventions objective, as announced by its title: to
address aspects of the refugee problem singular to Africa. Indeed,
Rwelamira explains that the final text of the 1969 Convention settled for
only the specific aspects of the African [refugee problem] which were not
27 See Parts I.CI.E.
28 1969 Convention, supra note 2, art III(2).
29 The 1951 Convention prohibits discrimination on the grounds of race, religion, or coun-
try of origin (supra note 10, art 3).
30 See Part I.E.
31 See Part III.C.
102 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
adequately catered for under the 1951 Convention.32 Accordingly, many
of the 1969 Conventions provisions are considered major innovations in
the field of refugee law. Each innovation is surveyed below.
B. A Unique Refugee Definition
The 1951 Convention defines a refugee as someone with a well-
founded fear of persecution on the basis of his or her race, religion, na-
tionality, membership of a particular social group, or political opinion.33
The 1969 Convention includes that same definition34minus the 1 Janu-
ary 1951 date limit in the 1951 Convention that most states later agreed,
by way of the 1967 Protocol,35 not to applyand provides at article I(2):
The term Refugee shall also apply to every person who, owing
to external aggression, occupation, foreign domination or events se-
riously disturbing public order in either part [or] the whole of his
country of origin or nationality, is compelled to leave his place of ha-
bitual residence in order to seek refuge in another place outside his
country of origin or nationality.
Both definitions are employed by UNHCR in its operations in Africa,36
though given the relative ease of applying the 1969 Conventions article
I(2) in the situations of mass influx that so often characterize refugee
movements in Africa,37 in practice, UNHCR and states often recognize
32 Medard RK Rwelamira, Some Reflections on the OAU Convention on Refugees: Some
Pending Issues (1983) 16:2 Comp & Intl LJS Afr 155 at 167 [Rwelamira, Some Reflec-
tions].
33 1951 Convention, supra note 10, art 1A, which provides:
[T]he term refugee shall apply to any person who:
…
(2) … owing to well-founded 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 una-
ble or, owing to such fear, is unwilling to avail himself of the protec-
tion of that country; or who, not having a nationality and being out-
side 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.
34 1969 Convention, supra note 2, art I(1).
35 Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267, art 1(2),
Can TS 1969 No 29 (entered into force 4 October 1967) [1967 Protocol].
36 See Emmanuel Opoku Awuku, Refugee Movements in Africa and the OAU Convention
on Refugees (1995) 39:1 J Afr L 79 at 81; UNHCR, Executive Committee of the High
Commissioners Programme, Note on International Protection, 45th Sess, UN Doc
A/AC.96/830, (7 September 1994) at para 32 [mimeo].
37 See Part II.C.
THE 1969 AFRICAN REFUGEE CONVENTION 103
refugees in Africa only under article I(2), even though the 1951 Conven-
tions refugee definition may equally apply.
The 1969 Conventions additional refugee definition will be addressed
at length below, as part of the analysis of common misconceptions sur-
rounding it.38 For the moment, it suffices to note that article I(2) of the
1969 Convention explicitly introduces objective criteria, based on the con-
ditions prevailing in the country of origin, for determining refugee sta-
tus,39 and requires neither the elements of deliberateness nor discrimina-
tion inherent in the 1951 Convention definition.40 Additionally, article
I(2) was globally influential in that it contributed to the 1984 adoption of
the Cartagena Declaration, which recommended that the traditional refu-
gee definition be expanded in Latin America to include
persons who have fled their country because their lives, safety or
freedom have been threatened by generalized violence, foreign ag-
gression, internal conflicts, massive violation of human rights or
other circumstances which have seriously disturbed public order.41
Furthermore, UNHCRs Executive Committee of the High Commission-
ers Programme (ExCom) concluded that the 1951 Convention refugee def-
inition should be broadened to take account of mass displacement, and in
so doing usedwithout attributionthe exact wording of the 1969 Con-
ventions article I(2).42
C. Advancing an Individual Right to Asylum?
Asylum is the first and most fundamental of the refugees needs and
to grant him this constitutes the preliminary condition for him to have all
the other rights.43 The 1951 Convention does not, however, establish any
individual right to asylum. The Universal Declaration of Human Rights
(UDHR), by contrast, enshrines the right of individuals to seek and to en-
38 See Part II.
39 See Weis, The Convention, supra note 3 at 455.
40 Ruma Mandal,
Protection Mechanisms Outside of
the 1951 Convention
(Complementary Protection), Legal and Protection Policy Research Series, (Geneva:
UNHCR Department of Internal Protection, 2005) at 13, online: UNHCR: The UN
Refugee Agency
41 OAS, Annual Report of the Inter-American Commission on Human Rights, 1984-1985,
OR OEA/Ser.L/V/II.66/Doc.10, rev.1 (1985) chapter V(IV), Declaration of Cartagena at
para 3.
42 See Richard Greenfield, The OAU and Africas Refugees in Yassin El-Ayouty & I
William Zartman, eds, The OAU After Twenty Years (New York: Praeger, 1984) 209 at
224.
43 Goundiam, supra note 3 at 9.
104 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
joy asylum,44 but stops short of recognizing any individual right to asy-
lum at international law. The UN Declaration on Territorial Asylum45
which is recalled at paragraph 7 of the preamble to the 1969 Convention
is similarly circumscribed. This resolution was followed, ten years after its
adoption, by the UN Conference on Territorial Asylum, which failed to
recognize or codify any individual right to asylum.46 In 1981, however, the
African Charter on Human and Peoples Rights (African Charter) recog-
nized for the first time the right of persecuted individuals to seek and ob-
tain asylum.47 The ramifications of this provision have yet to be analyzed
in depth, and it is beyond the scope of this paper to do so here. Suffice it to
note that, despite the African Charters advance, the general consensus
remains that the grant of asylum is within the exclusive discretion of
states; as they have no obligation to grant it, individuals have no right to
asylum corresponding to their UDHR right to seek and to enjoy it.48
While the 1969 Convention reflects this general consensus, it never-
theless significantly strengthens the institution of asylum49 by provid-
ing:
Member States of the OAU shall use their best endeavours con-
sistent with their respective legislations to receive refugees and to
secure the settlement of those refugees who, for well-founded rea-
sons, are unable or unwilling to return to their country of origin or
nationality.50
This urging of states to grant asylum is a further inroad into the tradi-
tional international law perspective which has tended to regard asylum as
an exclusive right of the sovereign state, but is certainly not a right to be
enforced by an individual against a state.51 The convention does not stop
there; mirroring part of the preamble to the UN Declaration on Territorial
44 GA Res 217(III)(A), UNGAOR, 3d Sess, UN Doc A/810, (1948) 71, art 14(1). See general-
ly Alice Edwards, Human Rights, Refugees, and the Right To Enjoy Asylum (2005)
17:2 Intl J Refugee L 293.
45 GA Res 2312 (XXII), UNGAOR, 22d Sess, Supp No 16, UN Doc A/6716, (1967) 81.
46 See Hathaway, Refugee Status, supra note 15 at 13-16; Agns Hurwitz, The Collective
Responsibility of States to Protect Refugees (Oxford: Oxford University Press, 2009) at
21-23.
47 27 June 1981, 1520 UNTS 217, art 12(3), 21 ILM 58 (entered into force 21 October
1986) [emphasis added].
48 See Goodwin-Gill & McAdam, supra note 15 at 358; P Weis, The United Nations
Declaration on Territorial Asylum (1969) 7 Can YB Intl Law 92 at 137-39.
49 Hofmann, supra note 6 at 324.
50 1969 Convention, supra note 2, art II(1). Presumably, well-founded reasons must be
read as referring to both the article I(1) and article I(2) refugee definitions, despite the
fact that only article I(1) explicitly includes a requirement that the reasons for flight be
well-founded.
51 Rwelamira, Some Reflections, supra note 32 at 170.
THE 1969 AFRICAN REFUGEE CONVENTION 105
Asylum, it characterizes the grant of asylum as a peaceful and humani-
tarian act that shall not be regarded as an unfriendly act by any Mem-
ber State.52 The language encouraging states to grant asylum is, howev-
er, only recommendatory. Thus the 1969 Convention incrementally ad-
vances, but does not enshrine, an individual right to asylum.53
D. Broadened Non-refoulement?
While the 1969 Conventions contribution to the advancement of an
individual right to asylum may be characterized as modest, its role re-
garding non-refoulementa major aspect of the concept of asylumis
somewhat more significant. The general rule of non-refoulment provides
that an individual should not be returned to a state where there is a real
chance that he or she will face persecution, other ill-treatment, or torture.
This principle is codified in, or has been judicially read into, a number of
international refugee54 and human rights instruments.55 Most commenta-
tors even view the norm as having the status of customary international
law.56 Human rights-based non-refoulement is discussed below;57 the focus
here is on non-refoulement under refugee law. In that context, the norm
as articulated at article 33(1) of the 1951 Convention, prohibits states
from returning a refugee to territory where there is a risk that his or her
life or freedom would be threatened on account of his or her race, religion,
nationality, membership of a particular social group, or political opinion.
The second paragraph of article 33, however, permits a national security
exception.
52 1969 Convention, supra note 2, art II(2).
53 See Rachel Murray, Human Rights in Africa: From the OAU to the African Union
(Cambridge, UK: Cambridge University Press, 2004) at 189 [Murray, Human Rights in
Africa].
54 See e.g. 1951 Convention, supra note 10, art 33; 1969 Convention, supra note 2, art II(3).
55 See e.g. Convention Against Torture and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment, 10 December 1984, 1465 UNTS 85, art 3, Can TS 1987 No 36 (en-
tered into force 26 June 1987); International Covenant on Civil and Political Rights, 19
December 1966, 999 UNTS 171, art 7, Can TS 1976 No 47 (entered into force 23 March
1976).
56 See e.g. Sir Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the
Principle of Non-refoulement: Opinion in Erika Feller, Volker Trk & Frances
Nicholson, eds, Refugee Protection
in International Law: UNHCRs Global
Consultations on International Protection (Cambridge, UK: Cambridge University
Press, 2003) 87 at 140-63. Contra James C Hathaway, Leveraging Asylum (2010) 45:3
Tex Intl LJ 503.
57 See Part III.A.
106 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
The 1969 Conventions non-refoulement provision closely follows arti-
cle 3(1) of the UN Declaration on Territorial Asylum.58 The 1969 Conven-
tion provides:
No person shall be subjected by a Member State to measures
such as rejection at the frontier, return or expulsion, which would
compel him to return to or remain in a territory where his life, phys-
ical integrity or liberty would be threatened for the reasons set out
in Article I, paragraphs 1 and 2.59
This is broader than the 1951 Conventions non-refoulement provision in
two important respects; however, the 1969 Convention does not expand
non-refoulement as greatly as is often suggested.
First, the 1969 Convention expands non-refoulement because it does
not include a national security exception like the one found in its univer-
sal counterpart. However it does not render non-refoulement absolute, as
many scholars have suggested.60 Pursuant to articles I(4)(f) and (g), the
application of the 1969 Convention, and hence protection from re-
foulement, ceases if the individual concerned commits a serious non-
political crime outside the country of refuge after admission as a refugee
or seriously infringes the conventions purposes and objectives. This, ac-
cording to DSa, implies that the 1969 Convention, like the 1951 Conven-
tion, allows expulsion in limited circumstances, although the OAU ap-
pears to deal with the latter somewhat indirectly.61
Second, the 1969 Conventions non-refoulement provision applies at
frontiers, while the 1951 Convention makes no such explicit provision. As
a result, many commentators view non-refoulement under the 1969 Con-
vention as broader than under the 1951 Convention.62 State practice, how-
ever, has aligned the universal refugee regime with the standard of the
58 See Weis, The Convention, supra note 3 at 457.
59 1969 Convention, supra note 2, art II(3).
60 See e.g. Georges Abi-Saab, The Admission and Expulsion of Refugees with Special
Reference to Africa (2000) 8 African Yearbook of International Law 71 at 90; Mandal,
supra note 40 at 15; Rachel Murray, Refugees and Internally Displaced Persons and
Human Rights: The African System (2005) 24:2 Refugee Survey Quarterly 56 at 57.
61 Rose M DSa, The African Refugee Problem: Relevant International Conventions and
Recent Activities of the Organization of African Unity (1984) 31 Nethl Intl L Rev 378
at 388.
62 See e.g. Abi-Saab, supra note 60 at 89; Nlerum S Okogbule, The Legal Dimensions of
the Refugee Problem in Africa (2004) 10:2 East African Journal of Peace & Human
Rights 176 at 184; UNHCR, The State of the Worlds Refugees, 2000: Fifty Years of
Humanitarian Action (np: Oxford University Press, [nd]) at 57, online: UNHCR: The
UN Refugee Agency
Julie Ebenstein, Regional Developments: Africa in Zimmermann, supra note 15, 185
at 186.
THE 1969 AFRICAN REFUGEE CONVENTION 107
1969 Convention. According to Goodwin-Gill and McAdam, By and large,
States in their practice and in their recorded views, have recognized that
non-refoulement applies to the moment at which asylum seekers present
themselves for entry, either within a State or at its border.63 At present,
therefore, the 1969 Conventions conception of non-refoulement is no
broader than that of the 1951 Convention as far as applicability at fron-
tiers is concerned.
E. Formalization of Responsibility Sharing, Temporary Protection, and
Voluntary Repatriation
The 1969 Convention formalized for the first time versions of three im-
portant refugee law concepts: responsibility sharing, temporary protec-
tion, and voluntary repatriation. Article II(4) articulates a very early no-
tion of responsibility sharing, providing:
Where a Member State finds difficulty in continuing to grant asy-
lum to refugees, such Member State may appeal directly to other
Member States and through the OAU, and such other Member
States shall in the spirit of African solidarity and international co-
operation take appropriate measures to lighten the burden of the
Member State granting asylum.
Such appropriate measures include regional resettlement, financial
support, and political responsibility sharing. Each possible method of re-
sponsibility sharing has, however, been constrained in practice by the lim-
ited resources of African states.64
Temporary protection describes a variety of practices. Fitzpatrick de-
scribes it as a magic gift, assuming the desired form of its enthusiasts
policy objectives.65 The dual meaning attributed to the notion of tempo-
rary protection articulated in the 1969 Convention reflects Fitzpatricks
description. The concept finds expression at article II(5), which provides,
Where a refugee has not received the right to reside in any country of
asylum, he may be granted temporary residence in any country of asylum
in which he first presented himself as a refugee pending arrangement for
his re-settlement. York Universitys Centre for Refugee Studies inter-
preted article II(5) as implying that the nature of the protection granted
under the 1969 Convention is of limited duration:
63 Supra note 15 at 208.
64 See Jean-Francois Durieux & Agns Hurwitz, How Many Is Too Many? African and
European Legal Responses to Mass Influxes of Refugees (2004) 47 German Yb Intl L
105 at 128-29.
65 Joan Fitzpatrick, Temporary Protection of Refugees: Elements of a Formalized
Regime (2000) 94:2 AJIL 279 at 280.
108 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
The debate about temporary versus permanent refugee protection
has no real currency in the South, where protection has almost al-
ways been assumed to be temporary, even if it lasted for a long time.
Protection has usually been provided by neighbouring countries with
the clear understanding that the refugees would eventually return
home. In fact, in Africa, temporary protection is not only common
practice, it is given prominence in the Organi[z]ation of African Uni-
tys 1969 Convention Governing the Specific Aspects of Refugee
Problems in Africa, Article 11(5) [sic].66
The version of temporary protection actually posited by the 1969 Con-
vention does not, however, imply limited protection. Rutinwa explains
that article II(5)
applies to persons who have been recognised as refugees but for one
reason or another have not been granted the right of residence for
any duration at all. It is not intended to determine the duration of
residence for all refugees who have been recognised and granted asy-
lum. … [Furthermore,] where a person is resettled from one African
country to another on account of the first country not being able to
continue to provide him or her asylum, the function of resettlement
in this case is not to terminate but to continue the refugee status of
that person but in a different country.67
Put this way, it becomes clear that the 1969 Conventions notion of tempo-
rary protection is more akin to responsibility sharing than it is to later
versions of temporary protection designed to limit states obligations to-
ward refugees. Under the 1969 Convention, it is the sojourn in the first
country of asylum, not the protection, that is temporary.68
While the notion of temporary protection articulated by the 1969 Con-
vention is a humanitarian one,69 it seems premised on an idea that is fun-
damentally less so. Article II(5) exists to remedy a situation where a refu-
gee has received asylum but no corresponding right of residence. That a
refugee could be recognized as such but could also be lawfully deprived of
a right of residence must be queried. A states realization of its obligations
66 Centre for Refugee Studies Refugee Research Unit, York University, The Temporary
Protection of Refugees: A Solution-Oriented and Rights Regarding Approach,
Discussion Paper, (1996) IV.A at 22 [unpublished], cited in Bonaventure Rutinwa,
Prima Facie Status and Refugee Protection, New Issues in Refugee Research Working
Paper No 69, (Geneva: UNHCR Evaluation and Policy Analysis Unit, 2002) at 16,
online: UNHCR: The UN Refugee Agency
tinwa, Prima Facie Status].
67 Rutinwa, Prima Facie Status, supra note 66 at 16.
68 See ibid.
69 Indeed, temporary protection under the 1969 Convention was likely premised on the
need to protect refugees in so-called front-line states from incursions by South African
state agents, who regularly pursued anti-apartheid activists into their countries of ref-
uge.
THE 1969 AFRICAN REFUGEE CONVENTION 109
under the 1951 Conventionwhich applies co-extensively with the 1969
Convention70to ensure refugees rights clearly depends on the refugees
presence in the territory of the asylum state.71 Indeed, article II(1), in urg-
ing states to grant asylum, conceives of such asylum in terms of reception
and securing the settlement of refugees.
Article V of the 1969 Convention addresses voluntary repatriation. Its
first paragraph articulates the core principle: The essentially voluntary
character of repatriation shall be respected in all cases and no refugee
shall be repatriated against his will. This principle is an important corol-
lary of article IIs provisions on asylum, particularly article II(3) on non-
refoulement. The clauses that follow the core principle are premised on
the assumption that the conditions for safe return have been met72 and
detail the duties of countries of asylum and origin and refugee-assisting
agencies. The sending state, in collaboration with the receiving state,
must make adequate arrangements for the safe return of refugees who
request repatriation,73 while the country of origin must facilitate their
resettlement and grant them the full rights and privileges of nationals of
the country, and subject them to the same obligations.74 The convention
mandates countries of asylum, countries of origin, voluntary agencies, and
international and intergovernmental organizations to assist refugees with
the process of return.75 It provides in particular that states of origin
should use the news media and the OAU to invite refugees home, and
should provide assurances regarding the circumstances prevailing there,
and that host countries should ensure that such information is received.76
Article V also provides that, upon return, refugees must not be penalized
for having fled.77
The 1969 Convention is the first, and remains the only, international
legal instrument to formally insist on the voluntariness of refugee repat-
riation;78 however, previous articulations of the concept appear in the
70 See Part III.
71 See Violeta Moreno-Lax, Seeking Asylum in the Mediterranean: Against a
Fragmentary Reading of EU Member States Obligations Accruing at Sea (2011) 23:2
Intl J Refugee L 174 at 204-205.
72 See Okoth-Obbo, supra note 4 at 126.
73 1969 Convention, supra note 2, art V(2).
74 Ibid, art V(3).
75 Ibid, art V(5).
76 Ibid, art V(4).
77 Ibid.
78 See Voluntary Repatriation: International Protection, Handbook, (Geneva: United
Nations High Commissioner for Refugees, 1996) annex 3, online: UNHCR: The UN
Refugee Agency
110 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
UNHCR statute,79 an early UN General Assembly resolution,80 and the
constitution of the International Refugee Organization,81 the predecessor
institution to UNHCR. Furthermore, that repatriation should be volun-
tary is evidenced by state practice.82 Its originality aside, article V(1) is a
powerful statement of principle,83 which despite isolated critiques,84 is
hailed as representing an early articulation of a principle that became a
cornerstone of the international regime for refugee protection.85 Unfortu-
79 Statute of the Office of the United Nations High Commissioner for Refugees, GA Res
428(V), UNGAOR, 5th Sess, Supp No 20, UN Doc A/1775, (1950) 46, Annex, art 1.
80 Question of Refugees, GA Res 8(I), UNGAOR, 1st Sess, UN Doc A/64, (1946) 12.
81 Constitution of the International Refugee Organization, 15 December 1946, 18 UNTS 3,
art 2(1)(a), Can TS 1946 No 47 (entered into force 20 August 1948).
82 For example, in an agreement between Afghanistan and Pakistan, the latter agreed to
facilitate voluntary, orderly and peaceful repatriation (Bilateral Agreement Between
the Republic of Afghanistan and the Islamic Republic of Pakistan on the Voluntary Re-
turn of Refugees, 14 April 1988, 27 ILM 585, art III, cited in Goodwin-Gill & McAdam,
supra note 15 at 495). Unfortunately, however, that repatriation should be voluntary is
a principle that, in Africa, is often honoured in the breach: see generally Cristiano
dOrsi, Sub-Saharan Africa: Is a New Special Regional Refugee Law Regime
Emerging? (2008) 68 Heidelberg J Intl L 1057.
83 Durieux & Hurwitz, supra note 64 at 130.
84 Barutciski argues that the standard introduced by article V(1) is incoherent:
There are at least two ways to read this provision. If the two phrases of this
sentence are meant to be read separately, the first phrase ignores the possi-
bility of involuntary repatriation when a person is no longer a refugee accord-
ing to the cessation clause found in article I(4)(e). The second phrase may
suggest, a contrario, that refugees can be voluntarily repatriated, which is
clearly not the case given the inclusion of the term refugee which applies on-
ly to individuals who have reason to fear danger, and who are protected un-
der the OAU Conventions non-refoulement guarantee. If the drafters intend-
ed that the two phrases of this sentence be read jointly in order to establish a
single standard that relates to persons who satisfy the refugee definition,
then the latter inconsistency still applies and a coherent provision would
have stated that no refugee shall be repatriated, regardless of whether it is
against his or her will (Michael Barutciski, The Development of Refugee
Law and Policy in South Africa: A Commentary on the 1997 Green Paper
and 1998 White Paper/Draft Bill (1998) 10:4 Intl J Refugee L 700 at 718
×.).
Article V(1)s punctuation suggests that the drafters intended Barutciskis second read-
ing, and in that context, refugee should be interpreted to imply an individual who was
recognized as a refugee but who, at the time of repatriation, falls into the category of
person described at article I(4)(e), whether or not the cessation clause has actually been
invoked.
85 Voluntary repatriation is one of UNHCRs trifecta of durable solutions for refugees;
the others are local integration and resettlement. It should be noted, however, that vol-
untary repatriation is a concept that is mostly meaningful to UNHCR, as its absence
from the 1951 Convention means that states not party to the 1969 Convention are not
bound by it: see generally Marjoleine Zieck, UNHCR and Voluntary Repatriation of
Refugees: A Legal Analysis (The Hague: Martinus Nijhoff, 1997).
THE 1969 AFRICAN REFUGEE CONVENTION 111
nately, it has been misinterpreted to suggest that repatriation is the pri-
mary solution for refugees on the continent.86 Rutinwa explains that, in
fact, article V is much more about elaborating the principles and the mo-
dalities of effecting voluntary repatriation than a prescription of it as the
only solution.87
The 1969 Convention introduced several important legal innovations.
It included a new refugee definition, advanced an individual right to asy-
lum, broadened the norm of non-refoulement somewhat, and formalized
the concepts of responsibility sharing, temporary protection, and volun-
tary repatriation. The preceding part detailed the latter three innovations
and highlighted the ways in which some of them have been misunder-
stood. By far the most misunderstood legal innovation of the 1969 Con-
vention, however, is its unique refugee definition, to which the following
part is devoted.
II. Misconceptions
The article I(2) refugee definition is without a doubt the most cele-
brated feature of the 1969 Convention. Okoth-Obbo notes that the provi-
sion has generated a reputation which boarders [sic] on the mythical.88
However, the provisions mythical status is arguably the result of several
misconceptions about it, which taken together, have led to a somewhat er-
roneous interpretive consensus89 characterized by the almost universal
propensity to view the article I(2) refugee definition as remarkably ex-
pansive,90 extensive,91 wide,92 or broad,93 especially in relation to the
1951 Convention refugee definition.94 This interpretive consensus has pre-
cluded critical analysis, thereby perpetuating the misunderstanding. In-
deed, according to Rankin, the focus in the literature on the definitions
broadness tends to gloss over … [its] vagueness and ambiguity.95
86 Rutinwa, Prima Facie Status, supra note 66 at 15-16.
87 Ibid at 16.
88 Supra note 4 at 109.
89 Rankin, supra note 4 at 410, 414.
90 See e.g. Okogbule, supra note 62 at 183; Hofmann, supra note 6 at 323; Turner, supra
note 5 at 286.
91 See e.g. Ivor C Jackson, The Refugee Concept in Group Situations (The Hague:
Martinus Nijhoff, 1999) at 177.
92 See e.g. Awuku, supra note 36 at 82; Okoth-Obbo, supra note 4 at 112.
93 See e.g. Eduardo Arboleda, Refugee Definition in Africa and Latin America: The
Lessons of Pragmatism (1991) 3:2 Intl J Refugee L 185 at 194.
94 See Okoth-Obbo, supra note 4 at 117.
95 Supra note 4 at 410.
112 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
While the article I(2) refugee definition has certainly extended inter-
national protection to individuals who would not otherwise qualify for
refugee status,96 it is not necessarily quite as inclusive or broad as most
commentators suggest;97 indeed, the analysis below suggests that the
1969 Conventions unique refugee definition likely only extends refugee
protection incrementally. The handful of scholars who have engaged in
serious critical analysis of the 1969 Convention have identified three par-
ticularly common misconceptions about the article I(2) refugee definition,
which contribute to the flawed interpretive consensus about the defini-
tions breadth: first, that all four events justifying flight under the 1969
Convention (1969 Events) remain equally relevant today;98 second, that
the article I(2) refugee definition is entirely objective;99 and third, that it
applies only to groups100 or was drafted with a view to promoting the
group determination of refugee status.101 Each of these misconceptions is
addressed in turn below.
A. Continued Relevance of All 1969 Events?
There is little consensus regarding the meaning of each of the 1969
Eventsexternal aggression, occupation, foreign domination, and events
seriously disturbing public orderwhich lacked a firm definition under
international law102 when the 1969 Convention was drafted and adopted.
Since then, scholars have made excellent efforts at elaborating the
terms.103 Ultimately, however, any authoritative consensus around their
meaning will depend on the weight of reported judicial interpretation, of
which there is a paucity in Africa, and on an exhaustive survey of state
practice that is beyond the scope of this paper. Accordingly, no attempt is
made here to further articulate the terms significance. Suffice it to high-
light the lack of an interpretive consensus and the fact that three of the
four 1969 Eventsexternal aggression, occupation, and foreign domina-
96 See Murray, Human Rights in Africa, supra note 53 at 188; Okoth-Obbo, supra note 4
at 112.
97 See Rankin, supra note 4 at 410.
98 See Okoth-Obbo, supra note 4 at 115-16.
99 See ibid at 116.
100 See Jean-Franois Durieux & Jane McAdam, Non-refoulement Through Time: The
Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies
(2004) 16:1 Intl J Refugee L 4 at 10.
101 See Durieux & Hurwitz, supra note 64 at 120; Okoth-Obbo, supra note 4 at 118; Ran-
kin, supra note 4 at 410.
102 Arboleda, supra note 93 at 195.
103 See e.g. Edwards, Refugee Status Determination, supra note 7; Mandal, supra note
40; Rankin, supra note 4.
