International Protection of Human Rights
Chapter 14
The Rights of Refugees
Learning objectives:
• Describe the political, legal and social context of refugees’ rights.
• Explain the theoretical issues raised by refugees’ rights.
• Summarise the basic provisions of the Convention Relating to the
Status of Refugees 1951 and the 1967 Protocol.
• Consider those not covered by the Convention system.
1. Why, What, and Who is a Refugee?
• Danger, whether natural or man-made, leads persons to seek sanctuary.
• The need for protection when fleeing is, in many senses, the other side of
the human rights equation.
• When States fail to stop abuse or there is conflict; protection is needed.
• That protection may be afforded by third states if an individual is there and
seeks sanctuary - asylum.
• ‘Refugee Law’ is an intensely political subject.
• Refugees’ rights are increasingly being criticised and politicised in all
countries where refugees are hosted.
2. Refugees and Immigration
• International human rights law works on the assumption that the state
is the abuser of your rights, and that treaties and custom prohibit the
state from certain activities.
• A victim may have to flee the state to survive or to escape torture,
slavery and the like – becoming a migrant.
• The refugee is thus the outlier, who seeks sanctuary from and in
another state.
• In legal terms, an individual has rights against a state, as the individual
has a nexus or connection with the state. The refugee is exposed to the
compassion of a state with which they have little, if any, nexus.
3. Basis of the 1951 Convention.
• A person who seeks sanctuary and is seeking a place of safety – is an asylum seeker.
• An asylum seeker is a person who has not been deemed to satisfy the criteria under the
1951 Refugee Convention but seeks a determination to that effect.
• A refugee is a person who has been deemed to satisfy the criteria under the Convention.
• A central tenet of the Convention is the prohibition of refoulement – an obligation not to
return does not necessarily equate to a right to refugee status.
• The 1951 Convention does not establish a ‘Treaty Body- it is for national courts and
authorities to interpret it.
• The Convention is concerned with the individual who cannot return to their state of
nationality.
• The Convention was drafted with a Eurocentric focus and temporal framework.
• The 1967 Protocol removes the geographical and temporal limits.
4. Who is a Refugee?
• A person who has 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 nationality and unable, or owing to such fear unable to return ;
• this is due to events in Europe before 1 January 1951.
Parties who drafted the Convention limit their liability to include only events that had already
happened.
The adoption of the 1967 Protocol, can remove either geographic limit or temporal or both.
5. Refugees & Internally Displaced Persons
• The UNHCR in 2016 estimated there are around 21 million refugees in the world.
• IDPs estimated to amount to over 65 million.
• A further 10 million persons are stateless.
• Notwithstanding focus on European states and North America - Turkey, Pakistan, Lebanon, Iran,
Ethiopia and Jordan host vast majority of global refugees.
• IDPs do not enjoy a legal regime which is particular to them - they come within the jurisdiction
and responsibility of their own state.
• International law does not intervene, States owe obligations to such persons under human rights
treaties to which they are party.
• The key document is the 1998 UN Guiding Principles on Internal Displacement – not strictly legally
binding – some rules of customary international law.
Further reading:
• UNHCR Statute of the Office of the United Nations High Commissioner for Refugees 1950
www.unhcr.org/3b66c39e1.html
• UNHCR handbook and guidelines on procedures and criteria for determining refugee status
under the 1951 Convention and the 1967 Protocol relating to the status of refugees. UNHCR
doc HCR/1P/4/ENG/REV. 3 September 2011 www.unhcr.org/3d58e13b4.html
• Feller, E., V. Türk and F. Nicholson (eds) Refugee protection in international law: UNHCR’s
global consultations on international protection. (Cambridge: Cambridge University Press,
2003) www.unhcr.org/4a1ba1aa6.html
• UN Audiovisual Library – please consider the lectures entitled ‘International migration law’
in the ‘Lecture series’.
• Kjaerum, M. ‘Refugee protection between state interests and human rights: where is
Europe heading?’, Human Rights Quarterly 24 2002, pp.513–36.
• Hathaway, J.C. ‘Reconceiving refugee law as human rights protection’, Journal of Refugee
Studies 4(2) 1991, pp.113–31.
