Unfolding Africa's Impact on the Development of International Refugee Law

Abstract

This article traces the contributions of African states to the development of international refugee law and explores the role African human rights supervisory bodies have played in the interpretation and application of this field of law. While Africa's contributions to international refugee law are often overlooked, this article sets out to identify Africa's involvement in the drafting process of the UN Refugee Convention and its 1967 Protocol. It also explores the legal framework for refugees in Africa, in particular the OAU Refugee Convention and the Bangkok Principles on Status and Treatment of Refugees, and the extent to which these two instruments have enriched international refugee law. The article argues that some of their provisions may provide evidence of customary rules of international law. Lastly, it examines some of the authoritative pronouncements made by African human rights supervisory bodies, in so far as they adopt a progressive approach to interpreting the rights of refugees and asylum-seekers.

INTRODUCTION

Among the most important African contributions to the development of international refugee law are the expanded refugee definition and the recognition of the principle of non-refoulement ¹ in its widest sense. These contributions, which have been the subject of extensive scholarly debate, are reflected in the 1969 Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Refugee Convention). Yet, as this article seeks to demonstrate, some of Africa's contributions to this field of law are also reflected in earlier regional instruments, particularly the 1966 Bangkok Principles on Status and Treatment of Refugees (Bangkok Principles) adopted by the Asian-African Legal Consultative Committee (AALCC),² as well as in the legislative history of the 1951 UN Convention Relating to the Status of Refugees (UN Refugee Convention) and its subsequent 1967 Protocol (1967 Protocol). While most of Africa was still part of colonial empires during the drafting process of the UN Refugee Convention itself, later problems associated with decolonization in Africa and Africa's own initiative to deal with the resulting movements of refugees were at the centre of the negotiations leading to the 1967 Protocol. The international legal framework for refugees had thus to accommodate and reflect the full scope of interests of the “new” members of the international community. Although their influence did not result in a complete overhaul of this field of law (which remains very much linked to its European origins), African states contributed to reshaping international refugee law, in particular the scope of the refugee definition, to reflect their interests and needs. The African human rights system, founded on the African Charter on Human and Peoples’ Rights (African Charter), has further developed protection standards that often adopt a generous approach to the protection of refugees and asylum-seekers. Furthermore, supervisory bodies entrusted with human rights promotion and protection within the African human rights system, although subject to some constraints, continue to contribute to the progressive development of international refugee law.

The purpose of this article is to bring into the legal debate on refugee protection the, arguably often overlooked, contribution of African states and the African human rights system to this field of law. Divided into three parts, the article begins by identifying Africa's contributions to the drafting process of international instruments relating to the legal status of refugees adopted before 1951, as well as the UN Refugee Convention and its 1967 Protocol. It explores the proposal that led the drafters of the UN Refugee Convention to extend its application to other groups, as well as the circumstances triggering the revision of the convention.³ The article then moves on to provide an overview of the legal framework for refugees in Africa. It considers not only the OAU Refugee Convention, but also the Bangkok Principles, which were formulated following a reference by the only African member of the AALCC at that time: the government of Egypt.⁴ In doing so, the article revisits the extent to which these two instruments have enriched international refugee law.⁵ Lastly, the article takes a non-exhaustive look at some of the authoritative pronouncements made by African human rights supervisory bodies in so far as they adopt a progressive approach to the interpretation of the rights of refugees and asylum-seekers. In so doing, it explores the role these regional bodies play in the interpretation and application of international refugee law.

THE BEGINNINGS AND EVOLUTION OF THE UNIVERSAL REFUGEE DEFINITION: RETHINKING AFRICA'S CONTRIBUTIONS

UN Convention Relating to the Status of Refugees

Following the League of Nations’ adoption of various arrangements relating to the legal status of specific categories of refugees,⁶ in 1928 the League of Nations Council created the Inter-Governmental Advisory Commission on Refugees.⁷ This commission was of the opinion that a formal convention would, inter alia, be “the most effective means of assuring refugees of stability for their legal status”.⁸ It recommended that governments interested in a solution to the refugee problem be invited to a conference “for the purpose of drawing up and adopting a final text of the Convention, to be open to subsequent accessions”.⁹ Based on the number of refugees to whom they had extended “hospitality”, 13 states were listed as the “most interested in solving the refugee problem”, among which was Egypt.¹⁰ In 1933, after a three-day meeting attended by representatives of 13 European countries,¹¹ China and Egypt, a Convention Relating to the International Status of Refugees (1933 Refugee Convention) was subsequently adopted.¹² Contracting parties could introduce modifications or amplifications at the moment of signature or accession to the convention. Interestingly, when signing the convention, unlike its European counterparts, the government of Egypt specified that “it reserved the right to expand or limit the definition given in the Convention as it wished”.¹³ In 1946, under the auspices of the Economic and Social Council, the International Refugee Organization Constitution was adopted, which laid down certain broad criteria that foreshadowed the definition of refugee that would later appear in the UN Refugee Convention.¹⁴ Remarkably, the delegate of Egypt, the only African state among the 18 states that became members of the constitution, proposed, though unsuccessfully, that the phrase “concerning displaced persons” be deleted from section 1B of annex I. This deletion would have meant that repatriation was advisable for both refugees and displaced persons.¹⁵

