1.0.1    The Relationship between Articles 1A(2) and 1F(b)

1.1       International Instruments and Organisations Prior to 1951

           1.1.1    1921-1946
           1.1.2    Constitution of the International Refugee Organisation 1946 Part II, paragraph 3
           1.1.3    Universal Declaration of Human Rights 1948, Article 14(2)
           1.1.4    Statute of the Office of the UN High Commissioner for Refugees 1949, Section 7(d)

1.2    The Convention relating to the Status of Refugees 1951, Articles 1A(2) and 1F(b)

               A Note on Treaty Interpretation
               The Travaux Préparatoires
               The Drafting Process
         1.2.1    The Drafting History of Article 1A(2)

         1.2.2    The Drafting History of Article 1F(b)

              E/AC.7/SR.166:  Debate Before the Economic and Social Council
              A/Conf.2/1:  Paragraph 1E of the Draft Convention
              A/Conf.2/SR.24:  Discussion of the United Kingdom Amendment
              A/Conf.2/SR.29: Further Discussion of the UK Amendment
              Analysis of the Drafting History of Article 1F(b)

1.3    Post-Convention Developments

        1.3.1    International Instruments
        1.3.2    The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status

1.4    Conclusions regarding the Convention's Approach to Political Offenders


[1] 'Persecution' is the central concept defining who is a refugee for the purpose of the international convention that governs state obligations toward this class of persons.(1) State parties to the 1951 Convention have agreed, subject to exceptions relating to public order and national security, (2) to provide protection to persons who meet this definition. This thesis examines refugee claims where the persecution feared is criminal prosecution in the country of origin.(3) More specifically, it considers the position of political offenders(4) (a concept originating in extradition law): what distinguishes them from common criminals, and do they fall within the refugee definition?

[2] Criminal prosecution can result in loss of liberty, and is inherently serious because of what it conveys about a person's relationship to, and position in, her community. Thus, in general, criminal prosecution is a sufficiently serious harm to found a claim to refugee status.(5) Moreover, it is axiomatic that the claimant's state is responsible for the harm which results from criminal prosecution and punishment. Because criminal prosecution satisfies these two important aspects of the refugee definition, the outcome of prosecution/persecution cases often turns on whether the prosecution and/or punishment feared is "... for reason of race, religion, nationality, membership in a particular social group or political opinion."(6) In other words, has the claimant met the 'Convention reason requirement'?

[3] Punishment for commission of a common criminal offense cannot form the basis of a refugee claim because there is no nexus between the harm feared and any of the enumerated Convention grounds.(7) This thesis asserts that in most cases the prosecution and punishment of political offenders constitutes persecution and, in particular, that these claims meet the Convention reason requirement.

[4] Refugee claims based on fear of prosecution have generated inconsistent outcomes and confusing analysis as decision-makers struggle to distinguish between criminal and political actions. Where a claim is premised on the commission of a political offense, it is essential that decision-makers understand the context in which the offense took place.(8) Deficiencies in much of the case law are summed up best by Aleinikoff's pointed observation that:(9)

[5] The primary aim of this thesis is to propose an approach to analyzing prosecution/persecution cases that facilitates more principled and consistent decision-making. An understanding of the different but related roles that both refugee law and extradition law play in regulating relationships between states, and governing the grant of membership or quasi-membership rights to non-citizens, is integral to achieving this aim.

[6] Chapter One of this thesis focuses on the Refugee Convention's approach to issues of criminality. Antecedent international instruments and organisations are considered,(10) as are post-Convention developments:(11) however, the bulk of the Chapter is devoted to the drafting history of the 1951 Convention (which is by turns instructive and frustrating). Chapter One concludes that in determining how the Convention refugee definition would deal with political offenders, the drafters' took as their point of reference the law of extradition.

[7] The next Chapter discusses the political offense exception to the obligation to extradite.(12) This aspect of extradition law provides us with a considered and nuanced body of principles for determining whether conduct is criminal or political. Chapter three applies these analytical tools to refugee claims predicated on the commission of an offense directly analogous to those crimes which are the concern of extradition law.(13) In particular, cases involving serious acts of (political) violence are examined.

[8] In Chapter Four, the analogy between political offenders and refugee claimants fearing prosecution is extended to offenses that would not be the concern of extradition law.(14) This approach is illustrated by reference to claims based on draft evasion/military desertion, unlawful departure/stay abroad, Iran's 'dress code', and the Chinese one child family policy. Finally, Chapter Five draws some conclusions regarding the conceptual intersection of extradition law and refugee law, the usefulness and limits of the political offender analogy in refugee law, and the inherently political nature of refugee status decisions.


Criminality and Refugee Status: International Instruments and Organisations from 1921 to the Present

[9] Articles 1A(2) and 1F(b) of the 1951 Convention relating to the Status of Refugees are of central importance in determining refugee claims based on fear of criminal prosecution. This Chapter explores the drafting history of each of these provisions with a view to better understanding their operation in prosecution/persecution cases. With regard to Article 1F(b), it concludes that the drafters explicitly chose to omit common criminals from the refugee definition, and by implication, to include those persons who face criminal prosecution for having committed a 'political offense'. The drafting history of Article 1A(2) is less illuminating. The meaning of 'persecution', and more specifically, whether fear of criminal prosecution may qualify a person for refugee status, were not discussed. Rather, the drafters were predominately concerned with geographic and temporal limitations to the definition.
[10] The context in which Articles 1A(2) and 1F(b) of the Convention were drafted includes earlier international instruments and principles of law of extradition and political asylum. This Chapter first discusses the approach to criminality taken by international instruments and organisations concerned with refugees prior to the drafting of the 1951 Convention. In particular, Part II, paragraph 3 of the International Refugee Organisation's Constitution,(15) Article 14(2) of the Universal Declaration of Human Rights,(16) and paragraph 7(d) of the Statute of the UNHCR are considered.(17) Part two looks at the Convention provisions themselves, focusing mainly on the approach to criminal exclusion demonstrated in the drafting history of Article 1F(b).(18) Finally, I very briefly mention post-Convention developments including regional instruments, and discuss the provisions of the UNHCR Handbook.(19)

