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

• Author: Sharpe, Marina
• Position: Introduction to III. Omissions C. The Law of Treaties and General International Law 2. The General Rule of Interpretation, p. 95-140

This paper provides a critical overview of the 1969 African refugee convention, beginning with a survey of its legal innovations. It then addresses the most misunderstood of them--the unique refugee definition--in depth, with an emphasis on dispelling the common misconception that it is particularly expansive. Finally, it investigates the 1969 Convention's silence regarding refugees' civil and political, and socioeconomic rights, and how it works as the "regional complement" to the 1951 global refugee convention in that regard.

Cet article donne un apercu critique de la convention sur les refugies africains de 1969, debutant par un survol de ses innovations juridiques. Il aborde ensuite la plus incomprise d'entre elles--son unique definition de refugie--en profondeur, en mettant l'accent sur la dissipation de l'idee fausse, mais tres repandue, que cette definition est particulierement large. Enfin, l'article examine le silence de la Convention de 1969 sur les droits civils et politiques ainsi que socio-economiques des refugies, et la facon dont elle fonctionne comme le complement > a la convention mondiale des refugies de 1951 a cet egard.

Introduction I. Innovations A. Overview of the 1969 Convention B. A Unique Refugee Definition C. Advancing an Individual Right to Asylum? D. Broadened Non-refoulement? E. Formalization of Responsibility Sharing, Temporary Protection, and Voluntary Repatriation II. Misconceptions A. Continued Relevance of All 1969 Events? B. Extent of the Article 1(2) Refugee Definition's Objectivity 1. Subjectivity and file 1951 Convention 2. Subjectivity in the Test for Refugee Status Under the 1969 Convention C. Group Determination of Refugee Status III. Omissions A. The 1951 Convention as Lex Specialis B. Equality C. The Law of Treaties and General International Law 1. Successive Treaties Relating to the Same Subject Matter 2. The General Rule of Interpretation 3. Supplementary Means of Interpretation 4. General Principles of International Law Conclusion Introduction

As a refugee protection crisis engulfs Africa, (1) the Organization of African Unity's 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 Convention) (2) has remained largely beyond serious scrutiny. Understandably, in the wake of the convention's adoption, attention focused on its remarkable legal innovations. (3) However, almost half a century later and amid declining standards of refugee protection in Africa, the discussion has scarcely moved on. When it receives any attention at all--which usually occurs around significant anniversaries (4)--the 1969 Convention is either uncritically praised (5) or else analysis remains focused on its novelties, (6) in particular the unique refugee definition, at the expense of scrutiny of that definition or of the broader protection framework that the convention establishes. (7) Africa is the only region of the developing world to have adopted a binding, regional refugee legal instrument, and it hosts almost a quarter of the world's refugees, (8) yet the 1969 Convention remains poorly understood or misunderstood. (9)

This article on the 1969 Convention seeks to contribute to remedying this problem. It is characterized by its alternative approach. While recognizing the 1969 Convention's significant contributions to refugee protection in Africa, this paper focuses equally on what the 1969 Convention is not--in terms of both widely held misconceptions about it and omissions from it--as opposed to the usual approach that focuses almost exclusively on what the 1969 Convention is. The paper begins by surveying the elements of the 1969 Convention that are commonly hailed as its major legal innovations: its unique refugee definition, its progressive development of an individual right to asylum, the broadened nature of non-refoulement under the convention, and its formalization of responsibility sharing, a type of temporary protection, and voluntary repatriation. This part provides an overview of the convention while at the same time surveying much of the literature on the 1969 Convention. The paper then goes on to address the most misunderstood of these innovations--the unique refugee definition--in greater depth, with an emphasis on dispelling the most common misconception surrounding the definition: that it is much broader than the refugee definition found in the 1951 Convention Relating to the Status of Refugees (10) (1951 Convention). Finally, the paper investigates a glaring yet often overlooked omission: the 1969 Convention's silence regarding refugees' civil and political, as well as socio-economic rights, and how the African convention works as the "regional complement" (11) to the universal refugee instrument in that regard. In so doing, this paper argues that refugees recognized only under the 1969 Convention (whether for practical reasons or because they do not meet the 1951 Convention refugee definition) are nevertheless entitled to the same standards of treatment as refugees recognized under the 1951 Convention. Taken together, this paper's survey of the innovations in, misconceptions about, and omissions from the 1969 Convention provides a unique critical overview of the African refugee protection regime.

