First, it elucidates and justifies the conditionality inherent in the heteroclite juxtaposition of entitlement criteria with standards of treatment. At the starting point of such an incremental protection regime, the declaratory nature of refugee status presupposes that asylum seekers are entitled at a minimum to the core benefits applicable to all refugees without further territorial qualification as well as, depending on the circumstances, those which are contingent on the physical and lawful presence within the state territory.
In line with the incremental structure of the Geneva Convention, the acquisition of a new nationality will accordingly ensure the full range of rights to which any national is entitled and justify by the same token the end of the interim protection provided by the refugee status. Albeit attractive, this conceptualization of refugee status as an assimilative process remains an a posteriori and essentially doctrinal reconstruction.
Beyond any possible conceptualization of the rationale underlying refugee status, the historical normative context prevailing at the time of the drafting of the Geneva Convention played a decisive role in framing the refugee rights regime.
From such a retrospective perspective, refugee status has emerged as a hybrid legal creation: it is grounded in the very notion of minimum standards inherited from the traditional international law of aliens, while its ultimate objective is to secure the exercise of fundamental rights in line with the new branch of international human rights law.
The subsequent development of international human rights law has dramatically changed the normative content of refugee status.
Migration and Human Rights
Compared to international refugee law, human rights law presents two essential characteristics: it is both inclusive and universal. This distinctive feature is based on the premise that human rights are by definition inherent in the quality of human being. But the impact of human rights law goes far beyond the legal status of asylum seekers.
It also retains its centrality for asserting the rights of refugees duly recognized as such under the Geneva Convention. Although the Geneva Convention is not indifferent to the civil and political rights of refugees, it contains a fairly limited range of these fundamental rights including non-discrimination, freedom of religion, freedom of association, access to court, freedom of movement, and due process guarantees governing expulsion. From the outset, the drafters of the Geneva Convention were aware of this apparent lacuna.
This proposal p. The continuing applicability of human rights law has been instrumental in ensuring an additional set of crucial rights. The range of human rights supplementing the Geneva Convention is both expansive and substantial. This long list of fundamental rights and freedoms substantially enriches the paucity of civil and political rights in the Geneva Convention and proves to be particularly relevant in a refugee-specific context.
For example, the Civil and Political covenant sets guarantees of fairness in judicial proceedings, but does not deal with the more basic issue of access to a court system.
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This last example is not the most relevant one, for access to court is implicit in the right to a fair trial. First, the substance of the rights proclaimed in human rights instruments cannot be dissociated from their subsequent interpretation, which contributes to refining their scope and content in more specific contexts. Such a contextual interpretation of human rights has been essential for the purpose of ensuring to refugees two particularly critical rights—the right to family unity and the right to return—which, oddly, are not guaranteed by the Geneva Convention. Although states retain a broad margin of appreciation for assessing such a balancing act, denying family reunification to a refugee who has been duly recognized as such is clearly disproportionate to the alleged purpose, for, by definition, he cannot return to his own country and accordingly his family has no realistic prospects of enjoying the right to family life elsewhere.
Any com-mitments or statements relating to such property made under duress are null and void;. Accordingly, human rights law provides an indispensable yardstick for framing the legal content of return and reintegration of both refugees and internally displaced persons in their own countries. Although much remains to be done to ensure their basic rights in peace-building processes, the predominant contextual approach of human rights has been further refined through The Principles on Housing and Property Restitution for Refugees and Displaced Persons , endorsed by the UN Sub-Commission on the Promotion and Protection of Human Rights in A second reason also contradicts the alleged inappropriateness of the Covenant for tackling refugee-specific contexts.
Besides granting additional rights to refugees and asylum seekers, general human rights instruments prove to be more adequate and more protective even when the rights in question are already covered by the Geneva Convention. The minimum standards prescribed by refugee status have been increased—and in some instances superseded—by human rights law. The plain relevance of this last branch of international law is apparent in many common subjects of concern, such as freedom of movement, expulsion, and detention, insofar as the general provisions of the Geneva Convention have been refined by subsequent human rights instruments.
The most promising avenue for enhancing refugee protection through human rights law relies on the principle of non-discrimination. The non-discrimination clause contained in Article 3 of the Geneva Convention is limited by three substantial qualifications. First, this provision only prohibits discrimination between and among refugees, thereby excluding any other discrimination between refugees and aliens or nationals.