THE 1969 AFRICAN REFUGEE CONVENTION 113
tionlargely ceased to be relevant with the end of colonialism and apart-
heid,104 narrowing the scope of the article I(2) definition.
While Okoth-Obbo argues that external aggression, occupation, and
foreign domination could be viewed as vessels still possessed of the ca-
pacity for the legal transcription of Africas refugee realities of today105
the war in the Democratic Republic of the Congo, in which Uganda was
held to be occupying power,106 comes immediately to mindon the whole,
the terms no longer carry the import that they once did. The article I(2)
definition was very appropriate … [in the 1960s] in that it addressed the
immediate concerns of people fleeing from the colonial territories … and
from the racist regimes in Southern Africa,107 but it is less relevant in the
contemporary context. Indeed, Okoth-Obbo ultimately concludes that the
definition should be upgraded to more properly reflect the actual situa-
tions which today cause people to flee as refugees in Africa.108 With ex-
ternal aggression, occupation, and foreign domination being less relevant
as causes of refugee flight today, events seriously disturbing public or-
der assumes increased significance, and reaching an interpretive consen-
sus about the terms precise meaning becomes of even greater im-
portance.109
B. Extent of the Article I(2) Refugee Definitions Objectivity
In moving away from the 1951 Conventions well-founded-fear stand-
ard in favour of a focus on the disruptive conditions in the country of
origin or nationality, the article I(2) refugee definition certainly introduc-
es an objective element. According to Hathaway, it acknowledges the re-
ality that fundamental forms of abuse may occur not only as a result of
the calculated acts of the government … but also as a result of that gov-
104 See Edwards, Refugee Status Determination, supra note 7 at 216; Okoth-Obbo, supra
note 4 at 115-16.
105 Ibid at 116.
106 See Case Concerning Armed Activities on the Territory of the Congo (Democratic Repub-
lic of the Congo v Uganda), [2005] ICJ Rep 168 at 227-31.
107 Bahame Tom Mukirya Nyanduga, Refugee Protection Under the 1969 OAU
Convention Governing the Specific Aspects of Refugee Problems in Africa (2004) 47
German Yb Intl L 85 at 92.
108 Supra note 4 at 116. Contra Mandal, supra note 40 at 14.
109 To the extent that any such consensus currently exists, it is that the events seriously
disturbing public order must be generated by human activity. The article I(2) refugee
definition does not permit so-called environmental refugees: Edwards, Refugee Status
Determination, supra note 7 at 225-27; Hathaway, Refugee Status, supra note 15 at 16-
17; Mandal, supra note 40 at 13-14. Contra Rwelamira, Some Reflections, supra note
32 at 171.
114 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
ernments loss of authority.110 This outward orientation has led to a con-
sensus among most scholars of the 1969 Convention111 that the article I(2)
refugee definition is based solely on objective criteria112 and therefore
mandates a completely objective test of refugee status. However, this con-
sensus is overstated for two reasons. First, the focus on the objectivity of
the article I(2) refugee definition overestimates the subjectivity of the
1951 Convention definition113 and underestimates the extent to which this
universal definition can apply to victims of war and civil strife.114 Second,
views of the article I(2) refugee definition as entirely objective overlook el-
ements of the definition that may mandate a subjective test of refugee
status.115 Each of these reasons is addressed in turn below.
1. Subjectivity and the 1951 Convention
The view that the article I(2) refugee definition is objective is largely a
relative one, as the regional definition is almost always assessed in rela-
tion to its universal counterpart. The latter is usually viewed as including
both objective (well-founded) and subjective (fear) elements.116 Oloka-
Onyango, for example, notes that
by moving away from the Geneva Conventions . . .well-founded fear
of persecution . . . standard, the OAU Convention explicitly gave
credence to the fact that a refugee exodus could be the result of fac-
tors of a more general nature, intrinsic to the particular country in
question, rather than to the individual subjective status or fears of
the refugee.117
Such comparisons do the 1951 Convention refugee definition a disservice
because they overemphasize its subjectivity, which some maintain was
never intended. Hathaway, for example, argues that [t]he concept of well-
110 Refugee Status, supra note 15 at 17.
111 See e.g. Arboleda, supra note 93 at 195; Okoth-Obbo, supra note 4 at 112; Weis, The
Convention, supra note 3 at 455; WJEM van Hvell tot Westerflier, Africa and
Refugees: The OAU Refugee Convention in Theory and Practice (1989) 7:2 Nethl QHR
172 at 175.
112 Awuku, supra note 36 at 81.
113 See Rankin, supra note 4 at 411.
114 See Jackson, supra note 91 at 178; Okoth-Obbo, supra note 4 at 117.
115 See Edwards, Refugee Status Determination, supra note 7 at 228; Okoth-Obbo, supra
note 4 at 116; Rankin, supra note 4 at 412.
116 See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status
Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees,
January 1992, UN Doc HCR/IP/4/Eng/REV.1 at paras 37-38, online: UNHCR: The UN
Refugee Agency
tus].
117 Forty Years After, supra note 4 at 455.
THE 1969 AFRICAN REFUGEE CONVENTION 115
founded fear is … inherently objective.118 He maintains that the fear ele-
ment was only intended to introduce a prospective risk assessment into
the refugee definition.119 Indeed, the view that the 1951 Convention in-
cludes a subjective element merely because it mandates an inquiry into
an individuals (objective) circumstances seems an exaggeration of the
concept of subjectivity.120 Nevertheless, leading jurisprudence121 and
UNHCRs interpretive guidance122 have affirmed the importance of the
subjective aspect of the 1951 Convention refugee definition. A more sali-
ent point, therefore, is the extent to which focus on the objectivity of the
article I(2) refugee definition in applying it to victims of war and civil
strifewho often arrive in groupsunderemphasizes the extent to which
the 1951 Convention refugee definition is also applicable to such individu-
als. Indeed, [t]he very existence of the OAU Convention has been used by
some to justify a conservative reading of the 1951 Convention.123
The misconception that the 1951 Convention does not apply in situa-
tions of mass influx has arisen from problematic interpretations of the
1951 Convention both in relation to the 1969 Convention and on its own.
In the latter case, Durieux and McAdam have argued that [t]o assert
that the [1951] Convention does not apply in cases of mass influx is tan-
tamount to saying that the individual does not exist in a group.124 Indeed,
Klin has argued convincingly that the 1951 Convention can provide refu-
gee status to individuals fleeing civil war.125 In relation to the 1969 Con-
118 Refugee Status, supra note 15 at 65.
119 Ibid, cited in Rankin, supra note 4 at 411.
120 The author is grateful to an anonymous referee for making this point.
121 See e.g. Immigration and Naturalization Service v Cardoza-Fonseca, 480 US 421, 94 L
Ed (2d) 434 (1987), Blackmun J, concurring (the very language of the term well-
founded fear demands a particular type of analysisan examination of the subjective
feelings of an applicant for asylum coupled with an inquiry into the objective nature of
the articulated reasons for the fear at 450) [cited to US].
122 Handbook on Refugee Status, supra note 116 at paras 40-41.
123 Mandal, supra note 40 at 12.
124 Supra note 100 at 9. For this reason, it is problematic to conceive of mass influx by ex-
clusive reference to generalized conditions, thereby almost necessarily precluding the
applicability of the 1951 Convention. For example, Eggli defines mass influx as the
sudden and rapid crossing of international borders by large numbers of uninvited for-
eigners who are seeking safety from acute danger or other threats to their life and liber-
ty (Ann Vibeke Eggli, Mass Refugee Influx and the Limits of Public International Law
(The Hague: Martinus Nijhoff, 2002) at 23 [emphasis added]). A more precise definition
would include flight from persecution on a 1951 Convention ground as one among the
many factors that may cause a mass refugee influx.
125 Walter Klin, Refugees and Civil Wars: Only a Matter of Interpretation? (1991) 3:3
Intl J Refugee L 435. See also UNHCR, Safe at Last? Law and Practice in Selected EU
Member States with Respect to Asylum-Seekers Fleeing Indiscriminate Violence, A
116 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
vention, Jackson maintains that while the wording of the article I(2) refu-
gee definition is certainly broader than that of the 1951 Convention,
[t]here must … necessarily be a considerable amount of overlapping and,
as regards their practical application the difference between the two defi-
nitions is probably not as great as might at first sight appear.126 Okoth-
Obbo endorses this view when he notes that as the article I(2) refugee def-
inition was increasingly pointed to as the unique example of positive law
enabling the consideration of victims of war and civil strife as refugees …
the more it became possible to validate and reinforce the argument that
the 1951 Convention did not apply to those categories.127 If the article I(2)
refugee definition is continually assessed in relation to the 1951 Conven-
tion refugee definition, and if such comparisons misunderstand the sub-
jectivity and applicability of the 1951 Convention refugee definition, the
result is an exaggerated view of the novelty of the article I(2) refugee def-
initions objectivity.
2. Subjectivity in the Test for Refugee Status Under the 1969 Convention
It is far from clear that refugee status under the 1969 Convention
should be assessed on an entirely objective basis for two primary reasons.
First, the article I(2) refugee definition is framed in terms of individual
status. Edwards argues that this necessitates inquiring into the individ-
ual or subjective reasons for flight of each applicant.128 The second, more
persuasive, reason is textual, beginning with the use of the word com-
pelled. The compelled aspect of the article I(2) refugee definition seems
to have much in common with the subjective fear aspect of the 1951
Convention definition. Particular events that may compel one person to
flee his or her place of habitual residence may not result in such compul-
sion in another individual whose appreciation of the risk of the events dif-
fers. This is the view of Edwards129 and Okoth-Obbo. The latter notes:
[T]he OAU expanded definition is predicated mainly on the com-
pulsion to leave the place of habitual residence in order to seek refuge.
Ironically, in so doing, it reintroduces the problematic question of
motive for flight which it is otherwise credited with having disa-
bused from the refugee definition.130
UNHCR Research Project, (July 2011), online: UNHCR: The UN Refugee Agency
126 Supra note 91 at 178.
127 Supra note 4 at 117.
128 Refugee Status Determination, supra note 7 at 228.
129 Ibid at 229.
130 Okoth-Obbo, supra note 4 at 116 [underlining added, italics in original].
THE 1969 AFRICAN REFUGEE CONVENTION 117
Rankin approaches the nature of the term compelled with some ambiva-
lence but concedes that it may indeed import subjectivity into the analy-
sis:
Although compelled may be objective, no one has offered a satisfac-
tory explanation for why it does not contain a subjective element.
The word could relate to a subjective feeling or preference. … Is the
mere existence of an OAU event enough to demonstrate that some-
one has been compelled? Or is it necessary to show linkages between
an asylum seeker and a particular event? Until these questions are
answered compelled remains ambiguous.131
Edwards, Okoth-Obbo, and Rankin thus agree that analysis of the
1969 Convention, to date, has overlooked the importance of the element of
compulsion in the article I(2) refugee definition, thereby underestimating
the role of subjectivity in determining refugee status. But what would a
subjective test for refugee status under the article I(2) refugee definition
actually look like? The Rankin extract above highlights the connection be-
tween, on the one hand, an objective test and the mere existence of a 1969
Event, and on the other hand, a subjective test and linkages between the
refugee and such event. Edwards is more explicit about what a subjective
test would entail, providing an example:
[I]t would not be unreasonable in status procedures to require a
claimant from Kinshasa, DRC, to justify why he or she departed the
city on the basis of generalised violence occurring in North Kivu, an
area thousands of miles from the capital. In all likelihood, it would
be quite difficult for him or her to prove that he or she was com-
pelled to leave as a result of those events if one only considered the
objective facts. Importing a subjective analysis does not mean that
an individual needs to prove that flight was the only alternative
available, but it does introduce a causal connection or nexus between
the flight and the event in question.132
In other words, the subjective test of refugee status under article I(2) of
the 1969 Convention is an assessment of whether the 1969 Event caused
the individual refugees flightas opposed to an objective test that looks
for the mere existence of a 1969 Event in the refugees country of origin or
nationality. Subjectivity under the 1969 Convention is thus primarily
about the nexus required between the 1969 Event and flight.
Commentary on the 1969 Convention has rarely addressed explicitly
whether a nexus between the disruptive events and flight is required. Ra-
ther, there seems to be an implicit interpretive consensus presuming that
an individual would not flee a 1969 Event without a nexus between the
event and a risk of harm. According to Hathaway, Because the African
131 Supra note 4 at 412.
132 Refugee Status Determination, supra note 7 at 229-30.
118 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
standard emphasizes assessment of the gravity of the disruption of public
order rather than motives for flight, individuals are largely able to decide
for themselves when harm is sufficiently proximate to warrant flight.133
Implicit in this view is the assumption that, in the determination of refu-
gee status, flight itself is sufficient evidence of the proximity of harm.
While in most cases this assumption will be borne out, it obfuscates the
importance of, first, the words owing to and, second, the fact that the in-
dividual must be compelled to leave his or her place of habitual resi-
dence. These terms are additional textual elements of the article I(2) ref-
ugee definition that seem to mandate a subjective test of refugee status,
because they suggest a requirement of linkages between the 1969 Event
and the refugees flight. Indeed, the deliberate inclusion of owing to and
place of habitual residence suggest that the nexus between the disrup-
tive events and flight ought to be more than merely presumptive.
The ordinary meaning of owing to is analogous to as a result of or
due to. Accordingly, under the article I(2) definition, a refugee is some-
one who, as a result of, or due to, a 1969 Event, is left with no choice but
to flee his or her place of habitual residence. Put this way, it becomes
clear that flight must be the direct consequence of a risk of harm to the
individual stemming from the 1969 Event. Furthermore, the article I(2)
refugee definition specifically provides that a refugee must have fled his
or her place of habitual residence, as opposed to his or her country of
origin or nationality. According to Rankin, this clause is used to focus at-
tention on those who face danger because of the state of their communi-
ties, resulting in an implied relationship or geographic nexus between an
OAU event and a persons place of habitual residence.134 That the article
I(2) definition requires physical proximity between the putative refugee
and the 1969 Event certainly suggests that the unique refugee definition
demands an explicit nexus between the risk of harm and the refugees
flight.