The critical approach adopted here should not be taken to suggest that the 1969 Convention should be interpreted in any way other than in good faith and in line with its object and purpose, (12) the humanitarian nature of which is made explicit in the convention's preamble. (13) Rather, the overarching purpose of this paper is to form part of a movement toward more serious, critical legal engagement with the 1969 Convention and with refugee protection in Africa more generally. There is a remarkable dearth of critical legal analysis of the 1969 Convention, (14) which is all the more stark in relation to the sheer volume of analysis to which the 1951 Convention has been subject. (15) Serious academic analysis of the 1969 Convention is a critical component of full engagement with it as a tool of refugee protection. Indeed, Rankin maintains that the failure to provide an interpretive framework for the 1969 Convention "may ultimately undermine the flexibility of the [refugee] definition by limiting the situations in which it can be applied." (16) If the 1969 Convention begins to receive even a fraction of the critical attention that has been devoted to its universal counterpart, it will represent an important contribution to the legal protection of refugees in Airica at a time when such a contribution is sorely needed.

1. Innovations

   The 1969 Convention is the regional legal instrument governing refugee protection in Africa. It was adopted on 10 September 1969 at the sixth ordinary session of the OAU's Assembly of Heads of State and Government, when it was signed by forty-one heads of state or government. It entered into force on 20 June 1974 (17) after ratification by one-third of OAU member states. (18) It has since been ratified by forty-five of the fifty-four member states of the African Union (AU), (19) the successor organization to the OAU.

   1. Overview of the 1969 Convention

      The 1969 Convention is a relatively short instrument, containing a preamble and fifteen articles. The first article provides two refugee definitions, which are discussed in detail below, (20) and includes paragraphs on cessation (21) and exclusion. (22) These two paragraphs closely follow the 1951 Convention provisions; with three additions. Two additional cessation clauses provide that the 1969 Convention shall cease to apply to any refugee who has "committed a serious non-political crime outside his country of refuge after his admission to that country as a refugee" (23) or has "seriously infringed" the 1969 Convention's purposes and objectives. (24) A further point of distinction is that the 1969 Convention does not include the clause present in the 1951 Convention preventing cessation in respect of a refugee who can "invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality." (25) Finally, an additional exclusion clause adds "acts contrary to the purposes and principles of the OAU as a further ground for exclusion. (26)

      Article II of the 1969 Convention relates to asylum; each of its paragraphs is addressed in detail below. (27) The third article articulates refugees' duty to respect the laws and regulations of the host state, echoing article 2 of the 1951 Convention, and prohibits them from engaging in subversive activities against any OAU member state. States party to the convention undertake to support this duty by prohibiting refugees "residing in their respective territories from attacking any State Member of the OAU, by any activity likely to cause tension between Member States." (28) The prohibition on subversive activities is operationalized by the cessation clauses described above, which terminate the refugee status of an individual who commits a serious non-political crime after the acquisition of such status or who has seriously infringed the 1969 Convention's purposes and objectives. Article IV, on non-discrimination in the application of the convention, follows article 3 of the 1951 Convention, however discrimination is prohibited on the additional grounds of nationality, membership of a particular social group, or political opinion. (29) The fifth article relates to voluntary repatriation, which is addressed in detail below. (30) Article VI, like article 28 of the 1951 Convention, mandates that contracting states provide refugees with travel documents. In view of article II(5), on temporary protection, which is discussed in detail below, article VI(2) provides, "Where an African country of second asylum accepts a refugee from a country of first asylum, the country of first asylum may be dispensed from issuing a document with a return clause." Articles VII and...