Human Rights Advocacy
International Refugee Law and human rights
Khan Ferdousour Rahman
“Everyone has the right to seek and to enjoy in other countries asylum from persecution.” Universal Declaration of Human Rights (UDHR), Article 14(1).
International Refugee Law (IRL) is designed to provide a backup source of protection to persons seriously at risk. Its purpose is not to displace the primary rule that individuals should look to their state of nationality for protection, but simply to provide a safety net in the event a state fails to meet its basic protective responsibilities. It follows logically that persons who face even egregious risks, but who can secure meaningful protection from their government, are not eligible for refugee status. Thus courts in most countries have sensibly required asylum seekers to exhaust reasonable domestic protection possibilities before asserting their entitlement to refugee status. IRL has always been understood as a surrogate protection, state practice traditionally assumed that proof of a sufficiently serious risk in one part of the home country was all that was required.
Since coming into force in 1954, the Refugee Convention has been the central international instrument on refugee status, supplemented by the Protocol of 1967 which extended its temporal and geographical application. In the half century since the Convention's inception, International Human Rights Law (IHRL) has evolved as a sophisticated system of rights and duties between the individual and the State, which has affected traditional notions of State sovereignty and behaviour in an unprecedented manner. Yet despite the influence of IHRL on the regulation of State behaviour, there has been a general reluctance by States, academics and institutions to view human rights law, refugee law and humanitarian law as branches of interconnected, holistic regime, particularly when it comes to triggering eligibility for protection beyond the scope of Article 1A(2) of the Convention.
There exists a fundamental conceptual connection between the IRL and IHRL. The inadequacy of human rights law is providing a legal status for beneficiaries of complementary protection. While human rights attach to all persons in principle, irrespective of their nationality or formal legal status, in practice such characteristics can significantly affect the extent of rights an individual is actually accorded. In reality, States differentiate between the rights of citizens and the rights of the aliens, premising this on their sovereign right to determine who remains in their territories and under what conditions. While the rights set out in the Refugee Convention are not inherently superior to those in the universal human rights treaties, being largely based on the later, they are applied in a different way. Whereas a grant of Convention status entitles the recipient to the full gamut of Convention rights, no comparable status arises from recognition of an individual's protection need under a human rights instrument. The Refugee Convention alone creates a status recognised in domestic law.
Thus to human rights law as offering a complementary and, in part, more generous set of rights than the Refugee Convention, the generality and vagueness of those rights, combined with a lack of implementing mechanisms at the domestic level, make them in practice comparatively weak. Although the UDHR grants a comprehensive set of rights to all persons within a State's jurisdiction, IHRL is strong in principle but weak on delivery. Since the IRL is itself a specialist human rights instrument, the protection conceptualization it embodies is necessarily extended by developments in human rights law, rather than via the conventional means of a protocol. It, therefore, acts as a form of lex specialis (i.e. if later treaty is more specialised that will prevail over the former) which applies to persons encompassed by that extended concept of protection.
The writer is a human rights activist and freelance contributor.