The requirement that flight be from the place of habitual residence al-
so explains why the fact that the harm may be in either part [or] the
whole of135 the country of origin or nationality does not expand the refu-
gee definition as much as might initially be expected. The specific mention
that the harm may be in part or the whole of the country of origin or na-
tionality makes it at least initially plausible that an individual may be
recognized as a refugee if his or her flight is prompted by an event taking
place anywhere in his or her country of origin. In context, however, it be-
comes clear that there is a necessary link between the asylum seeker and
133 Refugee Status, supra note 15 at 18.
134 Supra note 4 at 432 [emphasis added].
135 1969 Convention, supra note 2, art I(2).
THE 1969 AFRICAN REFUGEE CONVENTION 119
the OAU event. … [T]he nexus is created by the fact that an asylum seek-
er is compelled to leave his or her place of habitual residence.136 Moreover
in article I(2), either part [or] the whole of his country of origin or nation-
ality likely applies only to the final 1969 Event, events seriously disturb-
ing public order. This is so for interpretive reasonsthe lack of a comma
in article I(2) between events seriously disturbing public order and in
either part [or] the whole of, and the result of applying the doctrine of
ejusdem generis137and because the necessity of specifying either part
[or] the whole of attaches only to events seriously disturbing public or-
der. External aggression, occupation, and foreign domination, even if on-
ly prevailing in one part of a state (most likely the capital city), will al-
most by definition affect the country as a whole. Edwards puts it as fol-
lows: [T]he international requirement associated with the … three terms
suggests that they are experienced throughout the whole of the territory
de jure, even if the actions are limited to specific parts of the territory de
facto.138 Thus there can be no suggestion that the inclusion of either part
[or] the whole of his country of origin or nationality implies that a refu-
gee may justifiably flee events that are not directly connected to him or
her.
Additionally, a mere assumption that flight is necessarily the result of
threatened harm does not reflect the targeted nature of the 1969 Conven-
tion. It is axiomatic that the 1969 Convention only extends refugee protec-
tion where such protection is necessary to safeguard a particular individ-
ual from a 1969 Event. That the convention does not extend international
protection indiscriminately suggests that its refugee definition should not
be applied in an indiscriminate manner. Relying solely on objective crite-
ria to determine refugee status could (and does) give rise to situations
where asylum is sought by persons who flee for reasons unconnected to
the event in question, but who can use that event to claim asylum.139
Thus the terms compelled and owing to, and the precise require-
ment that an individual have fled his or her place of habitual residence,
coupled with the limited applicability of either part [or] the whole of his
country of origin or nationality and the 1969 Conventions obvious pur-
pose of offering protection only to those at risk of harm, strongly suggest
that, in principle, refugee status should depend on an assessed, as op-
posed to presumed, nexus between the 1969 Event and the refugees
136 Rankin, supra note 4 at 434. See also van Garderen & Ebenstein, supra note 62 at 191.
137 This doctrine specifies that general words following special words are limited to the
genus indicated by the special words (Sir Ian Sinclair, The Vienna Convention on the
Law of Treaties, 2d ed (Manchester: Manchester University Press, 1984) at 153).
138 Refugee Status Determination, supra note 7 at 227.
139 Ibid at 230.
120 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
flight. This calls into question the sufficiency of determining refugee sta-
tus on a purely objective basis, which in any case would often be little
more than an exercise of determining nationality.140 It is more likely that
refugee status under article I(2) of the 1969 Convention was intended to
be determined both objectivelyinvolving an assessment of whether a
1969 Event is prevailing in the country of origin or nationalityand sub-
jectivelyinvolving an assessment of the risk of harm that the 1969
Event actually posed to the individual concerned. Yet, it should be noted
that, in specific situations where the 1969 Event is widespread and affects
the whole of the country or territory from which the individual has fled,
the existence of such a nexus may, purely as a matter of procedure, be
presumed. Any other approach would belabour the obvious.
The view of the test for refugee status under the 1969 Conventions
unique refugee definition as both objective and subjective is bolstered by a
close examination of the third common misconception about article I(2):
that it applies only to groups or was drafted with a view to mandating the
group determination of refugee status. The view that refugee status un-
der article I(2) of the 1969 Convention was meant to be determined on a
group basis is very compatible with a completely objective assessment of
the compulsion to flee, based entirely on the conditions prevailing in the
country of origin or nationality. However, upon close examination, it be-
comes clear that the group determination of status emerged solely as a re-
sult of practical considerations and was never specifically intended. This
issue and others are explored below.
C. Group Determination of Refugee Status
There are two major misconceptions about the 1969 Convention and
the group determination of refugee status. The first is highlighted by
Durieux and McAdam, who assert that there is a popular perception that
the OAU Convention applies only to groups, not to individuals.141 This
perception is clearly erroneous for two reasons. First, the 1969 Convention
reproduces, at article I(1), the 1951 Convention refugee definition. It is
beyond dispute that this definition applies to individuals.142 Second, both
the article I(1) and article I(2) refugee definitions contained in the 1969
Convention refer to every person, thereby mandating the individual de-
termination of refugee status.143
140 See Ibid.
141 Supra note 100 at 10.
142 See Goodwin-Gill & McAdam, supra note 15 at 49.
143 See Durieux & McAdam, supra note 100 at 10.
THE 1969 AFRICAN REFUGEE CONVENTION 121
The second, more common, misconception is that the 1969 Convention
was purposely designed to address situations of mass influx144 and there-
fore provides the legal foundation for the group determination of refugee
status.145 Nobel, for example, notes that the conventions article I(2) refu-
gee definition is the legal basis for admitting refugee masses upon a
group determination of their status.146 Similarly, the Lawyers Committee
for Human Rights maintains that the 1969 Convention introduced the
notion of group determination of refugee status147 and suggests that the
preferable practice of group eligibility … is provided for under the OAU
Convention.148 Additionally, Milner explains that
by making refugee status contingent on generalized situations in the
refugees country of origin, the 1969 OAU Convention allows states
to recognize entire groups of individuals as refugees on the basis of
shared characteristics and common cause of flight.149
Finally, dOrsi notes that the 1969 Convention is meant to promote the
prima facie recognition of groups of refugees.150
Such views are incorrect.151 Rather than being based on an analysis of
the 1969 Convention, they arise out of the common practice in Africa of
determining refugee status on a prima facie basis in situations of mass in-
flux.152 While the article I(2) refugee definition does not preclude such a
practiceespecially because, as compared to the 1951 Convention defini-
tion, it includes elements that are arguably easier to apply in situations of
large-scale influx153a close reading the 1969 Convention reveals no spe-
cific intent to introduce or promote prima facie determination.154 To the
contrary, as noted above, the language of the convention is in the singu-
lar, providing that a refugee is every person who has a well-founded fear
144 See Durieux & Hurwitz, supra note 64 at 116.
145 See Okoth-Obbo, supra note 4 at 118; Rankin, supra note 4 at 416.
146 Peter Nobel, Refugees, Law, and Development in Africa (1982) 3 Michigan YB Intl
Legal Stud 255 at 262.
147 African Exodus: Refugee Crisis, Human Rights and the 1969 OAU Convention (New
York: Lawyers Committee for Human Rights, 1995) at 5.
148 Ibid at 22.
149 James Milner, Refugees, the State and the Politics of Asylum in Africa (Basingstoke,
UK: Palgrave Macmillan in association with St Anthony’s College, Oxford, 2009) at 7.
150 Supra note 82 at 1065.
151 See Durieux & Hurwitz, supra note 64 at 116-18; Edwards, Refugee Status Determi-
nation, supra note 7 at 228; Okoth-Obbo, supra note 4 at 118-20; Rankin, supra note 4
at 416-17.
152 See ibid at 416.
153 See Durieux & Hurwitz, supra note 64 at 116-17.
154 See ibid at 117.
122 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
of persecution on account of a particular characteristic155 or who was com-
pelled to leave his or her country of origin or nationality as a result of a
1969 Event.156 Furthermore, the 1969 Convention is not unique in its ap-
plicability in situations of mass influx. Durieux and McAdam maintain
that the 1951 Convention contains nothing to suggest its inapplicability
in cases of mass influx.157 Nor is article I(2) of the 1969 Convention the
only refugee definition that permits prima facie refugee status determina-
tion (RSD): if the objective circumstances that triggered the application of
the presumption of eligibility for refugee status are those under Article
IA(2) of the 1951 Refugee Convention … then the persons recognised to be
prima facie refugees are refugees within the meaning of158 that article.
Indeed, refugees fleeing Hungary for Austria and Yugoslavia following the
1956 Soviet invasion and occupation were recognized on a prima facie ba-
sis under the 1951 Convention.159 The determination of refugee status on
a prima facie basis in situations of mass influx is not a product of the 1969
Convention, nor is it inherently or exclusively linked to that instrument.
Rather, it arose as a matter of practical necessity in situations of mass in-
flux,160 in which the numbers of the asylum seekers involved and the ur-
gency to provide assistance … make it impracticable and forbiddingly cost-
ly to administer individual status determination.161
The false attribution of the group determination of refugee status to
the 1969 Convention has caused confusion between the latter concept and
the prima facie recognition of refugee status in situations of mass in-
flux.162 Prima facie RSD is a process whereby individual refugee status is
recognized on the basis of a presumption.163 That such a presumption is
155 1969 Convention, supra note 2, art I(1).
156 Ibid, art I(2).
157 Supra note 100 at 9.
158 Rutinwa, Prima Facie Status, supra note 66 at 5.
159 See Sara E Davies, Redundant or Essential? How Politics Shaped the Outcome of the
1967 Protocol (2007) 19:4 Intl J Refugee L 703 at 713.
160 See Matthew Albert, Governance and Prima Facie Refugee Status Determination:
Clarifying the Boundaries of Temporary Protection, Group Determination, and Mass
Influx (2010) 29:1 Refugee Survey Quarterly 61 at 66-68.
161 Rutinwa, Prima Facie Status, supra note 66 at 2.
162 See Okoth-Obbo, supra note 4 at 118.
163 This understanding of prima facie RSD was first articulated by Jackson (supra note 91
at 4) and has been supported by Albert (although Albert uses the language of infer-
ence) (supra note 160 at 65), Durieux and Hurwitz (supra note 64 at 120), Durieux and
McAdam (supra note 100 at 12), and Rutinwa (Prima Facie Status, supra note 66 at
6). It is not incompatible with the more subjective approach to RSD under article I(2) of
the 1969 Convention discussed above; a prima facie approach would simply presume
the existence of a nexus between the 1969 Event and flight and recognize an individu-
als refugee status on that basis.
THE 1969 AFRICAN REFUGEE CONVENTION 123
often applied to groups in situations of mass influx is the source of the er-
roneous conflation of prima facie RSD with the group determination of
refugee status. In fact, there is no such thing as group RSD; it is just an
imprecise way of expressing the need to resort to prima facie status de-
termination in situations of large-scale influx. Under a prima facie pro-
cess of status determination, it is not the refugee quality … of the entire
group that is determined, but that of each individual in the group. Groups
do not accrue refugee status, be it prima facie or by other means. Only in-
dividuals do.164 Albert puts it similarly when he maintains that prima fa-
cie RSD is better described as being an expedited form of individual RSD,
not group RSD.165 This view is confirmed by UNHCRs handbook, which
explains:
[S]ituations have … arisen in which entire groups have been dis-
placed under circumstances indicating that members of the group
could be considered individually as refugees. … Recourse has there-
fore been had to so-called group determination of refugee status,
whereby each member of the group is regarded prima facie (i.e. in
the absence of evidence to the contrary) as a refugee.166
Thus the ascription of group RSD to the 1969 Convention has not only
perpetuated a misconception about the convention, it has also contributed
to the propagation of a legal concept with no actual basis in law, or at the
very least, to the proliferation of inaccurate legal terminology.
A related misconception has to do with the nature of the refugee sta-
tus that recognition on a prima facie basis confers. There is a view that
such recognition creates only a presumption of refugeehood and therefore
entails an incomplete (or secondary) refugee status,167 in terms of both its
durability and the post-recognition rights that attach. Okoth-Obbo evi-
dences this view when he notes, The prima facie concept refers to the
provisional consideration of a person or persons as refugees without the
requirement to complete refugee status determination formalities to es-
tablish definitively the qualification or not of each individual.168 This im-
plies that refugees recognized on a prima facie basis receive only tempo-
rary protection169 and do not qualify for the full range of rights conferred
by individual recognition. Indeed, according to the Lawyers Committee for
Human Rights, the notion of group eligibility under the OAU Convention
164 Durieux & Hurwitz, supra note 64 at 118.
165 Supra note 160 at 83.
166 Handbook on Refugee Status, supra note 116 at para 44 [underlining added, italics in
original].
167 Durieux & McAdam, supra note 100 at 12.
168 Supra note 4 at 119.
169 Rutinwa, Prima Facie Status, supra note 66 at 15.
124 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
was based on the premise of legally institutionalized temporary protec-
tion.170
Durieux and Hurwitz,171 Durieux and McAdam,172 Jackson,173 and Ru-
tinwa174 have each, however, rejected this view of prima facie refugee sta-
tus as temporary and incomplete, on the basis of the conclusiveness of the
prima facie presumption of refugeehood. While each author accepts that
prima facie refugee status is indeed presumptive, the operation of the
presumption provides full and sufficient evidence175 of refugee status, un-
less the State decides to subject it to scrutiny on an individual basis, and
finds against the individual asylum seeker.176 That the presumption of
refugee status within a process of prima facie RSD is conclusive suggests
that refugees recognized pursuant to such a process are refugees like any
other. Indeed, Rutinwa argues:
If persons recognised as refugees on a prima facie basis are pre-
sumed to be refugees within the definitions found under the relevant
instruments, it logically follows that their treatment should be in ac-
cordance with the standards stipulated under those instruments.177
Once one understands what prima facie RSD is and how it works, it
becomes clear that it is merely a procedural tool that can have no effect on
the substantive rights conferred. Indeed, Durieux and McAdam maintain,
One must conclude that prima facie recognition entails full refugee sta-
tus, and beneficiaries of it are entitled, in Contracting States, to the
standards of treatment stipulated by the 1951 Convention.178 While this
resolves the question of the nature of the status that attaches to refugees
recognized on a prima facie basis, it raises the related, wider issue of the
nature of refugee status that results from recognitionwhether on a pri-
ma facie basis or individuallyunder article I(2) of the 1969 Convention.
This critical issue is addressed in the part that follows.
III. Omissions
Refugees within the meaning of article I(1) of the 1969 Convention are
clearly also refugees under article 1A(2) of the 1951 Conventionthe two
170 Supra note 147 at 30.
171 Supra note 64 at 120.
172 Supra note 100 at 12.
173 Supra note 91 at 4.
174 Prima Facie Status, supra note 66.
175 Durieux & Hurwitz, supra note 64 at 120.
176 Durieux & McAdam, supra note 100 at 12.
177 Rutinwa, Prima Facie Status, supra note 66 at 14.
178 Supra note 100 at 12.
THE 1969 AFRICAN REFUGEE CONVENTION 125
definitions are almost identicaland therefore benefit from the standards
of treatment guaranteed among articles 3-34 of the latter instrument in
states that have ratified it. The 1969 Convention, however, enumerates no
such standards of treatment, nor does it explicitly incorporate the 1951
Conventions rights framework. This fact is surprisingly overlooked by
almost all of the limited number of critical analyses of the 1969 Conven-
tion.179 The lack of comprehensive standards of treatment in the 1969
Convention raises the question of the specific refugee rights framework
applicablein addition to the one provided by human rights law more
generallyto refugees who are recognized under article I(2) of the 1969
Convention, but who do not meet the 1969 Convention article I(1) or 1951
Convention article 1A(2) criteria or who, for practical reasons, are not rec-
ognized under them.
The analysis above, demonstrating that the 1969 Conventions unique
refugee definition is not as broad as is often posited,180 suggests that, in
most cases, a refugee recognized under article I(2) will also meet the 1969
Convention article I(1) or 1951 Convention article 1A(2) definition. How-
ever, there will remain a very limited number of individuals who meet the
1969 Conventions unique definition but not the more traditional 1951
Convention definition. Such individuals would include, for example, those
fleeing the limited neo-colonial situations that Okoth-Obbo points out con-
tinue to occur in Africa,181 or those who, for evidentiary reasons, do not
qualify under the 1951 Convention but whose country of origin is clearly
in the grip of events seriously disturbing public order. Moreover, as ex-
plained above, in the situations of mass influx that so often characterize
refugee movements in Africa, for reasons of expediency, UNHCR and
states will often conduct RSD on a prima facie basis under article I(2) of
the 1969 Convention.182 That is not to say that individuals recognized on a
prima facie basis would not also qualify for refugee status under the 1951
Convention, but it does imply that the resources required to conduct such
an assessment were not, in the circumstances, available. The practical ef-
fect of the absence of status determination under the 1951 Convention is
that the rights and benefits that flow from that instrument will not auto-
matically inhere. This is why resettlement countries usually reassess the
refugee status of article I(2) refugees before accepting them into their re-
settlement programmes, which under domestic law, usually depend on
the resettlement candidate having met the international refugee defini-
179 An exception is J Oloka-Onyango, The Plight of the Larger Half: Human Rights,
Gender Violence and the Legal Status of Refugee and Internally Displaced Women in
Africa (1996) 24:2-3 Denv J Intl L & Poly 349.
180 See Part II.
181 See Part II.A.
182 See Part II.C.
126 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tion.183 Host states will clearly not re-evaluate refugee status for the pur-
poses of determining the post-recognition rights to which a refugee is enti-
tled. For this reason, it is critical to determine the rights applicable to
refugees recognized only under article I(2).
Remarkably little analysis has been devoted to this issue, perhaps be-
cause it seems obvious to many that, in states that are party to both the
1951 and 1969 Conventions,184 all refugeesregardless of the definition
applicablebenefit from the 1951 Conventions rights framework. Indeed,
the scholars who have expressed this view have done so rather matter-of-
factly or with very little legal analysis.185 Among them, Fitzpatrick notes
only that the extension of the refugee definition under the 1969 Conven-
tion was done without any suggestion that the quality or durability of …
protection should be diminished as compared to that enjoyed by persons
meeting the definition in the 1951 Convention.186 In discussing the do-
mestic refugee laws of South Africa and Tanzania, Mandal mentions that
the states obligations under the 1969 Convention required them to guar-
antee the same rights to article I(2) refugees as to 1951 Convention refu-
gees.187 McAdam maintains simply that the 1969 Convention, as a re-
gional complement to the [1951] Convention, applies [1951] Convention
rights to persons fleeing external aggression, occupation, foreign domina-
tion or events seriously disturbing public order.188 Van Hvell tot Wester-
flier argues, [T]he majority of Africas refugees, though not falling within
the stricter scope of the 1951 Convention, is, at least in theory, entitled to
claim the rights set forth in this Convention.189 Weis maintains, The
1951 Convention, the 1967 Protocol and the African Convention, together,
constitute a codification of the rightsand dutiesof refugees in Afri-
ca.190 Rutinwa is of the same opinion as Fitzpatrick, Mandal, McAdam,
183 See generally Kristin Bergtora Sandvik, A Legal History: The Emergence of the
African Resettlement Candidate in International Refugee Management (2010) 22:1
Intl J Refugee L 20.
184 Cape Verde, Comoros, Libya, and Mauritius are party to the 1969 Convention but have
neither signed nor ratified the 1951 Convention.
185 Admittedly none of the scholars discussed were explicitly addressing the question of the
rights to which refugees recognized only under article I(2) of the 1969 Convention are
entitled. Rather, in each case, the issue arose as incidental to another question. What is
truly remarkable is that none of the explicit analyses of the 1969 Convention cited here-
in has examined this issue, which represents further evidence of the proposition ad-
vanced above about the dearth of critical analysis of the 1969 Convention.
186 Supra note 65 at 293.
187 Mandal, supra note 40 at xi-xii.
188 Jane McAdam, Complementary Protection in International Refugee Law (Oxford:
Oxford University Press, 2007) at 38 [McAdam, Complementary Protection].
189 Supra note 111 at 174.
190 The Convention, supra note 3 at 463 [emphasis added].
THE 1969 AFRICAN REFUGEE CONVENTION 127
van Hvell tot Westerflier, and Weis, and provides some historical sup-
port for his perspective:
That refugees recognised under section I(2) of the OAU Conven-
tion are entitled to the same standards of treatment as those recog-
nised under the 1951 Refugee Convention was confirmed by the
Arusha Conference which recognised the definitions of the term ref-
ugee contained in Article I, paragraphs 1 and 2 of the 1969 OAU
Refugee Convention as the basis for determining refugee status in
Africa and stressed the essential need for ensuring that African ref-
ugees are identified as such, so as to enable them to invoke the
rights established for their benefit in the 1951 Refugee Convention
and the 1967 Refugee Protocol and the 1969 OAU Refugee Conven-
tion. This was irrespective of the procedure by which they were rec-
ognised.191
While Rutinwa marshals conference proceedings in support of his view,
Durieux and Hurwitz rely on article VIII(2) of the 1969 Convention, which
describes the 1969 Convention as the regional complement to the 1951
Convention. They argue that
[o]n its face, the only possible interpretation of this provision is that
a person recognized as a refugee under either branch of the defini-
tion in the complementary OAU Convention is entitled to the rights
contained in the primary 1951 Convention.192
This view is reiterated in Durieuxs later article with McAdam,193 and by
McAdam herself.194 Finally, Rwelamira explains that in states that have
ratified both the universal and African refugee conventions:
The African refugee would then be able to enjoy the specific and
well-defined rights relating to gainful employment, freedom of
movement, welfare as well as rights relating to economic pursuit
such as, labour legislation, acquisition of property, and other bene-
fits related to employment.195
Rwelamira concludes that [i]n essence … one should regard the two Con-
ventions as cumulative.196
However, just as the scholars mentioned above have taken the view
that article I(2) refugees benefit from 1951 Convention rights, others have
adopted the opposite perspective, with a similar near absence of legal ar-
gument. Barutciski, describing the 1969 Convention as a protection sys-
191 Rutinwa, Prima Facie Status, supra note 66 at 14 ×..
192 Durieux & Hurwitz, supra note 64 at 126.
193 Supra note 100 at 11.
194 Complementary Protection, supra note 188 at 213.
195 Some Reflections, supra note 32 at 171.
196 Ibid at 173.
128 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tem meant to address mass flows197an erroneous attribution that was
discussed abovegoes on to maintain that such systems do not give ref-
ugees significant rights beyond non-refoulement guarantees.198 He fur-
ther explains that, while the 1969 Conventions unique refugee definition
means that it is the sole international refugee treaty which applies
to most African refugees, it does not include the elaborate socio-
economic rights found in the 1951 Convention. … Limited rights ap-
parently encourage a more liberal admission policy in situations of
mass inflow, while elaborate rights that may lead to integration tend
to discourage Governments from allowing refugees to access their
territories.199
Barutciski is not alone in his perspective. Mendel maintains that
the 1951 Convention may be described as guaranteeing extensive
benefits, tending towards residence rights, to a narrowly defined
class of individuals. The OAU Convention, on the other hand, pro-
vides relatively limited benefits, broadly consistent with mainte-
nance in camps, to those fleeing a wide range of situations.200
De la Hunt surely had views such as these in mind when she noted the
emergence of an erroneous trend toward viewing the 1969 Convention as
proposing an entirely different kind of refugee regime that [gives] fewer
rights to more refugees.201 Chartrand had earlier anticipated the emer-
gence of such a trend:
The broadening of the definition of the term refugee could … raise
problems if it leads to the emergence of different classes of refu-
geesthose who qualify for refugee status under all the relevant in-
ternational instruments and those who qualify under only onewith
confusion and disagreement among states and international agen-
cies as to whom to accord which standard of treatment.202
While the majority of scholars who have addressed this issue, however
briefly, agree that article I(2) refugees benefit from 1951 Convention
rights in states party to that instrument, the existence of an opposite mi-
nority point of view and the sparse legal reasoning on both sides of the di-
vide suggest that the issue deserves sustained attention. Three principal
arguments are advanced in support of the view that article I(2) refugees
197 Supra note 84 at 714.
198 Ibid.
199 Ibid [footnotes omitted].
200 Toby D Mendel, Refugee Law and Practice in Tanzania (1997) 9:1 Intl J Refugee L 35
at 57.
201 Lee Anne de la Hunt, Refugee Law in South Africa: Making the Road of the Refugee
Longer (2002) [unpublished], cited in Rankin, supra note 4 at 417.
202 Philip E Chartrand, The Organization of African Unity and African Refugees: A
Progress Report (1975) 137:4 World Affairs 265 at 272.
THE 1969 AFRICAN REFUGEE CONVENTION 129
in host states party to both the 1951 and 1969 Conventions are entitled to
the full range of rights guaranteed by the former instrument: a lex spe-
cialis argument, an equality argument, and finally, a treaty interpreta-
tion argument that is supported by certain general principles of interna-
tional law. Each of these arguments is addressed in turn below; they are
in addition to the obvious point that viewing article I(2) refugees as not
entitled to 1951 Convention rights empties article II of the 1969 Conven-
tion of all but the most base content.
Before proceeding, however, it is necessary to examine Conclusion No.
22 of the Executive Committee of the High Commissioners Programme
(ExCom) on the Protection of Asylum-Seekers in Situations of Large-
Scale Influx,203 which may, at first blush, appear to support the perspec-
tive of Barutciski and Mendel. It could equally appear to support the false
proposition discussed above, namely that refugees recognized on a prima
facie basis (in situations of mass influx) enjoy fewer rights than their
counterparts recognized via individual status determination. The ExCom
conclusion begins by noting that large-scale influxes may include refugees
within the meaning of the 1951 Conventionpersons who, owing to ex-
ternal aggression, occupation, foreign domination or events seriously dis-
turbing public order in either part or the whole of their country of origin
or nationality are compelled to seek refuge outside that country.204 It
then goes on to enumerate sixteen standards of treatment for asylum-
seekers who have been temporarily admitted to a country pending ar-
rangements for a durable solution.205 The list does not include certain
rights guaranteed by the 1951 Convention, such as rights to education,206
to gainful employment,207 to social security,208 and to identity papers209 or
a travel document.210
The protection regime established by ExCom Conclusion No. 22 ap-
plies only, however, to large-scale influxes in which [s]tates, although
committed to obtaining durable solutions, have only found it possible to
admit asylum-seekers without undertaking at the time of admission to
203 Conclusion No. 22(XXXII) Protection of Asylum-Seekers in Situations of Large-Scale In-
flux, reprinted in Report of the Executive Committee for the Programme of the United
Nations High Commissioner for Refugees on the Work of its Thirty-Second Session,
UNGAOR, 36th Sess, Supp No 12A, UN Doc A/36/12/Add.1, (1981), IV(2) [ExCom Con-
clusion No. 22].
204 Ibid, IV(2)(I)(1).
205 Ibid, IV(2)(II)(B).
206 1951 Convention, supra note 10, art 22.
207 Ibid, art 17.
208 Ibid, art 24.
209 Ibid, art 27.
210 Ibid, art 28.
130 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
provide permanent settlement.211 In other words, the conclusion applies
only to situations of temporary protectionnot the circumstance at issue
hereand even in such situations, according to Goodwin-Gill, the conclu-
sion provides a point of departure only. In certain circumstances, even
a temporary solution may require more substantial provision for refu-
gees, including the opportunity to earn a living and to have access to edu-
cation, housing, and social assistance.212 This view was affirmed during
UNHCRs Global Consultations on International Protection, during which
it was noted that ExCom Conclusion No. 22 was never intended as a sub-
stitute for standards of protection under the 1951 Convention.213 Moreo-
ver, McAdam explains that the protection regime established by the Ex-
Com conclusion must be understood within the particular context in
which it was adopted, namely the mass exodus from Indochina beginning
in the mid-1970s, when numbers overwhelmed individual processing and
front-line states were not parties to the 1951 Convention.214 The conclu-
sion, therefore, filled a gap by identifying existing normative standards
for States not bound by the [1951] Convention or [1967] Protocol.215 In
considering the very particular circumstances to which it applies, it be-
comes clear that ExCom Conclusion No. 22 provides no support for the
proposition that article I(2) refugees enjoy fewer rights than those recog-
nized pursuant to article I(1) of the 1969 Convention or under the 1951
Convention. Nor does it support the idea that refugees recognized on a
prima facie basis enjoy more circumscribed rights than those recognized
individually.
A. The 1951 Convention as Lex Specialis
Complementary protection describes the protection from refoulement
granted by States on the basis of an international protection need outside
the 1951 Convention framework.216 The source of the prohibitions against
refoulement subsumed within the concept of complementary protection
generally arise directly from, or have been read into, international and
regional human rights instruments, such as the Convention Against Tor-
ture and Other Cruel, Inhuman or Degrading Treatment or Punishment
211 ExCom Conclusion No. 22, supra note 203, IV(2)(I)(2).
212 Guy S Goodwin-Gill, Non-refoulement and the New Asylum Seekers (1986) 26:4 Va J
Intl L 897 at 906.
213 UNHCR, Global Consultations on International Protection, Protection of Refugees in
Mass Influx Situations: Overall Protection Framework, 1st Meeting, UN Doc
EC/GC/01/4, (19 February 2001) at para 8.
214 McAdam, Complementary Protection, supra note 188 at 246-47.
215 Ibid at 247.
216 Ibid at 21.
THE 1969 AFRICAN REFUGEE CONVENTION 131
(CAT) and the European Convention on Human Rights.217 In her ground-
breaking study of complementary protection, McAdam argues that the
1951 Convention functions as a form of lex specialis (specialist law) for all
those in need of international protection, and provides an appropriate le-
gal status irrespective of the source of the States protection obligation.218
In other words, McAdams view is that the content of complementarily
protected status derives from the rights framework contained in the 1951
Convention, regardless of the fact that the beneficiaries of such status are
not refugees within the meaning of its article 1A(2). McAdam advances
several propositions in support of this thesis, but the core of her argument
is that the 1951 Conventions
application has been extended through the expansion of non-
refoulement under human rights law … rather than by the conven-
tional means of a Protocol. … Since the scope of non-refoulement has
been broadened by subsequent human rights instruments, this nec-
essarily widens the Conventions application.219
If the 1951 Convention provides the rights blueprint for all beneficiar-
ies of complementary protection, then such rights must apply equally to
refugees within the meaning of article I(2) of the 1969 Convention.
McAdam argues that the progressive development of human rights-based
non-refoulement, in extending the range of individuals entitled to interna-
tional protection, also extended the applicability of the 1951 Convention.
Surely the 1969 Conventions extension of protection from refoulement to
individuals fleeing a 1969 Event extends the 1951 Conventions applicabil-
ity in a similar fashion, especially because, as refugees, individuals recog-
nized under article I(2) of the 1969 Convention are in a situation even
more conceptually similar to 1951 Convention refugees than beneficiaries
of complementary protection. This argument is of even more force when
one considers McAdams reasoning regarding why human rights instru-
ments do not themselves provide status in addition to protection from re-
foulement. She argues that it would be futile for instruments like the
CAT to enumerate the legal status arising from the application of non-
217 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Novem-
ber 1950, 213 UNTS 221, Eur TS 5.
218 Complementary Protection, supra note 188 at 1. However, the 1951 Convention cannot
be said to provide beneficiaries of complementary protection with status as such, be-
cause the status accorded by the 1951 Convention is refugee status, for which benefi-
ciaries of complementary protection by definition do not qualify. McAdams argument
would have been more convincing had she argued that the 1951 Convention articulates
the content of complementary protected status, rather than any status as such. Fur-
thermore, her designation of the 1951 Conventions rights framework as the lex specialis
for all persons in need of international protection is problematic, because it may be tak-
en to suggest that refugees are not also entitled to rights deriving from human rights
law.
219 Ibid at 209.
132 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
refoulement, since the Refugee Convention (as the lex specialis) already
provides an appropriate status for any person protected by that princi-
ple.220 By analogy, it would be similarly futile for the 1969 Convention to
enumerate an exhaustive list of refugee rights, since the 1951 Convention,
as the lex specialis on the content of refugee status, already does so.
The argument that beneficiaries of complementary protection, and
hence article I(2) refugees, enjoy 1951 Convention rights by virtue of that
conventions function as the lex specialis for individuals in need of inter-
national protection must, however, be approached with some caution in
light of Hathaways critique of McAdams work.221 Hathaway rejects
McAdams thesis on two main grounds. First, he argues that there is no
basis to suggest that the Refugee Convention exists to delineate the enti-
tlements of persons granted protection against refoulement.222 Second, he
maintains that McAdams contention is premised on an incorrect applica-
tion of the concept of lex specialis. The notion of lex specialis is used pri-
marily to resolve conflicts between competing norms of international law
but can also be employed to assist in the construction of a general provi-
sion in relation to a matter also governed by a more specific norm.223
McAdam employs lex specialis in quite a different sense: to extend the
1951 Conventions beneficiary class to embrace persons outside its textu-
al ambit.224 According to Hathaway, Because there is simply a legal void
to be filled in relation to non-refugees, there is no conflict of rules that lex
specialis can assist to resolve.225 Hathaway further argues that the sec-
ondary usage of lex specialis similarly provides no support for McAdams
position:
[T]he importance of interpreting general rules in harmony with
more specific rules does not advance McAdams thesis that the ab-
sence of rules defining the status of the broader class of non-
returnable persons must be filled by effectively recasting the Refu-
gee Conventions beneficiary class.226
If, as Hathaway contends, the 1951 Convention is not the lex specialis
for all individuals in need of international protection, then it clearly be-
comes impossible to argue that 1951 Convention rights apply to article
220 Ibid at 209-10.
221 Hathaway, Leveraging Asylum, supra note 56. For McAdams response to Hathaways
critique, see Jane McAdam, Status Anxiety: Complementary Protection and the Rights
of Non-convention Refugees online: (2010) University of New South Wales Faculty of
Law Research Series 1
222 Hathaway, Leveraging Asylum, supra note 56 at 531.
223 Ibid at 533.
224 Ibid at 532.
225 Ibid at 533.
226 Ibid at 534.
THE 1969 AFRICAN REFUGEE CONVENTION 133
I(2) refugees on that basis. In light of Hathaways critique, it seems that
McAdams position is merely lex ferenda. Resolving the issue of whether
article I(2) refugees can enjoy 1951 Convention rights does not, however,
depend on McAdams view being lex lata. A range of other bases exists,
detailed below, leading to the conclusion that article I(2) refugees do enjoy
1951 Convention rights, one of which stems from a point on which Hath-
away and McAdam agree. Both authors, and others,227 have found that
the law of non-discrimination provides a basis for guaranteeing 1951 Con-
vention rights to beneficiaries of complementary protection.228 The thesis
that the legal duty of non-discrimination mandates the equal treatment of
refugees and beneficiaries of complementary protection was developed by
Pobjoy,229 while Hathaway has explored the role of non-discrimination re-
garding equal treatment between citizens and non-citizens,230 and be-
tween and among 1951 Convention refugees.231 These approaches can
equally be employed for the benefit of article I(2) refugees, as is demon-
strated below.
B. Equality
The legal duty of non-discrimination requires that irrelevant criteria
not be taken into account in making allocations.232 Article 26 of the Inter-
national Covenant on Civil and Political Rights (ICCPR) articulates this
duty with particular force because the ambit of its guarantee is not lim-
ited to the ICCPR alone;233 rather, it applies to the allocation of all public
goods, including rights not stipulated by the Covenant itself.234 Article 26
provides:
227 See e.g. Tom Clark, Rights Based Refuge, the Potential of the 1951 Convention and the
Need for Authoritative Interpretation (2004) 16:4 Intl J Refugee L 584; Tom Clark in
cooperation with Franois Crpeau, Mainstreaming Refugee Rights: The 1951 Refugee
Convention and International Human Rights Law (1999) 17:4 Nethl QHR 389.
228 Hathaway, Leveraging Asylum, supra note 56 at 529; McAdam, Complementary Pro-
tection, supra note 188 at 220-23.
229 Jason Pobjoy, Treating Like Alike: The Principle of Non-discrimination as a Tool to
Mandate the Equal Treatment of Refugees and Beneficiaries of Complementary
Protection (2010) 34:1 Melbourne UL Rev 181.
230 James C Hathaway, The Rights of Refugees Under International Law (Cambridge, UK:
Cambridge University Press, 2005) at 123-47 [Hathaway, Rights of Refugees].
231 Ibid at 238-60.
232 Ibid at 124.
233 See Human Rights Committee, General Comment No. 18: Non-discrimination, 37th
Sess, UN Doc HRI/GEN/1/Rev.9 (Vol. I), (1989), reprinted in Report of the Human
Rights Committee, UNGAOR, 45th Sess, Supp No 40, UN Doc A/45/40, vol I, (1990) an-
nex VI(A), 173 at para 12 [General Comment No. 18].
234 Hathaway, Rights of Refugees, supra note 230 at 125.
134 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the
law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other opin-
ion, national or social origin, property, birth or other status.
This guarantee ensures both formal equality (equality before the
law), as well as substantive equality (equal protection of the law). It
does not, however, establish an unconditional guarantee of equality.235
Indeed, not every instance of differential treatment amounts to discrimi-
nation; in many circumstances, it is perfectly reasonable for a state to dif-
ferentiate between groups. Rather, equality requires that any unequal
treatment be properly justified, according to consistently applied, per-
suasive, and acceptable criteria.236 Accordingly, the Human Rights Com-
mittee (HRC), which is the ICCPRs treaty-monitoring body, has read the
following proviso into article 26:
[T]he Committee observes that not every differentiation of treatment
will constitute discrimination, if the criteria for such differentiation
are reasonable and objective and if the aim is to achieve a purpose
which is legitimate under the Covenant.237
Thus, to amount to discrimination under article 26, unequal treatment
must be based on criteria that are neither reasonable nor objective, nor in
pursuit of a legitimate aim.
pronged test for establishing unlawful discrimination:
Pobjoy has distilled article 26 and its proviso into a convenient three-
1 Has there been differential treatment between individuals in
similar circumstances? In other words, is there an inequality ba-
sis for a discrimination claim?
2 Is the unequal treatment based on a ground captured by art 26?
3 Is the unequal treatment based on reasonable and objective cri-
teria?238
This test, with the pursuit of a legitimate aim appended to its third
prong,239 will be applied to determine whether article 26 prohibits the dif-
ferential allocation of rights as between refugees recognized pursuant to
article 1A(2) of the 1951 Convention or article I(1) of the 1969 Convention,
235 Pobjoy, supra note 229 at 207.
236 Hathaway, Rights of Refugees, supra note 230 at 124, citing Christopher McCrudden,
Equality and Non-discrimination in David Feldman, ed, English Public Law (Oxford:
Oxford University Press, 2004) 581 at 614.
237 General Comment No. 18, supra note 233 at para 13.
238 Supra note 229 at 209.
239 This element is inexplicably missing from the third prong of Pobjoys test.
THE 1969 AFRICAN REFUGEE CONVENTION 135
and refugees recognized under article I(2) of the latter instrument.240 As a
preliminary matter, however, it must be established that an article I(2)
refugee can invoke the ICCPR vis–vis his or her host state, assuming
that state has ratified the ICCPR and its optional protocol permitting in-
dividual communications.241 The HRC has confirmed that as a general
rule, the rights enshrined in the ICCPR must be guaranteed without dis-
crimination between citizens and aliens.242 All refugees, therefore, benefit
from the protections afforded by the ICCPR.
As a starting point, assume that state Xwhich is party to the 1951
Convention, the 1969 Convention, and the ICCPR and its optional proto-
colguarantees the full range of 1951 Convention rights to refugees un-
der that instrument and under article I(1) of the 1969 Convention, but
guarantees refugees recognized under article I(2) of the 1969 Convention
only the few rights contained therein (non-refoulement243 and the right to
a travel document244). The first prong of Pobjoys test, which must estab-
lish that similarly situated individuals have been treated differently, is
clearly answered in the affirmative. Once arrived in state X, a refugee
who fled individualized persecution is no different from one who fled a
1969 Event. The two, as refugees, are in similar circumstances, yet they
do not enjoy the same allocation of rights.
To establish discrimination, the tests second prong must demonstrate
that the unequal treatment is based on a ground captured by article 26.
The unequal treatment by state X is based on the source of the individu-
als refugee status. This is not one of the grounds enumerated in article
26; however, the listing there is not exhaustive. The source of the unequal
treatment may fall within any other status. The HRC has approached
the meaning of any other status on a case-by-case basis. The only gen-
eral requirement is that the status in question must capture a distinct
group, as opposed to an individual.245 Refugees recognized under article
240 And, if one accepts McAdams thesis that beneficiaries of complementary protection en-
joy 1951 Convention rights, then as between them and refugees recognized under arti-
cle I(2) of the 1969 Convention.
241 Optional Protocol to the International Covenant on Civil and Political Rights, 16 De-
cember 1966, 999 UNTS 171, Can TS 1976 No 47 (entered into force 23 March 1976).
