INTERNATIONAL HUMAN RIGHTS

How Can International Human Rights Approach Help to Overcome the Limitations of International Refugee Law?

How Can International Human Rights Approach Help to Overcome the Limitations of International Refugee Law?

Introduction

International law provides powerful yet limited protection for refugees. The 1951 Convention Relating to the Status of Refugees is a key instrument but following years of restrictive interpretation it has come to be directly relevant only for refugees individually and deliberately targeted, thereby excluding from its ambit most civilians fleeing generalized violence or war. Humanitarian considerations led states to fill the gaps through national practice, regional instruments and soft-law, whilst NGOs and advocacy groups have resorted to human rights law.

Given these limits, how have scholars approached the study of refugee protection? Refugee law continues to be still very much anchored in international law. Naturally, therefore, international instruments (the Refugee Convention) have been explored by a first generation of scholarship. A second generation of scholarship has been preoccupied with domestic responses, and the relationship between the domestic and the international. There is now a third generation of scholarship that looks at transnational processes of legal change involving a wide range of actors (not just states and UNHCR). This paper will discuss how International human rights approach help to overcome the limitations of international refugee law.

Discussion

International refugee law aims to protect persons who seek asylum from persecution and those who have been recognized as refugees. It consists of a number of international and regional legal instruments as well as customary international law applying to all states in the world. International refugee law overlaps to some extent with international Human Rights law. Since 1945, a series of international and regional human rights treaties and instruments have been adopted.

Refugee law is arguably one of the most contentious fields of contemporary international law. There is a wide literature both general international refugee law and more issues, both monographs and articles in academic journals. There are even whole journals devoted to the subject. Refugee law as we know it emerged only in the 20th century, but its moral content developed over several centuries, based on the notion of asylum and protection of individuals from different types of persecution. The essential element of the international protection of human beings who persecuted for various reasons has to be assessed from a variety of different perspectives. At the same time, state sovereignty, and how states deal with their own ...