Extended Refugee Definitions

As seen in previous sections, the 1951 Convention and its 1967 Protocol defines a refugee as someone who is persecuted based on at least one of the five grounds (race, religion, nationality, particular social group and political opinion). Yet, conflicts can create mass displacement and in some cases, individuals fleeing the violence do not fall within the scope of the 1951/1967 refugee definition.

Regional instruments, drafted after the 1967 Protocol, acknowledges this reality in their extended definitions. Indeed, the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) and the 1984 Cartagena Declaration (applicable in Latin America) confirm the initial 1951 definition, but they also add a definition which removes the need to prove targeted, individualized persecution.

This extension essentially recognizes refugees fleeing generalized violence, war or insecurity. The two regional instruments reflect the massive nature of refugee movements that was occurring at the time of their drafting: the OAU Convention was drafted in the wake of the decolonization of Africa, and the Cartagena Declaration was conceived at the end of severe dictatorships in Latin America.

The extended definitions are useful when dealing with large influxes that render individualized RSD problematic. It is important to note that these extended definitions are only applicable in countries party to the OAU Convention (in Africa only) or countries who included the definition in their domestic laws (including most countries of Latin America). UNHCR has also acknowledged the extended definition in countries where it conducts RSD in lieu of the State (extended mandate refugees).

Conflicts and generalized violence can cause large-scale displacement that render individualized RSD difficult to manage. In response, states (and UNHCR conducting RSD) can choose to provide prima facie status to all refugees fleeing a certain territory. This removes the need for individualized RSD under the presumption that everyone fleeing that territory meet the eligibility criteria of the applicable definition.

OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969)

The first regional instrument to establish refugee protection standards was the African Union’s Convention Governing the Specific Aspects of Refugee Problems in Africa (1969). It recognizes and builds on the 1951 Convention and extends protection to all those fleeing any man-made disaster, whether or not they can demonstrate a fear of persecution. Article 1(2) of the OAU Convention states:

The term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

This recognizes that harm can arise from a government’s inability to guarantee protection or stability, and that entire populations can be viewed as refugees given external conditions. The Convention further reiterates that granting asylum is to be viewed as a peaceful, humanitarian act; and establishes the duty of refugees to refrain from the vaguely defined ‘any subversive activities’ (Article 3) while in the country of asylum. The Convention is binding on Member States of the Organization of African Unity.

Cartagena Declaration on Refugees (1984)

In response to refugee crises in Central America which caused large numbers to flee generalized violence and oppression, Latin American states adopted the Cartagena Declaration in 1984. This is a set of norms which similarly widen the definition of a refugee. Although it is non-binding, it has been highly authoritative in legal proceedings on a national and international level in the Americas.

Article 3 states:

… the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.

In 1985, this definition was approved by the General Assembly of the Organization of American States. This consolidated protection for those who flee in large groups, or for whom the narrow grounds of the 1951 Refugee Convention and 1967 Protocol are inapplicable. Notably, refugees must still prove that their lives, safety or freedom have indeed been threatened. Unlike the OAU Convention, the Cartagena Declaration does not specifically extend protection to those fleeing serious disturbances of public order that affect only part of their country.

The instrument reiterates the humanitarian nature of granting asylum, and explicitly confirms the jus cogens (inviolable) status of the international prohibition on refoulement in Article 5.