The main contributors to the drafting of the UN Refugee Convention, particularly at the earlier stages of the drafting process, were representatives from western European powers.¹⁶ At the opening session of the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, which adopted the UN Refugee Convention itself, 23 states were represented, among which only four were “non-western”: Egypt, Colombia, the former Yugoslavia and Iraq. The other states represented were Australia, Canada, USA, Israel and 15 European states (including Turkey).¹⁷ With regard to the refugee definition, the views expressed during the discussions show two different approaches: those who feared a general definition and advocated for a precise definition listing specific categories of refugees; and those who wished to see a general definition applicable to all refugees.¹⁸ For instance, France's delegate proposed inserting the words “in Europe” after the phrase “as a result of events occurring”.¹⁹ The Italian delegation supported the French amendment to “restrict the application of the Convention to European refugees alone”.²⁰ In contrast, the British delegate wished to see the adoption of a general definition that would not be confined to European refugees alone.²¹ Likewise, the Egyptian delegate agreed that the “definition was broad, but that was exactly how it should be”.²² He emphasized that the aim of his delegation “was to grant to all refugees the status for which the Convention provided”, stressing that “withhold[ing] the benefits of the Convention from certain categories of refugee would be to create a class of human beings who would enjoy no protection at all”.²³ To support his claim, he pointed to article 6 of chapter II of the Statute of the Office of the UN High Commissioner for Refugees (UNHCR, UNHCR Statute), which had made the refugee definition applicable to “all categories of refugees”.²⁴ Within this context, the Egyptian delegation submitted an amendment to expand the scope of the UN Refugee Convention to cover other groups of refugees.²⁵ While the situation of Palestinian refugees seems to have been the main reason triggering his proposal, the Egyptian representative highlighted that the convention “should … apply to all categories of refugees”.²⁶ In the words of the Egyptian delegate, “any limitation of the Convention in time or in space could only weaken [the protection of refugees]”.²⁷ Moreover, it should be recalled that, when signing the 1933 Refugee Convention (before the Palestinian exodus), the government of Egypt had already reserved the right to expand the refugee definition given in that convention.²⁸ Egypt's amendment was finally adopted by 14 votes to two, with five abstentions, and found its recognition in the second sub-paragraph of article 1(D) of the UN Refugee Convention.

The definition of the term “refugee” was enshrined in article 1(A) of the UN Refugee Convention, which was however limited temporally, applying only to refugees who had been displaced “as a result of events occurring before 1 January 1951”.²⁹ Additionally, by making a declaration, contracting states could specify that such “events” would only mean “events occurring in Europe”.³⁰

1967 Protocol Relating to the Status of Refugees

In the 1960s, the newly independent African states had not much incentive for becoming parties to the UN Refugee Convention “because of the non-universality of the refugee definition”.³¹ Only 11 African states became parties to the convention or informed the UN Secretary-General that they considered themselves bound by it.³² Of these states, the Central African Republic and Togo made a declaration whereby they interpreted the term “events occurring before 1 January 1951” in the refugee definition to mean “events occurring in Europe or elsewhere before 1 January 1951”, thus widening the scope of their obligations under the convention.³³ African states saw the UN Refugee Convention as a “European instrument” that did not actually reflect their interests or the particular needs of African refugees.³⁴ Indeed, subsequent geopolitical events, such as decolonization and independence struggles in Africa and the resulting movements of refugees, made it obvious that refugees were neither temporary nor confined to Europe.

