INTERNATIONAL REFUGEE LAW

INTERNATIONAL REFUGEE LAW AND REFUGEE LAW IN AUSTRALIA, CANADA, AND THE UNITED STATES

This paper will compare the international law relating to refugees with that of Australia, Canada, and the United States. The first part of the paper will examine international refugee law, concentrating mainly on the body of law which has developed under the auspices of the United Nations and the two main international agreements, the 1951 Convention and the 1967 Protocol. The second part of the paper will discuss the current state of Australian law in this area. The third part of the paper will examine Canadian law with regard to refugees, noting the changes which have occurred since 1987. The fourth part of the paper will look at refugee law in the United States, particularly focusing upon the refusal of the U.S. to adhere to the tenets of the international agreements.

International Refugee Law and the Concept of Asylum

The 1951 Convention on refugees has three main functions. First, it provides a general definition of the term "refugee," in contrast to the early definitions which were related to specific events. Second, it contains the basic charter of rights afforded to persons who have been granted refugee status; in this function it has been referred to as the "Magna Carta for Refugees." Third, it contains provisions concerning the implementation of the Convention.

The Convention specifically provides that all persons granted refugee status u

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l in his country of nationality. Applying these principles, the majority of the Court held that the delegate's determination could not be supported. The appellant was identified with political views which were contrary to those held by the ruling regime in the People's Republic of China. As a result, he was in jeopardy because the attitude of the regime had not changed and there was a "real chance" that he could be subject to exile or detention. It is interesting that the Court made no reference to the principles of construction of treaty provisions authoritatively provided for in Articles 31 and 32 of the Vienna Convention of 1969 on the law of Treaties, to which Australia is a party, even though the case concerned the interpretation of the Convention and Protocol. Justice Gaudron based his mode of interpretation upon the dictum of Lord Wilberforce that an international convention should be interpreted "unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation." Justice McHugh relied upon a textbook passage concerning the use of "travaux prTparatoires" (preparatory negotiatory materials), even though the accepted rules for the use of travaux prTparat

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