RefLaw Primer: Alienage

March 18, 2021
Elisabeth Brennen
Third-year student at the University of Michigan Law School

What is the element?

The alienage element of the refugee definition requires that a refugee be outside of their own country in order to qualify as a Convention refugee.[1]

Where in the Convention is this element found?

The alienage requirement is found in the 1951 Refugee Convention’s Article 1(A)(2), which defines the term “refugee.” The relevant portion of the definition is that a “refugee” is someone 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…”[2]

The portion of the definition requiring a refugee’s alienage is reflected in the bolded text above; that is, a refugee must be “outside the country of his nationality.”

What does it mean, practically speaking?

The requirement means that a refugee must leave their country of nationality or habitual residence in order to meet the Convention’s definition. This requirement is a threshold question – one could have a well-founded fear of persecution for Convention reasons, but so long as they are still within their country of nationality, they do not qualify as refugees.

In order for a person to qualify as a Convention refugee, and thus access the rights therein, they must leave their country of nationality. Someone who is displaced within their own country is called an “internally displaced person” (IDP), and they do not have access to the rights conferred by the Refugee Convention (though they are of humanitarian concern, addressed by other treaties).[3]

Why does this element exist? What were the legal and policy rationales at the time of drafting?

When the Refugee Convention was drafted, the treaty had a specific goal: to assist people who were outside of their own country and thus were suffering because they lacked governmental protections.[4] There were several justifications for taking this limited approach.

From a pragmatic perspective, the drafters were focused on those outside their own country because IDPs required a more sustained commitment than was available to the international community at the time.[5] States were also concerned that, if IDPs were brought into the sphere of the Refugee Convention’s protections, states with many IDPs might shift the responsibility of caring for their own population onto the international community, rather than caring for their own citizenry themselves.[6]

Furthermore, the ability of the international community to intervene on behalf of IDPs raised questions of sovereignty – the principle in international law that states have supreme authority within their own territory.[7] That is, although it was becoming increasingly accepted that the global community had a “legitimate right to set standards and scrutinize human rights records, it was unthinkable that refugee law would authorize intrusion into the territory of a state to protect citizens from their own government.”[8]

Finally, many of the rights conferred to refugees by the Refugee Convention are only relevant to those outside their own country. One of the most important protections, for example, is protection against refoulement – the right of refugees to not be sent back to their country of origin if to do so would be dangerous.[9] Of course, someone who has never left their country in the first place cannot be returned to it; they are already there. Many of the other rights conferred are also of specific utility only to those who are outside their own country.[10] The alienage requirement thus “ensures a match between the beneficiary class and the remedy provided by the Convention.”[11]

What are the continued legal rationales?

The legal rationales behind the alienage requirement at the time of drafting remain salient today. It is still the case that the Refugee Convention is an instrument designed to address a particular subset of people. Though the 1967 Protocol relating to the Status of Refugees expanded the geographical and temporal scope of the Convention’s application,[12] it did not amend or rescind the alienage requirement.

Concerns about sovereignty are still relevant, though perhaps less so. States have adopted many commitments to aid IDPs and several international organizations, including the U.N. High Commissioner for Refugees (UNHCR), have mandates inclusive of internally displaced persons.[13] However, the consensus on the part of states remains that the Refugee Convention’s alienage requirement remains proper and that new and different legal regimes are better suited for handling the humanitarian problem of IDPs.

What are the primary legal debates surrounding the element, if they exist?

The alienage requirement is not widely debated as such. There is some scholarly debate around the prospect of expanding the definition of “refugee” to be more inclusive of IDPs,[14] but these scholars appear to be in the minority. The broad consensus among policymakers and scholars is that the alienage requirement is still a useful and necessary requirement for refugee status.

Many of the more practical debates about alienage – those that play out in courtrooms on behalf of refugees – have to do with “in between” locations, ascertaining the relevant country of reference, and other factual and legal questions. For instance, would seeking asylum in another country’s embassy in the refugee’s home country count as meeting the alienage requirement? What about airport immigration zones? On an airplane over international waters? What about those who are “stateless” and lack a formal nationality; how do we address the alienage requirement in their case? Each of these questions has been litigated extensively.

Emily Harris’ piece “Replacing a Good Faith Approach with a Well-Founded Fear Approach,” addresses one of these debates. Her piece focuses on claims from refugees sur place – those who meet the alienage requirement but left their country of origin before their fear of persecution arose. Examples of refugees sur place include people outside of their country studying or working abroad, even tourists, whose countries become dangerous for them to return to while they’re gone.

These claims can arise organically, for example if civil war breaks out while they happen to be abroad. But they can also happen because of deliberate actions taken by the refugees themselves, for instance if a person leaves their country of origin and publishes an op-ed critiquing their country’s government and subsequently faces persecution if they return. The category of refugees sur place has been controversial.  Some commentators and courts believe that the category invites manipulation. Others argue that, so long as the refugee has reason to fear persecution in their home country, the reason that fear arises is irrelevant to the legitimacy of their claim.

[1] James C. Hathaway & Michelle Foster, The Law of Refugee Status17 (2d ed. 2014).

[2] Convention relating to the Status of Refugees, adopted Jul. 28, 1951, entered into force Apr. 22, 1954, 189 UNTS 137 (“Refugee Convention” or “Convention”, at Art. 1(A)(2).

[3] Hathaway & Foster, supra note 1, at 17.

[4] Hathaway & Foster, supra note 1, at 17.

[5] Hathaway & Foster, supra note 1, at 17.

[6] See Hathaway & Foster, supra note 1, at 18.

[7] Samantha Besson, Sovereignty, P1 (2011), Max Planck Encyclopedias of International Law.

[8] Hathaway & Foster, supra note 1, at 18.

[9] Hathaway & Foster, supra note 1, at 21.

[10] For instance, Refugee Convention Article 34 requires that the host-state provide a pathway to naturalization for the refugee. Were the refugee to remain in their state of origin, this right would be redundant.

[11] Hathaway & Foster, supra note 1, at 21-22.

[12] Protocol relating to the Status of Refugees, adopted Jan. 31, 1967, entered into force Oct. 4, 1967, 606 UNTS 267 (“Refugee Protocol”), at Art. 1(2)-(3).

[13] Hathaway & Foster, supra note 1, at 18.

[14] See, e.g. Eilidh Beaton, Against the Alienage Condition for Refugeehood, 39 Law and Philosophy 147-176 (2020).

Suggested citation: Elisabeth Brennen, RefLaw Primer: Alienage, RefLaw (March 18, 2021),


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