In 1964, UNHCR started to consider the possibility of completely removing the temporal and geographical limitations from the UN Refugee Convention as the only way to secure the relevance of the UN Refugee Convention with respect to other categories of refugees, including African refugees.³⁵ A Colloquium on the Legal Aspects of Refugee Problems, held in Bellagio on 28 April 1965 (Bellagio Colloquium), considered inter alia these limitations and the possible measures by which the UN Refugee Convention might be adapted to new refugee groups “for whom no appropriate legal instrument exist[ed]” at that time.³⁶ Particular reference was made to the fact that regional organizations were contemplating the adoption of regional instruments for the protection of refugees in their particular areas.³⁷ Indeed, at that time, the OAU had started its own work on a refugee convention designed to meet regional exigencies and be separate from the UN Refugee Convention.³⁸ Its draft article 31 “provided that the African refugee convention would supersede all preceding bilateral and multilateral agreements relating to refugees”.³⁹ The members of the Bellagio Colloquium agreed that, while it was appropriate to adopt measures to deal with refugee problems at a regional level, these should be “supplementary to measures adopted on a universal level”.⁴⁰ Within this context, the Bellagio Colloquium agreed to adapt the UN Refugee Convention by means of a protocol that would apply to new refugee situations that had arisen after 1951.⁴¹

In 1966, UNHCR submitted a proposal to, inter alia, the contracting states to the UN Refugee Convention, in which it proposed extending the personal scope of that convention.⁴² At the session of the UNHCR Executive Committee (ExCom) in 1966, Dr Schnyder, the then High Commissioner for Refugees, explained the background to the proposal. The meeting record, as subsequently shown, proves that UNHCR sought to preserve the primacy of the UN Refugee Convention worldwide, also in Africa.⁴³ Pointing in particular to the ongoing work of the OAU, Dr Schnyder emphasized that regional instruments “should not in any way supplant the 1951 [Refugee] Convention”.⁴⁴ He went on to highlight the importance of bringing the status of refugees in Asia and Africa into line with the treatment of refugees covered by the UN Refugee Convention, so as to make the latter a “truly universal document”.⁴⁵ UNHCR, in parallel, was also contributing to the negotiations leading to the OAU Refugee Convention. Its involvement finally led to the OAU Refugee Convention taking a form complementary to the UN Refugee Convention, thereby ensuring the relevance of a rather European-led refugee law system over a (more progressive) regional instrument.⁴⁶

A protocol to the UN Refugee Convention was formally adopted by the UN on 31 January 1967 and entered into force in October of the same year (1967 Protocol). While the substance of the refugee definition remained identical, the 1967 Protocol removed the temporal and geographic limitations from the convention.

AFRICAN REGIONAL INSTRUMENTS ON REFUGEE PROTECTION: THEIR IMPACT IN THE REGION AND BEYOND

In addition to their contributions to the drafting of the UN Refugee Convention and 1967 Protocol, African states have established regional instruments to address matters of particular concern to the refugee situation in their region and that reflect their interests.⁴⁷ Among the most significant contributions of these instruments are the expanded refugee definition, the recognition of the principle of non-refoulement in its widest sense, and the emphasis on the voluntary character of repatriation.⁴⁸ These contributions are not only reflected in the OAU Refugee Convention, but also in earlier supra-national instruments, particularly the Bangkok Principles. Against this background, this section provides a brief overview of a number of significant areas in which the stipulations adopted by these instruments can be considered to be unprecedented. In doing so, it illuminates the extent to which they have contributed to the development of refugee law in the region and beyond.

The Bangkok Principles on Status and Treatment of Refugees

The subject of refugee protection had been on the agenda of the AALCC since its sixth session, held in Cairo in 1964 following a reference made by the only African member of the AALCC at that time: the government of Egypt.⁴⁹ After a lengthy debate and discussion, the AALCC formulated a set of principles on the “Status and Treatment of Refugees”, commonly referred to as the Bangkok Principles, which were adopted unanimously by AALCC member states at its eighth session held in Bangkok in 1966.⁵⁰

Among the most important provisions of the Bangkok Principles is the one found in article III(3), which recognizes the applicability of the principle of non-refoulement in its widest sense. While this provision listed exceptions to the non-refoulement obligation for reasons of national security and safeguarding populations, it expanded the scope of the principle of non-refoulement found in the UN Refugee Convention by expressly granting protection against rejection at a frontier. This provision may be viewed as a precursor to the inclusion of the principle of non-refoulement in its widest sense in both the OAU Refugee Convention⁵¹ and a universal instrument, namely the 1967 UN Declaration on Territorial Asylum.⁵² The latter instrument similarly included among its provisions the prohibition of rejection at the frontier where the individual “may be subjected to persecution”.⁵³ Although neither the principles nor the declaration are legally binding, since their adoption, the unification of the extraterritorial application of non-refoulement has led to the (contested)⁵⁴ establishment of new customary rules of international law, creating new obligations for states.⁵⁵