Third, the scope of Article 3 is limited to the application of the provisions of the Geneva Convention. Article 3 of the Geneva Convention has thus largely—if not totally—been neutralized by Article 26 of the Covenant. Obviously, this general prohibition of discrimination does not mean that any difference of treatment should be banned. For instance, requiring citizenship for property restitution of refugees has been considered as discrimination prohibited under the Covenant.
The overarching duty of non-discrimination under Article 26 of the ICCPR has two further significant consequences which enhance to a great extent the protection under the Geneva Convention. On the one hand, the principle of equality before the law may require states parties to take affirmative action in favour of refugees for the purpose of guaranteeing them an effective and equal enjoyment of human rights. In other words, human rights law cogently requires the assimilation to nationals even for rights which are determined by reference to the treatment accorded to aliens under the Geneva Convention.
A typical illustration can be found in the freedom of association. Hence, asylum states must ban a refugee organization that incites violence and any other national, racial, or religious hatred, whether such propaganda or advocacy is directed towards these states or their states of origin. The implementation scheme is another way to comprehend the relations between refugee law and human rights law. This shows more contrast in this field than in any other. Refugee law traditionally distinguishes between the content of international protection as enshrined in the Geneva Convention and an essentially decentralized implementation entrusted to each individual state party.
This decentralization scheme is based on two levels of implementation. First, at the domestic level, states retain a particularly broad margin of appreciation in the means of implementing refugee law, since very few procedural guarantees are imposed to them by the Geneva Convention III. A, this chapter. Second, at the international level, this decentralized regime is reinforced by the absence of a proper monitoring mechanism III. B, this chapter. These two distinctive features of refugee law have, however, been considerably counterbalanced and sometimes neutralized by human rights law.
This leverage is primarily due to the control-oriented nature of human rights law. States are not p. Refugee law and human rights law reveal two opposite conceptions of their respective implementation schemes. Notwithstanding their divergence, human rights law has been instrumental in encapsulating and conditioning the implementation of the Geneva Convention at the domestic level. It has greatly detailed and refined the comparative paucity of the latter instrument by spelling out procedural guarantees on three decisive issues: the refugee status determination procedure III.
Following the traditional international law perspective, the Geneva Convention draws a clear-cut distinction between the international norms enshrined therein and their national implementation entrusted to each individual state party. While both the refugee definition and status are internationally grounded, the functional link between these two components is constituted by domestic procedures for the very purpose of identifying who is entitled to refugee status.
States accordingly recapture, at the implementation level, a portion of the sovereignty they have given up at the normative level, by agreeing to a relatively detailed regime. Domestic asylum procedures thus appear as privileged tools for determining the concrete extent of the obligations subscribed to under the Geneva Convention. As a result of this premise, the Geneva Convention does not formally require a refugee status determination procedure nor explicitly regulate its content and functioning.
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However, both in principle and in practice, the refugee definition presupposes some kind of identification process, although no specific procedure is explicitly mentioned in the Geneva Convention. This implicit duty is also confirmed by several other provisions, such as Articles 9 and 31 2. Nevertheless the exact content and modalities of these procedures is supposed to be determined by each contracting state with due regard to its own constitutional and administrative structure.
Despite this considerable margin of appreciation, Article 16 1 of the Geneva Convention retains its relevance, for it ensures free access to courts in particularly inclusive and unconditional terms. The broad material scope of this provision presumably includes access to asylum courts for reviewing any refusals of refugee status. As is apparent from the wording of this provision, its applicability is conditional on the criminal or civil nature of the rights involved in the relevant proceedings.
Such a requirement is, however, plainly in line with the very nature of the rights at stake in an asylum procedure. Indeed, the refugee status determination procedure inherently aims at determining the civil rights of the claimant, for its sole purpose is to establish whether an asylum-seeker is entitled to refugee status, which precisely includes a relatively broad range of civil rights and social benefits.
It even gives the impression of deliberately avoiding settling this issue by generating a certain level of confusion between asylum and deportation proceedings. However, this is precisely the confusion between the two types of procedure which led the p. Whatever the controversies surrounding the applicability of the right to fair trial to asylum procedures, the right to an effective review offers a solid avenue for ensuring procedural guarantees to asylum seekers.
