Only a person outside her own state can qualify as a Convention refugee. The alienage requirement of the definition – limiting status to an at-risk person who is “outside” her own country – derives from the limited aim of the Refugee Convention to deal “only with the problem of legal protection and status.” The treaty was conceived not to relieve the suffering of all forced migrants, but rather to assist a subset comprised of persons who were “outside their own countries [and] who lacked the protection of a Government.” The intent was to provide this group of enforced expatriates with legal status and protection to offset the disabilities of presence outside their own country until they could acquire new or renewed national protection. Internally displaced persons, while objects of humanitarian concern, were thought to raise “separate problems of a different character,” since such persons did not suffer from the legal disabilities of enforced alienage.

The drafters’ focus on enfranchising persons forced abroad also reflected a candid appraisal that the broader problem of persons dislocated within their own countries would demand a more sustained commitment of resources than was then available to the international community. Indeed, there was concern that the inclusion of internally displaced persons in the international protection regime might prompt states to shift responsibility for the well-being of large parts of their own population to the world community. The obligations of states under the Convention would thereby be increased, inclining fewer states to participate in the treaty regime.

This chapter takes up the provisions of the Convention that deem some persons who face the real chance of being persecuted nonetheless to be undeserving of international protection. Inspired by the prohibition in the Universal Declaration of Human Rights on the granting of asylum “in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations” and following the precedent of the Constitution of the International Refugee Organization, persons seeking to evade legitimate prosecution or punishment for serious domestic crimes, those who have committed serious international crimes, and anyone who is guilty of actions contrary to the principles and purposes of the UN must be denied refugee status.

The decision to exclude these three limited categories of persons from refugee status – even assuming they face the real chance of being persecuted – followed in part from concern to ensure that serious criminals not be able to evade prosecution and punishment for their crimes by claiming asylum. But most fundamentally, the drafters were persuaded that if state parties were expected to admit serious criminals as refugees, they would simply not be willing to be bound to the Convention. France, the most ardent advocate of this view, insisted that the right to exclude limited categories of serious criminals from refugee status was “a prime factor in determining France’s attitude towards the Convention as a whole.” The Yugoslav drafter feared that without a rule on exclusion “there would be a good chance that [his government] would be unable to sign the Convention.” Even the British and Belgian representatives, despite their initial opposition to such a provision, ultimately conceded that the exclusion of serious criminals from refugee status was necessary “to promote maximum adherence to the Convention” and “to make the Convention acceptable to as large a number of governments as possible.” Thus, as the Court of Justice of the European Union determined, the fundamental purpose of Art. 1(F) is essentially instrumentalist, to “maintain the credibility of the protection system.”

The hallmark of a Convention refugee is her inability or unwillingness to return home due to a “well-founded fear of being persecuted.” Not all forced migrants qualify as refugees in law: only those who face a genuine risk of being persecuted for a Convention reason in their own country are entitled to the rights set out in the Convention. The scope and meaning of the “being persecuted” inquiry – which includes both identification of a relevant serious harm and a concomitant failure of state protection – will be discussed in Chapters 3 and 4, while this chapter addresses the notion of well-founded fear.

It is generally asserted that “well-founded fear” entails two requirements. The first criterion is that the person seeking recognition of refugee status perceive herself to stand in “terror of persecution”; her very personal response to the prospect of return to her home country must be an extreme form of anxiety that is neither feigned nor overstated. Second, this subjective perception of risk must be consistent with available information on conditions in the state of origin, as only those persons whose fear is reasonable can be said to stand in need of international protection. Thus, for example, the UN High Commissioner for Refugees (“UNHCR”) opines:

Although the requirement to show a well-founded fear of “being persecuted” is at the heart of the refugee definition, the Refugee Convention does not define or elucidate the meaning to be given to this concept. Indeed, it is generally acknowledged that the drafters of the Convention intentionally declined to define “being persecuted” because they recognized the impossibility of enumerating in advance all of the forms of maltreatment that might legitimately entitle persons to benefit from international protection. The need for a flexible approach to “being persecuted” is especially important today given the duty under the 1967 Protocol to apply the refugee definition in a manner that ensures its relevance to “new refugee situations.”

Yet the importance of interpretive flexibility must be balanced against the imperatives of the rule of law, militating against any approach that “abandon[s] the quest for standards” in interpreting what is perhaps the key term of the treaty. Rather, as Lord Justice Laws explained in Sepet:

The challenge, then, is to adopt an approach to interpretation of “being persecuted” that is flexible, yet which provides guidance based on objective principle. The goal must be to understand the core construct of “being persecuted” as “a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form.”

The Convention conceives of refugee status as a transitory phenomenon that comes to an end if and when a refugee can reclaim the protection of her own state or has secured an alternative form of enduring national protection. Because the purpose of refugee law is to afford surrogate protection pending the resumption or establishment of meaningful national protection, the cessation clauses in Art. 1(C) of the Convention define various situations in which refugee status may come to an end.

The first sub-chapter therefore considers the applicability of cessation where there is evidence of a refugee’s decision to reclaim the protection of her own country; where an objective assessment by the host country determines that the country of origin has undergone such a fundamental change of circumstances that it can be relied upon to resume its duty of protection; or where the refugee has acquired the nationality of another state that will protect her. In each of these situations, cessation “takes effect naturally,” since the rationale for imposing a duty of substitute national protection on an asylum state will have come to an end.

Refugee law may be the world’s most powerful international human rights mechanism. Not only do millions of people invoke its protections every year in countries spanning the globe, but they do so on the basis of a self-actuating mechanism of international law that, quite literally, allows at-risk persons to vote with their feet. This is because, as the United Nations High Commissioner for Refugees (“UNHCR”) has insisted, refugee status is not a status that is granted by states; it is rather simply recognized by them:

A person who is a refugee at international law is thus entitled in any of the nearly 150 state parties to the refugee regime to claim a powerful catalog of internationally binding rights – including not only critical civil rights, but also socio-economic rights and rights that enable pursuit of a solution to refugeehood. Because refugee status inheres by virtue of facts rather than formalities, the entitlement to these rights persists until and unless an individual is found not to be a refugee.

The portal to this uniquely valuable protection regime is the definition of a refugee codified in the 1951 Convention relating to the Status of Refugees, made both universal and applicable to contemporary refugees by the 1967 Protocol relating to the Status of Refugees (the “Convention refugee” definition). Article 1A(2) of the Convention provides that the term “refugee” shall apply to any person who