Following recommendations of the Manila Seminar in 1996⁵⁶ and the Tehran Meeting of Experts in 1998,⁵⁷ AALCC member states decided to re-examine the Bangkok Principles in view of developments in law and practice in Africa and Asia since the adoption of the principles in 1966. The Bangkok Principles were revised at the AALCC's 39th session in 2000,⁵⁸ with the revised version (2001 Bangkok Principles) finally adopted at its 40th session on 24 June 2001 in New Delhi.⁵⁹ The 2001 Bangkok Principles were the result of, inter alia, consultations with UNHCR as well as comments submitted by individual AALCC member states during inter-sessional consultations between 1997 and 1999.⁶⁰ Some member states proposed specific amendments to the refugee definition, suggesting an expanded definition in light of other regional and international instruments, particularly the OAU Refugee Convention.⁶¹

For instance, Ghana's delegate proposed a broader refugee definition that included persons fleeing generalized violence or massive violations of human rights.⁶² Uganda's delegate proposed expanding the definition of refugees to cover those persecuted on the ground of “colour”.⁶³ The latter proposal found recognition in article I(1), which, apart from the five grounds listed in article 1A(2) of the UN Refugee Convention and article 1(1) of the OAU Refugee Convention, also includes the grounds of colour, ethnic origin and gender.⁶⁴ Moreover, the 2001 Bangkok Principles set forth an extended refugee definition, similar to that in the OAU Refugee Convention. Indeed, article I(2) made the term “refugee” also applicable to individuals forced to leave their place of habitual residence “owing to external occupation, foreign domination or events seriously disturbing public order”. The addition of the OAU Refugee Convention was recommended both at the Manila Seminar and the Tehran Meeting of Experts.⁶⁵ The OAU Refugee Convention also influenced the inclusion and amendment of other provisions of the 2001 Bangkok Principles, in particular the provisions contained in: article I(7) on exclusion clauses;⁶⁶ article II(3) on the right to asylum;⁶⁷ article IV(5) on the principle of non-discrimination;⁶⁸ article VII on voluntary repatriation;⁶⁹ and article VIII on co-operation with international organizations.⁷⁰ It should be emphasized that the 2001 Bangkok Principles further contained the far-reaching right to compensation from the country of origin that the refugee left or to which he or she is unable to return, which appears to be inspired by the historical cases of compensation and restitution from Germany and Uganda.⁷¹

OAU Convention Governing the Specific Aspects of Refugee Problems in Africa

The OAU Refugee Convention reproduces, in substance, the provisions of the UN Refugee Convention and its subsequent 1967 Protocol. However, it also incorporates significant developments, some of which were referred to in the previous section of this article. First, it specifically reaffirms the importance of the institution of asylum,⁷² the exercise of which is defined as a “peaceful and humanitarian act”.⁷³ Secondly, it increases the scope of protection by extending the protection against refoulement to encompass frontiers.⁷⁴ It also expands on the 1951 definition of refugee to include those “compelled to leave … owing to external aggression, occupation, foreign domination, or events seriously disturbing the public order”.⁷⁵ In contrast to the refugee definition in the UN Refugee Convention, the OAU definition of refugee in article 1(2) does not speak of the subjective fear of the individual but reflects objective criteria. Despite suggestions to the contrary,⁷⁶ most commentators, including Opoku-Awuku, Rwelamira, Oloka-Onyango and Arboleda, maintain that the words “compelled to leave” require an objective inquiry into the nature of the conditions in the country of origin.⁷⁷ This interpretation, in turn, has led to the (contested) argument that the OAU refugee definition explicitly sets forth the legal basis for accepting “mass” influxes (resulting from, for example, armed conflicts) upon determination of the status of a “group”.⁷⁸ In Rutinwa's view, the “qualities” of the OAU extended definition lie not in its wider scope but in defining a refugee in such terms that would make it easier to determine if an individual qualifies as a refugee.⁷⁹ Thirdly, the OAU Refugee Convention includes, among the provisions regulating durable solutions, respect for the voluntary character of repatriation.⁸⁰ These developments have been the subject of extensive scholarly debate, so a deeper analysis of them need not detain us.⁸¹ Rather, this section focuses on the OAU Refugee Convention's global influence and contribution to the progressive development of international refugee law.

