The origins of refugee rights are closely intertwined with the emergence of the general system of international human rights law. Like international human rights, the refugee rights regime is a product of the twentieth century. Its contemporary codification by the United Nations took place just after the adoption of the Universal Declaration of Human Rights, and was strongly influenced by the Declaration’s normative structure.
In a more fundamental sense, though, the refugee rights regime draws heavily on the earlier precedents of the law of responsibility for injuries to aliens and international efforts to protect national minorities. This chapter highlights the conceptual contributions made by each of these bodies of international law to the emergence of specific treaties to govern the human rights of refugees. It then introduces the essential structure of the 1951 Refugee Convention,Footnote 1 still the primary source of refugee-specific rights in international law. Finally, this chapter takes up the question of the relationship between the refugee rights regime and subsequently enacted treaties, particularly those that establish binding norms of international human rights law. The view is advanced that refugee rights should be understood as a mechanism by which to answer situation-specific vulnerabilities that would otherwise deny refugees meaningful benefit of the more general system of human rights protection. Refugee rights do not exist as an alternative to, or in competition with, general human rights. Nor, however, has the evolution of a broad-ranging system of general human rights treaties rendered the notion of refugee-specific rights redundant.
The process of governance is normally premised on a closed system of obligation. Rules are established to support the polity’s functional interdependence, without expectation that outsiders will conduct themselves by those standards. There is therefore a potential conflict when foreigners seek entry into a territory governed by rules of conduct different from those that prevail in their home country. While it is generally conceded that the territorial sovereign may formally insist on compliance with prevailing standards as a condition of entry, there are often practical considerations which argue against such inflexibility.Footnote 2 Governments have long understood that it is sensible to attenuate otherwise valid laws to encourage the entry of desirable outsiders.
For example, the ancient Greeks accepted that their rules denying legal capacity to foreigners posed a barrier to the attraction of foreign craftsmen able to enrich the quality of their communal life. Their answer was the establishment of a separate legal regime to govern the conduct of skilled foreigners, the standards of which were sufficiently attractive to facilitate the desired level of settlement.Footnote 3 Similar practices evolved as part of the medieval law merchant. By the thirteenth century, it had become common for associations of traveling merchants to negotiate various forms of immunity and privilege with European rulers anxious to promote economic growth through foreign trade. These merchants were ultimately allowed to govern themselves, autonomously administering their own laws within the territory of foreign sovereigns.Footnote 4
The emergence of nation-states in the sixteenth century provided the context within which to formalize this ad hoc pattern of special rights granted to traders by various European rulers. Governments undertook the bilateral negotiation of treaties in which safe passage and basic civil rights were mutually guaranteed to merchants and others wishing to do business or to travel in the partner state. By the late nineteenth century, a network of “friendship, commerce, and navigation” treaties consistently guaranteed certain critical aspects of human dignity to aliens admitted to most trading states.Footnote 5 Because these agreements were pervasively implemented in the domestic laws of state parties, certain human rights universally guaranteed to aliens were identified as general principles of law.Footnote 6 These included recognition of the alien’s juridical personality, respect for life and physical integrity, and personal and spiritual liberty within socially bearable limits. Aliens were afforded no political rights, though resident aliens were subject to reasonable public duties. In the economic sphere, there was a duty of non-discrimination among categories of aliens where they were allowed to engage in commercial activity. There was also an obligation to provide adequate compensation for denial of property rights where aliens were allowed to acquire private property. Finally, aliens were to be granted access to a fair and non-discriminatory judicial system to enforce these basic rights.Footnote 7
The protection of aliens was not, however, restricted to the few rights which attained the status of general principles of law. States heavily engaged in foreign commerce and investment were understandably anxious to garner additional protections for their nationals working abroad. They pursued this objective by continuing to negotiate bilateral treaties to supplement entitlements under the general aliens’ rights regime. These particularized agreements allowed consenting governments mutually to accord a variety of rights to each other’s citizens, to a degree befitting the importance attached to the bilateral relationship. An important innovation to emerge from this process of bilateral negotiation was the definition of many aliens’ rights by reference to contingent standards of protection.Footnote 8
The definition of rights in absolute terms, traditionally used at the national level, did not translate well to the framing of bilateral accords on alien protection.
First, states were concerned to avoid the possibility that aliens might at some point claim rights not guaranteed even to citizens. Contingent rights – defined in a way that varied with what was on offer to others – gave states the confidence to protect aliens without fear of privileging them as granting them rights defined in absolute terms might do.
Second, the meaning attributed to a particular entitlement (for example, freedom of internal movement) had always to be interpreted through the often divergent cultural and juridical lenses of each state party. The national state might, for example, assume that this right allowed the legally admitted alien to choose his or her place of residence in the receiving state, while the latter state intended it to mean only freedom to travel without restrictions. The definition of broad rights in absolute terms might therefore result not in strengthened protection, but instead in a lack of clarity.
Third, unambiguous, absolute standards could work to the long-term disadvantage of aliens residing in states in which rights were in evolution. Host states were not disposed continuously to renegotiate bilateral protection agreements, and were especially unlikely to entertain requests for amendment from foreign governments of modest influence. The citizens of less important states might therefore find themselves denied the benefits of protections subsequently extended to the nationals of more-favored countries. Even for the citizens of more influential countries, the definition of aliens’ rights in absolute terms could be counter-productive: a static definition of rights would mean that new protections afforded citizens of the host country would not accrue automatically to even most-favored aliens.
To respond to these concerns, bilateral negotiations tended to couple absolute protection of a limited core of clearly understood rights with a broader range of entitlements loosely defined in contingent terms. The standard of protection for contingent rights was thus not discernible simply by reference to the literal scope of the treaty. It was set instead as a function of the relevant treatment accorded another group likely to secure maximum protection under the receiving state’s laws, usually either the nationals of “most-favored” states, or the citizens of the state of residence itself. The precise content of the duty was therefore not fixed, but evolved in tandem with an exterior state of law and fact presumed to be a reliable benchmark of the best treatment that could be secured from the receiving state.
Walker aptly characterizes this system of contingent rights as providing for “built-in equalization and adjustment mechanisms.”Footnote 9 The definition of aliens’ rights by a combination of general principles of law and bilateral agreements of varying scope and rigor resulted in different classes of foreigners enjoying protection of sometimes different rights, and to differing degrees. All aliens, however, were in theory entitled to at least the benefit of the limited set of rights established by the general principles of aliens law. At first glance, international aliens law might therefore appear to be an important source of rights for refugees. After all, refugees are by definition persons who are outside the bounds of their own state.Footnote 10
The general principles that emerged from the network of interstate arrangements on the protection of aliens do not, however, endow aliens themselves with rights and remedies.Footnote 11 International aliens law was conceived very much within the traditional contours of international law: the rights created are the rights of national states, enforced at their discretion under the rules of diplomatic protection and international arbitration.Footnote 12 While injured aliens may benefit indirectly from the assertion of claims by their national state, they can neither require action to be taken to vindicate their loss, nor even compel their state to share with them whatever damages are recovered in the event of a successful claim.Footnote 13 The theory underlying international aliens law is not the need to restore the alien to a pre-injury position. As summarized by Brierly, the system reflects “the plain truth that the injurious results of a denial of justice are not, or at any rate are not necessarily, confined to the individual sufferer or his family, but include such consequences as the mistrust and lack of safety felt by other foreigners similarly situated.”Footnote 14 Aliens law is essentially an attempt to reconcile the conflicting claims of governments that arise when persons formally under the protection of one state are physically present in the sovereign territory of another – not a means of securing individuated redress for the injured alien. In any event, refugees have traditionally been unable to derive even indirect protection from the general principles of aliens law because they lacked the relationship with a state of nationality legally empowered to advance a claim to protection.Footnote 15
The emergence of general principles of aliens law nonetheless signaled a critical conceptual breakthrough in international law, which laid the groundwork for the subsequent development of the refugee rights regime.First, aliens law recognizes the special vulnerabilities which attend persons outside the bounds of their national state. Aliens have no right to participate in, or to influence, a foreign state’s lawmaking process, yet are subjected to its rigors. As such, the domestic laws of the foreign state might, in the absence of international law, make no or inadequate provision for the alien to access meaningful protection against harm:
[T]he individual, when he leaves his home State, abandons certain rights and privileges, which he possessed according to the municipal law of his State and which, to a certain limited extent, especially in a modern democracy, gave him control over the organization of the State … In a foreign State, he is at the mercy of the State and its institutions, at the mercy of the inhabitants of the territory, who in the last resort accord him those rights and privileges which they deem desirable. This is a situation which hardly corresponds to modern standards of justice.Footnote 16
Aliens law effects a minimalist accommodation of the most basic concerns of foreigners in the interest of continued international intercourse. It is a formal acknowledgment that commercial linkages and other aspects of national self-interest require legal systems to adapt to the reasonable expectations of non-nationals.
Second, the development of aliens law brought the vindication of particularized harms within the realm of international legal relations. A state which fails to live up to the minimum standards of protection owed to aliens can be forced to answer for its failures through the formal mechanisms of diplomatic protection and international arbitration. International law was transformed from a system focused solely on resolving the conflicting corporate interests of states, to a regime in which the particularized harms experienced by at least some individual human beings are subsumed within the definition of the national interest.Third, given that international legal accountability would mean nothing without effective action, aliens law embraced surrogacy as the conceptual bridge between particularized harms and international enforceability. Because individuals are in most cases not recognized actors in international legal relations, all wrongs against a citizen are notionally transformed into harms done to the national state, which is deemed to enjoy a surrogate right to pursue accountability in its sole discretion.Footnote 17 This is not a trustee relationship, as national states are required neither to take the needs of the injured individual into account, nor to make restitution of any proceeds derived from enforcement. As unfair as it undoubtedly is that the persons who actually experience a loss abroad have so little control over process or recovery of damages, the surrogacy relationship implemented by international aliens law nonetheless served the objective of forcing foreign states to take respect for the human dignity of aliens more seriously. As observed by Amerasinghe,
International society as a whole is, perhaps, content to keep the law in a fairly undeveloped state. Thus, it has become more an instrument for keeping in check the powers of States vis à vis aliens, emanating from extreme theories of State sovereignty, than a reflection of the proper aspirations of an international society seeking to reconcile the conflicting interests of State and alien with a view to ensuring ideal justice for the individual.Footnote 18
Fourth, and most specifically, the parallel system of bilateral agreements on the protection of aliens showed how rights could be defined across cultures, and in a way that maintained their currency in changing circumstances. Only a few clearly understood and established rights were normally phrased as absolute undertakings. For the most part, the standard of protection was set in contingent terms, effectively assimilating the aliens of the state parties either to “most-favored” foreigners or even to citizens of the territorial state. The objective of protection came therefore to be understood in terms of non-discrimination, extending to whatever core interests were viewed by the negotiating states as necessary to sustain the desired level of interstate relations.
We are trying to make a peaceful settlement, that is to say, to eliminate those elements of disturbance, so far as possible, which may interfere with the peace of the world … The chief burden of the war fell upon the greater Powers, and if it had not been for their action, their military action, we would not be here to settle these questions. And, therefore, we must not close our eyes to the fact that, in the last analysis, the military and naval strength of the Great Powers will be the final guarantee of the peace of the world … Nothing, I venture to say, is more likely to disturb the peace of the world than the treatment which might in certain circumstances be meted out to minorities. And, therefore, if the Great Powers are to guarantee the peace of the world in any sense, is it unjust that they should be satisfied that the proper and necessary guarantee has been given?Footnote 19
The Minorities Treaties marked a major advance over the conceptual framework of international aliens law. Whereas the concern under aliens law had been simply to set standards for the treatment abroad of a state’s own nationals, the Minorities Treaties provided for external scrutiny of the relationship between foreign citizens and their own government. Minorities were guaranteed an extensive array of basic civil and political entitlements, access to public employment, the right to distinct social, cultural, and educational institutions, language rights, and an equitable share of public funding. The duty to respect these rights was imposed on the governments of defeated states as a condition precedent to the restoration of sovereign authority over their territories. While no formal international standing was granted to minority citizens themselves, enforcement of interstate obligations relied heavily on information garnered from petitions and other information provided by concerned individuals and associations. The welfare of particular human beings was thereby formally recognized as a legitimate matter of international attention.
Beyond their conceptual importance as limitations on state sovereignty over citizens, the Minorities Treaties also broke new ground in procedural terms. After the 1878 Treaty of Berlin, complaints had been made that victorious states took advantage of their right to supervise the protection of minorities to intervene oppressively in the vanquished states’ internal affairs. Rather than overseeing the conduct of the defeated states directly, the Great Powers which emerged from the First World War therefore opted to establish the first international system of collectivized responsibility for the enforcement of human rights. The Great Powers requested the Council of the just-established League of Nations to serve as guarantor of the human rights obligations set by the Minorities Treaties. Once ratified, the treaties were submitted to the Council, which then resolved formally to take action in response to any risk of violation of the stipulated duties.Footnote 20 The League of Nations went on to establish an elaborate petition system to ensure that Council members had the benefit of the views of both minorities and respondent governments before taking action in a particular case.
This system was in no sense a universal mechanism to protect human rights. It was applicable only to states forced to accept minority rights provisions as part of the terms of peace, and to a smaller number of states that made general declarations to respect minority rights as a condition of admission to the League of Nations. Nor did the Minorities Treaties system challenge the hegemony of states as the only parties able to make and enforce international law. Petitions from minorities were a source of critical information to the League’s Council, but did not enfranchise individuals or collectivities as participants in the enforcement process.
The minorities system nonetheless contributed in important ways to the evolution of both international human rights law and the refugee rights regime. The Minorities Treaties firmly established the propriety of international legal attention to the human rights of at-risk persons inside sovereign states. Whereas aliens law considered harms against individuals merely as evidence in the adjudication of competing claims by states, the system of minorities protection reversed the equation. The focus of concern became the well-being of the minorities themselves, albeit a concern driven by the desire to avoid consequential harm to the peace and security of the international community.
Equally important, the Minorities Treaties provided the context for collectivization of international responsibility for supervision of human rights. They showed the viability of an enforcement process vested in the community of states, yet open to the voices of particular individuals and collectivities. In contrast to aliens law, the minorities system did not condition enforcement on the initiative of a particular state, but established a direct role for the international community itself in the assertion of human rights claims. This evolution was very important to refugees and stateless persons, who are by definition not in a position to look to their national state to protect their interests.
Aliens law was the first legal system to deny the absolute right of states to treat persons within their jurisdiction in whatever manner they deemed appropriate. It recognized the special vulnerabilities of persons outside their national state, and established a combination of absolute and contingent duties owed to aliens. It was enforceable by a system of interstate accountability, operationalized at the bilateral level. The League of Nations system for protection of national minorities built on these achievements, but strengthened enforceability by replacing pure bilateral accountability with the first system of collectivized surrogacy. The concern of the international community was transformed from simply the facilitation of national protective efforts to direct engagement as the source of residual protection for those whose interests were not adequately safeguarded by national governments. States were directly accountable to the international community for actions in disregard of human rights within their own borders. The legal framework for an international refugee rights regime draws on the progressive refinements achieved under these two systems.
The early efforts of the international community to protect refugees stemmed from a series of exoduses in the years following the end of the First World War: some 2 million Russians, Armenians, and others were forced to flee their countries between 1917 and 1926. The flight of these refugees unfortunately coincided with the emergence of modern systems of social organization throughout most of Europe. Governments began to regulate large parts of economic and social life, and to safeguard critical entitlements for the benefit of their own citizens. This commitment to enhanced investment in the well-being of their own citizenry led states to reassert the importance of definite boundaries between insiders and outsiders, seen most clearly in the reinforcement of passport and visa controls at their frontiers. Equally important, access to such important social goods as the right to work and public housing was often limited to persons able to prove citizenship.
The impact of this shift in European social organization was mitigated by the network of bilateral treaties of friendship, commerce, and navigation established under the rubric of international aliens law.Footnote 21 These agreements guaranteed the nationals of contracting states access while abroad to most of the benefits normally reserved for citizens. The essential precondition was reciprocity: the citizens of one state could expect benefits in the cooperating state only if their own government in turn ensured the rights of citizens of that partner state. If reciprocity was not respected, or if there was no bilateral arrangement between an individual’s home state and the foreign country into which entry was sought, access to the territory, or at least to important social benefits, would likely be denied.
