INTRODUCTION
Where a treaty is being applied decades after it was adopted, its terms need not always be given the precise meaning they had at the time of adoption. The interpretation of words or phrases in a treaty is not necessarily fixed for all time: it can evolve in light of developments in international law and practice. This paper considers the ‘evolutive approach’ to treaty interpretation, generally, and employs this approach, alongside other principles of treaty interpretation, so as to reassess the contemporary scope of Article 1 F(c) of the 1951 Convention Relating to the Status of Refugees (‘the Convention’).
Under this provision, the Convention shall not apply to a person with respect to whom there are serious reasons for considering that ‘he has been guilty of acts contrary to the purposes and principles of the United Nations’. This paper will argue that, like other provisions of the Convention, Article 1 F(c) should be interpreted in an evolving manner, consistent with developments in international law and the practice of the United Nations. Broadly speaking, this has not been the case to date.
Section I discusses the notion of an evolving interpretation of treaty terms in international law generally. Sections II–III introduce the relevant provisions of the Refugee Convention and argue that an evolving interpretation is particularly appropriate for Article 1 F(c). Section IV summarizes the often static interpretations of Article 1 F(c) by domestic courts, the United Nations High Commissioner for Refugees (UNHCR), and commentators. This paper then analyses the special approach said to be required when interpreting Article 1(F) generally (Section V), before applying the standard principles of treaty interpretation to Article 1 F(c) in particular (Section VI). This paper concludes that conduct amounting to serious or sustained human rights violations, such that would constitute ‘persecution’ for the purposes of Article 1A(2) of the Convention,Footnote 1 meets the standard for exclusion under Article 1 F(c).
I. EVOLVING INTERPRETATION OF TREATY TERMS
A new or evolving meaning of treaty terms can be arrived at on the basis of the subsequent agreement between or subsequent practice of the parties (Article 31(3)(a)–(b) of the Vienna Convention on the Law of Treaties (VCLT)), by reference to the evolving meaning of certain terms used in the treaty, or by a combination of these methods.Footnote 2 For the purposes of Article 31(3)(b), subsequent practice must be in application of the treaty provision at issue.Footnote 3 The practice needs to have occurred with a certain frequency or consistency, though it is not necessary to show that each party has engaged in the practice, merely that all have accepted this practice, even tacitly.Footnote 4
Turning to evolving meaning, this can result from an appreciation of developments in international law and/or of the evolving meaning given to certain concepts and terms. The ‘evolutive approach’ to interpretation can be grounded in the VCLT itself:Footnote 5 in Article 31(1) by reference to the object and purpose, or in Article 31(3)(c), under which interpretation shall take into account any relevant rules of international law applicable between the parties.Footnote 6 The latter, in contrast to preparatory works (Article 32 VCLT), are not merely supplementary means for interpretation. Indeed, the ‘evolutive approach’ generally downplays the significance of a treaty's preparatory works;Footnote 7 this makes it consistent both with the VCLT rules and with the reality (discussed further below) that preparatory works are rarely a source of clarity.Footnote 8
With respect to Article 31(3)(c) VCLT, the International Court of Justice (ICJ) has described the application of relevant rules of international law as an ‘integral part of the task of interpretation’,Footnote 9 while in 2006 the International Law Commission (ILC) noted that,
Rules of international law subsequent to the treaty to be interpreted may be taken into account especially where the concepts used in the treaty are open or evolving. This is the case, in particular, where: (a) the concept is one which implies taking into account subsequent technical, economic or legal developments; (b) the concept sets up an obligation for further progressive development for the parties; or (c) the concept has a very general nature or is expressed in such general terms that it must take into account changing circumstances.Footnote 10
International law thus allows for the interpretation of generic terms ‘to follow the evolution of the law and to correspond to the meaning attached to the expression by the law in force at any given time’.Footnote 11 In such cases, the broad meaning of the term being interpreted remains the same, but its specific content changes over time.Footnote 12 Thus when interpreting a 1928 instrument 50 years later the ICJ interpreted ‘disputes relating to territorial status’ as including disputes relating to the continental shelf;Footnote 13 and in 1997 found that a bilateral treaty relating to a system of locks on the Danube was ‘not static’ and ‘open to adapt to emerging norms of international law’.Footnote 14 Similarly, the WTO Appellate Body has found the term ‘natural resources’ to be ‘generic’ and ‘by definition evolutionary’.Footnote 15 In the Namibia Advisory Opinion the ICJ interpreted provisions of both the 1919 Covenant of the League of Nations and the UN Charter in light of more recent international law developments regarding self-determination. Certain terms—‘the strenuous conditions of the modern world’, the ‘well-being and development’ of the peoples concerned, the ‘sacred trust’ existing with respect to non-self-governing territories—were determined to be ‘not static’ and ‘by definition evolutionary’. As such,
the Court must take into consideration the changes which have occurred in the supervening half-century, and its interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law. Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.Footnote 16
Evolving interpretation is particularly relevant where the instrument in question was intended to be of continuing duration and/or universal. Moreover, in contrast to the requirements for subsequent practice under Article 31(3)(b) VCLT, evidence of an evolving meaning may be found also in practice that is not directly related to the precise treaty provision at issue.Footnote 17
Plainly, an evolving interpretation will not be appropriate for all treaty terms or provisions: within the same human rights instrument, for example, provisions conferring substantive rights may be subject to an evolving interpretation, but that is not true of provisions stipulating which of these rights are derogable, or provisions on the procedures for denunciation.Footnote 18
In most cases, a treaty does not stipulate whether the parties intend to fix for all time the meaning of the terms employed or whether they wish to allow the meaning to evolve.Footnote 19 So evolutive character can instead be imputed on the basis of the terms employed (the use of precise terms, including numbers and specific place-names, will preclude an evolving interpretation)Footnote 20 and/or the object and purpose of the treaty.Footnote 21 The ease with which a treaty can be amended may be another relevant factor: onerous requirements for formal amendment may heighten the need for an evolving interpretation of certain terms.
II. ARTICLE 1 F(C) OF THE REFUGEE CONVENTION
Article 1 of the Refugee Convention defines the term ‘refugee’ for the purposes of that instrument. This includes: the basic criteria for falling within the scope of the Convention (paragraph (A)); persons falling within that scope but to whom the Convention shall cease to apply (C); and persons excluded from the Convention because they are already receiving the necessary protection from another UN entity (D) or a State (E). Under paragraph (F),
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
In November 2012 the UK Supreme Court characterized Article 1 F(c) as ‘a little used provision’,Footnote 22 and it is certainly true that, in comparison with Article 1 F(a) and (b), sub-paragraph (c) has been given limited attention thus far in practice and commentary relating to exclusion. The Supreme Court determined that Article 1 F(c):
should be interpreted restrictively and applied with caution. There should be a high threshold, defined in terms of the gravity of the act in question, the manner in which the act is organised, its international impact and long-term objectives, and the implications for international peace and security.Footnote 23
In the following sections, this paper will reassess these and other questionable assertions commonly made regarding this provision.
In arriving at its conclusion here, the Supreme Court relied heavily on guidelines issued by UNHCR, the body which has the duty of supervising the application of the Convention.Footnote 24 This does not amount to a power to issue authoritative opinions, though UNHCR documents are often regarded by national courts as persuasive aids to interpretation.Footnote 25 Of particular relevance are conclusions adopted by UNHCR's Executive Committee (EXCOM), an assembly of States.Footnote 26
The following sections will not focus on the potential application of Article 1 F(c) to terrorism-related offences. That matter—which is inevitably bound-up with the apparently insoluble question of defining ‘terrorism’Footnote 27—has already been discussed extensively elsewhere, by UNHCR,Footnote 28 commentatorsFootnote 29 and courts.Footnote 30 Cases and commentary relating to ‘terrorism’ will be discussed only where they raise issues relevant to the broader application of Article 1 F(c).