Apart from its impact on the 2001 Bangkok Principles,⁸² the influence of the OAU Refugee Convention is also apparent in other international and regional instruments. For instance, the OAU Refugee Convention has informed the scope of UNHCR's mandate and its “concept of persons in need of international protection”.⁸³ Indeed, UNHCR extended its mandate to cover persons who do not fall within the terms of the UN Refugee Convention or the UNHCR Statute but who nevertheless are in need of international protection, including individuals fleeing armed conflict or serious and generalized disorder and violence.⁸⁴ Furthermore, the concept of serious public disorder in UNHCR's formulation is drawn from the language found in the OAU refugee definition.⁸⁵ In a 1991 report of its Working Group on Solutions and Protection, the ExCom recommended that, “[t]he question of a possible application on a global basis of a refugee definition applicable to persons not protected by the UN Refugee Convention / 1967 Protocol or by regional instruments could be considered further”.⁸⁶ Among the groups identified in the report were persons forced to leave or prevented from returning because of “man-made disasters”, “natural or ecological disaster” or “extreme poverty”.⁸⁷ There was also an exchange of views as to whether the respective definitions of a refugee in the OAU Refugee Convention and the 1984 Cartagena Declaration on Refugees (Cartagena Declaration)⁸⁸ could be included in an additional protocol to the UN Refugee Convention or, as a first step, in a UN General Assembly (GA) resolution.⁸⁹ There was, however, no unanimity on the need for making these regional definitions universal.⁹⁰ Later, in 1994, to clarify the scope of UNHCR's mandate, the High Commissioner at that time explained that the office had adopted the “usage of regional instruments such as the OAU Refugee Convention and the Cartagena Declaration, using the term ‘refugee’ in the broader sense”.⁹¹ Presently, when UNHCR conducts refugee status determination pursuant to its mandate, it considers as refugees not only those who meet the UN Refugee Convention definition, but also individuals covered by the OAU Refugee Convention.⁹²

Further, ExCom's Conclusion No 22 of 21 October 1981 noted that the fundamental “principle of non-refoulement - including non-rejection at the frontier - must be scrupulously observed”.⁹³ Although without attribution, this wording clearly mirrors the language of article 2(3) of the OAU Refugee Convention. While ExCom conclusions are not legally binding, they are generally accepted as constituting “soft law”, which aids in the interpretation and application of refugee legal instruments.⁹⁴

Beyond UNHCR, the contribution of the OAU Refugee Convention has been affirmed in, for example, GA resolution 54/147 of 22 February 2000 on assistance to refugees, returnees and displaced persons in Africa.⁹⁵ On the 50th anniversary the UN Refugee Convention, a Declaration of States Parties was adopted unanimously in 2001, which emphasized the importance of the OAU Refugee Convention.⁹⁶ A reference to this regional refugee protection instrument is also found in the New York Declaration for Refugees and Migrants adopted in 2016.⁹⁷

The OAU Refugee Convention has further contributed to the development of specific aspects of other regional instruments. Refugee law scholarship strongly suggests that the Cartagena Declaration drew inspiration from the OAU Refugee Convention.⁹⁸ This is reflected in the negotiations leading to the Cartagena Declaration and in the final text itself. In 1981, a colloquium on the subject of “Asylum and the International Protection of Refugees” was held in Mexico under the auspices of UNHCR. ExCom Conclusion No 4 specified the need for a “more encompassing refugee definition” to deal with the most immediate consequences presented by the regional crisis in Central America.⁹⁹ In addition to the individuals falling within the definition of “the 1951 Convention and the 1967 Protocol”, the Cartagena Declaration 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 violations of human rights or other circumstances which have seriously disturbed public order”.¹⁰⁰

In the words of Eduardo Arboleda, former legal adviser at UNHCR Canada, this definition “basically reiterated the language of the 1969 OAU Convention and added ‘massive violations of human rights’ to the conditions defining a refugee”.¹⁰¹ The declaration itself expressly refers to the “precedent” of article 1(2) of the OAU Refugee Convention and to the doctrine of the Inter-American Commission on Human Rights as inspiring the language in its refugee definition. ExCom Conclusion III(3) states: “it is necessary to consider enlarging the concept of a refugee, bearing in mind, as far as appropriate and in the light of the situation prevailing in the region, the precedent of the OAU Convention (article 1, paragraph 2) and the doctrine employed in the reports of the Inter-American Commission on Human Rights”.¹⁰² This in turn reflects that the OAU Refugee Convention was a direct inspiration for the Cartagena Declaration's refugee definition. While the regional declaration is not binding, 13 Latin American states have incorporated its provisions into their domestic legislation. Interestingly, Belize decided to incorporate the OAU refugee definition instead of the one contained in the Cartagena Declaration into its Refugees Act of 1991.¹⁰³