1.0.1    The Relationship between Articles 1A(2) and 1F(b)
[11] Inclusion with the Article 1A(2) refugee definition and exclusion from the benefits of the Convention pursuant to Article 1F(b) are ostensibly separate issues. This thesis is less concerned with exclusion from the Convention, than inclusion based upon 'criminal' activity/status and resulting punishment. Therefore, more instructive for our purposes are those occasions when it is the same conduct which requires consideration under both Article 1A(2) and 1F(b).(20) It would illogical were such conduct to be the basis upon which a claimant is both included and excluded from Convention refugee status. Thus, if criminal prosecution is to constitute 'persecution' for the purposes of Article 1A(2) it cannot result from the commission of a 'serious non-political crime' as that phrase is used in Article 1F(b). Conversely, the fact that the drafters excepted 'political crime' from the ambit of Article 1F(b) must inform, to some extent, our interpretation of Article 1A(2). What constitutes a 'political offense' in the law of extradition, and whether prosecution for commission of a 'political offensce' is 'persecution' for the purposes of the Convention refugee definition, will be the subject of Chapters Two and Three, respectively.

1.1    International Instruments and Organisations Prior to 1951

        1.1.1    1921-1946(21)

[12] Organised international protection of refugees began in 1921 when the first High Commissioner for Refugees was appointed by the League of Nations. Early international instruments(22) and organisations protected discrete categories of refugees who were defined by their national or territorial origin and their lack of de jure or de facto state protection. Individual assessment of refugee status was not undertaken, and international instruments made no formal provision for the exclusion of common criminals.

1.1.2 Constitution of the International Refugee Organisation 1946(23) Part II, Paragraph 3

[13] The International Refugee Organisation (IRO) was the first body to adopt an individualized definition of refugee status by requiring a procedure for establishing individual eligibility;(24) and the first to explicitly exclude common criminals from its mandate. Part II, paragraph 3, of the IRO Constitution declares:(25)

[14] Because the IRO originated in the immediate aftermath of World War Two, the drafting history of its Constitution demonstrates a clear focus on issues such as the exclusion of war criminals, quislings and traitors from the mandate of the Organisation. The exclusion of ordinary criminals, set out in Part II, paragraph 3, appears not to have been debated at all.

[15] IRO officers conducted an assessment of each individual claimant's eligibility under the refugee definition employed by the IRO Constitution.(26) Although the short-lived nature of the Organisation means there is little accessible information regarding how Part II, paragraph 3 was applied, the IRO's approach to its mandate is canvassed thoroughly in its Manual for Eligibility Officers.(27) The Manual contains very detailed instructions to IRO personnel who were responsible for making eligibility decisions. With regard to Part II, paragraph 3, it explains:(28)

[16] Thus, Part II, paragraph 3 applied where a person was the subject of an actual request for extradition or where there were serious reasons to believe that she was, or might be, wanted for extradition. The Manual goes on to state explicitly that Part II, paragraph 3, does not apply to crimes committed in the country of refuge.(30)

[17] Persons who had committed political offenses were not extraditable, and therefore, were not excluded from the IRO's mandate. The Manual also implicitly suggests that such persons would be of concern to the Organisation, commenting that:(31)

However, the competence of the IRO to assist political criminals would appear to be limited by Part II, paragraphs 6(a) and 6(b) of its Constitution, which state:(32) These provisions reflect the highly politicised context in which the IRO Constitution was drafted and applied.

[18] Even where a person clearly did not fall within the exclusion provisions of the IRO Constitution, the fact that she faced prosecution in her country of origin and the nature of that prosecution could be factors in determining her eligibility for IRO aid (other than assistance in repatriating). Persons falling within the Organisation's mandate who did not wish to repatriate had to demonstrate 'valid objections' to returning to their home country.(33) Such 'valid objections' included, "persecution, or fear, based on reasonable grounds of persecution because of race, religion, nationality or political opinion ..."(34) Stoessinger points out that:(35)

In a sense, the prosecution/persecution problem is an unavoidable result of the individualised 'persecution' standard which originated in the Constitution of the IRO and eventually found its way into the 1951 Convention.

[19] On its face, and in view of the instructions given in the Manual for Eligibility Officers, Part II, paragraph 3 seems to be directed at persons who are, or may, be the subject of extradition proceedings; thus preventing the possibility of conflict between a state's obligation to extradite and the protection mandate of the IRO. This ensures that the Organisation will not become a third party in very controversial political confrontations between states as to whether particular individuals are extraditable.(36) Even the Organisation's implicit recognition of political criminals as refugees is strictly limited to those persons politically compatible with the Allied cause.(37)

[20] One may, however, argue for a broader interpretation which excludes from the IRO mandate persons who are not technically extraditable, but who have taken part in analogous criminal behaviour. In my view, given the singular focus on extradition displayed by the Manual for Eligibility Officers, this interpretation is difficult to sustain. Nevertheless, there is a principled reason for supporting a broader criminal exclusion which is independent of the 'conflicting obligations' rationale invoked above. The exclusion of ordinary criminals may be justified as a measure which preserves the 'moral weight' attributed to the term 'refugee' by excluding persons undeserving of protection.

[21] These two rationales for the exclusion of ordinary criminals from the definition of 'refugee' are reflected in formulations used in later instruments, and also feature in the drafting history of the 1951 Convention. With regard to Article 14(2) of the Universal Declaration of Human Rights, which will be discussed next, the balance achieved is not between conflicting obligations, but rather, between states' right to grant asylum as an exercise of their territorial sovereignty and the requirements of world public order.