This reciprocity requirement was disastrous for early groups of refugees. Most had no valid identity or travel documents to prove their nationality in a cooperating state. Worse still, the 1.5 million Russian refugees who fled the Bolshevik Revolution were formally denationalized by the new Soviet government, and therefore clearly ineligible to benefit from any bilateral arrangement. Without documentation to establish their eligibility for entry and residence, refugees were either turned away or, if able to avoid border controls, barred from work and other regulated sectors. Lacking valid travel documents, they were not able to move onward from first asylum states in search of better living conditions. The result was many truly desperate people, often destitute and ill, unable either to return to their home state or to live decent lives abroad.The first generation of refugee accords was an attempt to respond to the legally anomalous situation of refugees.Footnote 22 As observed by the League of Nations Advisory Commission for Refugees, “the characteristic and essential feature of the problem was that persons classed as ‘refugees’ have no regular nationality and are therefore deprived of the normal protection accorded to the regular citizens of a State.”Footnote 23 Like all aliens, refugees were essentially at the mercy of the institutions of a foreign state. In contrast to other foreigners, however, refugees clearly could not seek the traditional remedy of diplomatic protection from their country of nationality:
The refugee is an alien in any and every country to which he may go. He does not have the last resort which is always open to the “normal alien” – return to his own country. The man who is everywhere an alien has to live in unusually difficult material and psychological conditions. In most cases he has lost his possessions, he is penniless and cannot fall back on the various forms of assistance which a State provides for its nationals. Moreover, the refugee is not only an alien wherever he goes, he is also an “unprotected alien” in the sense that he does not enjoy the protection of his country of origin. Lacking the protection of the Government of his country of origin, the refugee does not enjoy a clearly defined status based upon the principle of reciprocity, as enjoyed by those nationals of those states which maintain normal diplomatic relations. The rights which are conferred on such nationals by virtue of their status, which is dependent upon their nationality, are generally unavailable to him. A refugee is an anomaly in international law, and it is often impossible to deal with him in accordance with the legal provisions designed to apply to aliens who receive assistance from their national authorities.Footnote 24
Confronted by largely unstoppable flows of desperate people who did not fit the assumptions of the international legal system, states agreed that it was in their mutual self-interest to enfranchise refugees within the ranks of protected aliens. To have decided otherwise would have exposed them to the continuing social chaos of unauthorized and desperate foreigners in their midst. Equally important, it was understood that the credibility of border controls and of the restriction of socioeconomic benefits to nationals was at stake: by legitimating and defining a needs-based exception to the norm of communal closure, refugee law sustained the protectionist norm. So long as the admission of refugees was understood to be formally sanctioned by states, their arrival would cease to be legally destabilizing.
The mechanisms adopted to address the plight of refugees followed from experience under predecessor systems. As under aliens law, the fundamental goal was to adapt to the reasonable expectations of non-nationals in the interest of the continued well-being of the international system. This objective was implemented through the collectivized surrogacy model developed by the Minorities Treaties regime: refugees did not become the holders of particular rights, but were entitled to benefit from actions taken for them by a succession of League of Nations high commissioners. In particular, the League of Nations was empowered by various treaties and arrangements to respond to the legal incapacity of refugees by providing them with substitute documentation, which states agreed to treat as the functional equivalent of national passports. A system of surrogate consular protection emerged as well. Representatives of the High Commissioner were authorized by states to perform tasks normally reserved to states of nationality, such as establishing identity and civil status, and certifying educational and professional qualifications.
These first refugee agreements did not set specific responsibilities for states, other than cooperation in the recognition of League of Nations documentation. There was generally no need for greater precision, as most European states continued to afford relatively generous benefits to the nationals of “most-favored states” to whom refugees were effectively assimilated. The presence of refugees was moreover perceived by states to be a transitory phenomenon, which would resolve itself either through consensual naturalization in the state of residence or by return of the refugee to the state of origin when conditions normalized.Footnote 25 There was accordingly no need to do more than bring refugees within the ranks of admissible foreigners.
The 1928 Arrangement relating to the Legal Status of Russian and Armenian Refugees,Footnote 26 however, departed from this pattern. Increasing political and economic instability, coupled with the persistence of the “temporary” refugee phenomenon, had led some states to refuse to assimilate refugees to most-favored foreigners. As generosity subsided, the League of Nations elected to standardize the range of rights that should be extended to refugees. While framed as a series of non-binding recommendations to states, the 1928 Arrangement set standards for the recognition of personal status, and emphasized the inappropriateness of conditioning refugee rights on respect for reciprocity by their home state. The Arrangement also addressed a number of more detailed concerns, such as access to the courts, the right to work, protection against expulsion, equality in taxation, and the nature of national responsibilities to honor League of Nations identity certificates.Reliance on moral suasion alone to induce uniform respect for the human dignity of refugees did not, however, prove satisfactory:
The results so far secured, however, leave something to be desired as regards both the legal status and conditions of life of refugees. The replies received [from states] to the enquiry into the application of the Arrangement … show that there is still much to be done before the position of refugees in all countries is such as no longer to call for strong and continued international action. The striking feature of the replies and of the established known facts is the comparative inefficacity of the recommendations.Footnote 27
The Great Depression had understandably fortified the resolve of states to preserve scarce entitlements for their own citizens. Unlike other foreigners who responded by leaving, however, refugees could not return home.
The dilemma was sufficiently serious that in 1933 the League of Nations Intergovernmental Commission, charged with oversight of refugee protection, observed that “[t]he desirability of a convention aiming at securing a more stable legal status for refugees [was] unanimously recognized,”Footnote 28 and that “the stabilization of the legal status of refugees can only, owing to the very nature of the steps to be taken, be brought about by a formal agreement concluded by a certain number of States concerned.”Footnote 29 The resultant 1933 Convention relating to the International Status of RefugeesFootnote 30 is one of the earliest examples of states agreeing to codify human rights as matters of binding international law.Footnote 31 Equally important, it opened the door to a new way of thinking about the human rights of aliens. Aliens’ rights had previously been conceived to respond to a fixed set of circumstances, namely those typically encountered by traders and other persons traveling or residing abroad in pursuit of commercial opportunities.Footnote 32 Many risks faced by refugees in foreign states were, however, different from those which typically confronted business travelers. The Refugee Convention of 1933 met this challenge by setting a rights regime for a subset of the alien population, tailored to its specific vulnerabilities.
Many rights set by the 1933 Convention simply formalized and amplified the recommendations set out in the 1928 Arrangement. An important addition was the explicit obligation of states not to expel authorized refugees, and to avoid refoulement, defined to include “non-admittance at the frontier.”Footnote 33 Three key socioeconomic rights were also added to the 1928 list. First, the Convention granted refugees some relief from the stringency of foreign labor restrictions, and proscribed limitations of any kind after three years’ residence, where the refugee was married to or the parent of a national, or was an ex-combatant of the First World War. Second, refugees were granted access to the host state’s welfare and relief system, including medical care and workers’ compensation. Third, access to education was to be facilitated, including by the remission of fees. This enumeration was later said to have “confer[red] upon refugees the maximum legal advantages which it had been possible to afford them in practice.”Footnote 34
The 1933 Convention drew on the precedent of aliens law to establish a mixed absolute and contingent rights structure. Some rights, including recognition of legal status and access to the courts, were guaranteed absolutely. More commonly, one of three contingent rights formulations was used. Refugees were to have access to work, social welfare, and most other rights on the same terms as the nationals of most-favored nations. Exceptionally, as with liability to taxation, refugees were assimilated to citizens of the host state. Education rights, conversely, were mandated only to the extent provided to foreigners generally. This pattern of variant levels of obligation toward refugees continues to the present day.Footnote 35 It is noteworthy, however, that the 1933 Convention guaranteed almost all refugee rights either absolutely or on terms of equivalency with the citizens of most-favored states.In practice, however, the 1933 Convention did not significantly expand refugee rights. Only eight states ratified the treaty, several with major reservations. The assimilation of refugees to most-favored foreigners in any event proved an inadequate guarantee of reasonable treatment, as the intensification of the unemployment crisis led states to deny critical social benefits, including the right to work, even to established foreigners:
Some countries have found it necessary to introduce restrictions on the employment of foreign workers and, as a result, refugees who had been employed for years have been deprived of their livelihood, while in other countries, as a result of these restrictions, refugees have become vagrants, and this has been considered a sufficient reason for their expulsion. Unlike other foreigners in a similar position, these refugees could not be repatriated. Their lot has become a tragic one, since they have been obliged to enter first one country and then another illegally; many of them are thus compelled to live as outlaws.Footnote 36
The strategy of assimilating refugees to aliens, while valuable in the earlier, more cosmopolitan era, now condemned refugees to real hardships. Yet return home had not been possible for most refugees, and few European states had agreed to grant naturalization.Footnote 37
One answer to this dilemma would have been to extend national treatment to refugees. The League of Nations, however, was engaged in a rearguard action intended simply to preserve the “most-favored alien” guarantees secured under the 1933 Convention. Some states were unwilling to grant refugees rights even at this modest level of obligation. Others declined to sign the accord for fear that the intensifying economic crisis might force them to renounce the Convention peremptorily, in breach of its one-year notice requirement. Rather than expanding rights, therefore, the international agenda was very much focused on easing the requirements of the 1933 Convention or even drafting a new, more flexible, accord to induce states to bind themselves to some standard of treatment, even if a less exigent one.Footnote 38 This was hardly the moment to make progress on a more inclusive rights regime for refugees.
The extent of the retreat from meaningful protection of refugees can be seen in the 1936 Provisional Arrangement concerning the Status of Refugees coming from Germany.Footnote 39 While continuing the approach of stipulating legally binding duties of states, no attempt was made to guarantee refugees more than identity certificates, protection from expulsion, recognition of personal status, and access to the courts. Even then, only seven states adhered. As it worked to establish a more definitive regime for refugees from the German Reich, the League of Nations was therefore drawn to two critical points of consensus. First, given the insecurity about economic and political circumstances, governments were likely to sign only if able quickly to renounce obligations. Second, and more profoundly, it was understood that truly adequate protection would be provided only if refugee rights were effectively assimilated to those of nationals, a proposition flatly rejected by most European states. Unlike the countries of Europe, however, most overseas countries of resettlement were “inclined to offer greater facilities for the naturalization of refugees.”Footnote 40 The League of Nations therefore decided that “[a] suitable distribution of refugees among the different countries might help to solve the problem.”Footnote 41
The resulting 1938 Convention concerning the Status of Refugees coming from GermanyFootnote 42 reflected this shift. While most of the rights mirrored the comprehensive list established by the 1933 Convention, two new provisions of note were included. Art. 25 reversed the position of the predecessor 1933 Convention, allowing states to accede to the regime without committing themselves to give any notice before renouncing it. While it was hoped that this new flexibility would encourage states to adhere for as long as circumstances allowed, in fact only three states – Belgium, France, and the United Kingdom – ultimately agreed to be bound by it (none of which availed itself of the early renunciation option). The more prophetic novation of the 1938 Convention stipulated that “[w]ith a view of facilitating the emigration of refugees to overseas countries, every facility shall be granted to the refugees and to the organizations which deal with them for the establishment of schools for professional re-adaptation and technical training.”Footnote 43 In light of the unwillingness of European states to grant meaningful rights to refugees, there was indeed no option other than to pursue the resettlement of refugees in states outside the region.
This adoption of what Coles has styled an “exilic bias” in refugee lawFootnote 44 led to a de-emphasis on the elaboration of standards to govern refugee rights. Between 1938 and the adoption of the present Refugee Convention in 1951, the consistent emphasis of a succession of treaties and intergovernmental arrangements was to resettle overseas any refugee who was unlikely to integrate or repatriate within a reasonable time. As the countries to which refugees were relocated agreed to assimilate them to citizens, the traditional need to address the legal incapacity of refugees through the guarantee of a catalog of rights was considered no longer to exist.
The early refugee agreements, in particular the 1933 Convention, nonetheless provided the model for two conceptual transitions at the heart of the modern refugee rights regime. First, they introduced the idea of freely accepted international supervision of national compliance with human rights. This quiet revolution in thinking transformed collective supervision of human rights from a penalty to be paid by subordinate states, as under the League of Nations Minorities Treaties system, to a means of advancing the shared objectives of states through cooperation. Of equal importance, the 1928 and subsequent accords reshaped the substance of the human rights guaranteed to refugees. Rather than simply enfranchising refugees within the traditional aliens law regime, states tailored and expanded those general principles to meet the real needs of refugees. The consequential decisions to waive reciprocity, and to guarantee basic civil and economic rights in law, served as a direct precedent for a variety of international human rights projects, including the modern refugee rights regime.
In the years immediately following the Second World War, the international community pursued the repatriation of European refugees when possible, failing which an effort was made to arrange for their overseas resettlement. There was a fortuitous coalescence of interests, as the postwar economic boom in states of the New World had opened doors to new sources of labor. The scale of the resettlement project was massive: between 1947 and 1951, the International Refugee Organization (IRO) relocated more than 1 million Europeans to the Americas, Israel, Southern Africa, and Oceania. The IRO had its own specialized staff, a fleet of more than forty ships, and, most important, enjoyed the political and economic support of the developed world.Footnote 45
As the June 1950 date for termination of the mandate of the IRO neared, it was clear that not all Second World War refugees could be either repatriated or resettled. A strategy was moreover needed to address impending refugee flows from the Communist states of the Eastern Bloc. In this context, the United Nations proposed the protection of all stateless persons, including refugees, under a new international regime.Footnote 46 While political antagonism undermined realization of this holistic vision,Footnote 47 a process was initiated which led ultimately both to the establishment of the United Nations High Commissioner for Refugees (UNHCR), and to the preparation of the 1951 Refugee Convention. This Convention, which remains the cornerstone of modern international refugee law, resurrected the earlier commitment to codification of legally binding refugee rights.
In part, the desire of states to reach international agreement on the human rights of refugees was simply a return to pre-Depression traditions.Footnote 48 States had always understood that it was in their self-interest to ensure that the arrival and presence of refugees did not become a socially destabilizing force.Footnote 49 While desperate circumstances leading up to and following the Second World War had led to massive intergovernmental efforts to resettle refugees overseas, the restoration of relative normalcy now prompted states to demand greater individuated control over the process of refugee protection.Footnote 50 It was argued that the appropriate level of interstate coordination of refugee protection could be secured through the moral suasion of a high commissioner armed with agreed common standards of conduct.Footnote 51 In most cases, however, states could again be counted on to facilitate the integration of those refugees who were unable to return home.Footnote 52
This return to particularized responsibility would be feasible, however, only if it were possible simultaneously to consolidate the commitment of other states to accept a share of responsibility for the European refugee burden.Footnote 53 Born of political and strategic solidarity, and nourished by economic advantage, the postwar resettlement effort had proved extremely important to recovery efforts in Western Europe. Europeans were therefore anxious to enlist external support to insure against the prospect of purely European responsibility for refugee flows from Eastern and Central Europe. The experience of the IRO had shown that the willingness of refugees to resettle outside Europe was contingent on the establishment of a common denominator of basic entitlements in overseas states. The IRO had thus regularly negotiated bilateral agreements with resettlement states to ensure the protection of refugees, particularly during the period before they were naturalized. With the impending termination of the IRO’s mandate, the establishment of a guaranteed core of refugee rights was therefore a critical element in maintaining the viability of overseas resettlement as a residual answer to refugee protection needs. Access by refugees to work and social security were especially crucial.Footnote 54The modern system of refugee rights was therefore conceived out of enlightened self-interest. To the prewar understanding of assimilation as a source of internal stability were added concerns to promote burden-sharing and to set the conditions within which states could independently control a problem of interstate dimensions:
This phase, which will begin after the dissolution of the International Refugee Organization, will be characterized by the fact that the refugees will lead an independent life in the countries which have given them shelter. With the exception of the “hard core” cases, the refugees will no longer be maintained by an international organization as they are at present. They will be integrated in the economic system of the countries of asylum and will themselves provide for their own needs and for those of their families. This will be a phase of the settlement and assimilation of the refugees. Unless the refugee consents to repatriation, the final result of that phase will be his integration in the national community which has given him shelter. It is essential for the refugee to enjoy an equitable and stable status, if he is to lead a normal existence and become assimilated rapidly.Footnote 55
The substantive rights set by the Convention have their origin in two main sources. Most of the entitlements are derived from the 1933 Refugee Convention, explicitly acknowledged to be the model for the 1951 agreement. A key secondary source, however, was the 1948 Universal Declaration of Human Rights.Footnote 56 It influenced the redrafting of the content of several rights found in the 1933 Refugee Convention, and accounted for six additions to the earlier formulation of refugee rights.Footnote 57 Several rights have no obvious predecessor, thus representing net additions to the conceptualization of refugee rights.Footnote 58 Of these, the cryptically named right to “administrative assistance” is especially noteworthy, as it requires state parties to facilitate practical access by refugees to their rights.Footnote 59
The rights set by the Refugee Convention include several critical protections which speak to the most basic aspects of the refugee experience, including the need to escape, to be accepted, and to be sheltered. Under the Convention, refugees are not to be penalized for seeking protection, nor exposed to the risk of return to their state of origin. They are entitled to a number of basic survival and dignity rights, as well as to documentation of their status and access to national courts for the enforcement of their rights.