A. Some Practical Considerations
Any discussion of Article 1(F) must acknowledge the practical difficulties inherent in applying these provisions. Perhaps more than any other, Article 1(F) exclusion is an area of refugee protection where a number of distinct areas of public international law—refugee law, human rights law, international humanitarian law (IHL) and international criminal law—intersect. Particularly where refugee status determination (RSD) is conducted by UNHCR, the decision-maker may be working in isolated or insecure environments,Footnote 31 where basic infrastructure and access to information is limited. Those conducting the exclusion assessment may not have any prosecutorial experience, yet must assess potentially criminal conduct without the benefit of prior investigation, with no or minimal access to witness evidence,Footnote 32 with the applicant not being under oath and usually lacking legal representation, and probably while working through an interpreter. Language difficulties, inherent in any RSD procedure, are particularly acute when it comes to assessing mens rea, levels of participation, possible mitigating circumstances, superior orders, etc.Footnote 33 All of these constraints are magnified when exclusion assessments have to be carried out in a situation of mass influx.Footnote 34 UNHCR's call for specialized exclusion unitsFootnote 35 is, therefore, to be encouraged, though resource constraints will likely make this possible on an ad hoc basis only.
III. THE NEED FOR AN EVOLVING INTERPRETATION OF ARTICLE 1 F(C)
A. Four Further Considerations
First, it is widely accepted that human rights treaties in general are ‘living instruments’, to be interpreted in line with the evolving meaning given to their terms. The European Court of Human Rights (ECtHR), has long rejected the idea that ECHR rights should be interpreted in light of their 1950 meaning.Footnote 36 In a 1978 case concerning corporal punishment, the Court stated that that Convention is a ‘living instrument’ which ‘must be interpreted in the light of present-day conditions’, and that the Court ‘cannot but be influenced by the developments and commonly accepted standards in general policy of the member States of the Council of Europe in this field.’Footnote 37 This approach has been replicated on numerous occasions.Footnote 38 In such cases, the Court often downplays the significance of the preparatory works,Footnote 39 and applies the evolutive approach to both the scope of the rights guaranteed (in the first paragraph of the articles), and the permissible restrictions thereon (in the second paragraph).Footnote 40 The Inter-American Court of Human Rights has taken a similar approach.Footnote 41
Second, national courts, UNHCR, and commentators frequently characterize the Refugee Convention itself as a ‘living instrument’.Footnote 42 This can be seen, in particular, with respect to the interpretation of Article 1A(2). For example, ‘race’ is now interpreted to include not just skin colour but ethnicity,Footnote 43 and ‘particular social group’ has been interpreted progressively so as to encompass individuals fearing persecution for reasons of their genderFootnote 44 or sexual orientation.Footnote 45 Needless to say, these were all welcome developments, and entirely in keeping with the evolution of international law since 1951.
Third, an evolutive approach has already been adopted with interpretations of the other two exclusion clauses. With respect to Article 1 F(a), UNHCR and commentators advocate reference to the Rome Statute of the ICC for determining what type of conduct can constitute a war crime or a crime against humanity.Footnote 46 The former would therefore now include certain acts committed in non-international armed conflicts (which would not have been characterized as war crimes in 1951);Footnote 47 in respect of the latter, the conduct need no longer be connected to an armed conflict,Footnote 48 contrary to the requirements of the IMT Charter which was the most relevant instrument when the 1951 Convention was adopted.
To be clear, interpreting 1 F(a) in this manner, which in this author's view is entirely appropriate, is contrary to the approach frequently advocated (and discussed further below), according to which the exclusion clauses are to be applied ‘restrictively’.Footnote 49 That is, broadening the category of ‘war crimes’ and ‘crimes against humanity’ in Article 1 F(a) will bring more applicants for refugee status within the scope of the exclusion clauses. But that is entirely consistent with developments in international law.
Equally, when assessing whether given conduct constitutes a ‘serious non-political crime’ for the purposes of sub-paragraph (b), UNHCR and commentators recommend judging the gravity of the conduct against (evolving) international standards.Footnote 50 The term is not given a fixed meaning. A similar approach has been recommended when assessing potential aggravating factors,Footnote 51 and the concept of a ‘balancing test’.Footnote 52
Fourth, it is accepted that constituent instruments are to be interpreted in a dynamic manner, reflecting the evolving practice of the organization established and with particular attention to the principle of effectiveness (discussed below).Footnote 53 While the 1951 Convention is not itself a constituent instrument—UNHCR was established under a 1950 StatuteFootnote 54—the UN Charter, from which the phrase ‘purposes and principles of the United Nations’ is taken, clearly is.
B. Consequences of This Approach
Acknowledging the need for an evolving interpretation of certain terms is not to suggest a departure from the VCLT system for interpretation, to invert the order prescribed therein by according undue significance to the travaux ahead of the text of the treaty, or to argue for a particularly ‘restrictive’ or ‘expansive’ interpretation.Footnote 55 Rather, it is to say that where a provision uses a general term which is not itself defined in the treaty, and the meaning of that term has evolved in the period since the treaty was adopted, interpretation of the provision should reflect that evolving meaning. With respect to Article 1 F(c), then, developments in international law and practice since 1951 should be taken into account in identifying the type of conduct that could be considered contrary to the ‘purposes and principles’ as listed in the UN Charter.Footnote 56 That is, to give tangible content to broadly expressed provisions.
IV. HOW HAS ARTICLE 1 F(C) BEEN INTERPRETED THUS FAR?
A. State PracticeFootnote 57
The 2004 EU Qualification Directive includes exclusion clauses comparable—but not identical—to Article 1(F) of the Refugee Convention. Art 12(2)(C) of the Directive excludes those ‘guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations’.Footnote 58 The stipulation as to sources, which is merely implied in Article 1(F) of the Convention, is elaborated in the Directive's recital, which provides that such acts ‘are, among others, embodied in the United Nations Resolutions relating to measures combating terrorism, which declare that ‘acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations’…’.Footnote 59
In Germany, while in the early 1970s Article 1 F(c) was applied in respect of some terrorist and sabotage activities, as well as press censorship,Footnote 60 from 1975 courts stressed that Articles 1–2 of the UN Charter were concerned with international relations and thus the provision only applied where inter-State peace or understanding was affected.Footnote 61 More recently, there are few reported cases in which Article 12(2)(c) of the Qualification Directive has been applied by German courts outside the ‘terrorism’ context. Footnote 62 In 2009 a German court referred a number of questions regarding Article 12(2)(b) and (c) of the Directive for a preliminary ruling of the European Court of Justice.Footnote 63 The latter affirmed that the applicant's occupation of a prominent position within an organization could be a relevant factor in applying 12(2)(c) (but was not required), but said little regarding the potential scope ratione materiae of the provision beyond the terrorism context.Footnote 64
In France, the clause was applied in the 1950s to exclude applicants involved in the denunciation of persons to the German occupying powers.Footnote 65 From the mid-1980s, the provision was applied to exclude a number of high-ranking State officials, notably in Duvalier. Footnote 66 More recently, the provision was applied to exclude lower-ranking State officials, including members of police or security units known to violate human rights, such as the Tontons Macoute in Haiti and the Garde civil zaïroise, a representative of the Khmer Rouge regime, and also individuals with no link to the State such as participants in attempted coups.Footnote 67 Interestingly, France has on occasion distinguished between (a) and (c), and not applied the latter to the Rwandan genocide on the basis that to do so ‘would have denied the gravity of the events’.Footnote 68
In contrast, Belgian authorities have held that (c) does not introduce any new element beyond what is provided for in (a)—hence involvement in the Rwandan genocide and large-scale attacks by rebel groups against human rights defenders in Algeria was held to trigger exclusion under both provisions.Footnote 69 Also, Belgian courts have held that a leadership role is required to trigger exclusion under (c).Footnote 70
In the UK, Al-Sirri and DD concerned terrorist-related activities: armed action against ISAF, the UN-mandated force in Afghanistan (DD), and a number of activities including conspiracy to murder (Al-Sirri). In view of the mandate of ISAF, and its role in maintaining international peace and security, the Court concluded that an attack on ISAF was capable of being an act contrary to the purposes and principles of the United Nations.Footnote 71 In Al-Sirri, the appellant had argued that the impugned activity did not have an international dimension and so could not fall within (c). The Court concluded that the ‘appropriately cautious and restrictive approach’ would be to adopt the UNHCR guidelines, according to which the provision is only triggered ‘by activity which attacks the very basis of the international community's existence’ and that such activity ‘must have an international dimension’.Footnote 72 The Court also made some more general comments: Article 1 F(c) applies to acts which, even if they are not covered by the definition of the crimes in (a), ‘are nevertheless of a comparable egregiousness and character’;Footnote 73 also ‘not every act which is condemned by the United Nations is for that reason alone to be deemed contrary to its purposes and principles’.Footnote 74