Similarly, article 1(2) of the OAU Refugee Convention influenced the way in which refugees are defined in the League of Arab States’ Arab Convention on Regulating Status of Refugees (not yet in force) in Arab countries. In addition to the UN Refugee Convention definition, this definition also considers as refugees individuals who “unwillingly [take] refuge … because of sustained aggression against, occupation and foreign domination of such country or because of the occurrence of natural disasters or grave events resulting in major disruption of public order in the whole country or any part thereof”.¹⁰⁴

In contrast, the European Union (EU), through the adoption of supranational legislation (namely the Qualification Directive of 29 April 2004), designated a subsidiary regime for certain individuals who do not qualify for refugee status under the UN Refugee Convention (as amended by the 1967 Protocol) but who do, however, fall under the protection of non-refoulement.¹⁰⁵ During the drafting process of the directive, reference was made to, inter alia, the evolution of UNHCR's mandate (which, as explained above, was partly informed by the OAU Refugee Convention) and regional developments such as the OAU Refugee Convention and the Cartagena Declaration, as arguments for including “people threatened by indiscriminate violence and massive human rights violations” within the protection regime.¹⁰⁶ The European Commission initially considered the option of having a “single status conferring the same types of rights” recognized under the UN Refugee Convention.¹⁰⁷ Later in the drafting process, it opted to codify two separate statuses: refugee status and subsidiary protection.¹⁰⁸ The latter is granted to individuals who do not qualify for refugee status but who “would face a real risk of suffering serious harm”.¹⁰⁹ However, it does not bring all the guarantees of refugee status.¹¹⁰ The Qualification Directive indeed allows EU member states to grant fewer rights, both in terms of quantity and quality, to subsidiary protection beneficiaries.¹¹¹ Importantly, the concepts employed in defining “serious harm” in article 15(c) of the Qualification Directive are similar to those used in the OAU Refugee Convention and the Cartagena Declaration, to the extent that these relate to situations of indiscriminate violence. In particular, this provision states that serious harm consists of a “serious and individual threat to a civilian's life or person by reason of indiscriminate …”.¹¹² Under article 15(a)(b), “serious harm” also includes “the death penalty or execution” and “torture or inhuman or degrading treatment or punishment”. While the first two paragraphs reflect EU member states’ human rights obligations under regional and international human rights instruments,¹¹³ in Mandal's words, the third “cannot be traced to language found in a specific universal or regional human rights instrument”.¹¹⁴ Instead, it reflects more the concepts found in the OAU Refugee Convention and the Cartagena Declaration.¹¹⁵

It therefore appears clear that Africa's contributions to the codification of regional norms in the area of refugee protection have influenced subsequent legal developments beyond the confines of Africa. Moreover, some of the provisions of the OAU Refugee Convention may provide evidence of customary rules of international law,¹¹⁶ which have to be taken into account when interpreting and applying other international and regional legal instruments in this field of law. In the words of Pinto de Albuquerque, a judge of the European Court of Human Rights, “international refugee law has evolved by assimilating broader human rights standard[s] and thus enlarging the Convention concept of refugee … to other individuals who are in need of complementary international protection” as covered inter alia by articles 1 and 2 of the OAU Refugee Convention.¹¹⁷

AFRICAN HUMAN RIGHTS SYSTEM: ITS (PROGRESSIVE) APPROACH AND CONTRIBUTION TO INTERNATIONAL REFUGEE LAW

The OAU Refugee Convention constitutes “the first treaty with a human rights focus” adopted under the umbrella of the OAU.¹¹⁸ While the title does not speak of human rights, its provisions create subjective rights and impose duties on state parties.¹¹⁹ For instance, the OAU Refugee Convention is explicit about the duty of OAU member states “to use their best endeavours … to receive refugees”.¹²⁰ Moreover, during the Pan-African Conference on Refugees held in Arusha, Tanzania in May 1979 (commonly referred to as the Arusha Conference), delegates confirmed that refugee law is part of human rights in the broader sense.¹²¹