1.1.3 Universal Declaration of Human Rights 1948, Article 14(2)(38)

[22] The scope of Article 14(2) is particularly important because this provision is incorporated by reference in the Statute of United Nations High Commissioner for Refugees, and moreover, it formed the basis for the initial draft of Article 1F(b) of the 1951 Convention.(39) Article 14 asserts:

Academic commentary on Article 14 tends to focus exclusively on the limited scope of the right of asylum set out in subsection (1), and largely ignores the exception found in subsection (2).(40)

[23] If we accept the dominant interpretation of Article 14(1), namely, that the right of asylum protected is no more than a right to "seek" protection and not a right to be granted it, the prerogative to grant or deny asylum remains with the requested state. Subsection (2), interpreted in this light, denies common criminals the right to "seek" asylum.(41)

[24] The Statute of the Office of the United Nations High Commissioner for Refugees, discussed below, incorporates Article 14(2) by reference as well as adopting a formulation similar to that found in the IRO Constitution.

1.1.4 Statute of the Office of the United Nations Commissioner for Refugees 1949,(42) Section 7(d)

[25] The Statute of the UNHCR, like the Constitution of the International Refugee Organisation, seeks to exclude extraditable criminals from the agency's mandate. Section 7(d) states:(43)

[26] In effect, this provisions incorporates both Article 14(2) of the Universal Declaration and a modified version of Part II, paragraph 3, of the IRO Constitution. Reference to the Universal Declaration is perhaps best explained simply as a by-product of the UDHR's contemporaneity, high profile and universal status. Furthermore, in my view, section 7(d) of the Statute is not significantly different from its predecessor in the IRO Constitution. The exclusion of persons who have "committed a crime covered by the provisions of treaties of extradition" is not substantially distinct from the exclusion of "ordinary criminals who are extraditable by treaty". The same arguments regarding narrow and broad interpretations apply to each phrase. Neither phrase is notable for its comprehensiveness or particularity. As Grahl-Madsen suggests:(44) I turn now to consider the approach to distinguishing prosecution from persecution taken by the drafters of the 1951 Convention.

1.2 The Convention relating to the Status of Refugees 1951, Articles 1A(2) and 1F(b)(45)

[27] The 1951 Convention represents an important departure from the earlier instruments discussed above in that it created binding obligations on signatory states.(46) Consequently, states were eager to limit the extent of their commitment, while at the same time retaining as much discretion as possible with regard to whom they may consider to be a refugee. A Note on Treaty Interpretation

[28] The proper approach to the interpretation of an international treaty is a matter of some controversy. There are at least four principle schools of treaty interpretation. They concentrate, respectively, on the intent of the parties, the ordinary meaning of the words of the treaty, the object and purpose of the treaty and the genuine shared expectations of the parties.(47) The approach of the Vienna Convention on the Law of Treaties 1969(48) is primarily textualist. The relevant provisions for our purposes are Articles 31(1) and 32. Article 31(1) mandates that a treaty be interpreted "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose."(49) Article 32 allows for recourse to supplementary means of interpretation, including "the preparatory work of the treaty and the circumstances of its conclusion".(50) The Travaux Préparatoires(51)

[29] The most comprehensive collection of documents relating to the drafting history of the 1951 Convention is Takkenburg & Tahbaz's The Collected Travaux Préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees (1990). This publication is a source of virtually all the UN documents referred to in this Chapter. It should be noted that the records of the various UN bodies involved in drafting the Convention consist of (with rare exceptions) the reported speech of those contributing to the debate. Thus, where the travaux are quoted, the words quoted do not represent the direct speech of an individual, bur rather, that speech as reported in the UN document being cited. The Drafting Process(52)

[30] Initially, the problems of stateless persons and refugees were dealt with jointly. In February 1946, the UN General Assembly referred the problem of refugees to the Economic and Social Council (ECOSOC) for consideration.(53) The Council requested that the Secretary General make a study of statelessness.(54) After considering the Secretary General's report, ECOSOC established an Ad Hoc Committee on Statelessness and Related Problems to consider inter alia "the desirability of preparing a revised and consolidated convention relating to the international status of refugees."(55) The Ad Hoc Committee produced a draft convention which was submitted to governments for comment. Next, the Economic and Social Council considered both the report and comments, and reconvened the Committee in order to redraft the convention. The second report of the Committee was submitted to the General Assembly which decided to convene a Conference of Plenipotentiaries to redraft the convention once again.(56) Finally, on 28 July 1951, the Convention relating to the Status of Refugees was adopted by the Conference of Plenipotentiaries.

1.2.1 The Drafting History of Article 1A(2)

[31] Article 1A(2) of the 1951 Convention relating to the Status of Refugees states:

It should come as no surprise that Article 1A(2) was the most debated provision of the 1951 Convention as it determines to whom a signatory state will owe the obligations set out in the remainder of the Convention. However, the drafting history of Article 1A(2) does not reveal any discussion of whether fear of criminal prosecution may bring a claimant within the refugee definition. Criminality was examined solely in relation to the Article 1F(b) exclusion clause.(57)

[32] It is clear that the prosecution/persecution problem would have been known to delegates as it had arisen under the 'valid objections' refugee definition found in the IRO Constitution.(58) In my view, two factors best explain the absence of debate regarding this issue. First, in adopting the persecution standard that originated in the IRO Constitution, delegates felt they were dealing with a known quantity which would continue to allow states sufficient discretion in deciding who is a refugee.(59) Second, much of the discussion of the refugee definition focused on the temporal limitation (events occurring before 1 January 1951) found in Article 1A(2); and Article 1B which allows states to elect to restrict their obligations to events occurring "in Europe."(60) As Compton notes:(61)

Despite the absence of discussion of the prosecution/persecution problem in its drafting history, Article 1A(2) remains of fundamental importance. Analysis of Article 1A(2) in this thesis will draw primarily on Canadian, American, British Australian and New Zealand case law as well as the provisions of the UNHCR Handbook.

1.2.2 The Drafting History of Article 1F(b)

[33] Article 1F(b) of the Convention excludes criminals in the following terms:

I shall set out in chronological order those aspects of the drafting history of Article 1F(b) which, in my view, are directly relevant to the prosecution/persecution issue. This detailed approach serves to convey clearly the concerns of the drafters of the Convention and to highlight those points which surfaced repeatedly.