In 1999 Canada was described as a ‘hotbed of innovation in devising ways to apply Article 1 F(c)’, and—even if it still accounted for a very small percentage of exclusion casesFootnote 75—the provision was applied to a wide range of conduct, including drug offences, laying land mines, hijacking and hostage taking, human trafficking, and vote rigging.Footnote 76 Perhaps the most detailed consideration was that of the Supreme Court in Pushpanathan, decided in 1998.Footnote 77 The applicant had been convicted of conspiracy to traffic narcotics, and sentenced to eight years in prison. In line with earlier Canadian cases, the Federal Court of Appeal upheld exclusion under Article 1 F(c), concluding that it did apply to individuals not acting on behalf of a State, and that drug trafficking was ‘an act contrary to the purposes and principles of the United Nations’.Footnote 78 The Supreme Court agreed on the first point, but not the second,Footnote 79 in respect of which it stated that:
Even though international trafficking in drugs is an extremely serious problem that the UN has taken extraordinary measures to eradicate, in the absence of clear indications that the international community recognizes drug trafficking as a sufficiently serious and sustained violation of fundamental human rights as to amount to persecution, either through a specific designation as an act contrary to the UN purposes and principles, or through international instruments which otherwise indicate that trafficking is a serious violation of fundamental human rights, individuals should not be deprived of the essential protections contained in the Convention for having committed those acts.Footnote 80
The United States has not incorporated Article 1(F) into domestic law.Footnote 81 While the five ‘bars for asylum’ in US law overlap with the exclusion clauses to a certain extent, their weight as State practice in application of Article 1(F) itself is limited: only one of the five bars reproduces the wording used in Article 1(F) (‘serious non-political crime’).Footnote 82 There is also a bar in respect of persons who have persecuted others, but (notwithstanding the conclusions reached below), there is no suggestion that this constitutes the US courts’ interpretation of ‘acts contrary to the purposes and principles of the United Nations’.Footnote 83
B. UNHCR
In addition to providing guidance to national authorities, UNHCR itself carries out refugee status determination on a large scale.Footnote 84 In 2011, UNHCR was the only responsible body for RSD in 52 countries, and shared that responsibility in a further 23 countries.Footnote 85 As such, the guidelines it prepares—whether or not they are followed by domestic courts—have a significant impact on the application of Article 1 of the Convention.
The comments on Article 1 F(c) in UNHCR's 1992 Handbook on RSD are, in full, as follows:
It will be seen that this very generally-worded exclusion clause overlaps with the exclusion clause in Article 1 F(a); for it is evident that a crime against peace, a war crime or a crime against humanity is also an act contrary to the purposes and principles of the United Nations. While Article 1 F(c) does not introduce any specific new element, it is intended to cover in a general way such acts against the purposes and principles of the United Nations that might not be fully covered by the two preceding exclusion clauses. Taken in conjunction with the latter, it has to be assumed, although this is not specifically stated, that the acts covered by the present clause must also be of a criminal nature.
The purposes and principles of the United Nations are set out in the Preamble and Articles and 2 of the Charter of the United Nations. They enumerate fundamental principles that should govern the conduct of their members in relation to each other and in relation to the international community as a whole. From this it could be inferred that an individual, in order to have committed an act contrary to these principles, must have been in a position of power in a member State and instrumental to his State's infringing these principles. However, there are hardly any precedents on record for the application of this clause, which, due to its very general character, should be applied with caution.Footnote 86
In a 2003 Note, prompted partly by ‘developments in contemporary international law’, UNHCR took a position that was, if anything, more restrictive than in 1992:
Given the broad, general terms of the purposes and principles of the United Nations, the scope of this category is rather unclear and should therefore be read narrowly. Indeed, it is rarely applied and, in many cases, Article 1 F(a) or 1 F(b) are anyway likely to apply. Article 1 F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international community's coexistence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights, would fall under this category. Given that Articles 1 and 2 of the United Nations Charter essentially set out the fundamental principles States must uphold in their mutual relations, it would appear that in principle only persons who have been in positions of power in a State or State-like entity would appear capable of committing such acts.Footnote 87
An accompanying Background Note took a similar position.Footnote 88
A July 2009 Statement largely repeated the 2003 position regarding scope ratione materiae.Footnote 89Ratione personae, the 2009 Statement contended that ‘only high-ranking persons within UN Member States (ie Heads of State and persons in analogous positions) are capable of violating those purposes and principles in the exercise of their State leadership functions’. Footnote 90 Elsewhere in the same document, UNHCR appeared to concede that, in view of recent international developments, this may no longer be true in the context of ‘terrorism’,Footnote 91 but did not consider whether this evolution may have significance beyond that context.Footnote 92
C. Commentators
Writing in 1966, Grahl-Madsen found it ‘difficult to see how persons who do not occupy a responsible governmental position’ could fall within this provision, with the possible exception of certain flagrant acts against human rights and fundamental freedoms. In the latter category he gave the examples of slave-owners and traders, persons guilty of torture, and those who impede the participation of others in government, e.g. by denying the right to vote. Overall, this provision must ‘be applied with considerable restraint’.Footnote 93
In the first edition of The Law of Refugee Status, published in 1991, Hathaway stated of Article 1(F) in general that a State's duty under international refugee law did not extend ‘to those whose own actions are inconsistent with the basic human rights undertaking’.Footnote 94 Turning to sub-paragraph (c), he remarked that the interpretations of this provision ‘mirror its confused drafting history’, submitted that the principles of the UN speak essentially to governments,Footnote 95 queried the independent utility of (c), and argued that a ‘sensible and purposeful’ interpretation would be to enable States ‘in bringing to bear basic norms of acceptable international conduct against government officials who ought reasonably to understand and respect them’.Footnote 96 In the second edition of this text, published in 2014, Hathaway and Foster accept a ‘cautious evolution’ in the scope of Article 1 F(c) ratione personae, but oppose any similar evolution ratione materiae.Footnote 97 Recent State practice is described as ‘disturbing’, and the provision has become ‘something of a ravenous omnivore’.Footnote 98 The authors make the pointed criticism that ‘the amorphous nature of Art 1(F)(c) as too frequently applied facilitates the evasion of the rigors of pursuing exclusion under the grounds most directly applicable’.Footnote 99 They broadly approve the position of the UK Supreme Court in Al-Sirri, and conclude that the provision should mandate exclusion ‘where there is clear and convincing evidence that the person concerned conceived or committed acts of such gravity that they threaten the stability of the international order’.Footnote 100
Writing in 2000, Kwakwa argued that ‘interpreting the exclusion clauses as restrictively as possible is not only consistent with, but is also dictated by, the ordinary meaning, the context and the object and purpose of the refugee convention’.Footnote 101 He accepted that private individuals, acting in a non-State capacity, can fall within Article 1 F(c), but cautioned against the use of this provision in anything but ‘the most extreme of cases’.Footnote 102 The provision should be applied in ‘few and exceptional situations’ in respect of conduct which does not fall under (a) and (b), and which constitutes ‘a blatant and egregious violation of fundamental human rights that clearly contravene the ‘‘purposes and principles of the United Nations’’’. There will ‘likely be less than a handful of such cases’.Footnote 103
Writing within the context of UNHCR's 2001 Global Consultations, Gilbert argued that Article 1 F(c) is ‘vague and open to abuse by States’. He contended that it would promote consistency within international law if the scope of this provision were confined to ‘acts committed by persons in high office in government or in a rebel movement that controls territory within the State or in a group perpetrating international terrorism that threatens international peace and security’.Footnote 104
In the 2007 edition of The Refugee in International Law, Goodwin-Gill and McAdam identify four categories of persons who might qualify for exclusion under Article 1 F(c):
(1) policy-makers and those holding positions of political responsibility, in situations where, for example, violations of human rights or other activities contrary to the purposes and principles of the United Nations have occurred, and where they might be considered to have covered such activities with their authority;
(2) the agents of implementation of such policies, including, for example, officials in government departments or agencies who knew or ought to have known what was going on; and the members of government and other organisations engaged in activities, such as persecution, contrary to the purposes and principles of the United Nations;
(3) individuals, whether members of organisations or not, who, for example, have personally participated in the persecution or denial of the human rights of others; and
(4) those individuals, whether connected with the organisation of a State or not, who are considered to have committed ‘terrorist’ or ‘terrorist-related’ acts.Footnote 105
A 2011 commentary on the Convention argues that ‘in general terms, the wording of Art 1 F, as chosen in 1951, calls for a dynamic interpretation’. For the purposes of sub-paragraph (a), reference must therefore be made to the Statutes of the ICTY, ICTR and ICC.Footnote 106 In terms of (c), developments in international law—particularly in the terrorism context—mean that it can no longer be assumed that it is only persons wielding public authority who can commit acts contrary to the purposes and principles of the UN.Footnote 107 The provision ‘seems to have only a limited scope of application’, and recent rulings of French courts were ‘over expansive’.Footnote 108 The application of (c) ‘still raises considerable doubts, due to the wideness and lack of precision of the clause’, and ‘needs to take place with restraint and should be limited to residual cases in which Art 1 F(a) and (b) fail to apply’.Footnote 109
