27
124.
In its Report on the Situation of Human Rights of Asylum Seekers within the Canadian
Refugee Determination System, the Commission provided the following description of the evolution and
content of these instruments:
The 1951 Convention was adopted to address refugee situations resulting from World War II, and
thus places a heavy emphasis on the rights of non-return and assimilation. The 1967 Protocol
expanded the applicability of the 1951 Convention by removing the geographic and temporal
restrictions which had limited the application of the latter to persons displaced pursuant to World
War II. The 1951 Convention and its Protocol define: who is and is not a refugee, or has ceased to
be a refugee; the legal status of a refugee, and his or her rights and duties in the country of refuge;
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and matters relative to the implementation of the respective instruments. Under the regime of the
1951 Convention modified by the 1967 Protocol, a refugee is a person who:
•
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion;
•
is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country;
•
or who, not having a nationality and being outside the country of his former habitual residence
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as a result of such events is unable or, owing to such fear, is unwilling to return to it.
The 1951 Convention defines three basic groups that, while otherwise meeting the foregoing
criteria, are excluded from refugee status: persons already subject to UN protection or assistance;
persons not considered in need of international protection due to having been accorded treatment
equivalent to that of nationals by the country of residence; and persons deemed undeserving of
international protection. The latter group includes persons with respect to whom there are "serious
reasons for considering" that they have committed "a crime against peace, a war crime, or a crime
against humanity," "a serious non-political crime outside the country of refuge prior to admission,"
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or "acts contrary to the purposes and principles of the United Nations.”
With respect to persons accorded refugee status, the corresponding protections must be
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maintained unless or until they come within the terms of one of the "cessation clauses."
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125.
In this connection, in accordance with international and national law, the right to seek
and be granted asylum is subject to certain limitations, most pertinently, the exclusionary clauses set out
in article 1(f) of the 1951 Convention,116 which may be applied where it is established that there are
"serious reasons for considering" that the person concerned committed one of the acts described. The
111
IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination
System. OEA/Ser.L/V/II.106. Doc. 40. Rev. 1. February 28, 2000. par. 22. Cf. Office of the UNHCR, Handbook on Procedures and
Criteria for Determining Refugee Status (reedited, Geneva, 1992), pp. 4-5.
112
IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination
System. OEA/Ser.L/V/II.106. Doc. 40. Rev. 1. February 28, 2000. par. 22.
113
IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination
System. OEA/Ser.L/V/II.106. Doc. 40. Rev. 1. February 28, 2000. par. 23.
114
IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination
System. OEA/Ser.L/V/II.106. Doc. 40. Rev. 1. February 28, 2000. par. 24.
At the inter-American level and taking into account the peculiarities of the region, the Cartagena Declaration broadens the
definition of refugees. This instrument provides that, “(…) in view of the experience gained from the massive flows of refugees in the
Central American area, 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. Hence the definition or concept of a refugee to be
recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967
Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened
by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have
seriously disturbed public order.” Cartagena Declaration on Refugees, Cartagena de Indias, November 22, 1984, p. 3.
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Bolivia adopted the 1951 Convention and its 1967 Protocol into its legal system as a Law of the Republic by Law 2071
of April 14, 2000.
116
IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination
System. OEA/Ser.L/V/II.106. Doc. 40. Rev. 1. February 28, 2000. par. 58.