Skip to content

December 19, 2011

2

The employment rights of refugees in Africa under the 1969 African Refugee Convention

by Asylum Access

Marina Sharpe is a founding member of the Asylum Access Board of Directors, and a DPhil Candidate and Trudeau Scholar at the University of Oxford. In this post, she presents an in-depth legal analysis of the employment rights of African refugees.

The issue of whether refugees in Africa enjoy the right to work under the regional legal framework established by the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (African Convention) has been the subject of some confusion—primarily because the African Convention does not explicitly provide for employment rights.

Refugees within the meaning of Article I(1) of the African Convention also qualify as refugees under Article 1A(2) of the 1951 Convention relating to the Status of Refugees (1951 Convention)—the two definitions are almost identical—and therefore benefit from the rights guaranteed among articles 3 to 34 of the 1951 Convention. This includes the 1951 Convention’s third chapter on gainful employment (articles 17, 18 and 19).

Article I(2) of the African Convention contains a unique refugee definition, departing from that of the 1951 Convention. Additionally, the African Convention does not discuss employment rights nor does it explicitly incorporate the 1951 Convention’s rights framework. This has led some commentators to suggest that refugees who only fit the extended Article I(2) African Convention refugee definition enjoy no rights beyond those explicitly mentioned in the African instrument: non-refoulment and the right to a travel document.

It is argued here that such commentators are wrong.

Article I(2) African refugees do—at regional law—have employment rights in their host countries, owing to the complex interplay between the African Convention and its international counterpart. There are three prongs to this argument: a lex specialis aspect, an equality aspect and a treaty interpretation aspect.

Lex Specialis

In her groundbreaking book on protection from refoulement granted by states on the basis of a need not addressed by the 1951 Convention, Complementary Protection in International Refugee Law, Jane McAdam argues that complementary protected status derives from the 1951 Convention, even if the beneficiaries of such status are not refugees within the 1951 definition. (Complementary protection refers to legal protection mechanisms for refugees that are found outside of the 1951 Convention. Read about it here).

If, as this argument suggests,  the 1951 Convention provides the rights blueprint for all beneficiaries of complementary protection, then such rights must apply equally to refugees within the meaning of article I(2) of the African Convention. This is supported by the fact that individuals recognized as refugees under article I(2) of the African Convention are more conceptually similar to 1951 Convention refugees than are beneficiaries of complementary protection.

McAdam’s argument explains why the human rights instruments from which complementary protection flows do not provide refugee status to go along with protection from refoulement. She argues that it would be

futile for instruments like the … [Convention Against Torture] to enumerate the legal status arising from the application of non-refoulement, since the [1951] Refugee Convention (as the lex specialis) already provides an appropriate status for any person protected by that principle.

By analogy, it would be similarly futile for the African Convention to enumerate an exhaustive list of refugee rights, since the 1951 Convention, as the lex specialis on the content of refugee status, already does so.

Equality

One hundred sixty-seven countries are party to (and thus subject to) the International Covenant on Civil and Political Rights (the Covenant). Article 26 is a freestanding equality guarantee that prohibits discrimination in the allocation of public goods—including those mandated by instruments other than the Covenant.

The Human Rights Committee (tasked with interpreting the Covenant) has, however, observed in General Comment 18:

not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant

Based on this analysis, denying article I(2) African refugees labor and employment rights given to other refugees would violate the Article 26 equality guarantee, unless the offending State could prove that the denial was reasonable and objective, and served a  legitimate purpose.

Treaty Interpretation

The Vienna Convention’s general rule of interpretation provides:

a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

In interpreting the African Convention’s relevant provisions in this way, it becomes clear that article I(2) refugees are entitled to the rights contained in the 1951 Convention, including the right to work for the following reasons:

  • The ninth preambular paragraph recognises that the 1951 Convention “constitutes the basic and universal instrument relating to the status of refugees” and that it “reflects the deep concern of States for refugees and their desire to establish common standards for their treatment” (emphasis added);
  • The tenth preambular paragraph calls “upon Member States of the Organization [of African Unity] who had not already done so to accede to the United Nations Convention of 1951 and to the Protocol of 1967 relating to the Status of Refugees, and meanwhile to apply their provisions to refugees in Africa”; and
  • Article VIII(2) states that the African Convention “shall be the effective regional complement in Africa” of the 1951 Convention.

These provisions indicate that  article I(2) refugees are entitled to the rights contained in the 1951 Convention, including the right to work.

This initial interpretation is strengthened when considered in light of the African Convention’s object and purpose, which can be gleaned from its preamble. It begins by “noting with concern the constantly increasing numbers of refugees in Africa” and is “desirous of finding ways and means of alleviating their misery and suffering as well as providing them with a better life and future.”  The preamble goes on to articulate the “need for an essentially humanitarian approach towards solving the problems of refugees.”

These preambular paragraphs suggest that a form of asylum featuring only the two rights explicitly recognized by the African Convention would be manifestly inconsistent with its object and purpose of alleviating the suffering of refugees in a humanitarian manner.

Taken together, these lex specialis, equality and treaty interpretation arguments suggest that in states party to both the 1951 and African refugee conventions, there can be no suggestion that article I(2) African refugees enjoy fewer rights than their African article I(1) or international 1951 Convention counterparts. Thus at regional law all refugees in Africa enjoy 1951 Convention rights, including the right to work in their host country.

Advertisements
%d bloggers like this: