The 1969 African Refugee Convention: innovations, misconceptions, and omissions.

• Author: Sharpe, Marina
• Position: III. Omissions C. The Law of Treaties and General International Law 2. The General Rule of Interpretation through Conclusion, with footnotes, p. 140-147

The co-application of the 1951 and 1969 Conventions that emerges from the latter instrument's preamble is the meaning that must be similarly attributed to the final relevant provision: the conflict clause at article VIII(2). It, again, provides that the 1969 Convention is the "effective regional complement in Africa" of the 1951 Convention. As already mentioned, Durieux and Hurwitz find 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 definition in the complementary OAU Convention is entitled to the rights contained in the primary 1951 Convention." (277) Durieux and McAdam, (278) and McAdam (279) reach the same conclusion, while Okoth-Obbo explains that, by describing itself as the regional complement 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 preambular 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 becoming 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 19,69 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 Convention's object and purpose, which can be gleaned from the convention's 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 [refugees'] 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 humanitarian 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 Convention--non-refoulement and the right to a travel document--would be manifestly inconsistent with its object and purpose of alleviating the suffering of refugees in a humanitarian manner. The preamble confirms the preliminary interpretation reached above: refugees recognized only under article I(2) of the 1969 Convention benefit from the rights enumerated in the 1951 Convention.

The general rule of interpretation includes an enumeration of the other 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 parties" (285) 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 elements 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 "limited 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 international 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 international law that is relevant consists of those rules that touch "on the same subject matter as the treaty provision or provisions being interpreted or which in any way affect that interpretation" (289) and that are in force at the time of interpretation. (290) The 1951 Convention and the 1967 Protocol, the Universal Declaration of Human Rights, the ICCPR, and the International Covenant on Economic, Social and Cultural Rights (291) may thus be relevant to the interpretation of the 1969 Convention. (292) Their applicability is by no means, however, a foregone conclusion.

International refugee and human rights law cannot necessarily be applied 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. Gardiner's 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 parties to the treaty, whether the situation is similar to that of subsequent 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 interpretation to be given, (294) Ultimately, the jurisprudence and doctrine on this issue have not produced a clear answer. (295) At the very least, it is arguable that the international 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 otherwise would be nonsensical, as it would effectively deny article I(2) refugees the human rights from which they would otherwise benefit. Of particular 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 interpretation of the 1969 Convention clearly suggests that the rights framework under the 1969 Convention should be derived from the 1951 Convention.

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 affirms that 1951 Convention rights apply to article I(2) refugees. (299) Uganda's 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 Africa (302) 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 interpreted. (304) Subsequent practice that is not common to all parties may nevertheless "constitute a supplementary means of interpretation within the meaning of Article 32 of the [Vienna] Convention." (305) This provision is addressed below.

3. Supplementary Means of Interpretation

   Recourse may be had to supplementary means of interpretation in order to confirm the meaning flowing from the application of the general rule of interpretation. (306) Supplementary means include, but are not limited 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 considered 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 legislation of certain states that are party to the 1969 Convention. Third, and most important, is the history behind the 1969 Convention. While no official set of travaux preparatoires 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 Convention's 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 Convention's legal regime may be characterized as a special regime in relation to the 1951 Convention's more general regime. According to the International Law Commission:

   The scope of special laws is by definition narrower than that of general laws. It will thus frequently be the case that a matter not regulated by special law will arise in the institutions charged to administer it. In such cases, the relevant general law wi11 apply. (311) In this case, the special 1969 Convention does not detail the rights to which refugees are...