242 Human Rights Committee, General Comment No. 15: The Position of Aliens Under the
Covenant, 27th Sess, UN Doc HRI/GEN/1/Rev.9 (Vol. 1), (1986), reprinted in Report of
the Human Rights Committee, UNGAOR, 41st Sess, Supp No 40, UN Doc A/41/40
(1986) annex VI, 117 at para 2.
243 1969 Convention, supra note 2, art II(3).
244 Ibid, art VI(1).
245 Communication No. 218/1986, Hendrika S. Vos v. The Netherlands, 35th Sess, UN Doc
CCPR/C/35/D/218/1986, (1986), reprinted in Report of the Human Rights Committee,
UNGAOR, 44th Sess, Supp No 40, UN Doc A/44/40, (1989) annex X.G, 232.
136 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
I(2) of the 1969 Convention are clearly a distinct group. Moreover, accord-
ing to Pobjoy, because the HRC has repeatedly affirmed that distinctions
based upon nationality or citizenship fall within the notion of other sta-
tus in article 26, it seems reasonable to assume that this principle would
apply between different categories of non-citizens.246 The second prong of
the test is therefore also answered affirmatively.
Under the tests third prong, to avoid running afoul of the ICCPR, the
unequal allocation of rights must be based on reasonable and objective
criteria and must be in pursuit of a legitimate aim. Owing to the paucity
of jurisprudence on the issue, [t]he extent to which the Committee is like-
ly to consider differential treatment between categories of non-citizens to
be reasonable and objective is unclear.247 In the absence of case law, Pob-
joy finds that the most sensible approach is to
identify the potential bases which a state may invoke to justify the
differential allocation of rights … and … critically examine these ba-
ses to pre-empt the likelihood that they will be considered reasona-
ble and objective criteria justifying the differential allocation of
rights.248
The only conceivable basis on which state X might decide to circumscribe
the rights of article I(2) refugees would be the belief that their plight is
inherently more temporary than refugees fleeing individualized persecu-
tion. Such logic has been employed to justify the lower standards of
treatment accorded to beneficiaries of complementary (subsidiary) protec-
tion under the European Unions Qualification Directive.249 This belief is
not, however, borne out in practice. An ample number of studies have
documented the increasingly protracted nature of refugee situations in
Africa250 and the persistence of the conflicts giving rise to them.251 Moreo-
ver, to accord fewer rights to refugees fleeing a 1969 Event based on the
theory that their plight is inherently temporary misconceives the nature
of the universal regime of refugee protection, which itself is premised on
temporariness. Because the denial of 1951 Convention rights to article I(2)
refugees cannot be based on criteria that are objective and reasonable,
246 Pobjoy, supra note 229 at 214.
247 Ibid at 215.
248 Ibid at 217.
249 See ibid at 220.
250 See e.g. Edwin Odhiambo Abuya, From Here to Where? Refugees Living in Protracted
Situations in Africa in Alice Edwards & Carla Ferstman, eds, Human Security and
Non-Citizens: Law, Policy and International Affairs (Cambridge, UK: Cambridge
University Press, 2010) 125; Crisp, supra note 1; Verdirame & Harrell-Bond, supra note
1.
251 See e.g. Grard Prunier, From Genocide to Continental War: The Congolese Conflict
and the Crisis of Contemporary Africa (London, UK: Hurst, 2009).
THE 1969 AFRICAN REFUGEE CONVENTION 137
there is no need to proceed to the tests second sub-prong regarding legit-
imate aims. Thus the tests third prong is answered in the negative.
The application of Pobjoys test suggests that distinguishing between
the allocation of rights to article I(2) refugees and refugees recognized un-
der article 1A(2) of the 1951 Convention or article I(1) of the 1969 Conven-
tion constitutes unlawful discrimination under the ICCPR. UNHCR takes
a similar position in more general terms, finding it doubtful that interna-
tional law would permit selective provision of international protection ac-
cording to category.252 Indeed, even the 1969 Convention itself recalls
that the Charter of the United Nations and the Universal Declaration of
Human Rights have affirmed the principle that human beings shall enjoy
fundamental rights and freedoms without discrimination.253 There is ar-
guably, therefore, a duty to guarantee 1951 Convention rights to all arti-
cle I(2) refugees in African states party to the ICCPR and both refugee
conventions. This conclusion is, however, tentative, as the HRC has never
ruled on the issue and there is very limited jurisprudence concerning the
differential allocation of rights to categories of non-citizens generally.254
Indeed, it is unlikely that the issue of discrimination against article I(2)
refugees will ever come before the HRC, since states in Africa do not, in
practice, distinguish between refugees recognized either under article
1A(2) of the 1951 Convention or under article I(1) of the 1969 Convention,
and those recognized only under article I(2) of the 1969 Convention. Nor
does domestic refugee legislation in Africa generally make such a formal
distinction. These facts are considered in the discussion of state practice
in the part that follows.
C. The Law of Treaties and General International Law
That the 1969 Convention is a regional instrument complementing the
1951 Convention is a novelty in itself.255 Notwithstanding the sui generis
nature of the relationship between the 1951 and 1969 Conventions, sever-
al principles emanating from the law of treaties, which were codified with
the 1969 adoption of the Vienna Convention on the Law of Treaties (Vien-
na Convention), are instructive in determining the rights to which refu-
gees recognized only under article I(2) of the 1969 Convention are entitled.
These are the rule on the application of successive treaties relating to the
252 UNHCR, Towards a Common European Asylum System in Constana Dias Urbano
de Sousa & Philippe de Bruycker, eds, The Emergence of a European Asylum Policy
(Brussels: Bruylant, 2004) 227 at 248-49, cited in McAdam, Complementary Protection,
supra note 188 at 221.
253 1969 Convention, supra note 2, Preamble, para 6.
254 Pobjoy, supra note 229 at 209.
255 Nyanduga, supra note 107 at 93.
138 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
same subject matter,256 the general rule of interpretation,257 and the rule
on supplementary means of interpretation.258 Certain general principles of
international law are also relevant. Each is addressed in turn below.
1. Successive Treaties Relating to the Same Subject Matter
Article 30 of the Vienna Convention addresses the question of the rela-
tionship between successive treaties relating to the same subject matter.
This provision, while primarily invoked to resolve explicit conflicts, ex-
tends its scope by addressing more generally the rights and obligations of
States part[y] to successive treaties relating to the same subject-matter.259
However, doctrinal agreement on the strict construction260 to be applied to
relating to the same subject-matter261language that appears in the
subparagraph addressing the general applicability of article 30and to
the residuary character of article 30 in relation to conflict clauses262 raises
the threshold question of whether article 30 even applies to the issue at
hand.
The 1969 Convention seeks only to regulate matters not already cov-
ered by the 1951 Convention,263 calling into question whether it and the
1951 Convention can be construed as relating to the same subject mat-
ter.264 In this regard, the relationship between the 1951 and 1969 Conven-
tions is an example of the main basis on which Sinclair critiques article
30. He notes:
Article 30 of the Vienna Convention is in many respects not entirely
satisfactory. The rules laid down fail to take account of the many
complications which arise when there coexist two treaties relating to
the same subject-matter, one negotiated at the regional level … and
256 See VCLT, supra note 12, art 30.
257 See ibid, art 31.
258 See ibid, art 32.
259 Mark E Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties
(Leiden: Martinus Nijhoff, 2009) at 402.
260 See Anthony Aust, Modern Treaty Law and Practice, 2d ed (Cambridge, UK:
Cambridge University Press, 2007) at 229; Sinclair, supra note 137 at 98.
261 VCLT, supra note 12, art 30(1).
262 Aust, supra note 260 at 227; Sinclair, supra note 137 at 97; Villiger, supra note 259 at
403.
263 See Rwelamira, Some Reflections, supra note 32 at 167.
264 See generally Christopher J Borgen, Resolving Treaty Conflicts (2005) 37:3 Geo Wash
Intl L Rev 573 at 603. Contra International Law Commission finalized by Martti
Koskenniemi, Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law (Report of the Study Group of the
International Law Commission), 58th Sess, UN Doc A/CN.4/L.682, (2006) at para 22
[mimeo limited].
THE 1969 AFRICAN REFUGEE CONVENTION 139
another negotiated within the framework of a universal organisa-
tion.265
Furthermore, article 30 is residual in the sense that it only applies in the
absence of express treaty provisions regulating priority.266 That is to say
that, where a treaty expressly provides how it should relate to another in-
strument, article 30 is not invoked. The 1969 Convention indeed contains
such conflict clauses.267
Yet article 30 may nevertheless be instructive in the instant case, be-
cause it confirms the primacy of the 1969 Conventions conflict clauses.
Article 30(2) of the VCLT concerns conflict clauses aimed at giving priori-
ty to another treaty. It provides, When a treaty specifies that it is subject
to, or that it is not to be considered as incompatible with, an earlier or lat-
er treaty, the provisions of that other treaty prevail. According to Vil-
liger, [O]n the contractual level, the residual character of Article 30 vis–
vis the conflict clause of another treaty may be based on its own para. 2
but only when that conflict clause grants priority to other treaties.268 The
1969 Conventions conflict clauses indeed acknowledge the primacy of the
1951 Convention: the ninth preambular paragraph recognizes that the
1951 Convention constitutes the basic and universal instrument relating
to the status of refugees, and article VIII(2) states that the 1969 Conven-
tion shall be the effective regional complement in Africa of the 1951
Convention. Article 30(2) therefore mandates that these conflict provisions
govern the resolution of the issue at hand.269 Their proper interpretation
necessitates recourse to the general rule of interpretation.
2. The General Rule of Interpretation
The general rule of interpretation provides, A treaty shall be inter-
preted in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the light of its object and
purpose.270 According to Sinclair, the ordering of elements within this
provision is important: The initial search is for the ordinary meaning to
be given to the terms of the treaty in their context; it is in light of the ob-
ject and purpose of the treaty that the initial and preliminary conclusion
265 Sinclair, supra note 137 at 98.
266 Ibid at 97.
267 1969 Convention, supra note 2, Preamble, para 9, art VIII(2). According to Villiger, con-
flict clauses may appear in the treaty itself, in its preamble, or in an annex (supra
note 259 at 404).
268 Ibid at 403.
269 The same result is reached through an application of the principle of lex specialis, which
although not codified in article 30, continues to exist alongside it as customary law.
270 VCLT, supra note 12, art 31(1).
140 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
must be tested and either confirmed or modified.271 The clauses relevant
to resolving the issue at hand are, as discussed above, the 1969 Conven-
tions conflict clauses.272 Also relevant is the 1969 Conventions tenth pre-
ambular paragraph, which calls
upon Member States of the Organization [of African Unity] who had
not already done so to accede to the United Nations Convention of
1951 and to the Protocol of 1967 relating to the Status of Refugees,
and meanwhile to apply their provisions to refugees in Africa.
In interpreting the relevant provisions in line with their ordinary
meaning and in context, it becomes clear that article I(2) refugees are en-
titled to the rights contained in the 1951 Convention. In recognizing the
1951 Convention as the basic and universal instrument relating to the
status of refugees,273 the 1969 Convention establishes its predecessor in-
strument as the global reference point for refugee status in a general
sense. In going on to recognize that the 1951 Convention reflects the deep
concern of States for refugees and their desire to establish common
standards for their treatment,274 the 1969 Convention specifically estab-
lishes the 1951 Convention as the universal source of refugee rights. This
is why, in the preambular paragraph that follows, the 1969 Convention
calls on states that have not already done so to accede to the United Na-
tions Convention of 1951 and to the Protocol of 1967, and to meanwhile
apply their provisions to refugees in Africa.275 Indeed, according to DSa:
[T]he fact that the OAU Convention expressly recognizes the legal
status and validity of the UN Convention and encourages the OAU
Member States to accede to the latter is … evidence that the OAU
Convention does not preclude the application by its Member States
of the additional provisions of the UN Convention relating to such
matters as gainful employment, welfare, housing, public education,
administrative assistance and so on.276
The co-application of the 1951 and 1969 Conventions that emerges
from the latter instruments preamble is the meaning that must be simi-
larly attributed to the final relevant provision: the conflict clause at arti-
cle VIII(2). It, again, provides that the 1969 Convention is the effective
regional complement in Africa of the 1951 Convention. As already men-
tioned, Durieux and Hurwitz find that [o]n its face, the only possible in-
terpretation of this provision is that a person recognized as a refugee un-
271 Supra note 137 at 130.
272 Which are at article VIII(2) and preambular paragraph 9.
273 1969 Convention, supra note 2, Preamble, para 9.
274 Ibid [emphasis added].
275 Ibid, Preamble, para 10.
276 DSa, supra note 61 at 390.
THE 1969 AFRICAN REFUGEE CONVENTION 141
der either branch of the definition in the complementary OAU Convention
is entitled to the rights contained in the primary 1951 Convention.277
Durieux and McAdam,278 and McAdam279 reach the same conclusion,
while Okoth-Obbo explains that, by describing itself as the regional com-
plement to the 1951 Convention, the full scope of application of the 1969
Convention must be considered as also including the 1951 Convention.280
Similarly, Awuku views the language of article VIII(2) as implying that
the 1969 Convention does not supersede, but rather that it supplements,
the 1951 Convention.281 Holborn considers article VIII(2), as well as pre-
ambular paragraphs 9 and 10, and finds that
[t]he final text of the 1969 OAU Refugee Convention makes clear
that it was drawn up to supplement and not to supersede or conflict
with the 1951 Convention and the 1967 Protocol. … The substantive
articles of the OAU Convention create obligations to be assumed by
contracting states in addition to those they have accepted by becom-
ing parties to the 1951 Convention and 1967 Protocol.282
These views suggest that the 1951 and 1969 Conventions are co-extensive
in Africa: an individual can be recognized as a refugee under article I(2) of
the 1969 Convention, and the rights associated with such status can then
be derived from the 1951 Convention.