[34] Criminal exclusion was not the subject of any sustained debate before the Ad Hoc Committee,(62) and was given only brief consideration by the Economic and Social Council.(63) Detailed discussion is to be found in the records of the Conference of Plenipotentiaries,(64) and I will focus primarily on those debates. E/AC.7/SR.166: Debate Before the Economic and Social Council

[35] Before the Economic and Social Council, Mr Rochefort, the representative for France, stressed that the objective of the provision excluding criminals from the refugee definition as not to constrain state discretion with regard to such persons.(65) Rather, it sought to ensure that states could not, through granting refugee status, commit the international community and the United Nations High Commissioner for Refugees to the protection of ordinary criminals.(66) To elaborate the necessity of such a provision, he pointed to Part II, paragraph 3 of the IRO Constitution, noting:(67) A/Conf.2/1, Paragraph 1E of the Draft Convention

[36] In the original draft of the 1951 Convention to come before the Conference of Plenipotentiaries, the exclusion for reasons of criminal status (then paragraph 1E) was expressed as follows:(68)

Initially, two amendments to the above provision were proposed, one by the Federal Republic of Germany(69) concerning war crimes, crimes against humanity, and crimes against peace; and one by the United Kingdom(70) seeking to delete, or in the alternative, modify paragraph (b). The modification sought would have made explicit reference to acts contrary to the principles and purposes of the United Nations but omitted any mention of the first clause of Article 14(2) of the Universal Declaration which refers to 'prosecutions genuinely arising from non-political crimes'.(71) A/Conf.2/SR.24: Discussion of the United Kingdom Amendment

[37] Mr Hoare, the delegate from the United Kingdom, argued that paragraph (b) was unnecessary because Article 28 [32](72) of the draft Convention gave each state "... the right to expel a refugee whom it had admitted, if it had reasonable grounds for regarding him as a danger to national security or if he had been convicted in that country for particularly serious crimes or offenses".(73) He was concerned that paragraph (b) not act as a "loophole" by which states could "... divest themselves of any responsibility for any refugee who happened to be convicted of a crime on their territory".(74)

[38] Opposition to the UK amendment came chiefly from the French delegate, Mr Rochefort, who noted that the dispute between the French and UK delegations with regard to this provision was one of long standing.(75) Mr Hoare had opposed paragraph 1E before the Economic and Social Council, the Third Committee of the General Assembly and the General Assembly itself.(76) The French delegate stressed the importance of distinguishing between bona fide refugees and common criminals,(77) and furthermore maintained that paragraph (b) would not prevent France from granting asylum to common-law criminals:(78)

[39] Mr Herment, the Belgian delegate, pointed out that paragraph (b) applied not only to a refugee who committed a crime in the receiving country, but also to a refugee who had committed a crime in a foreign country or the country of origin.(79) As such the provision was essential in order to prevent states being faced with conflicting obligations, on the one hand under the Convention, and on the other hand pursuant to a bilateral extradition treaty.(80) The representative of the UNHCR, Mr van Heuven Goedhart, observed that it might be desirable for paragraph 1E(b) to be consistent with chapter II, section 7(d) of the Statute of the UNHCR, which refers explicitly to treaties of extradition.(81)

[40] Next, the UK delegate took up the issue of conflict with extradition treaties.(82) He suggested that paragraph E be amended so as to exclude from the application of the Convention persons liable to extradition, or in the alternative, Article 28 [32] be amended to make it clear that existing agreements under bilateral extradition treaties remain unaffected.(83) Conversely, Mr Robinson, the Israeli delegate, advised that paragraph E not be amended because on signing the Convention, states could always enter a reservation saying that it did not affect their rights and contractual duties under previously concluded bilateral agreements relating to extradition.(84)

[41] The French delegate returned to the question of conflict between the Convention and the Statute of the UNHCR, noting that:

While acknowledging the disadvantages of such inconsistency, Mr Hoare, for the United Kingdom, nevertheless continued to advocate the omission of paragraph (b), suggesting that perhaps it may be possible at some later date to modify the Statute.(86) In response, the French delegate characterised the problem as follows:(87) [42] The discussion then returned to the question of conflict with treaties of extradition. How such conflicts would be resolved was of obvious concern to the delegates.(88) The following observations of the President, speaking as the representative of Denmark, are particularly noteworthy:(89) However, Mr Hoare stressed that his delegation was concerned that persons who committed crimes in their country of refuge not be excluded from the application of the Convention, and he viewed the question of extradition as a separate matter from the UK amendment.(90) In reply, Mr Rochefort emphasized the distinction between granting asylum and granting refugee status, and the importance that countries like France who were geographically vulnerable to refugee flows placed upon the right to refuse to grant refugee status to common-law criminals.(91) He insisted categorically that paragraph 1E was a conditio sine qua non of France's accession to the Convention.(92)

[43] On that note, the discussion turned to the amendment proposed by the Federal Republic of Germany.(93) In the end result, both proposed amendments and the issues which had arisen regarding extradition were referred to a working group consisting of the representatives of France, the Federal Republic of Germany, Israel and the United Kingdom.(94) A/Conf.2/SR.29: Further Discussion of the UK Amendment

[44] At a later plenary meeting, discussion returned to the United Kingdom amendment despite little progress having been made by the Working Group.(95) Mr Hoare began by explaining the reasons for the proposed amendment.(96) He emphasized that direct reference to the Universal Declaration was inappropriate as that document dealt only with principles and ideals.(97) However, his primary concern was that paragraph (b) excluded from the benefits of the Convention any refugee who had been convicted of, and punished for, a common crime;(98) and also any refugee who had committed a trivial common crime.(99) Significantly, neither of these two categories of persons would be likely to be the subject of extradition obligations.