V. IS A SPECIAL APPROACH NECESSARY?
Before applying the standard principles of treaty interpretation to Article 1 F(c), it is worth considering whether a special approach is required when interpreting the exclusion clauses in general and sub-paragraph (c) in particular. As indicated above, a number of assertions to this effect have been made.
A. Serious Consequences Require a Restrictive Application?
In 1992, UNHCR stated that ‘considering the serious consequences of exclusion for the person concerned … the interpretation of these exclusion clauses must be restrictive’.Footnote 110 This position has been repeated in subsequent UNHCR guidelinesFootnote 111 and echoed by commentators.Footnote 112
The possible consequences of the decision should not dictate a particular type of interpretation of the clause, however, for a number of reasons. First, the consequences of the decision for the individual concerned will vary depending on the (non-refugee) legal framework in the forum State: that State may have suspended removals to the country of origin, due to ongoing instability in the latter and/or the absence of readmission agreements; if the forum State is party to the ECHR, removal may be precluded in view of the nature of the harm feared in the country of origin (Article 3)Footnote 113 or the nature of links already established in the forum State (Article 8).Footnote 114 For non-ECHR States, removal may be precluded on the basis of guarantees in other instruments—notably Article 3 of the Convention against Torture, Article 7 of the International Covenant on Civil and Political Rights, Articles 5(2) and 22(8) of the American Convention on Human Rights, and Article 5 of the African Charter on Human and Peoples’ Rights.Footnote 115 Indeed, even where an applicant has been excluded, States do not necessarily proceed to removal.Footnote 116 A differentiated application of the exclusion clauses, based on the (in)existence of potential alternative bars to refoulement in the forum State, is difficult to reconcile with the notion of ‘international standards’ of refugee protection.
There is also, second, a practical problem. Refugee status confers a number of protections which may not be extended to other categories of migrants. Hence an individual fearing persecution will often apply for refugee status first, before invoking other international or domestic instruments if that application is unsuccessful. When the exclusion assessment is being made, therefore, the decision-maker is unlikely to know how any other potential bars to removal will apply in the individual case, and so the actual consequences of any exclusion decision will be a matter of speculation.
B. Unclear Wording Requires a Restrictive Application?
In the RSD Handbook, UNHCR recommends that due to its ‘very general’ and ‘vague’ character, Article 1 F(c) ‘should be applied with caution’.Footnote 117 Similarly, in UNHCR's 2003 Note, ‘given the broad, general terms of the purposes and principles of the United Nations, the scope of this category is rather unclear and should therefore be read narrowly.’Footnote 118
There are two points to be made here. First, sub-paragraph (c) is scarcely less clear than sub-paragraph (b): difficult interpretative issues regarding the latter include how to determine ‘serious’Footnote 119 and when an act is ‘non-political’,Footnote 120 whether the act needs to be criminalized under international and/or domestic law,Footnote 121 and the relevance, if any, of expiation.Footnote 122 Sub-paragraph (c) at least points to an obvious reference point for interpretation, namely the UN Charter, which lists the purposes and principles of the UN in Articles 1 and 2.
Second, that a treaty provision uses a term the meaning and scope of which is not immediately clear is by no means cause to depart from the standard principles of treaty interpretation. An obvious comparison can be made here with the use of ‘persecution’ in Article 1A(2) of the Convention,Footnote 123 with ‘private and family life’ in Article 8 ECHRFootnote 124 or indeed, from an entirely distinct field of international law, ‘fair and equitable treatment’ in bilateral investment treaties.Footnote 125 In each case, the precise meaning to be given to the term used is not immediately apparent, but courts and tribunals nevertheless interpret and apply these terms according to the VCLT rules, including the context in which the instrument was adopted, its object and purpose, and other relevant rules of international law. Treaty provisions may be deliberately imprecise, reflecting political compromise;Footnote 126 also, as discussed above, use of a general or imprecise term allows for an evolving interpretation of that term, to reflect developments in international law.Footnote 127
C. An Exception to Human Rights Guarantees Requires a Restrictive Application?
In 2009, UNHCR stated that,
as with any exception to human rights guarantees, and given the possible serious consequences for the individual, the exclusion clauses enumerated in Article 1 F should always be interpreted in a restrictive manner and applied with utmost caution.Footnote 128
Commentators have taken a similar view,Footnote 129 but again there are problems with this assertion.
First, Article 1(F), like Article 1(A), delineates the category of individuals to whom the Convention, as a whole, applies to.Footnote 130 It does not limit the exercise of rights or freedoms by such persons—unlike, for example, Article 33(2) which plainly does constitute an exception to a (fundamental) human rights guarantee (namely, non-refoulement).Footnote 131 In these respects, Article 1, including paragraphs (C), (D), (E) and (F), is comparable to provisions such as Article 1 of the Convention on the Rights of the Child (CRC) or Article 1 ECHR. Those provisions identify the limits of the personal scope of the respective instruments in their entirety: persons over 18,Footnote 132 and persons not within the jurisdiction of the Contracting States, respectively. Permissible limitations on the rights provided in those instruments are, in contrast, stipulated in the provisions conferring each right (eg sub-paragraph (2) of Articles 8–11 ECHR, and Articles 13(2), 14(3) and 15(2) CRC). The Refugee Convention is structured in the same way.Footnote 133
Second, modern international law has in any event moved away from using presumptions in favour of a more or less restrictive interpretation of particular types of treaty provisions.Footnote 134 In Nicaragua v Costa Rica, the ICJ rejected Nicaragua's argument that a treaty provision limiting its sovereign rights over a river should be interpreted restrictively, concluding that:
While it is certainly true that limitations of the sovereignty of a State over its territory are not to be presumed, this does not mean that treaty provisions establishing such limitations, such as those that are in issue in the present case, should for this reason be interpreted a priori in a restrictive way. A treaty provision which has the purpose of limiting the sovereign powers of a State must be interpreted like any other provision of a treaty, i.e. in accordance with the intentions of its authors as reflected by the text of the treaty and the other relevant factors in terms of interpretation.Footnote 135
The advantages of such an approach are obvious. Absent express indications to the contrary, the established rules on treaty interpretation should be applied.
