Defending the 1951 Convention Definition of Refugee
![handle is hein.journals/geoimlj17 and id is 593 raw text is: DEFENDING THE 1951 CONVENTION
DEFINITION OF REFUGEE
KRISTEN WALKER*
Individuals leave or seek to leave their countries of origin for a variety of
reasons: personal convenience, economic betterment, natural disaster, civil
war, war between states, foreign occupation, terrorist activities, violation of
human rights and so on. However, although there is a right to leave one's
home state under international treaty law,' there is no general right to enter
another state. Many states are concerned that uncontrolled immigration will
result in a flood of immigrants, which will overly tax the resources of the
receiving state. States thus impose restrictions on immigration, permitting
only a limited number of immigrants to enter the state for an extended period.
Many states, however, have chosen to restrict their ability to refuse entry to
or expel certain immigrants under the Convention Relating to the Status of
Refugees of 19512 (Refugee Convention or Convention). Under that
Convention, parties accept an obligation of non-refoulement - that is, an
obligation not to return a refugee to a state where he or she faces a threat to
life or liberty.3 Although this is, strictly speaking, not an obligation to grant
asylum, it often operates in practice as such a right. For example, in the
absence of a safe third country to which a refugee can be sent, the receiving
state must permit the refugee to remain. This obligation is highly controver-
sial because it permits individuals to enter or remain in a state outside the
normal immigration regime. The controversy has centered on the definition
of the term refugee, in particular, because if that term is defined broadly,
states will owe obligations of non-refoulement to a much larger group than if
refugee is defined narrowly. Defining a refugee is not an inconsequential
matter; rather, it is of practical importance and has significant consequences
for both States and individuals.4 The definition of refugee does not encom-
* LLB(Hons), BSc, LLM (Melb), LLM (Columbia). Senior Lecturer in Law, The University of
Melbourne. Submitted in partial fulfillment of the requirements for the degree of Doctor of Science of
Law in the Faculty of Law, Columbia University. The author wishes to thank Gerry Neuman and Mike
Dorf for their invaluable comments on earlier drafts of this work.
1. International Covenant on Civil and Political Rights, U.N. GAOR, G.A. Res. 2200A (XXI),
art. 12, 999 U.N.T.S. 171 (1966) [hereinafter ICCPR]. Arguably, this article reflects a norm of
customary international law, but such a conclusion is not central to my argument.
2. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 [hereinafter
Refugee Convention].
3. Refugee Convention, supra note 2, at art. 33.
4. PIRKKO KOURULA, BROADENING THE EDGES: REFUGEE DEFINITION AND INTERNATIONAL PROTEC-
TION REVISITED 40 (1997).](ViewImageLocal?handle=hein.journals/geoimlj17&div=37&collection=&method=preview&ext=.png&size=3)
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Defending the 1951 Convention Definition of Refugee
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