[45] Mr Hoare's proposed amendment received support from the representative of the Netherlands and the delegate from Belgium. Baron van Boetzelaer argued that Article 14(2) of the Declaration denied common criminals the right of asylum, and this had been implemented by Article 28[32] of the Convention regarding expulsion, therefore excluding such persons from the Convention definition was unnecessary.(100) Mr Herment agreed that there were problems in granting refugee status to persons not worthy of it, but did not consider that the status of "refugee" should be denied to a person merely because he had been convicted of a common-law offense in his country of origin.(101)

[46] For the United Kingdom, Mr Hoare, explained why he believed paragraph (b)'s reference to Article 14(2) was inappropriate:(102)

That was the category of refugee that the United Kingdom delegation wished to see excluded from the effect of paragraph E, so as not to deprive them of the benefit of the Convention. If his delegation's understanding was correct, there remained the question of the person who was sought, by a Contracting State or by a State of persecution, on legitimate prima facie grounds, for trial for a non-political crime. ... the Convention mentioned neither the right of asylum nor the principle of extradition. In that connexion, the action of States was governed by treaties relating specifically to extradition, and it would therefore be for States to take appropriate action in any given case in light of their obligations under such treaties. Article 28[32] spoke only of the expulsion or return of a refugee, and he would prefer that no mention of extradition be made anywhere in the Convention, for, as he had said, that was a matter that should be left to be dealt with under existing extradition arrangements between the various countries."

There followed a brief, heated exchange between the French and UK delegates regarding the creation of obstacles to some states (namely, France) acceding to the Convention.(103) Mr Bozovic, for Yugoslavia, noted that his country was unlikely to accede to the Convention were the UK amendment to be adopted as this would "... authorise the grant of refugee status to persons who had committed a crime in common law."(104)

[47] The representative of Sweden, Mr Petren, supported Mr Hoare's assertion that Article 14(2) was clearly concerned with extradition.(105) Mr Bozovic replied that "... the point at issue was whether criminals should be granted refugee status, not the problem of extradition."(106) In response to a question from the Swedish representative, Mr Rochefort declared that "... his concern related to crimes committed before entry into the territory of the receiving country".(107) The UK delegate replied that he "... had no objection to a provision relating to crimes committed before entry into the country of refuge, but had been under the impression that that was not the proposal hitherto under discussion."(108)

[48] The meeting was then suspended for a short period to enable the delegates to try to arrive at an agreed text.(109) The Yugoslav amendment which resulted read as follows:(110)

Baron van Boetzelaer suggested that the words "not yet having refugee status" be inserted at the beginning of clause (b).(111) The UNHCR representative drew attention, once again, to the difference between paragraph 1E(b) and the Statute of the UNHCR.(112) Mr Herment, the Belgian delegate, responded that he:(113) The delegates voted to adopt the Yugoslav amendment as modified by the Belgian representative; namely:(114) Further changes were made to this provision by the Style Committee resulting in the text found in Article 1F(b) of the 1951 Convention.(115) Analysis of the Drafting History of Article 1F(b)

[49] While the drafters of the 1951 Convention sometimes appear to be at cross purposes with each other (for example, with regard to whether the exclusion provision applied to crimes committed inside or outside of the country of refuge), they nevertheless shared certain concerns. The drafting history repeatedly emphasizes the same 'conflicting obligations' and 'moral weight' problems discussed earlier in relation to the IRO Constitution.(116) Article 1F(b), however, is substantially different from the criminal exclusion provisions found in the IRO Constitution, the UNHCR Statute and the Universal Declaration.

[50] The formulation used in the Universal Declaration was rejected by the drafters because that document dealt primarily with principles and ideals, and consequently, the language used in Article 14(2) was too loose to define concrete obligations.(117) Conversely, they also resisted any explicit reference to treaties of extradition (as is found in the IRO Constitution and the UNHCR Statute) because this would have defined their obligations too clearly.(118) Unlike the IRO Constitution and the UNHCR Statute, the Convention is an instrument governing state obligations and the formulation adopted in Article 1F(b) allows substantial state discretion in deciding issues of criminal exclusion.(119) To exclude a refugee claimant, a state need not demonstrate that he or she is technically extraditable. Moreover, where a state wishes to grant refugee status on the basis of 'criminal' conduct, it need only show that the conduct in question was 'political' and that Article 1A(2) is satisfied.

[51] The next section of this Chapter examines what changes, if any, have occurred in our approach to problems of criminality and refugee protection in international law since the drafting of the 1951 Convention.

1.3 Post-Convention Developments

1.3.1 International Instruments

[52] The Convention Relating to the Status of Stateless Persons(120) and the OAU Convention Governing the specific Aspects of Refugee Problems in Africa 1969(121) utilize exclusion provisions virtually identical to Article 1F9b) of the 1951 Convention. The Declaration on Territorial Asylum 1967(122) relies instead upon the formulation used in the Universal Declaration by citing Article 14 in its preamble. While the OAU Convention and the Cartagena Declaration(123) recognised a need to expand upon the definition of refugee in the 1951 Convention, criminal exclusion was not at issue. In effect, the prosecution/persecution problem has not been addressed at the international level in a substantive way since the drafting of the Convention. To an extent, this is true for the refugee definition in general and reflects the fact that under the Convention, interpretation of the definition is a privilege reserved solely for states. International supervision of the Convention regime is limited to the role played by UNHCR which is strictly cooperative and consultative, rather than coercive.(124)

1.3.2 The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status(125)

[53] The most substantial elaboration of the 1951 Convention provisions dealing with criminal exclusion is found in the UNHCR Handbook. Obviously the Handbook is not an international instrument, however, nor is it analogous to jurisprudence generated within a national determination system. Rather, in my view, it may be said to represent a measure of international consensus regarding interpretation of the Convention.

[54] Pursuant to Article 35(1) of the Convention, contracting states undertake to cooperate with the UNHCR and in particular, to facilitate its duty of supervising the application of the provisions of the Convention.(126) Initially, the Handbook was issued by UNHCR in response to a request from its Executive Committee (which is made up of representatives of contracting states). In relation to the section on criteria for determining refugee status, the foreword to the Handbook states: "[t]he practice of States is taken into account as are exchanges of views between the Office and the competent authorities of the Contracting States ...".(127)

[55] It may be argued that the Handbook constitutes a record of 'subsequent practice' regarding the interpretation of the 1951 Convention and therefore satisfies the requirements of Article 31(3)(b) of the Vienna Convention on the Law of Treaties(128) However, as Sinclair observes:(129)

Therefore, the Handbook is perhaps more accurately described as a means of generating consistent and common practice than as a record of such practice. Clearly, it has influenced the interpretation of the Convention within several national determination systems, both at an administrative and a judicial level.(130)

[56] With regard to the prosecution/persecution issue, the Handbook contains substantial and detailed discussion, both in general terms and in relation to specific problems such as draft evasion, military desertion, and unlawful departure.(131) The Handbook refers explicitly to international human rights law as a useful tool for assessing the legitimacy of the law under which a claimant fears prosecution.(132) Also, in examining Article 1F(b), it implicitly has recourse to well established principles of extradition law.(133) These provisions will be discussed as they become relevant in later chapters.