VI. APPLYING THE STANDARD RULES OF INTERPRETATION
Analyses of Article 1 F(c) sometimes pay insufficient attention to the standard rules of treaty interpretation. These are, of course, codified in Articles 31 and 32 of the VCLT, which reflect customary international law and also apply to treaties concluded prior to 1969.Footnote 136
A number of principles operate alongside the VCLT system. One is the principle of effectiveness, which precludes interpreting a treaty provision in such a way as to leave it ‘devoid of purport or effect’.Footnote 137 Comments to the effect that the ‘independent utility’ of Article 1 F(c) is ‘somewhat elusive’,Footnote 138 or that (c) does not introduce ‘any specific new element’ beyond what is in (a) and (b),Footnote 139 are difficult to reconcile with this principle. If a given interpretation renders a treaty provision without effect, this is in fact a strong basis for not adopting such an interpretation.
When interpreting a treaty provision a decision-maker is likely to take into consideration all available information regarding the conclusion of the treaty and its application in practice.Footnote 140 That said, the VCLT scheme does provide a useful structure for analysis, and—in respect of preparatory works at least—indicates which types of information should be accorded less significance. In the following sections, therefore, Article 1 F(c) will be analysed according to the VCLT scheme.
A. Ordinary Meaning
Any interpretation must start with the text as this must be assumed to be the authentic expression of the intentions of the parties.Footnote 141
1. Application ratione materiae
Before considering the meaning of ‘purposes and principles of the United Nations’, an initial comment on the text can be made. Unlike sub-paragraphs (a) and (b) which relate to an individual in respect of whom there are serious reasons for considering that he has ‘committed a … crime’, (c) relates to individuals who are ‘guilty of acts’. This wording does not preclude criminal conduct from also falling within the scope of (c), but nor does it indicate that only conduct which is criminalized engages the provision.Footnote 142
It has been argued that these differences in wording in fact ‘suggest a higher threshold to establish culpability’ under (c), and even that the latter ‘requires an actual pronouncement of guilt by a competent body’.Footnote 143 This is unpersuasive. The applicable standard of proof for Article 1 F is stipulated in the chapeau (‘serious reasons for considering’): this standard applies in respect of (a), (b) and (c) equally.Footnote 144 What is defined within those sub-paragraphs is, rather, the different type of conduct which requires exclusion. Use of the word ‘guilty’ allows for consideration of possible circumstances precluding liability, but does not require that the conduct be criminalized under domestic or international law.Footnote 145
Turning to the main contentious issue in Article 1 F(c), the ‘purposes and principles of the United Nations’ are defined in the UN Charter (Articles 1 and 2, respectively). It is true that those provisions are couched in general, sometimes vague language. But this does not mean that they are devoid of content. The powers of the Security Council, the General Assembly, and regional arrangements are all circumscribed by reference to these purposes and principles.Footnote 146 Many Charter provisions refer to the purposes and principles in generalFootnote 147 or to specific elements thereof.Footnote 148 A number of universal instruments adopted since 1945 identify the ‘purposes and principles of the United Nations’ as a source of obligations for States.Footnote 149 Moreover, just as the content of the prohibition on the use of force in Article 2(4),Footnote 150 and of the principle of self-determination in Article 1(2),Footnote 151 have been elaborated considerably since 1945, the same is true of other elements of Articles 1–2.Footnote 152
The Charter is to be interpreted in the light of the practice of its organs since 1945:Footnote 153 as early as 1949 the ICJ affirmed that the ‘the rights and duties of an entity such as the [UN] must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice’.Footnote 154
Article 1(1) of the Charter identifies the main purpose of the UN: maintaining international peace and security.Footnote 155 As widely noted, the Security Council's determination of threats to international peace and security increasingly takes account of matters beyond purely inter-State relations,Footnote 156 including violations of IHL and humanitarian crises within a single country (Somalia,Footnote 157 RwandaFootnote 158), large-scale refugee movements,Footnote 159 a declaration of independence by a racist regimeFootnote 160 and internal action against a democratically-elected government (Haiti).Footnote 161 Attention to such diverse phenomena must be taken into account when considering the type of activity which could conceivably be considered contrary to Article 1(1) of the Charter. In this context, there have, of course, been many resolutions adopted by the Security CouncilFootnote 162 and General AssemblyFootnote 163 affirming that acts of, and support for, ‘terrorism’ are contrary to the purposes and principles of the UN.
The Council has also employed an increasingly diverse range of measures in responding to such threats:Footnote 164 deploying peacekeeping forces;Footnote 165 demarcating and guaranteeing the inviolability of boundaries;Footnote 166 establishing international criminal tribunals;Footnote 167 imposing sanctions against non-State actors;Footnote 168 ordering the arrest and surrender of individuals;Footnote 169 establishing compensation schemes following an armed conflict;Footnote 170 legislating;Footnote 171 determining that an entity claiming to be a government is an illegal regime;Footnote 172 establishing commissions of inquiryFootnote 173 and referring situations to the International Criminal Court.Footnote 174
But even if maintaining international peace and security is the main purpose of the United Nations, it is not the only one. Article 1(3) of the Charter aims at ‘respect for human rights’, and the Charter expressly includes respect for, and observance of, human rights among the mandatory objectives of the UN as a whole (Article 55(c)). The latter provision is particularly important:Footnote 175 in Article 56, all Members pledge to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55, while Article 59 allows for the future establishment of ‘any new specialised agencies required’ for the accomplishment of those purposes. Promoting the realization of human rights is also a mandatory objective of the General Assembly (Article 13(1)(b)), and the Economic and Social Council (Articles 62(2), 68)). A concern with ‘fundamental human rights’ is, of course, also reflected in the Preamble.Footnote 176
While it is wrong to say that ‘l'adoption de la Charte est l'année zéro des droits de l'homme à l’échelle internationale’, Footnote 177 the Charter certainly did give human rights a more prominent role within the sphere of international legal obligations.Footnote 178 Moreover, the range, and effectiveness, of this area of law has developed exponentially since 1945Footnote 179 and, indeed, 1951. Binding universal instruments were adopted with the two Covenants, alongside international instruments addressing the rights of specific groups (women, children, minorities, refugees), and protection from certain conduct (apartheid, racial discrimination, torture). Regional instruments in the Americas and Africa were established post-1951, while that of Europe developed hugely since then in terms of the number of Contracting States,Footnote 180 the jurisprudence of the Strasbourg Court, and the influence of its rulings. That which was expressed in general terms in Article 1(3) of the Charter has thus been elaborated and developed in the decades since: what may have been a vague statement of principle has been given real content.Footnote 181 Moreover, this development had been envisaged from the very outset.Footnote 182
That certain human rights violations are contrary to the purposes and principles of the UN has been expressly confirmed by the principal organs of the UN. In Tehran Hostages, the ICJ stated that ‘wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations’.Footnote 183 The ICJ and Security Council made even stronger statements with respect to apartheid.Footnote 184 Similarly, the General Assembly has characterized enforced disappearance and torture as acts contrary to the purposes and principles of the UN.Footnote 185
In addition, the purposes and principles of the UN have frequently been invoked by the organs of the UN in resolutions adopting new human rights instruments,Footnote 186 or on specific human rights issues.Footnote 187 Equally, the preambles of human rights instruments often invoke the purposes and principles of the UN and States’ obligations, under Article 55 of the Charter, to promote universal observance of human rights.Footnote 188 Articles 1 and 55 of the Charter, and the purpose of promoting universal respect for human rights, are also invoked by the General Assembly when considering the reports of various human rights monitoring bodies.Footnote 189 In short, through the practice of its organs, the emphasis on the protection of human rights as one of the purposes of the UN has changed dramatically, from a perceived precondition to peace to an end in itself.Footnote 190 This practice must inform the interpretation of Article 1(3).Footnote 191
In view of the foregoing, it follows a) that the protection of human rights has always been one of the purposes of the UN, b) that developments since 1951 have given tangible content to that broad purpose, such that c) serious violations of human rights instruments adopted by the UN can plausibly be considered ‘acts contrary to the purposes and principles of the UN’.