In addition to the OAU Refugee Convention, other human rights instruments have been adopted under the auspices of the African Union and its predecessor, the OAU, which have further elaborated upon the rights of refugees and asylum-seekers in Africa.¹²² Importantly, the African Charter, which was adopted in 1981, recognizes the right “to seek and obtain asylum”.¹²³ It also provided for the creation of the African Commission on Human and Peoples’ Rights (African Commission) to oversee the implementation of the African Charter.¹²⁴ Additionally, the 1998 Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights, established the African Court on Human and Peoples’ Rights (African Court) in order to “complement” the protective mandate of the African Commission.¹²⁵ Pursuant to this protocol, the African Court has jurisdiction to deal with all cases and disputes submitted to it regarding the interpretation and application of the African Charter and any other relevant human rights instrument ratified by the concerned states,¹²⁶ as well as jurisdiction to provide an opinion on any legal matter relating to these instruments.¹²⁷ Another major addition to the African human rights system was the African Charter on the Rights and Welfare of the Child (African Children's Charter), adopted in 1990, which provides special protection measures for refugee children and internally displaced children.¹²⁸ It also created the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) to oversee its implementation.¹²⁹ Lastly, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women's Protocol) was adopted in 2003. This instrument also includes special protection measures for refugee women,¹³⁰ and entrusted its supervision to the African Commission and African Court.¹³¹

The following sections of this article take a non-exhaustive look at some of the authoritative pronouncements made by the African Commission and African Court in relation to the rights of asylum-seekers and refugees within the African human rights system, in so far as they adopt a progressive approach to the interpretation of their rights.¹³²

African Commission on Human and Peoples’ Rights

Recourse to the African Commission enables refugees and asylum-seekers to bring claims against the host country where refugee law is inadequate or not respected. Moreover, the commission, in the case of Rencontre Africaine Pour la Defense des Droits de l'Homme v Zambia, reasoned that recourse to the African Commission applies to non-nationals.¹³³ Importantly, the African Commission has allowed claims against countries of origin on the basis of continuing violations of their rights based on persecution and flight to other states.¹³⁴

Of particular note is the African Commission's approach towards the interpretation of article 5 of the African Charter on the right to respect of dignity,¹³⁵ in so far as it has interpreted this provision to include guarantees of social and economic rights. For instance, in Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan, the African Commission elaborated on the state obligations in instances of voluntary repatriation. In doing so, the African Commission required states to adopt all necessary measures to ensure protection, including “economic and social infrastructure, such as education, health, water, and agricultural services”, in order to provide “conditions for return in safety and dignity” for internally displaced persons and refugees.¹³⁶ In the absence of an express provision regulating the right to housing within the African Charter, the African Commission has interpreted the provisions on human dignity and the prohibition of torture, cruel, inhuman and degrading treatment as encompassing such a guarantee. In The Nubian Community in Kenya v Kenya, the African Commission held that the rights to “citizenship or nationality as a legal status is protected under Article 5 of the [African Charter]”.¹³⁷

In situations of expulsion or deportation, the African Commission considered that, “it is unacceptable to deport individuals without giving them the possibility to plead their case before the competent national courts as this is contrary to the spirit and letter of the [African Charter] and international law”.¹³⁸ It has also maintained consistently that the guarantees of due process must be applied in the context of proceedings on the expulsion of refugees.¹³⁹ Notably, in the case of Familia Pacheco Tineo v Bolivia, the Inter-American Court of Human Rights endorsed these pronouncements, thereby determining that, “in proceedings such as those that may result in the expulsion or deportation of aliens” the guarantees of due process continue to apply.¹⁴⁰

Most recently, in its General Comment No 5 (2019), the African Commission elaborated on the right to freedom of movement and residence. The African Commission emphasized that this applies to every individual, including refugees, asylum-seekers, internally displaced persons and undocumented migrants.¹⁴¹ This is in line with the African Commission's earlier position that the guarantee of non-discrimination in article 2 extends the protection afforded by the wider set of rights in the African Charter to everyone within the jurisdiction of member states, ie nationals as well as non-nationals.¹⁴² It went on to reason that the right to move freely within a state not only “encompasses the prerogative to move around within a state without arbitrary confinement of movement” but also “imposes a duty on the state not to interfere with the enjoyment of the free movement of individuals”.¹⁴³ In doing so, it emphasized that it is “crucial” that states afford “the same standard of protection” to asylum-seekers.¹⁴⁴ The African Commission further argued that this right intersects with several other rights, including the right to liberty protected under article 6 of the African Charter,¹⁴⁵ and that it should be treated as essential to human life.¹⁴⁶

