Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

56 | PRACTITIONERS GUIDE No. 6
The African Charter on Human and Peoples’ Rights also recognises the
right of asylum in Article 12.3: “Every individual shall have the right,
when persecuted, to seek and obtain asylum in other countries in accordance
with the law of those countries and international conventions.” The
African Commission on Human and Peoples’ Rights (African Commission)
has held that this right “should be read as including a general protection
of all those who are subject to persecution, that they may seek refuge in
another state.” 65 The Commission has not yet offered an interpretation
of the right “to obtain asylum” contained in the Charter.
Article 28 of the Arab Charter on Human Rights (ArCHR) recognises only
a “right to seek political asylum in another country in order to escape
persecution”, while the ECHR contains no mention of the right of asylum.
a) When someone is a refugee
A person falls within the definition of a refugee from the moment he or
she meets the criteria of Article 1A.2 of the Geneva Refugee Convention.
A determination by the State to “grant” refugee status is not a determination
of the status, but only its formal recognition. 66 Therefore, a
refugee attains such status even before the State of asylum provides
the refugee with relevant documentation or ensures that the status is
affirmed under domestic laws and procedures, although the protection
of his rights afforded by the Geneva Refugee Convention will be limited
until the State determines whether the refugee’s situation fulfils the
Convention’s definition. The Geneva Refugee Convention recognises a
range of rights of the refugee, which will be considered in different
chapters of this Guide, and whose protection depends on the recognition
of refugee status. 67
For refugee status to be recognised under the Geneva Refugee
Convention, the following criteria must apply:
65 Organisation Mondiale Contre la Torture (OMCT) and Others v. Rwanda, ACommHPR, Communications
No. 27/89, 46/91, 49/91, 99/93, 20 th Ordinary Session, October 1996.
66 See Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees, UNCHR, Geneva, September
1979 (UNHCR Handbook), para. 28. The OAU Convention Governing the Specific
Aspects of Refugee Problems in Africa (OAU Refugee Convention) seems to contrast to this
universal regime as it establishes in its Article 1.6 that it is apt to the State of asylum to
“determine” whether an applicant is a refugee. Nevertheless, as the Convention declares that
it is complementary to the Geneva Convention relating to the status of refugees of 1951,
read together with its Additional Protocol of 1967 (“Geneva Refugee Convention”) (Preamble,
para. 9; Article 8.2), “determine” must be interpreted as recognition and not as granting of
refugee status.
67 The OAU Refugee Convention generally recognises more limited rights than the Geneva
Refugee Convention. Its protection regime cannot, therefore, substitute that of the older
Convention, apart for those people falling under the definition of Article 1.2 of the OAU Refugee
Convention who are not contemplated by the Geneva Refugee Convention, or for States
which have ratified the OAU Refugee Convention but not the Geneva Refugee Convention or
its Additional Protocol.