2. Application ratione personae
It is true that some of the purposes and principles listed in Articles 1–2 of the Charter are hardly susceptible to contrary action by an individual who does not occupy high public office: for example, Article 2, paragraphs (2) (compliance of Member States with their Charter obligations in good faith), (3) (settlement of inter-State disputes by peaceful means), and (7) (non-intervention in domestic matters of another State).Footnote 192 Also, UNHCR's contention that to engage Article 1 F(c) the impugned conduct needs to have an ‘international dimension’ makes sense in respect of Article 2(4) (prohibition on the use of force in international relations). Other stated purposes and principles, however, particularly when interpreted in view of practice since 1951, plainly are susceptible to contrary action by individuals acting at lower levels of State activity, or independently of any State. As outlined above, Article 1(3) on respect for human rights is the most obvious example.Footnote 193
It seems incongruous to argue that while the acts giving rise to refugee status can be perpetrated by both State and non-State actors,Footnote 194 only the former can engage Article 1 F(c). More tangibly, UN practice and developments in international law dictate that that provision cannot plausibly be limited to those occupying senior roles in State or, indeed, non-State entities. Just as the UN Security Council has established criminal tribunals with a jurisdiction over individuals that is determined not by their occupation of a particular public office, but by the nature of the conduct attributed to them,Footnote 195 similarly human rights instruments focus not on the author, but the nature of the conduct. While the fact of occupying senior (State) roles may make it easier to perpetrate the acts which trigger exclusion under Article 1 F(c), this can no longer be a requirement.Footnote 196
B. Object and Purpose
Commentators argue that,
consistent with international refugee law, protection must be expanded to as many persons as are deserving. … One of the key goals of international refugee law is to provide international protection to all who need it. In interpreting and applying the exclusion clauses, the primary consideration for decision-makers should be to ensure that everyone who deserves refugee protection gets it.Footnote 197
This assertion is question-begging, however, and rests on an unbalanced view of the object(s) and purpose(s) of the Convention.
A recurring problem in treaty interpretation is to identify ‘the level of abstraction at which to state the object and purpose of a treaty’.Footnote 198 Or, with respect to the Refugee ConventionFootnote 199 as with many other treaties, how to weigh different and potentially conflicting objects and purposes.Footnote 200
The 1951 PreambleFootnote 201emphasizes the object of revising and consolidating existing agreements so as to amplify protection accorded to refugees (paragraphs 2 and 3),Footnote 202 the need for coordinated international action to ensure burden-sharing in providing such protection (paragraphs 3–5), and the role to be played by UNHCR in this respect (paragraph 6).Footnote 203 The Preamble does not speak of broadening the category of persons to whom such protections will be provided.
The object and purpose of the Refugee Convention was the creation of a comprehensive, permanentFootnote 204 refugee protection framework, which codified and built upon the ad hoc arrangements already in place.Footnote 205 This necessitated a definition of ‘refugee’, certainly, but it does not necessarily follow that the Convention was intended to apply to the largest number of individuals possible.Footnote 206 A number of factors indicate that in fact this was not the case.
First, the definition of a refugee enshrined in Article 1A(2) of the 1951 Convention is more restrictive than that incorporated in earlier instruments. The 1922 and 1924 ‘Nansen Passport’ arrangements, as amended in 1926,Footnote 207 applied to a person of Russian/Armenian origin, ‘who does not enjoy or no longer enjoys the protection’ of their respective government and ‘who has not acquired another nationality’. In contrast to the 1951 Convention, there was no requirement that the absence of State protection was ‘for reasons of’ any particular characteristic of the individual in question, nor that such absence had resulted in an objective fear of treatment of a certain gravity (‘persecution’).Footnote 208 The 1933 Convention, which formalized the arrangements adopted in the 1920s and ‘more than any other [document] of the interwar era, served as the basis for the 1951 Convention’,Footnote 209 retained the definitions used in the earlier instruments.Footnote 210 The same was true of the July 1936 Provisional Arrangements Concerning the Status of Refugees Coming from Germany,Footnote 211 and the 1938 Convention relating to that group.Footnote 212
The same point can be made regarding the International Refugee Organization (IRO), the predecessor to UNHCR established in the aftermath of World War II. Under its 1946 Constitution,Footnote 213 ‘refugee’ covered six categories of persons.Footnote 214 At least two of these categories—those outside their country of origin due to events since the outbreak of the war,Footnote 215 and unaccompanied children who were war orphans or whose parents had disappearedFootnote 216—would not, without more, fall within the refugee definition provided in Article 1A(2) of the 1951 Convention.Footnote 217 A ‘convention ground’ was required with respect to one category only.Footnote 218
While the 1951 Convention brought within its scope those already recognized as refugees under the earlier instruments,Footnote 219 Article 1A(2) embodies a narrower definition of ‘refugee’ than had been provided for in the earlier instruments. That is, the circumstances which had given rise to refugee status under the pre-war instruments would not necessarily give rise to such status if determined de novo under the 1951 Convention. The temporal and geographical limitationsFootnote 220 which were included in the 1951 Convention (and are still maintained by some States)Footnote 221 further illustrate that it was not the intention in 1951 to accord refugee status to the largest possible group of individuals. Also, while the travaux are ambiguous regarding the precise meaning of Article 1 F(c) itself (see below), many statements made during the drafting process illustrate widespread concerns to limit the personal scope of the Convention.Footnote 222
A second factor is the acknowledged need to protect the institution of asylum.Footnote 223 For purposes of interpreting the Convention, the Conclusions of UNHCR's Executive Committee (EXCOM) have been found to have higher status than Guidelines issued by the Office, on the basis that EXCOM ‘is itself an assembly of states which has debated the issue and settled on a formal statement concerning it’.Footnote 224 EXCOM has adopted relatively few conclusions with respect to Article 1(F), which it mentioned only in passing in conclusions adopted in 1978,Footnote 225 1980Footnote 226 and 2004.Footnote 227 Where EXCOM has made more substantive comments, however, these have taken a different approach to the UNHCR exclusion guidelines discussed above. In 1997, EXCOM stressed
‘the need for full respect to be accorded to the institution of asylum in general, and consider[ed] it timely to draw attention to the following particular aspects:
….
(v) the need to apply scrupulously the exclusion clauses stipulated in Article 1 F of the 1951 Convention and in other relevant international instruments, to ensure that the integrity of the asylum institution is not abused by the extension of protection to those who are not entitled to it.Footnote 228
Similarly, with respect to combatants, EXCOM in 2002 recommended that ‘utmost attention should be paid to Article 1 F of the 1951 Convention, in order to avoid abuse of the asylum system by those who do not deserve international protection’.Footnote 229 In two Conclusions adopted in 2005, EXCOM reiterated that the exclusion clauses must be applied ‘scrupulously’, to ‘ensure that the integrity of the asylum system is not abused by the extension of refugee protection to those who are not entitled to it’.Footnote 230 There is little here to support the argument that the object and purpose of the Convention require a ‘restrictive’ application of Article 1(F).
That is not to suggest that protecting the institution of asylum was somehow the primary objective in 1951, ahead of the desire to increase the standards of protection accorded to refugees, and that Article 1(F) should thus be given an ‘expansive’ interpretation so as to exclude as many applicants as possible from refugee status. Plainly, that is not the case. Rather, it is to suggest that the objects and purposes of the Convention do not suggest the need for a particularly ‘restrictive’ interpretation of Article 1(F).
That merely confirms what is evident from the text of Article 1, taken as a whole: conferral of refugee status under the Convention is subject to certain requirements (in Article 1A(2)) and to certain exceptions (in sub-paragraphs (D), (E) and (F)). The same principles of interpretation should be applied to each. Footnote 231 Applying Article 1 F (and, for that matter, 1D, and 1E) in a neutral rather than a ‘restrictive’ manner, such that individuals whose conduct falls within an ordinary meaning of ‘acts contrary to the purposes and principles of the United Nations’ and who are therefore excluded from the benefits of the Convention, is in no way inimical to the object(s) and purpose(s) of the Convention.
C. Context
Under the VCLT, the terms of a treaty shall be interpreted in their context, defined as comprising the text, including its preamble and annexes, and any other instrument adopted by the parties in connection with the treaty.Footnote 232 Courts have frequently had recourse to the context of the 1951 Convention in interpreting its provisions.Footnote 233
As with the temporal and geographical limitations included (discussed above), so the mandatory language used in sub-paragraphs (C), (D), (E) and (F) of Article 1Footnote 234 suggests that it was not intended to accord refugee status to the largest possible group of individuals.
D. Other Rules of International Law
Courts often have regard to other rules of international law in interpreting Article 1 of the Refugee Convention—particularly human rights instruments, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) when interpreting Article 1A(2)Footnote 235 and Article 1C(5).Footnote 236 When interpreting Article 1 F(b), courts have had regard to instruments proscribing terrorism-related activities,Footnote 237 and to principles of extradition law.Footnote 238
The concept that the benefits of an instrument guaranteeing certain freedoms cannot be invoked by those who act in a manner inimical to those freedoms, is not unique to the Refugee Convention. Nor is it a creation of the twentieth century. In De Jure Belli ac Pacis Grotius asserted that asylum is ‘in fact for the benefit of those who suffer from undeserved enmity, not those who have done something that is injurious to human society or to other men’.Footnote 239
While the interwar refugee instruments, discussed above, did not contain provisions analogous to Article 1(F), a 1945 resolution of the United Nations Relief and Rehabilitation Administration (UNRAA)Footnote 240 precluded assistance in respect of those displaced persons ‘who may be detained in the custody of the military or civilian authorities of any of the United Nations on charges of having collaborated with the enemy or having committed other crimes against the interests or nationals of the United Nations’.Footnote 241
Annex I to the IRO Constitution defined ‘refugees’ for the purposes of that instrument, and also defined who from that category would ‘become the concern of the Organisation’.Footnote 242 In terms of the latter, one ‘valid objection’ for an individual not wishing to return to his or her country of origin was a fear of persecution because of, inter alia, political opinions ‘provided these opinions are not in conflict with the principles of the United Nations, as laid down in the Preamble of the Charter of the United Nations’.Footnote 243 Relating more closely to ‘exclusion’ per se, persons who would not be of concern to the Organization included:
1. War criminals, quislings and traitors.
2. Any other persons who can be shown:
(a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or
(b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations.Footnote 244
Article 14(2) of the Universal Declaration of Human Rights (UDHR) provides that the right to seek and enjoy asylum ‘may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.’ This is not an exclusion clause per se, but rather precludes reliance on prosecutions arising from the impugned acts serving as the basis for inclusion. Article 29(3) UDHR provides that the rights and freedoms proclaimed in the Declaration ‘may in no case be exercised contrary to the purposes and principles of the United Nations’.
Article 7(d) of the UNHCR Statute provides that the competence of the High Commissioner shall not extend to a person,
In respect of whom there are serious reasons for considering that he has committed a crime covered by the provisions of treaties of extradition or a crime mentioned in article VI of the London Charter of the International Military Tribunal or by the provisions of article 14, paragraph 2 [UDHR].
The 1969 OAU Refugee Convention includes exclusion clauses identical to Article 1 F(a)–(c), and also provides for exclusion for acts contrary to the purposes and principles of the OAU.Footnote 245
Beyond the refugee context, Article 5(1) ICCPR provides that nothing in that instrument implies a right—of States or individuals—to engage in conduct aimed at destroying the rights recognized therein.Footnote 246 The ECHR has a similar provision.Footnote 247
In short, relevant rules of international law, both pre- and post-1951, suggest that those who perpetrate the type of acts which give rise to the protected status conferred by the Convention, are not themselves entitled to that status.
E. Preparatory Works (Travaux)
In 1966, Grahl-Madsen wrote that:
it appears from the records that those who pressed for the inclusion of [art 1 F(c)] had only vague ideas as to the meaning of the phrase ‘acts contrary to the purposes and principles of the United Nations’ … It seems that agreement was reached on the understanding that the phrase should be interpreted very restrictively.Footnote 248
This assessment has been relied on by commentatorsFootnote 249 and courts.Footnote 250 Even those who characterize the drafting history of Article 1 F(c) as ‘at best, confusing and hardly helpful’, rely on this assessment when calling for a ‘restrictive’ interpretation.Footnote 251 UNHCR guidelines invoke the travaux to similar effect.Footnote 252
With respect, preparatory works have often been accorded undue significance in analyses of Article 1 F(c). The role assigned to preparatory works in the VCLT—a supplementary source to be relied on in certain circumstances—cannot be ignored. Particularly as, in practice, an assessment of a treaty's travaux will rarely lead decisively in favour of one interpretation over another.Footnote 253 Article 1 F(c) is an example of this: commentators and Courts have often cited statements by individual delegates who opposed the proposed wording on the basis that it was ‘overly vague’ and/or risked abuse by States. But where that wording was nevertheless adopted by an overwhelming majority of the delegates, what weight can plausibly be accorded to such individual views given that they were not shared by the majority? Footnote 254
The main phases in the preparation of the ConventionFootnote 255 were as follows. On the request of ECOSOC,Footnote 256 the UN Secretary-General prepared a memorandumFootnote 257 for the Ad Hoc Committee on Statelessness and Related Problems.Footnote 258 That Committee met from January to February 1950, and its report was discussed in the ECOSOC Social Committee in July–August of that year. The Ad Hoc Committee was then reconvened, in August 1950, and prepared a revised draftFootnote 259 for the General Assembly's Third Committee. The Third Committee did not itself discuss the substance of the draft Convention, but instead convened a Conference of Plenipotentiaries which met from July 1951.