From this angle, the substantial overlap between the principle of non-refoulement under refugee law and human rights law has a critical impact by compensating for the absence of procedural guarantees in the Geneva Convention. Moreover, except for the ECHR, all the other regional instruments explicitly endorse the right to seek asylum, which must accordingly be exercised with due respect to the right to an effective remedy.
First, non-respect of procedural requirements—such as the late submission of an asylum request—cannot be an obstacle to the examination of the merits of the claim by national authorities. It should be borne in mind in this regard that in applications for recognition of refugee status it may be difficult, if not impossible, for the person concerned to supply evidence within a short time, especially if…such evidence must be obtained from the country from which he or she claims to have fled. Accordingly, time-limits should not be so short, or applied so inflexibly, as to deny an applicant for recognition of refugee status a realistic opportunity to prove his or her claim.
It must be empowered to take a binding decision and grant appropriate relief, excluding thus any form of consultative procedure. As exemplified earlier, human rights law plays a crucial role by filling the procedural gap of the Geneva Convention. These guarantees are further strengthened when asylum seekers are deprived of their liberty during the asylum procedure or pending their removal.
Article 31 2 of the Geneva Convention addresses this issue in general and arguably vague terms. Considerable detail has been added to these general guidelines by human rights law regarding the grounds of detention, its legal basis, and other related procedural guarantees. The grounds of detention have been refined by human rights law through the prohibition of arbitrary detention notably restated in Article 9 of the ICCPR. The Human Rights Committee has recalled in the leading case A. Australia that. Furthermore, p. In any event, detention should not continue beyond the period for which the State can provide appropriate justification.
For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individuals, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal. In sum, detaining individuals requesting asylum cannot be systematic or mandatory but must be duly justified on the basis of the particular circumstances of each case, assessing the likelihood of absconding and lack of cooperation.
These grounds should persist during the whole period of detention, otherwise the deprivation of liberty is no longer justified. The principle of proportionality further requires that states examine whether there are other measures they could use to achieve their objectives without interfering with the right to liberty and security. As underlined by the Human Rights Committee, states must demonstrate that.
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Moreover, any detention must be in accordance with and authorized by law. This last requirement has been authoritatively illuminated by the European Court of Human Rights in the landmark case Amuur v. As restated by the Court, the legal basis in domestic law must be not only predictable and precise, but it must also be applied with due respect to other applicable norms of international law, including the Geneva Convention:. This last assertion may surprise, for the European Court is not formally empowered to review the application of the Geneva Convention and the European Convention on Human Rights does not explicitly enshrine such a right to effective access to the refugee status determination procedure.
However, for the purpose of assessing the arbitrariness of the detention, the Court is entitled to consider compliance with national law, including international norms incorporated into domestic law. Moreover, although not explicitly mentioned in the Geneva Convention, effective access to the refugee status determination procedure is implicitly required by a good faith implementation of the Geneva Convention and in particular of its cornerstone principle of non-refoulement.
Such acknowledgement by the European Court reflects the mutually supportive nature of human rights law and refugee law through a contextualised interpretation by treaty bodies. In parallel to the implicit duties deriving from the Geneva Convention, human rights instruments provide two other essential procedural guarantees to any person deprived of their liberty. Besides access to court, the scope and content of the judicial review has been spelled out in similar terms by the Human Rights Committee and the European Court of Human Rights.
The domestic review must be effective and the lawfulness of the detention should take into account both domestic law and the applicable international instrument. The intermingling of international refugee law and human rights law is further reinforced by the procedural guarantees governing expulsion. In contrast to the absence of provisions on the refugee status determination procedure, Article 32 of the Geneva Convention spells out in a relatively detailed manner the conditions governing expulsion. First, the grounds of expulsion are explicitly mentioned in the Geneva Convention, whereas the ICCPR contains no similar specification.
This difference is nevertheless negligible, because national security and public order are relatively broad notions capable of encapsulating a great diversity of situations and they constitute the traditional grounds of expulsion in domestic law and practice. Indeed, this provision can be invoked in connection with Article 13 and, accordingly, ensures that any expulsion order must be reviewed by an independent authority with all the guarantees inherent in the effectiveness of such remedy.
Third, Article 32 3 of the Geneva Convention specifically requires that, before carrying out the expulsion order, states parties shall allow a reasonable period within which refugees can seek legal admission into another country. Here again, although this last indication is not explicitly mentioned in the ICCPR, the subsequent interpretation of Article 13 has contributed to neutralizing the difference from the Geneva Convention.