Beyond these basic rights, refugees are also guaranteed a range of civil rights. While falling short of the comprehensive list of civil rights promoted by the Universal Declaration of Human Rights, the Refugee Convention nonetheless pays significantly more attention to the definition of a sphere of personal freedom for refugees than did any of the earlier refugee agreements. The inability of states to make any reservations to their obligations to avoid refoulement and to guarantee protection against discrimination, religious freedom, and access to the courts entrenches a universal minimum guarantee of basic liberties for refugees.Footnote 60
The Convention’s guarantees of key socioeconomic rights that integrate refugees in the economic system of the country of asylum or settlement, enabling them to provide for their own needs, are especially important.Footnote 61 Basic rights to property and work are supplemented by a guarantee of access to the asylum country’s social safety net. Refugees are also to be treated as citizens under labor and tax legislation. There are important parallels between these key socioeconomic rights and those negotiated under the 1939 and 1949 migrant labor conventions of the International Labor Organization (ILO).Footnote 62 The ILO pioneered international legal protections against economic vulnerability, challenging the assumption of aliens law that persons outside their own country require only guarantees of basic civil rights.Footnote 63 Recognizing that refugees, like migrant workers, face the risk of economic marginalization and exploitation, the 1951 Refugee Convention goes a substantial distance toward enfranchising refugees within the structures of the social welfare state.
Finally, the Convention establishes rights of solution, intended to assist refugees to bring their refugee status to an end. The promotion of repatriation is not addressed, consistent with the position of the drafters that return should result only from the voluntary reestablishment of a particular refugee in the country of origin,Footnote 64 or in consequence of a determination by the asylum state that the basis for the individual’s claim to protection has ceased to exist.Footnote 65 In contrast, express provision is made for the issuance of travel documents and transfer of assets that would be necessary upon resettlement,Footnote 66 and also for the alternative of naturalization in the asylum state.Footnote 67All in all, the range of refugee rights is quite sweeping:
If their claims to asylum are recognized … all the benefits of the Refugee Convention will then be available to them. The uncertainty that attaches to their present lack of status will be replaced by the status which the Contracting States have undertaken to accord to a refugee and by all the rights that attach to it. This is a very substantial … benefit which is well worth arguing for.Footnote 68
1. At the time of signature, ratification or accession, any State may make reservations to articles of the Convention other than to articles 1, 3, 4, 16(1), 33, 36–46 inclusive.
2. Any State making a reservation in accordance with paragraph 1 of this article may at any time withdraw the reservation by a communication to that effect addressed to the Secretary-General of the United Nations.
1. At the time of accession, any State may make reservations in respect of article IV of the present Protocol and in respect of the application in accordance with article 1 of the present Protocol of any provisions of the Convention other than those contained in articles 1, 3, 4, 16(1) and 33 thereof, provided that in the case of a State Party to the Convention reservations made under this article shall not extend to refugees in respect of whom the Convention applies.
2. Reservations made by States Parties to the Convention in accordance with article 42 thereof shall, unless withdrawn, be applicable in relation to their obligations under the present Protocol.
All substantive rights other than to non-discrimination, freedom of religion, access to the courts, and protection against refoulement may be excluded or modified by a state through reservationFootnote 69 at the time of signature, ratification, or accession to the Convention or Protocol.Footnote 70 An evaluation of refugee rights in any particular state therefore requires that account be taken of the terms of participation consented to by the state in question.Footnote 71
The ability to enter a reservation to most Convention rights was conceived by the drafters as a means of inducing reluctant states to sign on. The hope was that states initially disinclined to undertake protection obligations toward refugees would be willing to do so if able to constrain the scope of their participation; with the benefit of time and experience these states might then be persuaded to withdraw their reservations.Footnote 72 This is a strategy that has to a large extent proved successful. For example, even the most controversial right – the right of refugees to undertake wage-earning employment under Art. 17 – is now accepted without qualification by more than 75 percent of state parties.Footnote 73 Of those reserving, only six states – Austria, Botswana, Burundi, Iran, Latvia, and Sierra Leone – have entered what amounts to a complete reservation to the core right to work found in Art. 17(1).Footnote 74 Equally important, nine states – Australia, Brazil, Denmark, Greece, Italy, Liechtenstein, Malta, Papua New Guinea, and Switzerland – have, just as the drafters hoped, either withdrawn or reduced the scope of an initial reservation to the right of refugees to undertake employment.Footnote 75
Despite the strategic utility of granting states a broad right to reserve, there is of course the risk that a state might exploit that flexibility in order to undermine the foundational goals of the treaty. Such a tack is unlawful, since as the International Law Commission has observed, “a reservation which is not prohibited by the treaty may be formulated … only if it is not incompatible with the object and purpose of the treaty.”Footnote 76 It is thus of some concern that there has been no challenge to the extraordinarily broad reservation entered by the Holy See, purporting to accept the Convention only to the extent that it is “compatible in practice with the special nature of the Vatican City State and without prejudice to the norms governing access to and sojourn therein.”Footnote 77 More optimistically, though, when in 1983 Guatemala attempted to enter a comparably far-reaching reservation – suggesting it would respect the Refugee Convention only to the extent that its provisions did not “contravene constitutional precepts in Guatemala”Footnote 78 – six state parties formally objected.Footnote 79 Guatemala belatedly withdrew its reservation in 2007.Footnote 80
All in all, observing that the goal must be to seek “a fair balance between the search for universality and the wish to preserve the integrity of the convention,”Footnote 81 Pellet is right to conclude “that the text and the practice of reservations to the 1951 Convention and the 1967 Protocol achieved that goal rather well.”Footnote 82
The main concern today is that the pace of both accession to the Refugee Convention and of securing the withdrawal of reservations once a state is onboard appears to have stagnated, meaning that the viability of the drafters’ pragmatic strategy is at risk.Footnote 83 With some thirty-five countries hosting nearly 5 million refugees bound by neither the Refugee Convention nor Protocol,Footnote 84 there is surely an urgent need to regain momentum.Footnote 85 In line with the framers’ approach, states still outside the refugee regime should be encouraged to accede, even if that accession comprises little more than the non-reservable definition of a refugee set by Art. 1 in addition to the four core non-reservable rights to non-discrimination, freedom of religion, access to the courts, and protection against refoulement.Footnote 86 If coupled with a meaningful system of burden and responsibility sharing – and of course, with a serious effort to show states that reservations could be withdrawn without risk to their own basic interests – the flexible approach to reservations codified in the Convention and Protocol could serve as a critical adjunct to efforts to reinvigorate the global system of refugee protection.Footnote 87
A. For the purposes of the present Convention, the term “refugee” shall apply to any person who: … (2) [a]s a result of events occurring before 1 January 1951 and owing to 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 his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it …
B. (1) For the purposes of this Convention, the words “events occurring before 1 January 1951” in article 1, section A, shall be understood to mean either
(a) “events occurring in Europe before 1 January 1951”; or
(b) “events occurring in Europe or elsewhere before 1 January 1951”;
and each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purpose of its obligations under this Convention.
In addition to constraining their duties by means of reservation, the obligations of state parties to the 1951 Refugee Convention may also be limited on temporal or geographical grounds.
First, state parties to the 1951 Refugee Convention are bound only to protect refugees whose fear of being persecuted resulted from events that occurred before January 1, 1951. The 1967 Protocol relating to the Status of RefugeesFootnote 88 prospectively abolished this temporal limitation for the countries that accede to it – which nearly all have done. There are, however two states, Madagascar and St. Kitts and Nevis, that acceded to the Refugee Convention but have not gone on to adopt the Protocol. These two countries are therefore not formally bound to protect the rights of modern refugees.
Second, the 1951 Refugee Convention gave governments the option to limit their obligations on a geographical basis, specifically to agree to protect only European refugees. While this option is foreclosed for any country that signs onto the 1967 Protocol, one country to the Convention, Madagascar, exercised the “European refugee only” option when it acceded to the Convention and has not yet become a party to the Protocol – meaning that it is still formally entitled to refuse to protect non-European refugees.Footnote 89 In addition, the Protocol includes a “grandfathering” provision that allows states that were parties to the Convention before 1967 to maintain any pre-existing geographical restriction even upon signing or acceding to the Protocol.Footnote 90 Turkey falls into this category: having signed onto the Convention with a geographical limitation and not having elected to withdraw that limitation, it is exempted from obligations toward non-European refugees. On the other hand, because Hungary acceded to the Refugee Convention and Protocol only in 1989 – more than a decade after the advent of the Protocol – its attempt to include a geographical restriction was legally invalid, no doubt explaining the withdrawal of that restriction in 1998.
It may, however, be the case that the maintenance of a geographical – and perhaps even temporal – limitation on duties owed refugees is no longer lawful for states (including Madagascar and Turkey, but not St. Kitts and Nevis) that are also bound by Art. 26 of the Covenant on Civil and Political Rights. Because this provision governs the allocation of all public goods, including those not set by the Covenant itself,Footnote 91 there is a duty to guarantee the equal protection of the law to all persons under a state’s jurisdictionFootnote 92 on any ground, including for example on the ground of “national or social origin”Footnote 93 or “other status.”Footnote 94 This means that unless a state maintaining a limitation were able to show that protecting European but not non-European refugees, or pre-1951 but not post-1951 refugees, was “reasonable and objective”Footnote 95 – a task that seems daunting to say the least – reliance on the limitation would be internationally unlawful in relation to any refugee able to reach that state’s jurisdiction.Footnote 96
Refugee Convention, Art. 2 General Obligations
Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.
The original draft of the Refugee Convention contained a chapter that imposed three kinds of obligation on refugees: to obey laws, pay taxes, and perform military and other kinds of civic service.Footnote 97 The duty to respect the law was simply “a reminder of the essential duties common to nationals as well as to foreigners in general.”Footnote 98 Liability to taxation and military conscription on the same terms as citizens was viewed as a fair contribution to expect from a refugee “residing in the country of asylum, enjoying a satisfactory status, and earning his living there.”Footnote 99 Just as refugees should benefit from most of the advantages that accrue to nationals, so too should they assume reasonable duties toward the state that afforded them protection.
There were two quite different reactions to the proposal to codify the duties owed by refugees to an asylum state. A number of governments felt that such a provision was superfluous in view of the general duty of foreigners to obey the laws of their country of residence.Footnote 100 In any event, as the American representative argued, “refugees themselves would not be signing the Convention and would not be asked to do any more than anyone else in the country in which they took refuge.”Footnote 101 In legal terms, “[i]t was impossible to write into a convention an obligation resting on persons who were not parties thereto.”Footnote 102 It was therefore suggested that there was no need to include specific mention of the obligations of refugees.However, France and several other states were adamant that
such a provision [was] indispensable. It would have a moral application in all countries where there was no obligation on the immigrant alien to take an oath of loyalty or allegiance or to renounce [one’s] former nationality. The purpose … was not to bring about the forcible absorption of refugees into the community, but to ensure that their conduct and behavior was in keeping with the advantages granted them by the country of asylum.Footnote 103
These countries had little patience for the argument that refugees were already obliged to respect the laws of their host states:
[I]t should not be forgotten that what to some seemed obvious did not, unfortunately, square with the facts. That was proved by France’s experience. The obligations of refugees should therefore be stressed and an appropriate clause inserted. Too often the refugee was far from conforming to the rules of the community … Often, too, the refugee exploited the community.Footnote 104
Largely out of respect for the significant refugee protection contributions made by France,Footnote 105 it was agreed to include a specific reference in the Convention to the duties of refugees. The compromise was that while refugees would not be subject to any particularized duties,Footnote 106 the Convention would make clear that refugee status may not be invoked to avoid whatever general responsibilities are imposed upon other residents of the host country.Footnote 107 The notion of a specific enumeration of refugee duties was dropped.Footnote 108
The unwillingness of the drafters to subject refugees to special duties can most clearly be seen in the debate about regulation of the political activities of refugees. It was argued that refugees tend to be more politically active than other immigrants,Footnote 109 and that their militancy could threaten the security interests of an asylum state.Footnote 110 The French government therefore proposed to allow governments “to restrict or prohibit political activity on the part of refugees.”Footnote 111 Strong exception was taken to this proposal, both on grounds of general principle and because it suggested a right to treat refugees less favorably than other resident foreigners.Footnote 112 The result was agreement that while “laws prohibiting or restricting political activity for foreigners generally would be equally applicable to refugees,”Footnote 113 the Convention would not authorize states to impose any additional restrictions on refugees.Footnote 114 There is therefore reason to be concerned about the tendency – especially noticeable among African statesFootnote 115 – to codify the duties of refugees as a class distinct from non-citizens in general.With the elimination of a specific chapter on the duties of refugees, the question of the liability of refugees to taxation was transferred to the “administrative measures” section of the Convention.Footnote 116 The reference to a duty of refugees to perform military or other service was deleted altogether, leaving this issue to the discretion of particular states.Footnote 117 This left only a general obligation to respect the laws and regulations of the host state, included in the draft Convention as a symbolic recognition of the basic responsibility of refugees:
[W]hen article 2 had been drafted, many representatives had felt that there was no need for it. It had been maintained that the laws of a given country obviously applied to refugees and aliens as well as to nationals of the country. Article 2 had been introduced for psychological reasons, and to maintain a balance, because the draft Convention tended to overemphasize the rights and privileges of refugees. It was psychologically advantageous for a refugee, on consulting the Convention, to note his obligations towards his host country.Footnote 118
Against the backdrop of this clear intention that Art. 2 simply signals the continuing relevance to refugees of an asylum state’s general laws and regulations,Footnote 119 three concerns arising in practice may be considered.First, Art. 2 cannot be relied upon to legitimate an otherwise invalid measure. Because it merely recognizes the duty of refugees to comply with valid laws, regulations, and public order measures established apart from the Refugee Convention, the legality of a particular constraint must be independently established, including by reference to any relevant requirements of the Refugee Convention itself or general international human rights law. For example, a domestic law or public order measure that purports to prevent refugees from practicing their religion would not be saved by Art. 2, as it would be contrary to the explicit requirements of Art. 4 of the Refugee Convention.Footnote 120 On the other hand, because refugees are exempt from penalization for illegal entry only when in flight from persecution,Footnote 121 the House of Lords correctly determined that
Contracting States need only overlook the initial offence of entering and being present illegally. After they arrive in a safe country, the refugees are to present themselves to the authorities who must treat them in accordance with the Convention. In that situation the refugees have no justification for committing further offences to escape persecution and are bound by the criminal law, just like anyone else in the country concerned. That is made clear by Article 2.Footnote 122
Similarly, while governments are free to impose conditions of admission on refugees by regulation or contract, such policies must be in compliance with the rights otherwise guaranteed to refugees under the Convention.Footnote 123 As such, there is reason to be concerned by the practice of the United States to force refugees resettled to that country to become permanent residents within one year of arrival,Footnote 124 and then subject them to the risk of deportation for reasons applicable to permanent residents in generalFootnote 125 but not allowed by refugee lawFootnote 126 – for example, deportation for having committed a property offense such as shoplifting.Footnote 127 International law does not allow a refugee to be forced to give up her refugee status; unless there was an error in the initial assessment, only cessation or exclusion grounds justify the termination of refugee status.Footnote 128 As such, Art. 2 cannot be invoked to sanction the deportation of a person who is in fact a refugee for reasons less demanding than the requirements of the Refugee Convention itself.