The first substantive discussion of what became Article 1 F(c) took place in ECOSOC in August 1950.Footnote 260 As is often the case when assessing preparatory works, however, support for any number of interpretations can be found here. The Canadian representative argued that the formulation proposed was so vague as to be open to abuse by States wishing to exclude refugees, and tabled a motion to delete the words altogether.Footnote 261 She later clarified that the concept underlying the provision had a certain value, that re-drafting was required, and withdrew her motion.Footnote 262 The representative of Chile found it difficult to see how an individual could commit such acts.Footnote 263 The representative of Pakistan suggested that the wording was ‘so vague as to be open to abuse by governments wishing to exclude refugees’.Footnote 264 The US representative suggested that the phrase was to exclude ‘collaborators’ and recalled similar wording used in the UDHR and IRO Constitution.Footnote 265 The Indian representative, opposing deletion, recalled a case ‘where a refugee running a licensed hotel had refused to admit coloured people’ and suggested this as an act which would violate the UDHR and be contrary to the purposes and principles of the UN.Footnote 266 The French representative seemed to suggest that practice of racial discrimination would engage this provision (which was, in fact, based on a French draft).Footnote 267
At the next meeting, the French representative stated that the provision ‘was not aimed at the man-in-the-street, but at persons occupying government posts, such as heads of State, ministers and high officials’. Equally, however, he emphasized the purpose of excluding those responsible for acts of persecution, ie those who had ‘helped to create the fear from which the refugees had fled’.Footnote 268 A representative of the UN Secretariat affirmed that, in line with the UN Charter and the Nuremberg Judgment, ‘an individual could nowadays be held liable under international law, and could be called upon to answer for crimes constituting a violation of such law’;Footnote 269 and that ‘an individual who, without having committed a crime against humanity, had violated human rights, for instance, by the exercise of discrimination, could be considered to have committed ‘acts contrary the purposes and principles of the United Nations’’.Footnote 270
Discussions at the Conference of Plenipotentiaries were equally unclear. The UK representative expressed the view that it was difficult to define what acts would come within this provision, and expressed concern that it might be misused.Footnote 271 The French delegate responded that this concern had already been expressed by the UK delegate in ECOSOC, the Third Committee, and the GA itself, and rejected on each occasion; and that the deletion or retention of the exclusion clause would be ‘a prime factor in determining France's attitude towards the Convention as a whole’.Footnote 272 At the final discussion, the representatives of the UK and the Netherlands objected to the reference to Article 14(2) UDHR.Footnote 273 The Swiss representative stated that inclusion of a reference to the purposes and principles of the UN appeared unnecessary.Footnote 274 The Yugoslav representative, who ‘attached great importance to the restrictive provisions of paragraph [F]’,Footnote 275 proposed splitting up the draft text into (b) and (c) and, for sub-paragraph (c), the words ‘acts contrary to the purposes and principles of the United Nations’. The French representative then stated that, were that proposal to be rejected,
The Convention would become applicable to persons in respect of whom there were good grounds for suspecting that they had committed serious common law crimes or had been guilty of acts contrary to the purposes and principles of the United Nations. It would be rather paradoxical if persons guilty of such acts [were] thus enabled to claim the protection of the United Nations.Footnote 276
The Yugoslav proposal was finally adopted by 22 votes to none, with 2 abstentions.Footnote 277
In sum, the preparatory works relating to Article 1 F(c) are scarcely less ‘ambiguous or obscure’ than the provision the meaning of which they are supposed to clarify.
VII. WHERE SHOULD THE BAR BE SET?
Characterizing human rights violations as acts ‘contrary to the purposes and principles of the United Nations’ is plainly consistent with developments in international law and the practice of the United Nations since 1951. But where should the bar be set? Do such violations need to be ‘blatant and egregious’Footnote 278 or ‘of a fairly exceptional nature’Footnote 279 to engage Article 1 F(c)? Should the provision be limited to ‘acts bearing a certain element of ‘‘policy-making’’, i.e. conceptual planning that exceeds the mere execution of single acts’?Footnote 280
Contrary to these positions, the present author would suggest that conduct amounting to serious or sustained human rights violations, such that would constitute persecution for the purposes of Article 1A(2), meets the standard for exclusion under Article 1 F(c). Hathaway's well-known framework for determining ‘persecution’Footnote 281 is one possible point of reference here. As with Article 1A(2),Footnote 282 a series of acts which individually would not amount to ‘persecution’, could cumulatively meet the threshold.Footnote 283
Recalling the discussion above, the meaning of ‘persecution’ is, of course, itself not fixed. Zimmermann and Wennholz argue that since the Convention ‘itself constitutes an instrument of human rights protection, its dynamic interpretation with regard to the standards of human rights law, as it exists today, is also required as a matter of systemic consistency’Footnote 284 The present author would fully endorse this statement of principle, but would stress that it must be applied to Article 1 F(c) as much as to Article 1A(2).
Such an interpretation of Article 1 F(c) is not entirely novel. For the Canadian Supreme Court in Pushpanathan, ‘the rationale is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a Convention designed to protect those refugees’,Footnote 285 and whether or not the impugned conduct constituted persecution was decisive for the application of (C).Footnote 286 Similarly, Goodwin-Gill and McAdam identify persecution as one category of conduct potentially falling within Article 1 F(c).Footnote 287
This approach precludes the scenario whereby international protection could be accorded to both the victim and the perpetrator of the same persecutory act(s). The Convention does not itself impose on States (still less individuals) an obligation to refrain from persecution, but it does aim to provide protection to those who fear such treatment. That it could be relied on by those who have themselves committed persecution is, at the very least, incongruous,Footnote 288 and inconsistent with the approach taken in other relevant instruments.
A. Overlap with (A) and (B)
A common refrain is that all persons falling with sub-paragraph (c) would fall within (a) or (b) anyway. While some overlap is inevitable, under the interpretation proposed here there would, in fact, be cases which fall under sub-paragraph (c) only.Footnote 289
Regarding the potential overlap with (b), an act which constitutes a human rights violation can also constitute a criminal offence, of course, under both domestic and international law (an act of torture being one example). But this is certainly not true of all human rights violations. Freedom of expression, rights to privacy and family life, the right to vote and participate in governmentFootnote 290 are all within the second category of Hathaway's framework, such that violation of these rights (save in the context of a permissible derogation) can constitute persecution for the purposes of Article 1A(2).Footnote 291 But the conduct which violates these rights is not itself criminalized under international law, and in domestic law is likely to be characterized as tortious rather than criminal; it is thus difficult to see how it could engage Article 1 F(b). Under the interpretation proposed here, however, such conduct could engage Article 1 F(c).
Also, while (b) requires that the conduct in question occurred ‘outside the country of refuge prior to [the applicant's] admission to that country as a refugee’, no such temporal or geographic requirements are imposed by (c). This could be relevant in respect of activity which could qualify as a ‘serious non-political crime’ but is of a trans-boundary nature, such as human trafficking.Footnote 292
Regarding the potential overlap with Article 1 F(a), enlisting children under age 15 into the armed forces constitutes a war crime when committed in an armed conflict.Footnote 293 Outside of that context,Footnote 294 such conduct is not criminalized under international law. Such conduct does constitute a human rights violation, under Article 38(3) CRC. But that instrument does not oblige contracting States to criminalize this conduct.Footnote 295 So, outside the context of an armed conflict, this conduct does not constitute a war crime falling under Article 1 F(a), is unlikely to be criminalized so as to fall under (b), but could reasonably be considered an act of persecution such that it falls under (c).
These examples are speculative, of course, but suffice to illustrate that the proposed interpretation of Article 1 F(c) also has the benefit of consistency with the principle of effectiveness.
CONCLUSION
While assertions that Article 1(F), in general, requires a special, restrictive interpretation do not bear scrutiny, much of the analysis and application of Article 1 F(c), in particular, has failed to keep track with developments in international law and practice. While there has been some movement regarding the scope of this provision ratione personae, beyond the context of ‘terrorism’ there have been few attempts to interpret its scope ratione materiae in a progressive manner. Even those who accept that the provision is not limited to high-ranking State officials, often limit its application to acts of ‘extreme gravity’ or acts of an international character. Such interpretations are overly static and plainly out of step with developments in international law—particularly human rights and refugee law—since 1951. The failure to systematically interpret Article 1 F(c) in the light of such developments contrasts sharply with the standard approach to sub-paragraphs (a) and (b). This inconsistency is difficult to justify.
To counter this uneven approach, Article 1 F(c) should be interpreted such that conduct that would qualify as persecution for the purposes of Article 1A(2) is considered ‘contrary to the purposes and principles of the United Nations’, so as to trigger this exclusion clause. This would be entirely consistent with the standard rules of treaty interpretation, with developments since 1951, and with the need to protect the integrity of the protection regime established by the Convention.
Looking forward, sub-paragraphs (a) and (b), interpreted progressively as they have been to date, will suffice to exclude individuals responsible for certain egregious and/or criminal conduct. At the same time, domestic courts will likely continue to apply Article 1 F(c) to conduct falling within contested, and ever-expanding,Footnote 296 domestic definitions of ‘terrorism’. That the latter practice may be skewed by reliance on questionable definitions does not, however, obviate the need for UNHCR and domestic courts to reassess the applicability of Article 1 F(c) beyond that context. If anything, the absence of a coherent, plausible interpretation which takes into account developments in international law and practice, merely encourages the amorphous application of this provision.