African Court on Human and Peoples’ Rights

The African Court, together with the EU Court of Justice and the Inter-American Court of Human Rights, are the only supranational tribunals that could interpret the provisions of the UN Refugee Convention and its 1967 Protocol.¹⁴⁷ Indeed, these tribunals supervise regional human rights instruments that make explicit reference to the UN Refugee Convention.¹⁴⁸ Their jurisprudence, thus, is not only informative but also has a legal role in interpretating the UN Refugee Convention. They have the power to fill some of the gaps posed by this instrument. It should be recalled that there exists no specialized treaty body under the UN Refugee Convention that would be able to provide an authoritative interpretation of its terms.¹⁴⁹ While UNHCR, pursuant to article 35 of the UN Refugee Convention and the UNHCR Statute, has a “supervisory role” with respect to the UN Refugee Convention, it lacks binding force. To date, however, there is no case law from the African Court that examines the OAU Refugee Convention or the UN Refugee Convention.¹⁵⁰

In Anudo Ochieng Anudo v Republic of Tanzania, the African Court dealt for the first time with the right to nationality.¹⁵¹ While it does not directly address the rights of refugees and asylum-seekers, this case provides important guidance on issues of nationality and statelessness. In doing so, the court complemented earlier jurisprudence from the African Commission¹⁵² and the ACERWC.¹⁵³ First and foremost, the court went on to rule that the Universal Declaration of Human Rights (UDHR) is part of customary international law,¹⁵⁴ thereby holding that Tanzania had violated the applicant's right not to be arbitrarily deprived of his nationality under the UDHR.¹⁵⁵ The African Court, however, missed the opportunity to endorse and further elaborate upon the African Commission's position that “a claim to citizenship or nationality as a legal status is protected under Article 5 of the [African Charter]”.¹⁵⁶ Nonetheless, the assertion that the UDHR (and in particular the right to a nationality) is customary international law is, in the words of Bronwen Manby, a “welcome endorsement” that has been “often argued by human rights lawyers [rather] than accepted by states”.¹⁵⁷ The second and, according to most commentators, most important of the African Court's contribution to international law in this field, drawn from this judgment, relates to the burden of proof.¹⁵⁸ The African Court held that, in the context where an individual has previously been issued official documents recognizing nationality, the burden of proof lies on the state to prove the contrary (to the satisfaction of an independent tribunal).¹⁵⁹ Lastly, the court further reasoned that, even if the applicant were to be regarded as an alien by the respondent state, the state would still be bound by article 13 of the International Covenant on Civil and Political Rights, which protects foreigners from any form of arbitrary expulsion by providing them with legal guarantees.¹⁶⁰

Despite the willingness of the African Commission to bring cases to the African Court, most African states have not yet made a declaration recognizing the right to individual petitions set forth in article 34(6) of the African Court Protocol. This in turn has precluded the African Court from hearing cases brought before it.¹⁶¹

CONCLUSION

This article began by analysing the evolution of the refugee definition as it emerged in 1951, thereby unfolding the extent to which Africa responded to omissions in the UN Refugee Convention and the subsequent 1967 Protocol. Having had recourse to the negotiations leading to the UN Refugee Convention, this piece has shown that Egypt (the only representative from Africa that joined as a participant) played an active role in extending the scope of the protection of the UN Refugee Convention to further categories of refugees. Furthermore, owing to efforts to adopt an African convention separate from the UN Refugee Convention, the latter instrument was revised by means of a protocol that removed its temporal and geographical limitations. The analysis of the preparatory work ultimately helped in unfolding subsequent legal consequences that should be drawn from the UN Refugee Convention and its 1967 Protocol.

Throughout the analysis of the Bangkok Principles and the OAU Refugee Convention, this article has shown that some of their provisions are still very much part of the legal framework today, and that some of them may provide evidence of customary rules of international law. Even though the OAU Refugee Convention was adopted to respond to certain refugee problems specific to the African continent, it “established an important precedent in international law” becoming a direct inspiration for other legal instruments for the protection of refugees.¹⁶² Regional human rights instruments adopted under the auspices of the African Union and its predecessor, the OAU, have further enriched international refugee law. Likewise, as considered in this article, the regional human rights mechanisms entrusted with their supervision have also played an important role in the development of international refugee law. Some of their pronouncements have further been endorsed by other supra-national courts. Yet, it is obvious that Africa's contributions to the progressive development of international refugee law, however positive, have not yet solved the refugee situation in Africa, or elsewhere.