This initial interpretation is not vitiated when considered in light of
the 1969 Conventions object and purpose, which can be gleaned from the
conventions preamble. The preamble begins by [n]oting with concern the
constantly increasing numbers of refugees in Africa and [by stating that
signatories are] desirous of finding ways and means of alleviating [refu-
gees] misery and suffering as well as providing them with a better life
and future,283 and goes on to articulate the need for an essentially hu-
manitarian approach towards solving the problems of refugees.284 These
preambular paragraphs suggest that a form of asylum featuring only the
few rights explicitly recognized by the 1969 Conventionnon-refoulement
and the right to a travel documentwould be manifestly inconsistent
with its object and purpose of alleviating the suffering of refugees in a
277 Supra note 64 at 126.
278 Supra note 100 at 11.
279 Complementary Protection, supra note 188 at 213.
280 Supra note 4 at 98.
281 Supra note 36 at 81.
282 Louise W Holborn with the assistance of Philip & Rita Chartrand, Refugees: A Problem
of our Time; The Work of the United Nations High Commissioner for Refugees, 1951-
1972, vol 1 (Metuchen, NJ: Scarecrow Press, 1975) at 188.
283 1969 Convention, supra note 2, Preamble, para 1.
284 Ibid, Preamble, para 2.
142 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
humanitarian manner. The preamble confirms the preliminary interpre-
tation reached above: refugees recognized only under article I(2) of the
1969 Convention benefit from the rights enumerated in the 1951 Conven-
tion.
The general rule of interpretation includes an enumeration of the oth-
er elements that must be taken into account, together with the context.
Among them are [a]ny relevant rules of international law applicable in
the relations between the parties285 and [a]ny subsequent practice in the
application of the treaty which establishes the agreement of the parties
regarding its interpretation.286 The consideration of each of these ele-
ments affirms the conclusion reached above.
That the Vienna Convention mandates the consideration of relevant
rules of international law reflects the principle of systemic integration,
pursuant to which treaties, as incarnations of international law, are lim-
ited in scope and … predicated for their existence and operation on being
part of the international law system. As such, they must be applied and
interpreted against the background of … general principles of internation-
al law.287 Thus [e]very treaty provision must be read not only in its own
context, but in the wider context of general international law.288 The in-
ternational law that is relevant consists of those rules that touch on the
same subject matter as the treaty provision or provisions being interpret-
ed or which in any way affect that interpretation289 and that are in force
at the time of interpretation.290 The 1951 Convention and the 1967 Proto-
col, the Universal Declaration of Human Rights, the ICCPR, and the In-
ternational Covenant on Economic, Social and Cultural Rights291 may
285 VCLT, supra note 12, art 31(3)(c).
286 Ibid, art 31(3)(b).
287 Campbell McLachlan, The Principle of Systemic Integration and Article 31(3)(c) of the
Vienna Convention (2005) 54:2 ICLQ 279 at 280 [footnotes omitted], citing Lord
McNair, The Law of Treaties (Oxford: Claredon Press, 1961) at 466.
288 Sinclair, supra note 137 at 139.
289 Richard K Gardiner, Treaty Interpretation (Oxford: Oxford University Press, 2008) at
260.
290 See ibid at 251; Villiger, supra note 259 at 433. Sinclair provides a less absolute analy-
sis of this issue, however he ultimately concludes that [t]here is some evidence that the
evolution and development of international law may exercise a decisive influence on the
meaning to be given to expressions incorporated in a treaty, particularly if these ex-
pressions themselves denote relative or evolving notions such as public policy or the
protection of morals (supra note 137 at 139).
291 16 December 1966, 993 UNTS 3, Can TS 1976 No 46 (entered into force 3 January
1976).
THE 1969 AFRICAN REFUGEE CONVENTION 143
thus be relevant to the interpretation of the 1969 Convention.292 Their ap-
plicability is by no means, however, a foregone conclusion.
International refugee and human rights law cannot necessarily be ap-
plied to the interpretation of the 1969 Convention, because the relevant
rules of international law must be applicable in the relations between the
parties. It is not clear whether this reference is to the parties to a dispute
over the meaning of a particular treaty or to all the parties to the treaty
being interpreted. Gardiners view is that article 31(3)(c) likely refers to
the latter.293 This raises the question of
whether the focus is on examination of relations between all the par-
ties to the treaty, whether the situation is similar to that of subse-
quent practice (where the practice must be the concordant practice
of a sufficient number of parties coupled with the acquiescence and
imputed concurrence of the rest), or whether there is some other in-
terpretation to be given.294
Ultimately, the jurisprudence and doctrine on this issue have not pro-
duced a clear answer.295 At the very least, it is arguable that the interna-
tional human rights law prevailing at the time of interpretation of the
1969 Convention is generally relevant to such interpretation, in particular
because [t]reaties that affect human rights cannot be applied in such a
manner as to constitute a denial of human rights as understood at the
time of their application.296 Invoking international refugee and human
rights law to determine whether article I(2) refugees benefit from 1951
Convention rights reaffirms the conclusion reached above; finding other-
wise would be nonsensical, as it would effectively deny article I(2) refu-
gees the human rights from which they would otherwise benefit. Of par-
ticular note in applying human rights law to the interpretation of the
1969 Convention is the preamble to the 1967 Protocol, which provides that
equal status should be enjoyed by all refugees, including those who were
recognized as a result of new refugee situations [that] have arisen since
the [1951] Convention was adopted.297 Applying this provision to an in-
terpretation of the 1969 Convention clearly suggests that the rights
framework under the 1969 Convention should be derived from the 1951
Convention.
292 See Clark, supra note 227 at 594; Hathaway, Rights of Refugees, supra note 230 at 64-
67.
293 Supra note 229 at 269.
294 Ibid.
295 See ibid.
296 Case Concerning the Gabkovo-Nagymaros Project (Hungary v Slovakia), [1997] ICJ
Rep 7 at 114.
297 1967 Protocol, supra note 35, Preamble, paras 3-4 [emphasis added].
144 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
The subsequent state practice referred to by article 31(3)(b) includes
domestic legislation.298 Among African states that have domesticated the
1951 and 1969 Conventions, many have done so in such a way that af-
firms that 1951 Convention rights apply to article I(2) refugees.299 Ugan-
das Refugees Act, 2006,300 for example, includes both the 1969 Convention
article I(1) and the 1951 Convention refugee definition, as well as the one
articulated at article I(2) of the 1969 Convention, and guarantees both
types of refugee a range of rights derived from the 1951 Convention.301
The same is true in South Africa302 and Tanzania,303 among other states.
It must be noted, however, that commentary on the Vienna Convention
has clarified that the subsequent practice referred to by article 31(3)(b)
must be common to all the parties to the treaty sought to be interpret-
ed.304 Subsequent practice that is not common to all parties may neverthe-
less constitute a supplementary means of interpretation within the
meaning of Article 32 of the [Vienna] Convention.305 This provision is ad-
dressed below.
3. Supplementary Means of Interpretation
Recourse may be had to supplementary means of interpretation in or-
der to confirm the meaning flowing from the application of the general
rule of interpretation.306 Supplementary means include, but are not lim-
ited to, the preparatory work of the treaty and the circumstances of its
conclusion.307 Several sources are relevant in this regard. First, in 1980,
an OAU and UNHCR working group promulgated guidelines to assist
OAU member states in domesticating their obligations under the 1969
Convention.308 According to section 11 of those guidelines, persons con-
298 See Guy S Goodwin-Gill, The Search for the One, True Meaning… in Guy S Goodwin-
Gill & Hlne Lambert, eds, The Limits of Transnational Law: Refugee Law, Policy
Harmonization and Judicial Dialogue in the European Union (Cambridge, UK:
Cambridge University Press, 2010) 204 at 214 [Goodwin-Gill, One, True Meaning].
299 McAdam, Complementary Protection, supra note 188 at 213.
300 (Uganda), No 21 of 2006.
301 See Marina Sharpe & Salima Namusobya, Refugee Status Determination and the
Rights of Recognized Refugees Under Ugandas Refugees Act, 2006 24 Intl J Refugee L
[forthcoming in 2012].
302 Refugees Act, 1998 (S Afr), No 130 of 1998.
303 See Mandal, supra note 40 at xii.
304 See e.g. Sinclair, supra note 137 at 138; Aust, supra note 260 at 241-43; Gardiner, supra
note 289 at 227; Goodwin-Gill, One, True Meaning, supra note 298 at 209.
305 Sinclair, supra note 137 at 138.
306 See VCLT, supra note 12, art 32.
307 See ibid.
308 See Jackson, supra note 91 at 194.
THE 1969 AFRICAN REFUGEE CONVENTION 145
sidered as refugees according to the extended OAU refugee definition are
entitled to the rights and are subject to the duties defined [in] the 1951
United Nations Refugee Convention.309 A second supplementary means
of interpretation, already discussed above, is the domestic refugee legisla-
tion of certain states that are party to the 1969 Convention. Third, and
most important, is the history behind the 1969 Convention. While no offi-
cial set of travaux prparatoires is available for the 1969 Convention, its
drafting history supports the interpretation reached here:310 the 1969
Convention does not create second-class refugees excluded from the 1951
Conventions rights framework.
4. General Principles of International Law
This conclusion, reached by interpreting relevant clauses of the 1969
Convention in line with the Vienna Convention, is confirmed by relevant
general principles of international law. The 1969 Conventions legal re-
gime may be characterized as a special regime in relation to the 1951
Conventions more general regime. According to the International Law
Commission:
The scope of special laws is by definition narrower than that of gen-
eral laws. It will thus frequently be the case that a matter not regu-
lated by special law will arise in the institutions charged to adminis-
ter it. In such cases, the relevant general law will apply.311
In this case, the special 1969 Convention does not detail the rights to
which refugees are entitled once they are recognized as such; the 1951
Conventions general regime thus serves to fill the gap.
The principle of lex posterior derogat legi priori, though not strictly
applicable because the parties to the 1969 Convention are not identical to
those to of the 1951 Convention, is nevertheless also instructive. The prin-
ciple provides that an earlier treaty applies only to the extent that it is not
inconsistent with a later treaty concluded among the same parties.312 The
application of 1951 Convention rights to article I(2) refugees is not incon-
sistent with the 1969 Convention; indeed application of the 1951 Conven-
tions rights framework is in keeping with the objects and purposes of the
1969 Convention.
309 Ibid at 195.
310 See Marina Sharpe, Engaging with Refugee Protection? The Organization of African
Unity and African Union Since 1963, New Issues in Refugee Research: Research Paper
No 226, (Geneva: UNHCR Policy Development and Evaluation Series, 2011) at 5-17,
online: UNHCR: The UN Refugee Agency
311 Report on the Work of Its Fifty-Eighth Session, UNGAOR, 61st Sess, Supp No 10, UN
Doc A/61/10, (2006) chapter XII.D.II at para 251(15).
312 See ibid at para 251(24).
146 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Conclusion
This paper began by surveying the 1969 Conventions legal innova-
tions. It went on to analyze one such innovationthe unique refugee def-
initionin order to question the common view that it is far broader than
the international refugee definition. Finally, this paper addressed the
omission of a rights framework from the 1969 Convention. The discussion
of the article I(2) refugee definition revealed that three of the four 1969
Events are now largely irrelevant, that the definition is not entirely objec-
tive, and that the 1969 Convention does not apply only to groups, nor was
it drafted with a view to allowing the group determination of refugee sta-
tus. These insights about the article I(2) refugee definition will, I hope, go
some way toward correcting common misconceptions about it and, taken
together, indicate that the definition is not quite as expansive as is often
suggested.
The analysis of the standards of treatment to which article I(2) refu-
gees are entitled suggests that, in states party to both the 1951 and 1969
Conventions, there can be no suggestion that article I(2) refugees enjoy
fewer rights than their article I(1) or 1951 Convention counterparts. Ulti-
mately, it seems that the omission of a rights framework from the 1969
Convention was premised upon the specific objectives of the treaty and the
futility, to use McAdams language,313 of including a cumbersome rights
framework when a simpler legal option existed. Thus the 1969 Convention
was not only innovative in, among other things, incrementally expanding
the range of individuals who could qualify for refugee status. In applying
the content of the existing universal instruments status to a broadened
class of individuals, the drafters found a pioneering yet pragmatic way of
ensuring that refugees in Africa are guaranteed the same rights as refu-
gees elsewhere, but that issues particular to African refugees are not ne-
glected. Indeed, [t]he substantive articles of the … regional agreement
are intended to create obligations to be assumed by states which are par-
ties to it in addition to those undertaken by becoming parties to the [1951]
Convention and the [1967] Protocol.314
However, this approach leaves certain refugeesthose in states party
to the 1969 Convention but not its universal counterpart, or in states that
are party to the 1951 and 1969 Conventions but not the 1967 Protocol, or
in states party to the 1951 and 1969 Conventions that have retained the
313 McAdam, Complementary Protection, supra note 188 at 209-10.
314 Chartrand, supra note 202 at 271.
THE 1969 AFRICAN REFUGEE CONVENTION 147
former instruments geographical limit315in a precarious situation.
Rwelamira explains:
[B]ecause the OAU Convention is regarded as complementary to the
UN Convention it has no provisions dealing with substantive or min-
imum rights, a problem which becomes real when a state member of
the OAU Convention is not a party to the UN Convention.316
This is why Goundiam argues that to be effective, the 1969 Convention
must be completed by states ratifying … other more exhaustive instru-
ments.317
It is, however, largely a theoretical problem, which, in practice, ex-
tends well beyond the borders of states such as Libya (which is party to
the 1969, but not the 1951, Convention). Despite 1951 Convention guaran-
tees, refugees all over Africa find their rights systemically violated; more-
over, they are usually without recourse for such violations. In addition to
widespread ratification of the 1951 Convention, this convention and its
regional counterpart must be implemented and enforced.
315 In Africa, Madagascar is not party to the 1967 Protocol, and the Republic of Congo and
Madagascar continue to recognize the 1951 Conventions geographical limit.
316 Some Reflections, supra note 32 at 178.
317 Supra note 3 at 12.