Second, care must be taken to ensure that a state does not overreach on the basis of Art. 2’s express acknowledgment that refugees may be subject to “measures taken for the maintenance of public order.” The original formulation of Art. 2 imposed a duty on refugees “to conform to the [host state’s] laws and regulations, including measures taken for the maintenance of public order [emphasis added].”Footnote 129 This wording suggested that only public orderFootnote 130 measures codified in laws or regulations could legitimately be applied against refugees. Without any substantive discussion in the drafting committee, however, Art. 2 was amended to authorize a state to require refugees to “conform to its laws and regulations as well as to measures taken for the maintenance of public order [emphasis added].”Footnote 131 On the basis of the literal meaning of Art. 2, refugees are therefore prima facie bound by any general measures taken in the interest of public order, whether or not formalized by law or regulation.Footnote 132
Care is nonetheless called for to ensure that the ordre public provision is not invoked in defense of a clearly invidious distinction.Footnote 133 Schabas argues in the context of the Civil and Political Covenant that “the purpose for interference does not relate to the specific ordre public of the State concerned but rather to an international standard of democratic society.”Footnote 134 A comparable benchmark should govern resort to the public order authority under Art. 2 of the Refugee Convention, thereby ensuring that the common purpose of advancing refugee rights is not undermined.Footnote 135 On this basis, Ghana’s arrest in 2008 of Liberian refugees, including pregnant women and separated children, engaged in a sit-in to protest the lack of resettlement optionsFootnote 136 would not be justified by Art. 2 as an exercise of public order authority.Footnote 137Third and most important, there is no basis whatever to assert that Art. 2 authorizes a decision either to withdraw refugee status or to withhold rights from refugees on the grounds of the refugee’s failure to respect laws, regulations, or public order measures. The Conference of Plenipotentiaries considered this question in the context of a Belgian proposal that would have transformed Art. 2 from a statement of principle to a condition of eligibility for continuing protection:
Only such refugees as fulfil their duties toward the country in which they find themselves and in particular conform to its laws and regulations as well as to measures taken for the maintenance of public order, may claim the benefit of this Convention.Footnote 138
This proposal met with serious disapproval. The representative of Israel asserted that the proposal “was a revolutionary departure from the original intention of article 2,”Footnote 139 which posed very serious dangers:
If it were to be adopted, refugees who were guilty, for example, of minor infractions of the law would be deprived of all their rights and privileges. To try to make saints out of refugees would be to set the Convention at naught. Again, while he believed in the good faith of the countries that would sign the Convention, it could not be denied that xenophobia existed in certain countries, and junior officials who disliked refugees might seek pretexts to deprive them of their rights.Footnote 140
The British delegate agreed that “[t]he Belgian amendment would confer on States full power to abolish refugee status for any infractions of the laws of the country concerned, which … would, in fact, nullify all the rights conferred by the Convention.”Footnote 141In an attempt to preserve the essence of the Belgian initiative, France suggested that refugee rights should be forfeited only consequent to a breach of the most serious duties owed to a host state, and on the basis of a fair procedure:
Any refugee guilty of grave dereliction of duty and who constitutes a danger to the internal or external security of the receiving country may, by appropriate procedure assuring maximum safeguards for the person concerned, be declared to have forfeited the rights pertaining to the status of refugees, as defined in this Convention.Footnote 142
As the President of the Conference observed, this more carefully framed amendment allowed the delegates to address the fundamental question of “whether a refugee who failed to fulfil certain conditions should forfeit the rights proclaimed in the draft Convention, even if his country of refuge did not expel him.”Footnote 143 The proponents of the French amendment argued that this approach to Art. 2 was actually of benefit to refugees, since it would allow a host state to protect its vital interests without resorting to the more extreme alternatives of either withdrawing refugee status or expulsion.Footnote 144 Refugees would be deprived of the special benefits of the Refugee Convention, but would be subjected to no particular disabilities. Most important, the incorporation of a forfeiture provision in Art. 2 was said to be an important source of protection for the majority of refugees who might otherwise be stigmatized by the actions of a troublesome minority:
It was actually a matter of fundamental interest to refugees generally that the measures advocated by the French delegation should be taken against such refugees as carried on activities constituting a danger to the security of the countries receiving them. If certain disturbances provoked by organized bands were allowed to increase in France, the final outcome would be a wave of xenophobia, and public opinion would demand not merely the application of the measures laid down in the French proposal, but the expulsion of a great many innocent refugees.Footnote 145
On the other side of the argument, UNHCR and the United Kingdom preferred that no restrictions on refugee rights be possible. Unless the risk posed was serious enough to meet the requirements for exclusion from refugee statusFootnote 146 or expulsion from the country,Footnote 147 the host country should continue to respect all rights guaranteed by the Convention. It would be inappropriate to include in the Convention “a provision by virtue of which a State would be able to treat a refugee as a pariah.”Footnote 148 This view prevailed, and the French amendment was withdrawn.Footnote 149
The legal position is therefore clear: Art. 2 does not authorize the withdrawal of refugee rights for even the most serious breaches of a refugee’s duty to the host state.Footnote 150 Because rights under the Convention are guaranteed to all who are in fact refugees, refugees must be dealt with in the same ways as any other persons who violate a generally applicable law, regulation, or public order measure.Footnote 151 Refugees are subject only to the same penalties as others, and may not be threatened with withdrawal of the particular benefits of refugee status.Footnote 152 All rights under the Convention are to be respected in full until and unless refugee status is either validly withdrawn under Art. 1 (in particular the cessation or exclusion clauses), or the strict requirements for deportation under Art. 32 or Art. 33 are met.Footnote 153 Art. 2 thus provided no authority for Ecuador’s 2016 deportation without due process of 149 Cubans, including persons seeking recognition of refugee status, on the grounds that they were engaged in an illegal protest regarding the denial of humanitarian visas.Footnote 154
The decision to reject a “middle ground” position that would have authorized the forfeiture of specific rights as an alternative to the withdrawal of refugee status or expulsion is conceptually important. The ability of the host state to enforce its laws and regulations in the usual ways, for example by incarceration, is in no sense compromised by the Refugee Convention.Footnote 155 The argument that failure to allow states to withdraw Convention rights from refugees would compel them to resort to the withdrawal of status or expulsion is therefore fallacious. Even the specific concern of the French drafter to be in a position to deal with spies who might infiltrate the refugee populationFootnote 156 can readily be addressed by generic counter-espionage legislation to which refugees would clearly be subject in common with the population at large.
The proposed right of forfeiture would have transformed Art. 2 from an affirmation of the duty of refugees to respect laws of general application to a mechanism for the differential treatment of refugees on the basis of their heightened vulnerability. Yet refugee rights are not rewards or bonuses; they are rather the means by which the international community has agreed to restore to refugees the basic ability to function within a new national community. The rights set by the Convention are the core minimum judged necessary to compensate refugees for the situation-specific disabilities to which involuntary migration has subjected them. To have sanctioned the withdrawal from refugees of some part of this restitutionary package of rights would therefore have injected a distinctively punitive dimension into the Refugee Convention.Footnote 157 The position ultimately adopted, in contrast, requires refugees to comply with all general legal requirements of the host state and to pay the usual penalties for any breach of the law, but ensures that they are not denied the rights deemed necessary to offset the specific hardships of forced migration.
Refugee Convention, Art. 5Rights Granted Apart from this Convention
Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention.
The original purpose of Art. 5 was to safeguard the privileges of particular refugee classes that existed at the time the Convention came into force.Footnote 158 The express validation of free-standing rights and benefits owed to refugees adds nothing to the legal enforceability of such duties.Footnote 159 Nonetheless, it is a valuable affirmation of the concern of the drafters “to grant refugees as many rights as possible, not to restrict them.”Footnote 160
First, the International Refugee Organization had sometimes negotiated agreements with particular states that provided for stronger rights than those codified in the Convention, which the drafters wished to ensure were not challenged on the basis of an assertion that the earlier rights were superseded by the provisions of the Refugee Convention.Footnote 161 The validity of rights granted by such free-standing arrangements was instead to be determined by the terms of those agreements.Footnote 162 This goal was consistent with the approach taken in other parts of the Convention, for example the recognition of refugee status granted under earlier agreements,Footnote 163 as well as the decision to insulate previously recognized refugees from the new rules for cessation of status due to change of circumstances.Footnote 164
Second, refugees sometimes benefitted from social legislation adopted in particular countries that was quite progressive relative to the “lowest common denominator” of rights guaranteed in the Refugee Convention. Art. 5 was intended to provide balance by signaling that the sometimes minimal rights it had been possible to secure for refugees in the cut and thrust of negotiation did not require the withdrawal from refugees of more generous protections granted under domestic law.Footnote 165 The Refugee Convention could not, of course, require governments to safeguard superior rights, but neither should it serve as a pretext to diminish the quality of protection already enjoyed by refugees.Footnote 166
Despite the importance of these two concerns, it would be a mistake to see Art. 5 as simply retrospective. As initially adopted at the Second Session of the Ad Hoc Committee, it provided only that “[n]othing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees prior to or apart from this Convention [emphasis added].”Footnote 167 But at the Conference of Plenipotentiaries the President declared that the words “prior to or” were “redundant,” resulting in the decision to safeguard simply rights and benefits granted refugees “apart from” the Convention.Footnote 168 While there was no discussion on point, the plain meaning of the provision as adopted requires states to honor not only pre-existing obligations, but also whatever rights might accrue to refugees in the future.Footnote 169 Art. 5 is therefore a continuing affirmation of the propriety of states legislating domestically beyond the standards of the Refugee Convention and, particularly, of them continuing to accord refugees all advantages that accrue to them by virtue of other agreements, such as bilateral treaties with the refugees’ country of origin.Footnote 170
Most important, however, Art. 5 should be read as establishing how duties under refugee law are to be reconciled to the requirements of the array of important accords negotiated since the advent of the Refugee Convention – including expansions and interpretations of international refugee law itself, the advent of regional refugee regimes, and especially the evolution of a dynamic system of international human rights law.Footnote 171 International human rights law generally grants rights to all persons subject to a state’s jurisdiction, and is therefore a critical source of enhanced protection for refugees.Footnote 172 Art. 5 of the Refugee Convention ensures that refugee rights are not seen as limited to those set by the refugee treaty itself, but rather makes clear that refugees are entitled to the benefit of more general human rights principles. As Chetail explains, “The Geneva Convention itself provides the means for resolving any potential conflicts of norms [between refugee law and human rights law], for its Article 5 preserves the continuing applicability of more favorable standards granted apart from [the Refugee] Convention without regard to the so-called specialty of the norms.”Footnote 173 Article 5, in other words, ensures that in the event of any normative dissonance between the Refugee Convention and simultaneously applicable general human rights standards, refugees are entitled to the benefit of the higher standard.Footnote 174
The next section examines the most important of these complementary sources of refugee rights that have come into existence since the drafting of the Refugee Convention.
Apart from the minority of refugees who continued to benefit from special arrangements negotiated by the International Refugee Organization or codified in earlier treaties,Footnote 175 the internationally defined rights of most refugees in 1951 were limited to those set by the Refugee Convention. Since 1951, however, authoritative interpretations of rights set by the Refugee Convention have been issued, and some binding enhancements to refugee-specific rights have been secured at the regional level. Most important, the development of a pervasive treaty-based system of international human rights law has filled many critical gaps in the Refugee Convention’s rights regime. A modern understanding of refugee rights therefore requires an appreciation not only of the Convention-based global refugee regime, but of both other sources of refugee law and general human rights law.
That said, it is important to understand that these developments do not challenge the centrality of the Refugee Convention to the conceptualization of refugee rights. Regional refugee regimes are, as the analysis below shows,Footnote 176 expressly intended to complement the global regime, not to displace it. And despite their real value, general international human rights treaties are necessarily framed in generic terms, meaning that even when they speak to the same concerns as refugee law there is a vital continuing role for the Refugee Convention in contextualizing norms to ensure that account is taken of the particular disabilities that derive from involuntary migration. There are moreover critical concerns of refugees – for example, the duty not to be penalized for unlawful arrival or presence,Footnote 177 and most critically the duty not to be returned in any manner to the risk of being persecutedFootnote 178 – that are either embryonic or missing altogether from general human rights law.
It is therefore clear that while the evolution of human rights conventions that include refugees within their scope has resulted in a net level of legal protections significantly greater than that envisaged by the Refugee Convention, the most effective way to safeguard the human dignity of refugees is achieved by synthesizing refugee-specific and general human rights law.
There have been few formal changes to the global refugee rights regime since the entry into force of the Refugee Convention. The 1967 Refugee Protocol is a treaty that incorporates the Refugee Convention’s rights regime by reference,Footnote 179 and extends those protections to all refugees by prospectively eliminating the Convention’s temporal and geographical limitations.Footnote 180 The Protocol is not, as is commonly believed, an amendment to the 1951 Convention.Footnote 181 Rather, as Weis observed, “[w]ith the entry into force of the Protocol there exist, in fact, two treaties dealing with the same subject matter.”Footnote 182 The Full Federal Court of Australia has reached the same conclusion, noting that states may accede to the Protocol without first becoming a party to the Convention, and that those which do so are immediately bound to grant the rights described in the Convention to a broader class of persons – that is, to modern refugees from all parts of the world – than would have been the case by accession to the Convention itself.Footnote 183
In one important respect, however, the Protocol might be seen to be at odds with the advancement of refugee rights. In contrast to Art. 38 of the Refugee Convention, parties to the Protocol have the option at the time of accession to deny other state parties the right to refer a dispute regarding their interpretation or application of the Protocol to the International Court of Justice.Footnote 184 One country, Venezuela, has in fact excluded the Court’s jurisdiction. Angola, Botswana, China, Congo, El Salvador, Ghana, Jamaica, Rwanda, St. Vincent and the Grenadines, and Tanzania have purported to make a similar election. Yet because these countries, unlike Venezuela, are also parties to the Convention – which contains a mandatory provision regarding the Court’s jurisdictionFootnote 185 – a dispute involving one of these states may still be referred to the International Court of Justice so long as it involves the “interpretation or application” of the Convention, rather than of the Protocol. Over time there will of course be fewer and fewer living pre-1951 refugees,Footnote 186 meaning that countries entering a relevant reservation under the Protocol may in practice have successfully insulated themselves from referrals based on “application” of the Convention. But so long as the referral is framed as a more general matter of “interpretation” of the Convention – for example, directed to the meaning of a given Convention right, albeit incorporated by reference in the Protocol – a referral to the International Court of Justice should be deemed admissible.
A decade after the adoption of the Protocol, the United Nations Conference on Territorial Asylum considered, but ultimately rejected, the codification of a new treaty that would have enhanced the protection of refugees. In addition to agreeing to important interpretations of existing norms – for example, that the duty of non-refoulement should be understood to include “rejection at the frontier”Footnote 187 – the Conference reached agreement in principle on two new norms: to require states to facilitate the admission of a refugee’s spouse and minor or dependent children, and to allow states to make refugee rights contingent on compliance with the laws of the state of asylum.Footnote 188 Since the failure of the Conference, however, there has been no effort either to resuscitate the asylum convention project, or specifically to formalize as matters of law the consensus achieved on either family reunification or the right to withdraw refugee status for breach of host state laws.
1.5.2 Conclusions and Guidelines on International Protection
Most important, the state members of the UNHCR’s governing body – the Executive Committee of the High Commissioner’s Program – have issued “Conclusions on the International Protection of Refugees.”Footnote 189 The Conclusions address such matters as non-rejection and non-refoulement,Footnote 190 exemption from penalties for illegal entry,Footnote 191 conditions of detention,Footnote 192 limits on expulsion and extradition,Footnote 193 family unity,Footnote 194 the provision of identification and travel documents,Footnote 195 physical security,Footnote 196 and the rights to educationFootnote 197 and to undertake employment.Footnote 198 An effort has also been made to interpret rights to respond to the special vulnerabilities of refugees who are children,Footnote 199 women,Footnote 200 older persons,Footnote 201 or caught up in a large-scale influx.Footnote 202 While not matters of law, these standards have strong political authority as consensus resolutions of a formal body of government representativesFootnote 203 expressly responsible for “providing guidance and forging consensus on vital protection policies and practices.”Footnote 204 Recognized by decision-makers as representing “collective international expertise on refugee matters including legal expertise,”Footnote 205 it is thus unsurprising that Executive Committee Conclusions are afforded significant respect in national and regional refugee jurisprudence.Footnote 206 Indeed, the case is strong that these state-based conclusions are properly assimilated to the context of the Refugee Convention for interpretive purposes, as provided for by Art. 31(3)(b) of the Vienna Convention.Footnote 207The Conclusions of the Executive Committee are moreover deserving of real deference by virtue of UNHCR’s authority under Article 35 of the Refugee Convention.Footnote 208 As observed by the Canadian Federal Court of Appeal,
[I]n Article 35 of the [Refugee] Convention the signatory states undertake to cooperate with the Office of the United Nations High Commissioner for Refugees (UNHCR) in the performance of its functions and, in particular, to facilitate the discharge of its duty of supervising the application of the Convention. Accordingly, considerable weight should be given to recommendations of the Executive Committee of the High Commissioner’s Program on issues relating to refugee determination and protection that are designed to go some way to fill the procedural void in the Convention itself.Footnote 209
The duty of state parties to cooperate with the UNHCR is a sufficient basis for the agency to require state parties to explain treatment of refugees that does not conform to the Conclusions on Protection adopted by the agency’s governing body. This authority to require the international community to engage in a dialogue of justification is thus comparable to the human rights droit de regard enjoyed by the General Assembly:Footnote 210 UNHCR may legitimately expect states to respond to concerns about the adequacy of refugee protection as measured by reference to Conclusions adopted by the state members of its Executive Committee, though it has no power to require compliance with those or any other standards.Footnote 211
Over the last decade or so, however, both the pace at which Conclusions on Protection are issued and their relevance to the advancement of refugee rights have been in steep decline. This decline coincides with a period of increased interpretive activism by the staff of UNHCR in the elaboration of protection standards, suggesting a shift in the locus of interpretive authority away from the Executive CommitteeFootnote 212 – thus raising the concern whether standards recommended by agency staff, but which have not been adopted as a Conclusion of its Executive Committee, are to be afforded comparable deference.Footnote 213
There is, of course, a long-standing practice of giving significant weight to the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status,Footnote 214 a comprehensive analysis of the basic precepts of refugee law prepared by the agency’s protection staff at the behest of the Executive Committee nearly half a century ago.Footnote 215 The Supreme Court of the United States, for example, determined that “the Handbook provides significant guidance” on the interpretation of refugee law,Footnote 216 and is a “useful interpretive aid.”Footnote 217 The Advocate General for the Court of Justice of the European Union found the Handbook to be “persuasive,”Footnote 218 while both the Supreme Court of Canada and the British House of Lords found the Handbook to be “highly persuasive.”Footnote 219
Yet not even the Handbook is treated as a source of legal obligation,Footnote 220 with the English Court of Appeal having pointedly observed that despite the weight of accumulated experience contained in the Handbook, the UNHCR “is not a lawgiver, or a source of law.”Footnote 221 This view aligns with warnings from the House of Lords that the Handbook “is of no binding force either in municipal or international law,”Footnote 222 the determination by the New Zealand Court of Appeal that the Handbook “cannot override the function of [the decision-maker] in determining the meaning of the words of [the Refugee] Convention,”Footnote 223 the insistence of the Federal Court of Canada that the Handbook “is not determinative of Canadian refugee law,”Footnote 224 and the finding of the Constitutional Court of South Africa that “the Handbook is merely a guideline and persuasive authority which can be overridden.”Footnote 225 Indeed, some courts have become noticeably guarded in their appraisal of the Handbook’s authority,Footnote 226 finding, for example, that it is “a secondary source as an aid to interpretation akin to the work of jurists,”Footnote 227 and even that it is “more [of] a practical guide … than … a document purporting to interpret the meaning of relevant parts of the Convention.”Footnote 228 In its final statement on point, the House of Lords observed only that the Handbook “is recognized as an important source of guidance on matters to which it relates”Footnote 229 – a significantly less enthusiastic endorsement than the same court issued just two years earlier.Footnote 230
The decline in the deference afforded the Handbook may be attributable to the increasing dissonance between some of its positions and those resulting from the intensive period of judicial engagement with refugee law, beginning in the early 1990s.Footnote 231 In contrast to earlier times when there were few authoritative decisions on the content of refugee law, many state parties today have developed their own, often quite comprehensive, judicial understandings of many aspects of international refugee law.Footnote 232 And where no domestic precedent exists, courts are increasingly (and appropriately) inclined to seek guidance from the jurisprudence of other state parties to the Convention.Footnote 233 In this more mature legal environment, UNHCR’s views on the substance of refugee law – at least where these are not formally codified through the authoritative process of Executive Committee decision-making – will inevitably not be treated as uniquely pertinent,Footnote 234 but will instead be considered and weighed as part of a more holistic assessment of the current state of refugee law obligations.Footnote 235
But the maturation of judicial thinking on refugee law is not the only reason for the increasing reluctance to defer to the positions advanced in the Handbook. Sadly, the agency itself may have inadvertently contributed to this trend by issuing what the Court of Justice of the European Union described as “a plethora of documents”Footnote 236 on the interpretation of refugee law that has made it increasingly difficult for even state parties committed to a strong UNHCR voice to discern the precise agency position on many key protection issues.Footnote 237 Of particular note are the Department of International Protection’s “Guidelines on International Protection,”Footnote 238 issued since 2002 under a process approved in only the most general terms by the UNHCR’s Executive Committee.Footnote 239 While explicitly intended to be “complementary” to the standards set out in the Handbook,Footnote 240 the Guidelines at times conflict with the advice of the Handbook.Footnote 241
Such conflicts have not gone unnoticed by courts. The Full Federal Court of Australia, for example, declined to follow the approach to criminal law exclusion recommended in the Handbook, preferring to adopt the tack endorsed in the UNHCR’s Global Consultations process and subsequently codified in a Guideline on International Protection.Footnote 242 The Canadian Federal Court of Appeal relied upon the “less categorical” approach taken to the definition of a “manifestly unfounded claim” in UNHCR’s Global Consultations process to conclude that there is no international consensus on the meaning of this term – even though the judgment acknowledged the existence of a formally adopted Executive Committee Conclusion directly on point, characterized by the Court as providing for a “restricted meaning” to be given to the notion.Footnote 243 The Court of Justice of the European Union struggled to take account of UNHCR advice on the exclusion of Palestinians under Art. 1(D) given the shifting views of UNHCR as expressed in the Handbook, and in Notes issued in 2002 and 2009.Footnote 244 And in addressing the propriety of the detention of refugees, the European Court of Human Rights rejected a UNHCR submission made in the case because the Court determined that it did not align with the agency’s own guidelines and the relevant Conclusion of the UNHCR Executive Committee.Footnote 245More generally, the New Zealand Court of Appeal declined to give significant weight to the new wave of UNHCR institutional positions because of their questionable legal pedigree:
The Guidelines do not, however, have a status in relation to interpretation of the Refugee Convention that is equal to that of the resolutions of the UNHCR Executive Committee … I have focussed … on the Executive Committee’s views which in any event I regard as the most valuable guide for the Court.Footnote 246
The English Court of Appeal has similarly opted to treat the agency’s guidelines as “perhaps not of the same persuasive authority as the UN Handbook.”Footnote 247 These are reasonable positions since the Guidelines on International Protection are not issued by a governance body, but rather by agency staff. Indeed, the awkwardness of deferring to the views of UNHCR officials is exacerbated by the fact that the agency (sensibly and often with positive impact) has recently established a robust system of intervening before national and regional courts by way of both amicus curiae briefs, and often by actual appearance in court.Footnote 248 With UNHCR increasingly assuming a direct advocacy role, judges may understandably feel some discomfort simultaneously treating the agency’s views as independent and authoritative,Footnote 249 a concern heightened by the tendency of UNHCR interventions to draw largely on the agency’s own interpretive positions.
We thus find ourselves at a moment of significant normative confusion on the appropriate source of UNHCR institutional advice on the substance of international refugee law. With the advent of experienced national and regional judiciaries that have developed their own understandings of refugee law, there is less willingness than in the past simply to defer to the didactic expositions found in the UNHCR’s Handbook and Guidelines. Judicial efforts to take account of UNHCR guidance are moreover complicated by the sheer volume of less-than-fully-consistent advice now emanating from the UNHCR, too often drafted at such a highly detailed level that its core content is difficult to discern. There is moreover understandable reticence to treat UNHCR published advice as authoritative when the agency itself often appears before courts to advocate particular views.
This new environment may call for a reorientation of the way that UNHCR implements its critical responsibility to supervise the implementation of refugee law in state parties under Art. 35 of the Refugee Convention. Bolstering the advocacy capacity of the Department of International Protection may not only be an especially effective means to engage a judiciary with a mature understanding of refugee law,Footnote 250 but is arguably a better fit than is standard-setting with the mandate set by the UNHCR’s Statute.Footnote 251 In tandem with a greater emphasis on such interventions, UNHCR should reconsider its approach to advising on governing interpretive principles of refugee law, shifting to the adoption of meaningful guidance at a level of generality capable of adaptation and application across a range of states, and codified in a form that state parties are required to take seriously under the Vienna Convention – namely as formal, and clearly authoritative, resolutions of the UNHCR’s Executive Committee. To stimulate both Executive Committee and judicial engagement, UNHCR staff should be encouraged to draw on their expertise to offer preliminary thinking on how best to approach novel or complex protection questions. But preliminary thinking should be presented as such, guiding rather than determining the evolution of a clear and principled consensus in both the work of the Executive Committee and in the jurisprudence of state parties.
Three regional organizations – the African Union, the European Union, and the Organization of American States – administer legally binding regimes for the protection of refugees. In the Arab world, a legally binding system for refugee protection is open for adoption, but has not yet entered into force. Southeast Asia has no legally binding system, but there is nonetheless a modest political framework within which some refugee protection concerns are acknowledged at the level of principle.
In general terms, the regional refugee law regimes share two main characteristics. First, all of the regional regimes are designed to supplement rather than to supplant the UN’s Refugee Convention. They have in particular sought to expand the beneficiary class either by promoting a liberal understanding of refugee statusFootnote 252 or by establishing a cognate protected classFootnote 253 – typically including some or all persons fleeing war or generalized violence (and who will not in all cases meet the requirements of the Convention’s nexus clause).Footnote 254 Second, and the focus of this study, these regional refugee regimes normally affirm the catalog of refugee rights set by the Refugee Convention. In some cases the regional systems actually expand the scope of refugee rights, while in other contexts – and despite the formal commitment of all regional refugee regimes to honor the requirements of the Convention – some regional norms or approaches are at odds with the rights set by international refugee law. As such, the contribution of regional refugee systems to the promotion of refugee rights is decidedly mixed.
18.104.22.168 African Union
The first regional system, established by the Convention Governing the Specific Aspects of Refugee Problems in Africa,Footnote 255 adopted by the Organization of African Unity (which has now been succeeded by the African Union),Footnote 256 both recognizes that the UN’s Refugee Convention “constitutes the basic and universal instrument relating to the status of refugees”Footnote 257 and provides specifically that the AU Convention is “the effective regional complement in Africa of the 1951 United Nations Convention on the Status of Refugees.”Footnote 258 The AU Refugee Convention helpfully elaborates or confirms a number of rights implicit in the Refugee Convention – for example, the right to claim asylum,Footnote 259 to protection from refoulement when at the border,Footnote 260 and not to be forcibly repatriated while refugee status persists.Footnote 261 The AU Refugee Convention goes beyond global norms by making the duty of non-refoulement an unqualified obligation, lacking the equivalent of Art. 33(2) of the Refugee Convention that permits the refoulement of refugees who present national security concerns or risks to public safety.Footnote 262 The African treaty sets duties for a refugee’s home country not to penalize refugees who choose to return,Footnote 263 and affirmatively to facilitate their reintegration.Footnote 264 It also sets a more inclusive understanding of the duty not to discriminate among refugees than does the Refugee Convention, adding “membership of a particular social group or political opinions” to the Convention’s list of grounds on which discrimination is prohibited.Footnote 265 More generally, the AU Refugee Convention is in practice regularly invoked by the African Commission on Human and Peoples’ Rights,Footnote 266 and may be interpreted and applied by the African Court on Human and Peoples’ Rights.Footnote 267
On the other hand, the AU Refugee Convention’s promise of enabling a “better life and future”Footnote 268 for refugees runs up against what seems to be an equally strong concern to avoid “friction among … Member States.”Footnote 269 States must “prohibit” refugees from “attacking” another AU state or engaging in “subversive activities” including by way of expression “through the press, or by radio”Footnote 270 – a far-reaching rule that appears difficult to reconcile with the more restrained approach of Art. 19 of the Civil and Political Covenant.Footnote 271 States are similarly required “for security reasons” to endeavor to “settle refugees at a reasonable distance from the frontier of their country of origin”Footnote 272 – a potentially problematic provision since, while asylum states can and should assist refugees to live in places of safety, mandatory settlement schemes directed at refugees are in breach of the requirements of Art. 26 of the Refugee Convention which grants refugees the right to choose their own place of residence.Footnote 273 The AU Refugee Convention also purports to authorize the issuance of “one-way” travel documents when a refugee is sent to another AU asylum country,Footnote 274 a practice at odds with the presumptive duty under the Refugee Convention to readmit refugees holding a travel document.Footnote 275 Concerns such as these have led commentators to characterize the AU refugee system as unduly focused on containmentFootnote 276 and repatriation.Footnote 277
The European Union’s regional refugee protection system, the Common European Asylum System,Footnote 278 is anchored by Art. 18 of the Charter of Fundamental Rights of the European Union (the “EU Charter”) which provides that “[t]he right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 …”Footnote 279 The European Union’s more specific enactments – on qualification for refugee and subsidiary protection status (the “EU Qualification Directive”),Footnote 280 on responding to large movements of refugees (the “EU Temporary Protection Directive”),Footnote 281 on the assignment of protective responsibility as among member states (the “EU Dublin Regulation”),Footnote 282 on the rights that inhere in persons seeking protection (the “EU Reception Directive”),Footnote 283 and setting procedural guarantees for the process of assessing refugee status (the “EU Procedures Directive”)Footnote 284 – reflect a comparable commitment to respect for international refugee law.Footnote 285 The Qualification Directive, for example, notes that “[t]he Geneva Convention and the Protocol provide the cornerstone of the international legal regime for the protection of refugees,”Footnote 286 and provides that the content of protection defined therein shall be “without prejudice to the rights laid down in the Geneva Convention.”Footnote 287 While the Court of Justice of the European Union, which oversees the regional refugee regime,Footnote 288 is not specifically entitled to interpret or apply international refugee law,Footnote 289 it has nonetheless routinely affirmed “that the Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees,”Footnote 290 and that EU directives must therefore “be interpreted … in a manner consistent with the Geneva Convention.”Footnote 291
The European approach to the elaboration of refugee rightsFootnote 292 is significantly more detailed than that of the African Union, though – like the African system – the European regime does not fully codify all refugee rights as matters of binding EU law.Footnote 293 And while in most cases the rights that are included mirror those set by the Refugee Convention, there are instances in which European norms are both more and less generous than international refugee law requires.Footnote 294
On the negative side of the refugee rights ledger, the right to undertake self-employmentFootnote 295 is delayed longer than the Refugee Convention allows. The freedom of movement of persons undergoing refugee status assessment is subject to impermissible limitations,Footnote 296 and the right of refugees lawfully in a state party’s territory to choose their own place of residence is not respected.Footnote 297 The right to access education is both substantively insufficient and inappropriately delayed.Footnote 298 EU asylum law also discriminates on the prohibited basis of “country of origin,” peremptorily refusing to permit the recognition of any EU national as a refugee.Footnote 299 An especially egregious provision, which the European Commission has suggested should be amended,Footnote 300 authorizes the reduction or withdrawal of many refugee rights if a refugee fails to abide by EU asylum rules – including, for example, if she were to refuse to honor an (internationally unlawful) rule confining her to a particular part of the country.Footnote 301 And perhaps of greatest concern, the European system for the allocation of asylum responsibility has forced refugees into inadequate national asylum systems without regard for the requirements of the Refugee Convention.Footnote 302 While the European Court of Human Rights quickly intervened to constrain this authority,Footnote 303 the Court of Justice of the European Union has been inconsistent in defining the litmus test to refuse a transfer of responsibility – first suggesting that there would need to be a finding of “systemic deficiencies” in the destination country’s asylum system,Footnote 304 then recanting that viewFootnote 305 in the face of principled resistance to it.Footnote 306
Conversely there are areas in which the European Union offers more generous protection than international refugee law requires. Access to wage-earning employment and the liberal professions is granted even to those not yet recognized as refugees,Footnote 307 elaborate provisions on material assistance go significantly beyond the bare bones approach of the Refugee Convention,Footnote 308 and refugee travel documents are more readily available than the Convention requires.Footnote 309 There are also European asylum rules that enhance protection in ways not addressed by the Refugee Convention at all, including on access to asylum,Footnote 310 procedures for the assessment of refugee status,Footnote 311 conditions of detention,Footnote 312 access to information,Footnote 313 family unity,Footnote 314 the granting of residence permits,Footnote 315 access to integration assistance,Footnote 316 and the prohibition of collective expulsion.Footnote 317 The EU has moreover explicitly granted nearly all refugee rights to non-refugees who are the beneficiaries of its broader class of persons entitled to subsidiary protection.Footnote 318
22.214.171.124 Organization of American States
The third regional refugee law system is more diffuse than either the African or European model. Regional initiatives sponsored by the Organization of American States have drawn their strength from a non-binding regional standard, the Cartagena Declaration of 1984,Footnote 319 recommended to states in the Americas by the General Assembly of the Organization of American States.Footnote 320 The Cartagena Declaration contains a commitment to “ensur[ing] that the national laws and regulations adopted reflect the principles and criteria of the Convention and the Protocol.”Footnote 321 This informal process is coupled with a more formally binding duty to protect refugees arising from the right to asylum codified in regional human rights law, interpreted in a dynamic way that links regional human rights norms directly to the commitments made by states under the Refugee Convention.Footnote 322
The OAS Cartagena Declaration contains a general recital requiring respect for refugee rights in line with Refugee Convention norms, though recognizing the flexibility that the UNHCR’s Executive Committee has authorized when a state seeks to cope with a mass influx of refugees.Footnote 323 Rather than seeking to expand refugee rights, the Cartagena Declaration reiterates and clarifies the import of a number of key Refugee Convention rights. For example, it takes a strong stand on both the peremptory character of the duty of non-refoulementFootnote 324 and on the right of refugees not to be involuntarily repatriatedFootnote 325 or expelled even to safe states.Footnote 326 The Declaration also promotes the social rights of refugees, including in particular those that enable refugees to play a productive role in the economic life of their host country.Footnote 327
Perhaps most important, the Cartagena Declaration astutely avoids two pitfalls. On the issues of settlement of refugees away from the border with their home country, the Declaration does not follow Africa in authorizing mandatory relocation,Footnote 328 but instead simply recommends that “refugee camps and settlements located in frontier areas should be set up inland at a reasonable distance from the frontier with a view to improving the protection afforded to refugees, safeguarding their human rights and implementing projects aimed at their self-sufficiency and integration into the host society.”Footnote 329 And while the Cartagena Declaration, like the African treaty,Footnote 330 is alive to the political importance of avoiding friction between states, it sensibly balances an admonition against “participation of refugees in activities directed against the country of origin” with the caveat that states must “at all times respect the human rights of the refugees.”Footnote 331 The promotion of regional refugee rights by reference to the Cartagena Declaration has proven a wise strategy, as the Declaration has now been wholly or partly adopted into the domestic law of most states of the Americas.Footnote 332This emphasis on promoting expanded protection for refugees under national law has been buttressed by the work of regional human rights bodies interpreting the regionally guaranteed right of individuals to “seek and receive”Footnote 333 or “seek and be granted”Footnote 334 asylum in accordance with domestic and international law. As Cantor and Barichello note, during the 1990s the Inter-American Commission’s jurisprudence on the meaning of the right to “asylum” shifted dramatically away from the traditional regional focus on diplomatic asylum
such that it now interprets the right of asylum almost exclusively by reference to refugee protection instruments. One important consequence of this shift is that the right to “receive” asylum is now framed in terms of the State obligations to provide protection to any person who objectively fulfils the international law definition of a refugee … In the words of the Commission, asylum under this framework is now “recognized by the State rather than offered by it.”Footnote 335
This led the Commission to require a baseline set of due process guarantees for persons seeking recognition of refugee status, including the right to apply to authorities, to have their claim determined by a competent authority, to a fair hearing, to a proper decision, and to be protected from refoulement while the claim is being determined and subsequently if recognized as a refugee.Footnote 336The Commission’s pioneering work provided a strong foundation for the seminal decision on asylum of the Inter-American Court of Human Rights in Pacheco Tineo v. Bolivia.Footnote 337 In that case, the Court determined that “[g]iven the declarative nature of the determination of refugee status … the States parties to the 1951 Convention … must recognize this status, based on the respective fair and competent proceedings.”Footnote 338 The Court moreover addressed the substantive content of refugee rights, affirming that the Refugee Convention not only prohibits refoulement, but also establishes “the right to assimilation.”Footnote 339 Most fundamentally, it determined that the Refugee Convention’s definition of refugee status and of the rights that follow from refugee status constitute the modern understanding of the right to seek and to enjoy asylum as codified in regional law:
Even if the 1951 Convention does not explicitly establish the right to asylum as a right, it is considered to be implicitly incorporated into its text, which mentions the definition of refugee, the protection against the principle of non-refoulement, and a list of rights to which refugees have access … With the protection provided by the 1951 Convention and its 1967 Protocol, the institution of asylum assumed a specific form and mechanism at the global level: that of refugee status.Footnote 340
The Inter-American Court thus concluded that states are required to take real account of the special needs and rights of refugees and other non-citizens when implementing their general duties to respect human rights under regional law,Footnote 341 an obligation which the Court has signaled it is prepared to enforce.Footnote 342
126.96.36.199 League of Arab States
The League of Arab States initiative, grounded in the not-yet-in-force Convention on Regulating Status of Refugees in the Arab Countries (“Arab Refugee Convention”),Footnote 343 “confirms” the provisions of the UN Refugee Convention and Protocol, as well as those of the two UN Covenants on Human Rights.Footnote 344 This treaty contains a loose commitment to asylum, with states agreeing “to exert every possible effort, within the limits of their respective national legislation, to accept refugees.”Footnote 345 There is a strong confirmation of the basic duty of non-refoulement, with the treaty explicitly providing – in line with the Refugee Convention – that this duty applies for the duration of risk in the home state.Footnote 346 The Arab Convention also expands the grounds for the duty of non-discrimination between and among refugees, adding gender and political or social affiliation to the Refugee Convention’s list of protected reasons.Footnote 347
These commitments notwithstanding, the small number of rights provisions in the Arab Convention suggest an overall retrenchment from the Refugee Convention’s rights regime.Footnote 348 Most fundamentally, states only commit themselves “to exert every possible effort, to ensure that refugees are accorded a level of treatment no less than that accorded to foreign residents on their territories.”Footnote 349 This standard aligns awkwardly with what international refugee law requires, namely no treatment less than what aliens generally receive,Footnote 350 and in many cases treatment on par with most-favored foreigners and often citizens of the host country.Footnote 351 The Arab Refugee Convention also follows the regrettable example of the African Union treatyFootnote 352 by prohibiting refugees from engaging in undefined “subversive activity leveled against any country including his country of origin”Footnote 353 and limiting a refugee’s freedom of opinion and expression to exclude “attacking any country including his country of origin, [or] convey[ing], by any means whatsoever, any such opinions or news that may create tension between the host country and other countries.”Footnote 354 While the desire to minimize interstate tension is of course understandable, the breadth of these limitations on basic human rights is, for reasons discussed above,Footnote 355 not in accord with the requirements of the Civil and Political Covenant.
These concerns may not be of any real moment, however, since despite adoption roughly a quarter of a century ago, the Arab Refugee Convention has been signed only by Egypt and is not in force.Footnote 356
188.8.131.52 Association of Southeast Asian Nations
The more recent and still evolving Southeast Asian system is grounded in the right to seek and to enjoy asylum codified in the 2012 Human Rights Declaration of the Association of Southeast Asian Nations,Footnote 357 in which states “reaffirm” the international human rights instruments to which they are parties,Footnote 358 and declare that the right to asylum is to be honored “in accordance with the laws of such State and applicable international agreements.”Footnote 359 This core commitment coexists with commitments to collaboration under the so-called Bali ProcessFootnote 360 and various forms of interstate collaboration that build on practices pioneered under the Comprehensive Plan of Action.Footnote 361
It is noteworthy that as recently as 2009 refugees only figured in the workplan of the ASEAN Community as a consideration relevant to post-conflict peace-building, with states committing themselves during the rebuilding phase to the “orderly repatriation”Footnote 362 of refugees. As Kneebone notes, “refugees by implication [were] seen as a potential threat to social cohesion and as posing ‘transboundary challenges.’”Footnote 363 It is therefore remarkable that just three years later the 2012 ASEAN Declaration codified a commitment to the right to “seek and receive” asylum.Footnote 364 It is of course true that this provision – like the Arab Refugee ConventionFootnote 365 – defines access to asylum not only in terms of international obligations, but also as subject to the national laws of state parties.Footnote 366 Yet the symbolic value of agreeing to enshrine the right to asylum means at least that no state in the region can any longer legitimately claim that the notion of a duty to protect refugees lacks local authenticity or legitimacy.Footnote 367
In addition to the provision on asylum, the Declaration also contains at least one important advance on international refugee law by defining the right to move freely and to choose one’s place of residence as a right inhering in “every person”Footnote 368 – thus clearly including refugees. On the other hand, the core right of refugees to be safeguarded against refoulement – a protection contained in all of the other regional refugee accords – is a striking omission from the ASEAN Declaration. It thus seems fair to conclude that this non-binding regional standard is very much “an incomplete statement of refugee rights … [which] suggests that refugees are not yet recognized within the ASEAN Community as rights-bearing individuals.”Footnote 369
While there has been only modest evolution of the refugee rights regime since 1951, the broader field of international human rights law has undergone exponential change. The Refugee Convention was just the second major human rights convention adopted by the United Nations,Footnote 370 the only contemporaneous formulation of comparable substantive breadth being the Universal Declaration of Human Rights – an unenforceable General Assembly resolution.Footnote 371 Today, on the other hand, binding international human rights law has been established by the 1966 Human Rights Covenants, specialized universal accords, and regional human rights regimes in Europe, Africa, and the Americas. As the UNHCR’s Executive Committee has observed, the modern duty of protection therefore goes beyond simply respecting the norms of refugee law; it includes also the obligation “to take all necessary measures to ensure that refugees are effectively protected, including through national legislation, and in compliance with their obligations under international human rights and humanitarian law instruments bearing directly on refugee protection.”Footnote 372
Since refugees are by definition non-citizens of their asylum country, a treaty ensuring the human rights of non-citizens would clearly be of enormous value. Sadly, however, there is still no binding UN human rights treaty addressed squarely to the rights of non-citizens as a group.Footnote 373 The general human rights treaties most closely addressing the needs of non-citizens as such focus on work rights, including in particular the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which entered into force on July 1, 2003.Footnote 374 To the extent that refugees may avail themselves of this treaty’s provisions,Footnote 375 it helpfully imposes obligations to provide, for example, emergency healthcare, children’s education, fair conditions and employment, and the right to be protected against abuse and attacks. More generally, non-citizens may invoke rights under the various conventions established by the International Labor Organization to regulate migration for employment purposes.Footnote 376 Governed by an amalgam of state, employer, and worker representatives, the ILO has produced several treaties on international labor standards which, when ratified by states, are legally binding. Additional guidance is often provided by more detailed recommendations, which do not have the force of law.Footnote 377 The ILO’s progressive codification of migrant worker rights is an important source of enforceable socioeconomic rights for resident aliens, including those refugees who are lawfully admitted as immigrants to an asylum state. This is particularly so because ILO procedures allow enforcement action to be initiated not just by states, but equally by worker and employer organizations.Footnote 378 The critical limitation of the ILO standards is, however, that they generally regulate the treatment only of refugees lawfully admitted as immigrants to the state in question.
Beyond these work-related treaties addressed to non-citizens, refugees and other non-citizens may of course also invoke the general corpus of human rights law.Footnote 379 During his tenure as the UN Special Rapporteur on the Rights of Non-Citizens, David Weissbrodt authored an important “comprehensive study of the rights of non-citizens.”Footnote 380 The thrust of the report was that the human rights of non-citizens could be satisfactorily regulated under existing norms of international law,Footnote 381 at least if there were greater clarity and coordination among the standards applied by human rights supervisory bodies.Footnote 382 For example, observing that most non-citizens are, in fact, racial minorities (since “race” is defined to include inter alia national or ethnic origin)Footnote 383 Weissbrodt argued for enhancing the rights of non-citizens via targeted scrutiny under the widely ratified Racial Discrimination ConventionFootnote 384 – an approach that has since been formally embraced by the Committee on the Elimination of Racial Discrimination.Footnote 385 More generally, a sustained effort has been made to incorporate consideration of the rights of refugees and other non-citizens in the universal and specialized periodic reporting processes under UN human rights treaties,Footnote 386 including under both of the Human Rights Covenants.
As general sources of human rights protection, the two UN Covenants on Human Rights are of unparalleled breadth. At least as important, 98 percent of the world’s refugees live in countries that are bound by both the International Covenant on Civil and Political Rights (“Civil and Political Covenant”) and the International Covenant on Economic, Social and Cultural Rights (“Economic and Social Covenant”).Footnote 387
The most critical feature for refugees of the Civil and Political Covenant is that it generally extends its broad-ranging protection to “everyone” or to “all persons.”Footnote 388 Specifically, each contracting state undertakes in Art. 2(1) to ensure the rights in the Covenant “to all individuals within its territory and subject to its jurisdiction … without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” While nationality is not included in this illustrative list, it has been determined to be embraced by the residual category of “other status.”Footnote 389 The Human Rights Committee has thus explicitly affirmed that “the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens must receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed by the Covenant.”Footnote 390 Indeed, the Committee has held that rights may not be limited to citizens of a state,Footnote 391 but “must also be available to all individuals, regardless of nationality or statelessness, such as asylum-seekers [and] refugees.”Footnote 392 The Civil and Political Covenant is therefore a critical source of rights for refugees, mandating attention to matters not addressed in the Refugee Convention, such as the rights to life and family, freedoms of opinion and expression, and protection from torture, inhuman or degrading treatment, and slavery.
First, because the Covenant on Civil and Political Rights is addressed primarily to persons who reside in their state of citizenship, it does not deal with a number of refugee-specific concerns, including recognition of personal status, access to naturalization, immunity from penalization for illegal entry, the need for identity documents, and especially protection from refoulement.Footnote 393
A second concern is that even where the subject matter of the Civil and Political Covenant is relevant to refugees, the Covenant often formulates rights on the basis of inappropriate assumptions. 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.Footnote 394 Yet refugees and other aliens, unlike citizens, are not always able freely to invoke judicial remedies.
Third and perhaps most ominously, governments faced with genuine public emergencies are authorized to withdraw all but a few core civil rights from non-citizens,Footnote 395 even if the measures taken would ordinarily amount to impermissible discrimination on grounds of national origin, birth, or other status.Footnote 396 In contrast, once an individual’s refugee status is affirmatively assessed, refugee rights must be honored at all times, including during “time of war or other grave and exceptional circumstances.”Footnote 397The continuing value of refugee-specific rights is even more apparent in the field of socioeconomic rights.Footnote 398 The Economic and Social CovenantFootnote 399 includes a non-discrimination obligation which is essentially indistinguishable from that set by the Civil and Political CovenantFootnote 400 under which rights explicitly inhere in “everyone.”Footnote 401 They are also to be implemented without discrimination “of any kind as to … national or social origin … or other status.”Footnote 402 The Committee on Economic, Social and Cultural Rights has moreover made emphatically clear that refugees, whatever their formal status, must enjoy rights set by the Economic and Social Covenant without discrimination:
All people under the jurisdiction of the State concerned enjoy Covenant rights. That includes asylum seekers and refugees, as well as other migrants, even when their situation in the country concerned is irregular … [P]rotection from discrimination cannot be made conditional upon an individual having a regular status in the host country.Footnote 403
It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.Footnote 407
[T]his flexibility coexists with the obligation upon each State party to use all the means at its disposal to give effect to the rights recognized in the Covenant. In this respect, the fundamental requirements of international human rights law must be borne in mind. Thus the Covenant norms must be recognized in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.Footnote 411
During the drafting of the Covenant, Chile claimed that “international assistance to under-developed countries had in a sense become mandatory as a result of commitments assumed by States in the United Nations.” This was almost universally challenged by other representatives of all the groupings involved. The general consensus was that developing States were entitled to ask for assistance but not claim it as a legal right. The text of article 11 bears out this conclusion. In recognizing the role of international co-operation in the realization of rights, it stipulates that it should be based upon “free consent.”Footnote 423
There is therefore what amounts to an asymmetrical approach to foreign aid in international law. A government must accept available aid to enable it to implement the rights of persons under its jurisdiction, but states with the means to satisfy even the most basic survival interests of destitute persons abroad are under no concomitant legal duty to share their wealth.Footnote 424 This skewed optic was recently specifically affirmed in the context of duties owed to refugees:
International assistance and cooperation, in particular, are required to allow States facing a sudden influx of refugees and migrants to comply with their core obligations … The Committee is aware that, when confronted by large flows of migrants fleeing conflict or persecution, some States face a heavier burden than others. It sees any measure that States parties adopt to support the realization of the Covenant rights on the territory of other States as contributing to the aims of the Covenant.Footnote 425
The one legal constraint which does appear to exist, however, is that whatever international aid a state agrees to provide must be granted and administered on a non-discriminatory basis. In line with the substantive content traditionally understood to comprise the duty of non-discrimination,Footnote 426 the importance of allocating aid on the basis of relative need has been affirmed.Footnote 427 In particular, Art. 26 of the Civil and Political Covenant requires that there be no discrimination, in law or in fact, in the allocation of any public goods on the basis of, for example, race, nationality, social origin, or other status.Footnote 428 A dynamic interpretation of this overarching duty suggests that since international aid provided under Art. 2(1) of the Economic and Social Covenant is expressly intended to advance Covenant rights where states are least able to ensure those rights independently, political or other distortions of aid are violations of the duty of non-discrimination.Footnote 429 To date, however, no state has been found to violate international human rights law because of a politically inspired decision to shift aid resources from one group to another. Much less is it likely that a breach would be found if a wealthy government were to decide simply to end aid to refugees or other impoverished persons abroad in favor of spending resources on its own (less needy) citizenry.Footnote 430 In the end, then, under present interpretations of international human rights law, the failure of a government to provide foreign aid or to allocate its foreign aid resources to meet relative needs is probably not legally actionable.Footnote 431
Overall, it is clearly the case that the Economic and Social Covenant’s duty of progressive, non-discriminatory implementation is more fluid than that set by the Refugee Convention with regard to cognate rights. Refugee rights even of a socioeconomic nature set duties of result, and may not be lawfully avoided because of competition within the host state for scarce resources.
A second constraint on the value for refugees of the rights set by the Economic and Social Covenant is Art. 2(3). This paragraph authorizes “[d]eveloping countries, with due regard to human rights and their national economy, [to] determine to what extent they [will] guarantee the economic rights recognized in the present Covenant to non-nationals.” Saul contends that this provision contemplates not just the maintenance of existing restrictions, but also “the introduction of new measures designed to limit the rights which non-nationals had previously enjoyed.”Footnote 432 Sadly, neither the notion of a “developing country,” nor that of “economic” rights – presumably as contrasted with social or cultural rights – is defined in the Covenant.Footnote 433 The Committee on Economic, Social and Cultural Rights has, however, recently insisted that the “exception only … concerns economic rights, in particular access to employment … [W]hereas education has sometimes been described as an economic right, the right of each child to education should be recognized by each State independently of the nationality or the legal status of his or her parents.”Footnote 434 Yet even with this caveat, the rigors of Art. 2(3)Footnote 435 could subject the vast majority of the world’s refugees located in the less developed world to the withholding of economic rights, in particular vitally important rights to work.Footnote 436
The response of the Committee on Economic, Social and Cultural Rights to the challenges posed by the duty of progressive implementation and the potential reach of Art. 2(3) has been largely indirect. The Committee has adopted the construct of “core content” of particularly essential rights. This core content is effectively treated as an obligation of result.Footnote 437 It has moreover read the duty of progressive implementation in tandem with the clear duty of non-discrimination to impose a duty to take affirmative steps to ensure at least the core content of Covenant rights to those who are most socially marginalized or most vulnerable – including “[d]ue to their precarious situation, asylum seekers and undocumented migrants.”Footnote 438The notion of core content of key rights was first elaborated by the Committee in 1990, as a creative application of empirical evidence to the progressive implementation standard:
On the basis of the extensive experience gained by the Committee, as well as by the body that preceded it, over a period of more than a decade of examining States parties’ reports, the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être.Footnote 439
In other words, it is the Committee’s view that virtually no state – if it really did what the Covenant requires, namely give clear priority in resource allocation to the realization of economic, social, and cultural rights, and never to allocate those funds on a discriminatory basis – could fail to realize at least the most basic levels of these four, most vital rights.Footnote 440 While a state can still justify its failure fully to implement Covenant rights by reference to Art. 2(1)’s duty of progressive implementation,Footnote 441 the Committee has made clear that no state is immune from the duty to respect the core content of rights.Footnote 442 Specifically, every state “must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”Footnote 443 As Saul et al. explain, under the “core content” approach
[i]t is not enough for a state to claim that such are its circumstances that even these minimum standards are beyond its capacity, for when such a claim is made, the burden of proof lies with the state itself to demonstrate why it is unable to shift whatever resources it does have (for example, from spending on the military to primary education, or from subsidizing privileged elites to funding basic medical and sanitation services for all).Footnote 444
Equally important, the Committee has more recently explicitly determined that these core obligations “apply even for the benefit of individuals who are part of a large group of refugees or migrants suddenly falling under the jurisdiction of the States concerned.”Footnote 445 The core content approach thus clearly mitigates the risks for refugees of reliance on general guarantees of socioeconomic rights under international human rights law, though still not rising to the level of the absolute if less exigent cognate duties set by the Refugee Convention.Footnote 446
In sum, it is clear that while general human rights are a critical component of the modern understanding of refugee rights, they in no sense supplant the Refugee Convention’s rights regime.Footnote 447 Indeed, because general human rights need only be guaranteed to refugees and other non-citizens “without discrimination” rather than absolutely, the ability of refugees directly to invoke human rights law is circumscribed by the rather sad international jurisprudence on the meaning of non-discrimination, a topic considered in the next part. In far too many respects, the failure to embrace a robust understanding of non-discrimination means that the net value of general human rights law to refugees is more apparent than real.
In general terms, the duty of non-discrimination is an overarching principle governing the allocation of a wide array of, in particular, public goods. Fredman helpfully suggests that the common core of non-discrimination law is to ensure “that individuals should be judged according to their personal qualities. This basic tenet is contravened if the treatment accorded to individuals is based on their status, their group membership, or irrelevant physical characteristics.”Footnote 448 This core understanding of non-discrimination thus requires simply that irrelevant criteria not be taken into account in making allocations: it is essentially a fairly formal prohibition of arbitrariness, which requires that any unequal treatment be “properly justified, according to consistently applied, persuasive and acceptable criteria.”Footnote 449
It follows, of course, that not every differential allocation is discriminatory: the concern is to draw a line between invidious (discriminatory) and socially acceptable (non-discriminatory) distinctions.Footnote 450 While this can be a vexing question, international human rights law normally stipulates grounds on which distinctions are presumptively arbitrary, including where allocations are based on forms of status or personal characteristics which are either immutable or fundamental to one’s identity. Because decisions predicated on such criteria are clearly prone to stereotypical and hence arbitrary assumptions, they undermine the duty to consider individuals on their own merits.
Non-discrimination may also be conceived in a way that moves the principle beyond simply a prohibition of allocations shown to be based on irrelevant or otherwise arbitrary criteria (which requires often difficult, if not impossible, comparative assessments) to include also a prohibition of conduct which in effect, even if not by design, results in an arbitrary allocation at odds with the duty to ensure that individuals are treated in accordance with their particular merits. As Fredman writes, “equal treatment is not in itself sufficient to address inequality in society. Equal treatment may well lead to unequal results.”Footnote 451
Most important, non-discrimination may also be understood to be not only a prohibition of arbitrary allocations – whether by design, or as measured by effects – but also an affirmative guarantee of equal opportunity. Under such an understanding, non-discrimination requires public authorities “to do more than ensure the absence of discrimination … [they] must also act positively to promote equality of opportunity between different groups.”Footnote 452The core guarantee of non-discrimination in international human rights law is that found in Art. 26 of the Civil and Political Covenant.Footnote 453 This unique and broadly applicable guarantee of non-discrimination provides that:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.Footnote 454
While there are many other guarantees of non-discrimination – for example, Art. 2 in each of the Human Rights Covenants, and Art. 3 of the Refugee Convention – Art. 26 is unique in that its ambit is not limited to the allocation of simply the rights found in any one instrument. Art. 26 rather governs the allocation of all public goods, including rights not stipulated by the Covenant itself. As summarized in General Comment No. 18 of the Human Rights Committee,
[A]rticle 26 does not merely duplicate the guarantee already provided for in article 2 [of the Civil and Political Covenant] but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof. Thus, when legislation is adopted by a State party, it must comply with the requirement of article 26 that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant.Footnote 455
The first branch of Art. 26 – equality before the law – is a relatively formal prohibition of negative conduct: it requires simply that there be no discrimination in the enforcement of existing laws. It is thus unsurprising that several delegates to the Third Committee of the General Assembly argued that this guarantee of procedural non-discrimination, standing alone, was insufficient. For example, the representative of the Philippines observed that the obligation to ensure equality before the law would not preclude states from “providing for separate but equal facilities such as housing, schools and restaurants for different groups.”Footnote 456 The Polish delegate agreed, pointing out that even much South African apartheid-era legislation could be reconciled to a guarantee of equality before the law.Footnote 457 These concerns suggested the need for a duty of non-discrimination addressed not just to the process of law enforcement, but to the substance of laws themselves.
The precedent drawn upon by the drafters of the Civil and Political Covenant was the principle advanced in the Universal Declaration of Human Rights of a right to equal protection of the law.Footnote 458 As reframed in the Covenant, the equal protection component of Art. 26 is an extraordinarily inclusive obligation, requiring that “the legislature must refrain from any discrimination when enacting laws … [and] must also prohibit discrimination by enacting special laws and to afford effective protection against discrimination [emphasis added].”Footnote 459 While commentators are not unanimous in their interpretation of Art. 26,Footnote 460 both the literal text of this article and an appreciation of its drafting history suggest that this provision was designed to be an extraordinarily robust guarantee of non-discrimination including, in particular, an affirmative duty to prohibit discrimination and effectively to protect all persons from discrimination.Footnote 461
Refugees and other non-citizens are entitled to invoke Art. 26’s duty to avoid arbitrary allocations and its affirmative duty to bring about non-arbitrary allocations since the Human Rights Committee has determined “that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens,”Footnote 462 a principle explicitly determined to extend to refugees and asylum-seekers.Footnote 463 Because the second branch of Art. 26 – the duty to ensure “equal protection of the law” – may reasonably be read to set an obligation to take the steps needed to offset the disadvantages which involuntary alienage creates for the enjoyment of rights,Footnote 464 it might even be thought that Art. 26 would be a sufficient basis to require asylum states to bring an end to any laws or practices that set refugees apart from the rest of their community.Footnote 465
Despite the extraordinary potential of Art. 26, it is nonetheless unlikely in practice to prove a sufficient mechanism for the full enfranchisement of refugees. This is because Art. 26, like common Art. 2 of the Covenants, does not establish a simple guarantee of equal protection of the law for refugees or any other group.Footnote 466 While initially proposed as such, the right as ultimately adopted is in fact an entitlement “without any discrimination to the equal protection of the law [emphasis added].”Footnote 467 To give effect to this formulation, the Human Rights Committee inquires whether a differential allocation of rights is “reasonable and objective.”Footnote 468 If the differentiation is found to meet this test, it is not discriminatory and there is accordingly no duty either to desist from differentiation or to take positive steps to equalize opportunity under Art. 26.
Three particular trends in the application of the “reasonable and objective” standard work against the interests of refugees and other non-citizens.Footnote 469 First, the Committee has too frequently been prepared to recognize differentiation on the basis of certain grounds, including non-citizenship, as presumptively reasonable. Second, the Human Rights Committee routinely affords governments an extraordinarily broad margin of appreciation rather than engaging in careful analysis of both the logic and extent of the differential treatment. And third, the Committee has paid insufficient attention to evidence that generally applicable standards may impact differently on differently situated groups, thereby failing to do justice to a substantive understanding of the right to equal protection of the law.Footnote 470
Turning to the first concern, some categorical bases for differentiation seem simply to be assumed to be reasonable by the Human Rights Committee. The Committee, for example, apparently feels that it is self-evidently reasonable to deny unmarried spouses the social welfare rights granted to married spouses,Footnote 471 or to withhold general guarantees of legal due process from military conscripts.Footnote 472 The majority of the Human Rights Committee has also adopted the view that distinctions based on advanced age are inherently non-discriminatory. In assessing a staff restructuring plan in which age was per se a factor for redundancy, the Committee determined that “the age limit used … for continued post occupancy was an objective distinguishing criterion.”Footnote 473 Indeed, the Human Rights Committee more recently appeared to approve of the view that “the loss of reflexes and memory that might have an adverse effect on the effectiveness of staff” was “not … irrational” as a basis for imposing an automatic and non-discretionary mandatory retirement age on civil servantsFootnote 474 – with no concern expressed that the termination of groups of persons on the basis of assumed, rather than demonstrated, incapacity is at odds with the core purpose of non-discrimination law, that being to ensure that individuals are treated in line with their particular capacities rather than on the basis of group-based assumptions.
There is reason for concern that differentiation based on lack of citizenship might similarly be assumed to be reasonable. During the drafting of the Covenant, several delegates, including the Indian representative who spearheaded the drive to include the guarantee of equality before the law, made it clear that they were not suggesting that all distinctions between nationals and aliens be eradicated.Footnote 475 The non-discrimination clause was said not to prohibit measures to control aliens and their enterprises, particularly since Art. 1 of the Covenant guarantees the right of peoples to permanent sovereignty over their natural wealth and resources.Footnote 476 An effort to confine Art. 26’s protection against discrimination to “citizens” rather than to “all persons” was not adopted,Footnote 477 but this decision was predicated on a general agreement that it is sometimes reasonable to distinguish between citizens and aliens.Footnote 478 The critical point is that the drafters of the Civil and Political Covenant recognized that states enjoy latitude to allocate some rights differentially on the basis of citizenship, without thereby running the risk of engaging in discriminatory conduct of the kind prohibited by Art. 26, or by common Art. 2 of the Covenants.
It remains unclear whether the Human Rights Committee’s jurisprudence will deem differentiation based on citizenship to be objective and reasonable. On the one hand, the Committee has adopted the view that where particular categories of non-citizens are treated differently (both from each other, and from citizens) by virtue of the terms of a bilateral treaty based on reciprocity, the treaty-based origin of the distinction can justify a general finding that it is based on objective and reasonable grounds, and is therefore non-discriminatory.Footnote 479 The Committee’s decisions also display a worrisome tendency to see procedural distinctions based on nationality to be outside the bounds of discrimination. For example, in assessing the propriety of Danish law excluding only the Refugee Board from the general rule that all administrative tribunal decisions may be appealed to the courts, the Committee summarily dismissed the claim of due process discrimination against non-citizens seeking asylum as “insufficiently substantiated.”Footnote 480 It similarly refused to find discrimination in the context of an Australian law excluding non-citizens from the general rule that persons subject to an adverse security assessment be provided with reasons for that assessment.Footnote 481In contrast to these precedents, the Committee has also taken the view that a categorical approach to deeming differentiation based upon nationality to be reasonable cannot routinely be justified:
Although the Committee had found in one case … that an international agreement that confers preferential treatment to nationals of a State party to that agreement might constitute an objective and reasonable ground for differentiation, no general rule can be drawn therefrom to the effect that such an agreement in itself constitutes a sufficient ground with regard to the requirements of article 26 of the Covenant.Footnote 482
These observations were made in a case challenging Austria’s assertion that the applicant’s status as a non-citizen of Austria or the European Economic Area barred him from holding a post on a work council to which he had been elected. In addressing the complaint of discrimination based on nationality, the Committee determined that
it is necessary to judge every case on its own facts. With regard to the case at hand, the Committee has to take into account the function of a member of a work council, i.e., to promote staff interests and to supervise compliance with work conditions … In view of this, it is not reasonable to base a distinction between aliens concerning their capacity to stand for election for a work council solely on their different nationality. Accordingly, the Committee finds that the author has been the subject of discrimination in violation of article 26.Footnote 483
While less than a clear commitment to tackling discrimination based on nationality, this approach evinces at least some willingness to engage the issue.
The most that can be said, then, is that the Human Rights Committee seems to take the view that while it may in some cases be reasonable to exclude non-citizens as a category from the enjoyment of rights, there are other situations in which citizenship (or lack thereof) cannot be deemed a valid ground of categorical differentiation. Until and unless the jurisprudence of the Human Rights Committee assesses the propriety of categorical differentiation based on citizenship across a broader range of issues, it will therefore be difficult to know which forms of exclusion are likely to be found valid, and which will be seen to breach Art. 26.
A second and more general concern about the Human Rights Committee’s approach to non-discrimination law is its tendency simply to assume the reasonableness of many state-sanctioned forms of differentiation. In two early cases against Sweden involving the denial of financial assistance for school meals and textbooks to children attending private schools, the Human Rights Committee found no reason to uphold the claims of discrimination on the grounds that the government might “reasonably and objectively” choose to treat public and private schools (not students) differently.Footnote 484 The Committee observed that students who wish to receive the benefits should exercise their option to attend a public school. Yet surely if “reasonableness” has any significance in the context of discrimination analysis, it should be to direct attention to whether or not the differential rights allocation is made on the basis of real differences of need between the persons affected – here, the students attending the private schools and those in public schools. There is, however, no evidence that the Committee even canvassed this issue, much less that it found some reason implicitly to declare that all students in attendance at a private school are by virtue of that status in no need of personal financial assistance.
The Committee’s propensity to defer to state-sanctioned differentiation has unfortunately not abated. For example, the Committee rejected claims of discrimination based on an assumption of reasonable differentiation where social welfare benefits were calculated based on a presumption of greater support from cohabiting family members than from non-related cohabitants;Footnote 485 where active and retired employees who were similarly situated economically were treated differently for purposes of pension calculation;Footnote 486 where compensation was paid to military personnel, but not to civilians, who were detained by enemy soldiers during wartime;Footnote 487 where a legal aid system funded counsel for the civil defendant in a criminal case at nearly three times the rate paid to counsel for the plaintiff;Footnote 488 where the government elected to bar only one of several forms of employment understood to be inconsistent with respect for human dignity, with severe economic consequences for the former employees;Footnote 489 where a state’s law codified a presumption that military officers of a predecessor state presented a risk to national security and were therefore ineligible for citizenship;Footnote 490 where a government excluded certain politically unpopular persons from a prisoner release program for which they were objectively qualified;Footnote 491 and where the government argued that there was no administrative error demonstrated by refusal to apply domestic anti-racism laws in a case despite strong evidence of anti-Roma judicial sentiment.Footnote 492In a particularly clear example of the Committee’s abdication of its role seriously to examine the merits of a state’s assertion of the reasonableness of differentiation, a twenty-year residence requirement for purposes of voting on self-determination for New Caledonia was upheld as non-discriminatory:
[T]he Committee considers that, in the present case, the cut-off points set for the … referendums from 2014 onwards are not excessive inasmuch as they are in keeping with the nature and purpose of these ballots, namely a self-determination process involving the participation of persons able to prove sufficiently strong ties to the territory whose future is being decided. This being the case, these cut-off points do not appear to be disproportionate with respect to a decolonization process involving the participation of residents who, over and above their ethnic origin or political affiliation, have helped, and continue to help, build New Caledonia through their sufficiently strong ties to the territory.Footnote 493
The Committee did not even examine the question whether “sufficiently strong ties” might be demonstrated by a period of residence significantly less than twenty years, much less the allegation that the goal of the requirement was to disfranchise an ethnic minority of the population.Footnote 494 In all of these cases, reliance on a “reasonableness” test rather than on serious analysis of the real needs and interests of the persons involved served simply to legitimate state discretion.Footnote 495
Even where the Committee does not simply defer to state assertions of reasonableness, the Committee seems reluctant to delve into the facts of particular cases in order to ensure that the differential treatment is actually proportionate to the social good thereby being advanced.Footnote 496 For example, the case of Debreczeny v. NetherlandsFootnote 497 involved a police officer who was excluded from membership on a municipal council by reason of a law deeming membership of the council to be incompatible with the subordinated position of a police officer to local authorities. While the Committee logically noted the “objective and reasonable” goal of avoiding conflicts of interest, it failed to explain why the complete exclusion of the police officer from holding local political office was a proportionate means to achieve that goal.Footnote 498
Similarly, while some form of restitution was clearly called for in the case of Uruguayan civil servants dismissed by the former military government for their political affiliations, the Human Rights Committee in Stalla Costa v. UruguayFootnote 499 did not even consider whether the particular affirmative action program adopted – which effectively blocked access to civil service recruitment for a whole generation of younger Uruguayans – was unduly intrusive on the rights of the non-beneficiary class. Instead, the Committee was content to find the program to be “reasonable and objective,” observing simply that “[t]aking into account the social and political situation in Uruguay during the years of military rule, in particular the dismissal of many public servants … the Committee understands the enactment … by the new democratic Government of Uruguay as a measure of redress [emphasis added].”Footnote 500 Indeed, it is “understandable” that the new government would wish to afford redress to the improperly fired civil servants. This general legitimation is precisely the result compelled by scrutiny of a differential rights allocation in relation to no more than a “reasonableness” test. That the program is “understandable” does not, however, make it non-discriminatory. A decision on this latter issue should have led the Committee to consider, for example, whether there were other means of redress open to the Uruguayan government that would not have had such a devastating impact on persons not previously employed by the state.
The critical difference that careful proportionality analysis can make is evident from examination of a pair of cases which alleged that the automatic prolongation of alternative military service was discriminatory in relation to genuine conscientious objectors. In Järvinen v. Finland,Footnote 501 the Human Rights Committee considered Finland’s rule requiring conscientious objectors to military service to undertake alternative service for double the period of military service. The doubling of service time for conscientious objectors was said by the state to be justified on the grounds that it was necessary in order to discourage abuse of the non-combatant option. The Committee agreed, finding that the scheme was “reasonable” based on the importance of administrative workability, and because there was no intention to discriminate. No effort was made to assess whether the risk of abuse under the new system truly required such a significant disparity between the duration of military and alternative service, much less whether it was necessary to impose the prolonged service on persons willing to submit to careful scrutiny of their reasons for refusal to engage in military service.Yet the Human Rights Committee subsequently arrived at the opposite conclusion in a series of decisions rendered against France on facts essentially indistinguishable from those considered in Järvinen. In these cases, the Committee rejected the reasonableness of a double-time civilian service alternative imposed in the interests of ensuring that only true conscientious objectors would avoid military service:
Any differentiation, as the Committee has had the opportunity to state repeatedly, must … be based on reasonable and objective criteria. In this context, the Committee recognizes that the law and practice may establish differences between military and national alternative service and that such differences may, in a particular case, justify a longer period of service, provided that the differentiation is based on reasonable and objective criteria, such as the nature of the specific service concerned or the need for a special training in order to accomplish that service. In the present case, however, the reasons forwarded by the State party do not refer to such criteria or refer to criteria in general terms without specific reference to the author’s case, and are rather based on the argument that doubling the length of service was the only way to test the sincerity of an individual’s convictions. In the Committee’s view, such argument does not satisfy the requirement that the difference in treatment involved in the present case was based on reasonable and objective criteria. In the circumstances, the Committee finds that a violation of article 26 occurred, since the author was discriminated against on the basis of his conviction of conscience [emphasis added].Footnote 502
Regrettably, only a minority of the jurisprudence under Art. 26 follows this approach of carefully scrutinizing the reasons advanced by states for practices that raise prima facie claims of discrimination.Footnote 503 And not even these more progressive decisions squarely engage the issue of proportionality, a question that is generally understood to be at the heart of whether a given constraint is objective and reasonable, and thus non-discriminatory.Footnote 504
[T]he scope of article 26 does not extend to differences of results in the application of common rules in the allocation of benefits … Such determination is … uniform for all persons with a minimum income in the Netherlands. Thus, the Committee finds that the law in question is not prima facie discriminatory.Footnote 506
The Committee’s highly formalistic understanding of equality is also clear in its response to a challenge to the legality of a Quebec language law that denied merchants the right to advertise in other than the French language. The Committee found no evidence of discrimination against the English-speaking minority in that province on the grounds that the legislation contained only “general measures applicable to all those engaged in trade, regardless of their language.”Footnote 507 The views of the Committee take no account of the fact that the impact of the language law on French and English speakers was in fact quite different. Whereas most French language merchants could continue to communicate with their majority clientele in their preferred language (French), the law prohibited most English language merchants from advertising to their principal customer base in its preferred language (English). The Human Rights Committee did not even inquire whether there was in fact a difference in the impact of the law on English and French language merchants, noting simply that “[t]his prohibition applies to French speakers as well as to English speakers, so that a French speaking person wishing to advertise in English, in order to reach those of his or her clientele who are English speaking, may not do so. Accordingly the Committee finds that the [English-speaking merchant] authors have not been discriminated against on the ground of their language.”Footnote 508
Much the same superficial analysis is evident in two more recent decisions involving allegations of indirect discrimination based on religion. In rejecting the argument that a general law against possession of cannabis resulted in discrimination against Rastafarians for whom its use is a religious requirement, the Human Rights Committee failed even to engage the religious significance issue, noting simply that “the prohibition of the possession and use of cannabis affects all individuals equally, including members of other religious movements who may also believe in the beneficial nature of drugs.”Footnote 509 And faced with the argument that the applicant’s inability to secure a state pension followed from her strongly held religious objections to the structure of the application process,Footnote 510 the Committee chose simply to avoid addressing the merits of the claim by suggesting that there might be other ways for the applicant to confirm her identity to authorities.Footnote 511 This approach was rightly criticized by the dissenting members of the Committee who insisted that “[t]he refusal to pay the [applicant] the pension that she had earned … appears to be a disproportionate interference with her freedom to manifest her religion in practice.”Footnote 512
The Human Rights Committee’s reluctance to engage with the discriminatory ramifications of facially neutral laws has unfortunately informed the Committee’s consideration of cases involving allegations of discrimination against non-citizens. For example, restrictions on the right to family unity imposed by immigration controls have received short shrift. In AS v. Canada, the Committee ruled that the refusal to allow the applicant’s daughter and grandson to join her in Canada because of their economic and professional status did not even raise an issue potentially cognizable as discrimination.Footnote 513 Yet family reunification rules impact disproportionately on recent immigrants and other non-citizens, and can – if not objective and reasonable – discriminate against them in relation to their human right to live with their families.
Similarly, in Oulajin and Kaiss v. Netherlands,Footnote 514 the Human Rights Committee upheld a Dutch law that paid child support in respect of the natural children of Dutch residents wherever the children might live, but which denied support for foster children who were not resident in the Netherlands. Dutch authorities argued that this distinction was reasonable because whereas a “close, exclusive relationship … is presumed to exist in respect of one’s own children … it must be made plausible in respect of foster children.”Footnote 515 In fact, however, the bar on payment to foster children resident abroad was absolute, and could not be dislodged by evidence of a de facto close and exclusive relationship. The migrant workers who appealed to the Committee pointed out that both their natural and foster children were being raised under precisely the same conditions in Morocco, and that the presumption of a weaker bond between parents and foster children that gave rise to the statutory prohibition of payments to non-resident foster children was rooted in a stereotypical Western understanding of family obligations. The separation of the migrant workers from their children, both natural and foster, was moreover a function of their limited rights as non-citizens. They had not wished to leave their children in Morocco, but were required to do so under the terms of their immigration authorizations.Taking absolutely no account of the fundamentally different circumstances of migrant workers and Dutch citizens, the Committee found the support scheme to be non-discriminatory, as “applicants of Dutch nationality, residing in the Netherlands, are also deemed ineligible for child benefits for their foster children who are resident abroad.”Footnote 516 More generally, four members appended an individual opinion in which they suggested that states should be free in all but the most egregious cases to allocate social benefits as they see fit, without fear of running afoul of Art. 26:
With regard to the application of article 26 of the Covenant in the field of economic and social rights, it is evident that social security legislation, which is intended to achieve aims of social justice, necessarily must make distinctions. It is for the legislature of each country, which best knows the socio-economic needs of the society concerned, to try to achieve social justice in the concrete context. Unless the distinctions made are manifestly discriminatory or arbitrary, it is not for the Committee to reevaluate the complex socio-economic data and substitute its judgment for that of the legislatures of States parties [emphasis added].Footnote 517
This unwillingness to consider the ways in which foreign citizenship or residence abroad may give rise to the need for special accommodation in order to achieve substantive equality is also apparent from the decision in SB v. New Zealand.Footnote 518 Entitlement to a New Zealand government pension was reduced by the amount of any other government pension, but not by any sums payable under a private pension. The complainant, an immigrant to New Zealand, argued that he stood at a disadvantage relative to native New Zealanders since all pensions in his country of origin were accumulated in a state-administered fund. Because all of his pension benefits therefore derived from a government-administered plan, they were counted against his entitlement to a New Zealand pension. A New Zealand national, on the other hand, who was allowed to contribute the same monies to a private pension scheme, would see no reduction in his entitlement to a New Zealand government pension. The Human Rights Committee saw no arguable claim of discrimination, invoking its standard reasoning that the law was not explicitly discriminatory in relation to non-citizens.Footnote 519 As in the case of the migrant workers’ application for benefits in respect of their foster children, the Committee showed no sensitivity to the different way in which a facially neutral law can impact on persons who are not, or who have not always been, citizens of the country in question.There was a glimmer of hope, however, in a series of cases contesting the validity of Czech laws designed to effect restitution to persons deprived of property by Communist regimes.Footnote 520 These cases did not actually involve an allegation of discriminatory impact in the application of facially neutral laws: to the contrary, the laws being contested explicitly denied compensation to persons unable to meet citizenship and other criteria.Footnote 521 Yet because the government argued that despite the language of the relevant laws there had been no intention to discriminate against non-citizens, the Committee felt compelled to take up the question of discriminatory effects. It did so most clearly in its decision of Adam v. Czech Republic, where it specifically determined that there is no need to find an intention to discriminate in order to establish a breach of Art. 26:
The State party contends that there is no violation of the Covenant because the Czech and Slovak legislators had no discriminatory intent at the time of the adoption of Act 87/1991. The Committee is of the view, however, that the intent of the legislature is not dispositive in determining a breach of article 26 of the Covenant, but rather the consequences of the enacted legislation. Whatever the motivation or intent of the legislature, a law may still contravene article 26 of the Covenant if its effects are discriminatory.Footnote 522
[T]he Committee is adopting an unusually narrow interpretation of article 26 by considering that the effects of a law are perceived only by those who fall within its scope … [But] a law whose scope was limited ratione temporis or ratione personae may have discriminatory effects, whether or not they are intended by the law, against persons who do not fall within the scope of the [law] …
[T]he [1945 expropriation] Decree was … aimed at confiscating the property of persons belonging to a national or ethnic group … In setting a time limit – in an apparently neutral way – on any confiscations that occurred before 1948, has the law not brought about detrimental effects which “exclusively or disproportionately affect persons having a particular race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status”?Footnote 524
Given this reluctance genuinely to interrogate the discriminatory effects on non-citizens of superficially neutral legislation, how will the Committee respond when called upon to assess the reasonableness of rules that discriminate in fact against non-citizens despite their complete facial neutrality – including, for example, rules on immigration, child support, and pension entitlement adjudicated in earlier cases without the benefit of an effects-based analysis?Footnote 525
All in all, it is thus unclear whether the Human Rights Covenants’ guarantees of non-discrimination – in particular, Art. 26 of the Civil and Political Covenant – will be of real value to refugees and other non-citizens. If non-discrimination law is to become an important force for refugee rights there must be a clear rejection of the view that categorical distinctions based on citizenship may be assumed to be reasonable; the nascent preparedness to begin real interrogation of state assertions of reasonableness must be developed, and a serious commitment to analysis of proportionality embraced;Footnote 526 and there must be a genuine preparedness to take account of the discriminatory effects of superficially neutral laws and practices. The Human Rights Committee has shown an awareness that refugee rights should follow from their unique predicament as involuntary expatriates,Footnote 527 and has indicated a particular disinclination to find restrictions to be reasonable insofar as individuals are unable to comply by virtue of having been forced to seek refugee status abroad.Footnote 528 But these commitments must be seen for what they are: modest and recent shifts away from what has traditionally been a rather superficial and deferential jurisprudence on the meaning of non-discrimination.
In sum, the 1951 Refugee Convention remains at the heart of the endeavor to advance refugee rights, its age notwithstanding. The 1967 Refugee Protocol expanded the beneficiary class of refugees, but incorporated the Convention’s rights regime by reference. The many conclusions and guidelines on international protection issued by the UNHCR elaborate the content of Convention rights, rather than seeking to formulate new standards. The regional refugee rights regimes established by the African Union, European Union, and Organization of American States (as well as those proposed by the Arab League and in Southeast Asia) supplement rather than supplant the Convention. In some important contexts these regional refugee arrangements do add to the corpus of refugee rights, while in other senses they seem to detract from it (though as a matter of international law they cannot, of course, supersede the UN Refugee Convention). General norms of international human rights law are now generally agreed to apply to non-citizens, including refugees. While in many respects serving as critical gap-fillers for concerns not addressed by the Refugee Convention, in other respects general human rights norms fall short of the refugee-specific protections – in particular because rights are only guaranteed to non-citizens “without discrimination,” and the non-discrimination case law to-date is unclear about the legitimacy of categorical differentiation between citizens and non-citizens, defers too readily to state assertions of reasonableness, and has yet to embrace a firm and clear approach to ensuring substantive equality.