1.4 Conclusions regarding the Convention's Approach to Political Offenders

[57] Hathaway characterises Article 1F(b) as "... a means of bringing refugee law into line with the basic principles of extradition law, by ensuring that important fugitives from justice are not able to avoid the jurisdiction of a state in which they may lawfully face punishment."(134) Certainly, the drafting history bears this out. However, one may go further and assert that the drafters recognised that political offenders, provided their political views were compatible with those of the host state, were entitled to refugee status.

[58] The Constitution of the IRO, which was the immediate precursor to the 1951 Convention, took this approach,(135) as did the Allied military authorities.(136) Persons who had committed political offenses were not extraditable, and therefore were not excluded from the IRO's mandate. The IRO's Manual for Eligibility Officers also implicitly suggests that such persons would be of concern to the Organisation, with the exception of those whose political opinions or activities were incompatible with the interests of the United Nations (the Allies).

[59] While it is clear that the drafters of the 1951 Convention maintained a distinction between political asylum and Convention refugee status, it must nevertheless be remembered that the Convention was intended to be a universal and comprehensive protection mechanism (geographic and temporal limitations aside). By restricting the scope of article 1F(b) to those persons who had committed serious extraditable crimes or analogous acts, the drafters implicitly recognised that political offenders may be protected under the Convention regime.

[60] The 1951 Convention allows for substantial state discretion with regard to the protection of political criminals. To exclude a refugee claimant, a state need not assert that he or she is technically extraditable. Conversely, where a state wishes to grant refugee status on the basis of 'criminal' conduct, it need simply accept that the conduct in question was 'political'. As the domestic refugee status regimes of countries like Canada, the United States, Australia and New Zealand have become increasingly judicialized, refugee status has become less a question of state discretion than one of individual entitlement within the domestic legal system predicated upon falling within an 'international' definition. This evolution effects political offenders as much as other refugee claimants.

[61] A clear and nuanced understanding of the principles that extradition law employs to distinguish political from criminal conduct is extremely helpful when determining refugee claims based on fear of criminal prosecution in the country of origin. The next Chapter of this thesis discusses the notion of a 'political offensce' as understood in the law of extradition.

Endnotes - Chapter One

1. Article 1A(2) of the 1951 Convention relating to the Status of Refugees 189 UNTS 2545, entered into force April 22, 1954, as amended by the 1967 Protocol relating to the Status of Refugees, UNTS no 8791, vol 601, p 267, entered into force 4 October, 1967 (hereinafter, referred as to the "1951 Convention" or the "Refugee Convention") states:

2. Ibid, Articles 32 and 33 of the Convention.

3. This category of claims will be referred to as "prosecution/persecution" cases.

4. According to Grahl-Madsen, A, The Status of Refugees in International Law vol 1 (1966) at 83, a political offender is someone who has committed "... an offense against a law aiming at the upholding and protection of the system of government (the constitution) and/or the government (regime) itself." Hereinafter cited as "Grahl-Madsen (1966)".

5. The term 'serious harm' refers to a generally accepted principle in the law of refugee status that the harm feared by a claimant must meet a threshold of seriousness before the surrogate responsibility of the international community is engaged. This requirement is but one component of 'persecution'.

6. See, Article 1A(2) of the 1951 Convention, set out supra, note 1.

7. See, Hathaway, JC, The Law of Refugee Status (1991) at 169. Hereinafter cited as "Hathaway (1991)":

8. See, Blum, CP, "Political Assumptions in Asylum Decision-Making: the Example of Refugees from Armed Conflict" in Adelman, H (ed), Refugee Policy: Canada and the United States (1991) 282, at 286: 9. Aleinikoff, A, "The Meaning of Persecution in United States Asylum Law" (1991) 3(1) International Journal of Refugee Law 1, at 16. Hereinafter cited as "Aleinikoff (1991)".

10. Infra, at paras [13-26].

11. In particular, the UNHCR Handbook, infra at paras [53-56].

12. Infra, at paras [62-89].

13. Infra, at paras [90-118].

14. Infra, at paras [115-150].

15. Infra, at paras [13-21].

16. Infra, at paras [22-24].

17. Infra, at paras [25-26].

18. Infra, at paras [27-51].

19. Infra, at paras [52-56].

20. Refugee Appeal No. 1222/93 Re KN (5 August 1994), decided by the New Zealand Refugee Status Appeals Authority (NZRSAA), provides a useful example of the kind of conduct which may raise both inclusion and exclusion issues. The claimant, a Kurdish citizen of the Islamic Republic of Iran, had taken part in the parcel bombing of a member of the Iranian military. His role in the Kurdish separatist movement was both the source of his risk of persecution (or prosecution) and a potential reason for excluding him from the protection offered by the Convention.

21. See discussion of this period in Hathaway, JC, "The Evolution of Refugee Status in International Law: 1920-1950" (1984) 33 International and Comparative Law Quarterly 348; Hathaway, (1991) 2-4l Grahl-Madsen, (1966) 12-19; and Goodwin-Gill, (1983) 2-4.