In the absence of a safe third country, refugees and asylum seekers can be subjected to restrictions of movement. According to its Article 12 3 , any restrictions p. While the added value of the Geneva Convention has been largely neutralized by the subsequent interpretation of the ICCPR, the latter instrument offers more comprehensive protection in both personal and material scope.
Its personal scope not only includes refugees, but also asylum seekers and any other persons in need of protection. The Human Rights Committee has underlined, on this last requirement:. The particular rights of article 13 only protect those aliens who are lawfully in the territory of a State party. This means that national law concerning the requirements for entry and stay must be taken into account in determining the scope of that protection, and that illegal entrants and aliens who have stayed longer than the law or their permits allow, in particular, are not covered by its provisions.
Although the Human Rights Committee has not yet had the opportunity to further clarify this last assertion, it may have a substantial impact on the refugee status determination procedure. Whatever the uncertainties surrounding the applicability of Article 13 to asylum procedures, another substantial and less controversial added value of human rights law lies in the prohibition of collective expulsion. It accordingly requires two cumulative conditions regarding the purpose of the expulsion and the characteristics of the group concerned which, taken together, reveal its discriminatory nature.
The European Court of Human Rights privileges a more empirical definition based on the decision-making process, which requires an individual examination of the particular situation of each alien. The prohibition of collective expulsion thus has a considerable impact on the refugee status determination procedure, by requiring a case-by-case assessment of each asylum application.
The European Court further added in Conka v. As demonstrated, procedural guarantees granted by human rights law at the domestic level prove to be vital to compensate the lacunae of the Geneva Convention. In the meantime, the contextual and dynamic interpretation of treaty bodies has been so instrumental that the two branches of international law are now intimately interdependent.
Both in principle and in practice, human rights law and refugee law are bound to work in tandem.
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The primary reason for this cross-fertilization process can be found in the very existence of the human rights treaty bodies. They have played a decisive role in the propagation of human rights law within refugee law. Obviously this does not mean p. Both in substance and essence, treaty bodies have—whether consciously or not—counterbalanced the normative and institutional weaknesses of the Geneva Convention.
Compared to human rights law, the supervision mechanism provided by the Refugee Convention is rather traditional and rudimentary. This is fairly apparent from the final clause on settlement of disputes, which envisages the International Court of Justice ICJ as the primary means for settling disputes regarding the Convention. Both kinds of instruments enshrine erga omnes partes obligations, that is, those which all states parties have an interest to protect.
Similar to human rights treaties, the Geneva Convention does not create purely interstate obligations concluded on a contractual basis. It establishes instead a collective regime of objective obligations in favour of a particular category of individuals who are threatened in their life and liberty. The peculiar legal nature of the Geneva Convention was acknowledged from the outset. Already during its p. It explained in emphatic terms that can be transposed mutatis mutandis to the Geneva Convention that. It is indeed difficult to imagine a convention that might have this dual character to a greater degree, since its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality.
Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions. In parallel to their common underlying philosophy, the Geneva Convention and other related human rights instruments are thus grounded on the very notion of collective interests, which transcends the traditional principle of reciprocity.
However, the similarity of their normative pattern should not be overestimated, for erga omnes partes obligations are not peculiar to human rights treaties. They may be found in other multilateral treaties, such as those related to environmental law or diplomatic relations, to mention but a few instances. Moreover, while the erga omnes nature of these kinds of treaties clearly informs their application and interpretation, experience has shown that referral to the ICJ remains the exception rather than the rule.
It, accordingly, offers a limited avenue for defending collective interests. In practice, Article 38 has never been invoked by states parties to the Geneva Convention, thus highlighting the limits inherent in such interstate means of dispute settlement for ensuring the effective protection of individuals. As a compromise to this state-centred mechanism of implementation, UNHCR has been conceived of as the guardian of the Geneva Convention.
This reporting duty is curiously not accompanied by a proper monitoring mechanism for examining periodical reports of states parties on the implementation of the Geneva Convention. There is, however, nothing irremediable nor insurmountable in this situation. The dual obligation enshrined in Article 35 to cooperate with UNHCR and provide relevant information on the implementation of the Geneva Convention constitutes an adequate legal basis to establish a reporting and evaluation procedure. More generally, the very notion of international supervision includes by definition an enforcement component for the purpose of monitoring state compliance and asserting violations.
While the Refugee Agency plays a key role by providing interpretative guidance on the Geneva Convention and encouraging a harmonized application of its provisions by states parties, enforcement-related activities still remain the weakest p. Its inability to assume the monitoring tasks inherent in its supervisory responsibility is commonly attributed to two interrelated reasons.
It is becoming the most prominent UN operational agency for delivering humanitarian relief on the ground. The schizophrenic position of UNHCR has contributed in turn to the isolation of refugee law from the other branches of international law. The lack of an independent mechanism for monitoring the Geneva Convention sharply contrasts with the control-oriented paradigm of human rights law. Both universal and regional human rights treaties are supported by their own treaty bodies specifically mandated to monitor state compliance with their conventional obligations.
As abundantly exemplified by this chapter, the two first functions have played a critical role in ensuring the protection of refugees and asylum seekers through a contextual interpretation of general human rights treaties. The vital importance of treaty bodies can be further asserted by the fact that between 80 and 90 per cent of all individual complaints submitted to the Committee against Torture are based on Article 3.
The ExCom steadily reaffirms in this sense that. While human rights monitoring missions must investigate and encourage prosecution of human rights violations, action in support of refugees and returnees is essentially humanitarian, involving confidence-building and creation of conditions conducive to peace and reconciliation. To many observers, maintaining the two distinctive protection regimes appears ineluctable for preserving the vital operational function carried out by UNHCR on the ground.
Hence, despite the growing normative convergence between the two bodies of international law, monitoring and enforcement-related measures represent the core—and perhaps irreducible—difference between refugee law and human rights law. The prevailing dichotomy between their respective implementation schemes may nevertheless be largely attenuated provided that all the stakeholders are willing to do so. This would require the concerted adoption of a complementary set of practical measures at three distinct levels. On the one hand, the former option would be a peer-review process more easily acceptable to states but its intergovernmental nature presents obvious risks of politicization and confrontations.
On the other hand, the latter option would present the advantage of being an independent and objective assessment and it would preserve UNHCR from being involved in any conflict of interests. For these reasons, establishing an independent monitoring process is both more credible and more appropriate. Second, at the Human Rights Council level, a Special Rapporteur on the human rights of refugees and asylum seekers should be established with a view to promoting better awareness and application of the human rights norms applicable to these particularly vulnerable groups. Undoubtedly, a new special procedure cannot be considered an antidote to the absence of a monitoring process of the Geneva Convention.
It would nevertheless considerably enrich and strengthen the current p. It would also ensure by the same token a more holistic approach within the Human Rights Council in complementing the work carried out by the Special Rapporteur on the human rights of migrants established in and the Special Rapporteur on the human rights of internally displaced persons created in With this aim in mind, each treaty body should adopt a general comment specifically devoted to the rights of refugees and asylum seekers under their respective treaties.
While the Committee on the Elimination of Racial Discrimination CERD has already adopted a comment on the right to return, this exercise should be undertaken in a more systematic way by all the nine UN treaty bodies so as to clarify the scope and the content of the relevant human rights instruments. These three proposals would not only ensure a more consistent approach between the two protection regimes, they would also improve to a large extent due respect for refugee rights.
The interaction between human rights law and refugee law is extremely dense. As a result of a gradual normative process, they have become so intimately interdependent and imbricated that it is now virtually impossible to separate one from the other.
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Notwithstanding this impressive convergence, the conceptualization of their interrelation still diametrically diverges when seen from the standpoints of different observers. On the contrary, for others, the terms of this relation should be reversed: the accessory is the principal. On the one hand, a closer examination of their respective norms clearly demonstrates that human rights law has become the primary source of refugee protection. The Geneva Convention has been accordingly relegated to a supporting role. Treaty bodies have been instrumental in developing a contextual interpretation of general human rights norms, which—intentionally or not—counterbalances restrictive interpretations carried out by individual states parties to the Geneva Convention in the absence of a proper monitoring mechanism.
Furthermore, this phenomenon of appropriation is structurally grounded on the distinctive characteristics of human rights law regarding both its personal and material scope.
Its personal scope is obviously broader, since it includes not only refugees but also asylum seekers and any other persons in need of protection. On the contrary, the Geneva Convention is essentially applicable to recognized refugees, whereas asylum seekers have been consciously excluded from its scope except for a few elementary provisions, such as penal immunity and the principle of non-refoulement. The centrality of human rights law is further reinforced by its material scope, for it sets out a wide range of rights which are not covered by the Geneva Convention. This concerns an extensive number of civil, political and cultural rights for refugees and, under rare exceptions, all human rights of asylum seekers.
By contrast, extremely few rights remain exclusively governed by the Geneva Convention. This primarily concerns very technical and specific matters, such as equality in fiscal charges Article 29 and transfer of assets Article One could still argue that, from a conceptual and normative perspective, these two provisions are practical derivatives of the general principle of equality before the law and of the broader human right to property. The same reasoning can be applied with regard to identity papers Article 27 and travel documents Article 28 , which are frequently heralded as the distinctive advantages of refugee status.
Although these two provisions do not have exact human rights equivalents, delivering identity papers to refugees can be considered as a positive obligation deriving from the right to recognition everywhere as a person before the law. However, as p. In sum, compared to human rights law, the Geneva Convention has much more to receive than to give.
On the other hand, one could nevertheless argue that, despite its marginal added value, the Geneva Convention still remains a primary source of protection, not only because it is considered as such by states but, more fundamentally, because human rights law has considerably refined, reinforced, and sustained its normative frame. As noted above, refugee status is primarily structured by the traditional distinction between citizens and non-citizens.
In the absence of any other normative frame of reference, the content of the applicable standards was supposed—initially at least—to be determined by the domestic law of each state party. Against such a background, human rights law has given a second life to the Geneva Convention by internationalizing its frame of reference.
It provides a vital baseline for determining the minimum standard which domestic legislation cannot go beyond without breaching international human rights law. The cumulative application of the two branches of international law reinforces the international refugee protection regime through a mutually supportive process of normative sedimentation. As a result of such intermingling, refugee law is now indissociable from human rights law, each branch of international law being part of the same normative continuum.
Following such a stance, one can even argue further that refugee law has been absorbed by human rights law. While the Geneva Convention retains some symbolic relevance, the distinction between nationals and aliens which conditions the very content of refugee status has been largely marginalized and superseded by the general applicability of human rights to non-citizens.
The transformation of refugee law by human rights law has far-reaching effects largely beyond the content of its norms. The gravitational force of human rights law has attracted the Geneva Convention into its orbit and anchored it as a satellite within the constellation of other applicable human rights treaties. As a result of this centripetal force, the conception of the Geneva Convention as a whole has been revisited and reframed through the lens of human rights law.
The single and evasive reference to human rights in its preamble has been retrospectively viewed as the ultimate evidence of its human rights origin. The Geneva Convention has thus been reconstructed as a human rights treaty in its own right. This is rather ironic, given that the Refugee Convention is not a human rights treaty per se simply because it is a duty-driven—and not a human rights-based—instrument.
Clearly perception counts more than reality. In a normative environment largely dominated by human rights, all observers are now convinced of the human rights nature of the Geneva Convention. Both in principle and in practice, human rights law has thus become the new orthodoxy of refugee law. From a systemic perspective, human rights law considerably informs the very function of refugee law.
Another state is to provide a surrogate protection where protection is not available in the home state. The convention assumes that every state has the obligation to protect its own nationals.
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But it recognises that circumstances may occur where that protection may be inadequate. The purpose of the convention is to secure that a refugee may in the surrogate state enjoy the rights and freedoms to which all are entitled without discrimination and which he cannot enjoy in his own state. Although the reverse has not always been true, human rights law is refugee law.
One question still remains to be addressed: does the ubiquitous stance of state sovereignty in refugee law affect its human rights nature? Undoubtedly, state sovereignty is more visible in refugee law than in many other fields of international law. Territorial sovereignty is both the foundation and the limit of international refugee law. On the one hand, refugees are protected against persecution from their own countries, as a consequence of the territorial jurisdiction of asylum states. The duty of every state to respect the territorial integrity of others means that countries of origin can no longer exercise any act of authority upon their nationals who found asylum abroad.
On the other hand, asylum states do not have the correlative obligation to grant protection within their own territory. However, such a normative dilemma is not specific to refugee law, since human rights law is framed by the same dialectic. Under both branches of international law, the sovereign right of granting or refusing asylum is mitigated and sometimes neutralized by the obligation of non-refoulement. In short, while state sovereignty influences the content of the applicable norms, its does not fundamentally affect the very nature of refugee law.
Humanitarian law is grounded on a precarious balance between military necessity p. But there are still some obstacles to overcome before they will truly become human rights lawyers. The last step is perhaps the most difficult one. It requires a cultural revolution in the profession, not only in recognizing the centrality of human rights law, but also by accepting all its consequences.
While the fetishism of the Geneva Convention is no longer tenable, human rights law requires a holistic approach of refugee protection. This may ultimately revive the ancestral function to asylum: asylum is not only an act of protection; it is also an act of affirmation against another subject of law which is deemed unable to hold its primary function. In essence, granting asylum reflects the judgment that the state of origin has failed to fulfil its duty of protection and has, accordingly, lost its legitimacy.
Whereas the Geneva Convention exclusively focuses on the obligations of asylum states, human rights law provides a broader avenue for encapsulating the correlative responsibility of states of origin. This presupposes in turn that the so-called neutral and humanitarian character of asylum is abandoned to assume the political nature of human rights. Acknowledging the multifaceted intermingling between refugee rights and human rights paves the way towards a radical change in perception. It calls for revisiting the international regime of refugee protection as a whole, while forcing both states of origin and of asylum to face their responsibilities.
Chetail and C. Research Report, European University Institute Eide and J. Carlier et al. Weissbrodt and I. Bouteillet-Paquet ed. Urbano de Sousa and P. Piotrowicz and C. HRJ ; J. Chetail and J. Clark and F. Among a copious literature asserting the human rights nature of the Geneva Convention, see Hathaway n 7 at 5; Edwards n 7 at ; L. Curran and S. Kneebone ed. Globalisation and International Law 1 ; Gorlick n 7 at ; F. Nicholson and P. Twomey eds , Refugee Rights and Realities.
For a more conceptual and critical stance, see however: E. Hathaway n 7 9. See also W. Simeon ed. See also A. Arnold and N. See, contra , J. Skran, Refugees in Inter-War Europe. The Emergence of a Regime ; J. This concern is also evidenced by the fact that the refugee definition was originally limited to persons fleeing events occurring before January and states parties were enabled to further restrict its scope to events occurring within Europe.
These temporal and geographical limitations have been removed by the Protocol, thus giving the Geneva Convention universal coverage. See more generally: K. The Convention Definition: Universal or Obsolete? Ward  DLR 4th 1, 67—8. See also E. Melander, The Two Refugee Definitions Zimmermann and C. Zimmermann ed. A Commentary , —58; M. Refugee from Deprivation 27—86 ; von Sternberg n 4 at 1—18; D. Alland and C. Ward  DLR 4th 1; Horvath v. Secretary of State for the Home Department n 26 ; K. First, they expressly show that a premise of the Convention was that all human beings shall enjoy fundamental rights and freedoms.
Islam v. Secretary of State for the Home Department, R. See also Pushpanathan v. Secretary of State for the Home Department and R. Immigration and Naturalization Service  F. For further assessment of the French practice, see: V. Zwaan ed. For an overview of the principle of non - refoulement , see W.
Caroni, and L. A Commentary ; Wouters n 5 ; J. Goodwin-Gill and J. Lauterpacht and D. Feller, V. It does not apply to all asylum-seekers but only to those who satisfy the three following conditions imposed by Art. Khawar  HCA 14, para. See also among many other similar judicial statements: R v. Zaoui  Dec. Zaoui n 69 para. See also Attorney General v. Zaoui n 69 paras and ; NSH v. Grahl-Madsen, Territorial Asylum , 61—8. Ibrahim  HCA 55, para. The right of asylum shares the same fate as the right to property, being the only rights proclaimed in the UDHR that were not restated in the UN Covenants.
Other regional instruments are even more vague and permissive: Charter of Fundamental Rights of the European Union, 18 December , Art. I , para. Modise v. For further discussions about the possible rationale underlying the implicit duty of non - refoulement , see also H. Salerno ed. Noll, Negotiating Asylum , — Dhaka's capacity to accommodate refugees "is bursting at the seams," with Prime Minister Sheikh Hasina under increasing pressure from opposition parties close to Pakistan ahead of general elections, Sajjanhar said.
Hasina has requested Yangon to take back the refugees, but Myanmar's de-facto leader Aung San Suu Kyi said on Tuesday that her country would only open its doors to "verified refugees. Sign up for free newsletters and get more CNBC delivered to your inbox. Get this delivered to your inbox, and more info about our products and services.
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