“Treatment Accorded to Aliens Generally”: Article 7(1) of the 1951 Refugee Convention as a Basis for Visa-Free Access to States Parties’ Territory? An Examination of the Prohibition of Nationality Discrimination in the Refugee Convention

Visa requirements, coupled with other extraterritorial border controls like carrier sanctions, prevent refugees from accessing the territory of States in the global North and the protection these States offer under the 1951 Refugee Convention. Visa requirements are imposed largely on the basis of an individual’s nationality, and distinctions made between different non-citizens in this context are considered to be legitimate in international law, based on States’ right to control their borders. In light of the 70th anniversary of the Refugee Convention, this article examines whether this instrument can respond to the externalization of border controls, specifically the imposition of visa requirements, and to the impact of these developments on refugees’ access to protection, by relying on the Convention’s non-discrimination clause. The article makes the case for an interpretation of the Refugee Convention that allows for access to States parties’ territory under article 7(1) – by approaching visa requirements as a ‘treatment accorded to aliens generally’ – combined with article 3 – the non-discrimination provision of the Convention, which prohibits discrimination among refugees on grounds of their nationality. It will be suggested that coupled with the declaratory nature of refugee status, these provisions may be read as precluding imposing visa requirements on refugees originating from country A, as long as refugees originating from country B can reach a State’s border visa-free. The article highlights the Refugee Convention’s continued relevance, showing that some of its core principles, such as the non-discrimination provision, offer solutions where States parties attempt to limit their protection obligations towards refugees.