22. Arrangement with regard to the issue of certificates of identity to Russian refugees signed at Geneva, July 5, 1922 [13 LNTS 237]; Arrangement relating to the issue of identity certificates to Russian and Armenian refugees, supplementing and amending the previous arrangements dated July 5th, 1922, and May 31st, 1924 signed at Geneva May 12, 1926 [89 LNTS 47]; Arrangement relating to the legal status of Russian and Armenian refugees signed at Geneva, June 30, 1928 [89 LNTS 53]; Arrangement concerning the extension to other categories of refugees of certain measures taken in favour of Russian and Armenian refugees signed at Geneva, June 30, 1928 [89 LNTS 63]; Convention relating to the international status of refugees signed at Geneva, October 28th, 1933 [159 LNTS 199]; Convention concerning the status of refugees coming from Germany signed at Geneva, February 10th, 1938 [192 LNTS 59]; and the Additional Protocol to the provisional arrangement and to the convention signed at Geneva on July 4th, 1936, and February 10th, 1938, respectively, concerning the status of refugees coming from Germany opened for signature at Geneva, September 14th, 1939.

23. 18 UNTS 3 entry into force: August 20, 1948.

24. See, Loescher, G, Beyond Charity: International Cooperation and the Global Refugee Crisis (1993) 50; and Salomon, K, Refugees in the Cold War: Toward a New International Regime in the Early Postwar Era (1991) 60.

25. Supra, note 23.

26. "Every refugee was interviewed and registered individually, and those doing the interviewing had to exercise considerable discretion." : Stoessinger, JG, The Refugee and the World Community (1956) 87. The IRO Constitution also provided for an Eligibility Review Board to which an applicant could appeal a negative decision.

27. International Refugee Organisation, Manual for Eligibility Officers (Imprimieres Populaires, Geneve).

28. Ibid, at pp 34-35.

29. Thus, desertion cannot be grounds for exclusion, however, it will only be grounds for inclusion in specific circumstances. Ibid, Manual for Eligibility Officers, at 13:

30. Ibid, at 35: 31. Ibid, at 16.

32. Supra, note 23.

33. Part I, section C(a) of the IRO Constitution, supra, note 23.

34. Ibid.

35. Stoessinger, JG, supra, note 26, at 88.

36. A concern that the IRO not become embroiled in political disputes between states is also found in Annex 1 of the Constitution, supra, note 23, entitled Definitions - General Principles:

37. See, Part II, paragraphs 6(a) and 6(b) of the IRO Constitution, set out, supra, at para [17].

38. UNGA Res. 217A (III), December 10, 1948. Hereinafter referred to as the "Universal Declaration", the "Declaration" or the "UDHR".

39. See, discussion, infra, at para [36].

40. See, for example, Egan, S, The Right of Asylum and the Principle of Non-Refoulement in International Law: The Realities of State Practice at the Global Level, (LL.M Thesis, 1990) at 72-73:

41. See, Sinha, S, Asylum and International Law (1971) 90-91; and Egan, ibid, at 72-73.

42. UNGA Res. 428(V) of 14 December 1950.

43. Ibid.

44. Grahl-Madsen, (1966), at 272. See also, Holborn, L, Refugees: A Problem of Our Time (175) at 98:

45. Supra, note 1.

46. Salomon's comments distinguishing the 1951 Convention from the UNHCR Statute highlight this point effectively, Salomon, supra, note 24, at 221-222:

47. Ris, M, "Treaty interpretation and ICJ Recourse to Travaux Préparatoires: Towards a Proposed Amendment of Articles 31 and 32 of the Vienna Convention on the Law of Treaties" (1991) 14 Boston College International and Comparative Law Review 111, at 113: 48. UN doc.A/Conf.39/27. Hereinafter referred to as the "Vienna Convention". For criticism of the 'contractual' approach to international treaties taken by the Vienna Convention, see, Raftopoulos, E, The Inadequacy of the Contractual Analogy in the Law of Treaties (1990).

49. Brownlie offers the following elaboration of the ordinary meaning principle, Brownlie, I, Principles of Public International Law (4th ed, 1990) at 628-629:

50. The full text of Article 32 of the Vienna Convention states: 51. Travaux Préparatoires are the written record of treaty negotiations. Scholars differ as to exactly what materials should be considered part of the travaux préparatoires.

52. See, the drafting chronology included in Takkenburg, A, & Tahbaz CC, (eds), The Collected Travaux Préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees (1990) 2-3. Concise summaries of the drafting history may also be found in Grahl-Madsen, (1966) 20; and Robinson, N, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation (1953) 3-5.

53. UN Doc. A/64, p 12: General Assembly Resolution 8(1), 12 February 1946.

54. UN Doc. E/704: Economic and Social Council Resolution 116 (VI)D, 1 and 2 March 1948.

55. UN Doc. E/OR(IX)/Supp. No. 1, pp 62-63: Economic and Social Council Resolution 248(IX)B, 8 August 1949.

56. UN Doc. A/1751: General Assembly Resolution 429(V), 14 December 1950.

57. Discussed, infra, at paras [33-48].

58. Discussed, supra, at para [18].

59. In particular, the IRO definition had proven flexible enough to include Soviet bloc dissidents. See, Hathaway, JC, "A Reconsideration of the Underlying Premise of Refugee Law" 31(1) Harvard International Law Journal (1990) 129, 149.

60. These geographic and temporal limitations are no longer applied by states who are signatories of the 1967 Protocol relating to the Status of Refugees, UNTS no. 8791, col 601, p 267, entry into force 4 October, 1967.

61. Compton, D, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar - Sanchez-Trujillo v INS 801 F.2d 1572 (9th Cir. 1986)" (1987) 62 Washington Law Review 913, at 925. Compton is commenting on the fact that another fundamental aspect of the definition, the meaning of 'membership of a particular social group', was never discussed. See, also, Aleinikoff, (1991) 3(1) International Journal of Refugee Law 1, at 11:

62. The only reference to the exclusion of ordinary criminals suggests that the issue was not at all controversial. The American delegate noted (E/AC.32/SR.5 para 16, Henkin USA): "[T]he exception of common law criminals subject to extradition would naturally continue to be applicable."

63. See, E/AC.7/SR.166, discussed, infra at para [35].

64. See, in particular, A/Conf.2/1; A/Conf.2/74; A/Conf.2/SR.24; and A/Conf.2/SR.29, discussed, infra, at paras [36-48].

65. E/AC.7/SR.166, p 4. The provision being discussed (then Article 1C) stated:

66. E/AC.7/SR.166, p 4.

67. E/AC.7/SR.166, p 5.

68. A/Conf.2/1.

69. A/Conf.2/76. This proposed amendment will not be discussed.

70. A/Conf.2/74.

71. Article 14(2) of the Universal Declaration is set out and discussed, supra, at paras [22-24].

72. "[32]" will be used throughout to indicate that Article 28 became Article 32 in the final version of the 1951 Convention.

73. A/Conf.2/SR.24, pp 4-5.

74. A/Conf.2/SR.24, pp 8-9.

75. A/Conf.2/SR.24, p 5.

76. A/Conf.2/SR.24, p 5.

77. A/Conf.2/SR.24, p 5.

78. A/Conf.2/SR.24, p 10.

79. A/Conf.2/SR.24, p 9.

80. A/Conf.2/SR.24, p 9.

81. A/Conf.2/SR.24, pp 9-10. Paragraph 7(d) is set out and discussed, supra, at para [25].

82. A/Conf.2/SR.24, pp 10-11.

83. A/Conf.2/SR.24, pp 10-11. The Belgian delegate supported the amendment of Article 28 [32].

84. A/Conf.2/SR.24, p 11.

85. A/Conf.2/SR.24, p 11.

86. A/Conf.2/SR.24, p 11.

87. A/Conf.2/SR.24, p 12.

88. See, discussion at A/Conf.2/SR.24, pp 12-13.

89. A/Conf.2/SR.24, p 13.

90. A/Conf.2/SR.24, p 13.

91. A/Conf.2/SR.24, p 13.

92. A/Conf.2/SR.24, p 13.

93. A/Conf.2/SR.24, pp 14-15.

94. A/Conf.2/SR.24, p 16.

95. A/Conf.2/SR.29, pp 11-26.

96. A/Conf.2/SR.29, pp 11-12.

97. A/Conf.2/SR.29, p 11.

98. Such persons may be excludable under Article 33(2) of the Convention which "... provides the means for states to expel or return refugees who, for example, commit crimes in a state of refuge, or whose past record of criminality in that country or elsewhere is believed to make them undesirable residents, even if they may face extremely serious forms of persecution.": Hathaway, (1991) at 226.

99. A/Conf.2/SR.29, pp 11-12.

100. A/Conf.2/SR.29, p 12.

101. A/Conf.2/SR.29, p 14.

102. A/Conf.2/SR.29, pp 14-15.

103. A/Conf.2/SR.29, pp 15-16.

104. A/Conf.2/SR.29, p 16.

105. A/Conf.2/SR.29, pp 16-17.

106. A/Conf.2/SR.29, p 17.

107. A/Conf.2/SR.29, p 18.

108. A/Conf.2/SR.29, p 19.

109. A/Conf.2/SR.29, p 20.

110. A/Conf.2/SR.29, p 21.

111. A/Conf.2/SR.29, p 21.

112. A/Conf.2/SR.29, p 24.

113. A/Conf.2/SR.29, p 24.

114. A/Conf.2/SR.29, p 25.

115. A/Conf.2/SR.29, p 31.

116. Discussed, supra at paras [19-21].

117. See, in particular, the comments of the UK delegate, supra, note 102 and accompanying text.

118. See, for example, the comments of the UK representative at A/Conf.2/SR.29, pp 14-15:

119. Grahl-Madsen, (1966), observes at 290: 120. UNTS No. 5158, Vol 360, p 117, entry into force: 6 June 1960. See Article 1, paragraph 2(iii)(b).

121. UNTS No. 14 691, entry into force: 20 June 1974. See Article 1, section 5(b).

122. UNGA Res. 2312 (XXII) adopted on 14 December 1967.

123. Annual Report of Inter-American Commission on Human Rights 1984-85, OEA/Ser.L/II.66, doc. 10, rev. 1, at 190-193.

124. Infra, Article 35 of the UNHCR Statute discussed at note 126 and accompanying text.

125. Office of the United Nations High Commissioner for Refugees, Handbook on Procedures for and Criteria for Determining Refugee Status (Reedited, Geneva, January 1992) UN Doc. HCR/1p/4/Eng/REV.2. Hereinafter, referred to as the "Handbook" or "the UNHCR Handbook".

126. UNHCR Handbook, 1. Note that the 1967 Protocol includes an identical provision (Article II) requiring state cooperation in relation to the UNHCR's supervision of the Protocol.

127. UNHCR Handbook, 1.

128. The Vienna Convention is discussed, supra, at para [28]. Article 31(3)(b) states:

129. Sinclair, I, The Vienna Convention on the Law of Treaties, (1984) at 137. Sinclair also suggests (at 137) that: 130. For example, the US Federal Court in Stevic v Sava 678 F.2d 401, 405-406 (2d Cir. 1982) held that while not binding on adjudicators, the Handbook is nevertheless persuasive. See also, INS v Cardoza-Fonseca 480 US 421, 439 n.22 (1987). Similarly, in both the UK and Australia, the Handbook has been held to provide useful guidance. See, R v Immigration Appeal Authority, ex parte Mendi [1989] Imm AR (CA) and Somaghi v Minister of Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339, 356 (Fed. Ct. Aust.), respectively.

131. UNHCR Handbook, supra, note 125, paragraphs 167-174 and paragraph 61.

132. See, in particular, paragraph 60 of the Handbook, supra note 125:

133. See, paragraph 152 of the Handbook, supra, note 125: 134. Hathaway, (1991) at 221.

135. See, supra, at p 17. In INS v Cardoza-Fonseca 107 S.Ct. 1207 at 1216 n.20 the US Supreme Court, (quoting from, the UN Economic and social Council, Report of the Ad Hoc Committee on Statelessness and Related Problems, UN Doc.E/1618, E/Ac.32.5, 17 February, 1950, at p 37), stressed that:

136. See, Grahl-Madsen, (1966) at 272: