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1 - The Evolution of the Refugee Rights Regime

Published online by Cambridge University Press:  10 March 2021

James C. Hathaway
Affiliation:
University of Michigan Law School

Summary

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.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2021

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.

1.1 International Aliens Law

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.

1.2 International Protection of Minorities

A second body of law which influenced the structure of the international refugee rights regime was the League of Nations system for the protection of national minorities. Like aliens law, the Minorities Treaties which emerged after the First World War were intended to advance the interests of states. Their specific goal was to require vanquished states to respect the human dignity of resident ethnic and religious minorities, in the hope of limiting the potential for future international conflict:

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.

1.3 League of Nations Codifications of Refugee Rights

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.

1.4 The Convention relating to the Status of Refugees

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 54

The 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

1.4.1 Substantive Rights

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 67

All 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

1.4.2 Reservations

Refugee Convention, Art. 42 Reservations

  1. 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. 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.

Refugee Protocol, Art. VII Reservations and Declarations

  1. 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. 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

1.4.3 Temporal and Geographical Restrictions

Refugee Convention, Art. 1 Definition of the Term “Refugee”

  1. 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 …

  2. 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

    1. (a) “events occurring in Europe before 1 January 1951”; or

    2. (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

1.4.4 Duties of Refugees

Governments may legitimately expect refugees to comply with general laws, regulations, and public order measures. Such obligations may not, however, treat refugees less favorably than other resident non-citizens. Most important, while refugees who breach valid laws of the host country are clearly subject to the usual range of penalties, states are prohibited from invoking the failure of refugees to comply with generally applicable duties as grounds for the withdrawal of rights established under the Convention.

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 137

Third 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 141

In 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.

1.4.5 Non-impairment of Other Rights

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.

1.5 Post-Convention Sources of Refugee Rights

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.

1.5.1 Protocol relating to the Status of Refugees

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

Rather than formulate new refugee rights, the focus of effort since 1975 has been to elaborate the content of existing standards in non-binding form.

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 207

The 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 245

More 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.

1.5.3 Regional Refugee Rights Regimes

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.

1.5.3.1 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

1.5.3.2 European Union

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

1.5.3.3 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 332

This 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 336

The 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

1.5.3.4 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

1.5.3.5 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

1.5.4 International Human Rights Law

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.

Yet it is decidedly not the case that general civil and political rights render cognate guarantees in the Refugee Convention superfluous.

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 397

The 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

But rather than being conceived as requiring immediate implementation,Footnote 404 generally applicable socioeconomic rights set only duties of progressive, non-discriminatory implementation.Footnote 405 Under the Economic and Social Covenant, states are required simply to “take steps” progressively to realize economic, social and cultural rights to the extent possible within the limits of their resources.Footnote 406 This duty of non-discriminatory, progressive implementation seeks to strike a delicate balance:

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

Importantly, even this fluid standard is normally breached by the active withdrawal of rights.Footnote 408 More generally, the fact that rights need only be progressively implemented “does not mean that States parties may indefinitely postpone taking action.”Footnote 409 To the contrary, there is a duty to give priority to the realization of economic, social, and cultural rights,Footnote 410 and to ensure that their realization is subject to meaningful legal accountability and respectful of other requirements of human rights law:

[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

Of critical importance in the refugee context, a state may not claim exemption from its duties under the Economic and Social Covenant on grounds of resource insufficiency unless it proves that it has sought out, and been denied, international aid sufficient to meet its core obligations under the Covenant.Footnote 412 Regrettably, though, there is no corresponding obligation on the part of wealthier countries to provide the needed resources. Reflecting the failure to agree to a binding human right to development,Footnote 413 there is no clear or enforceable legal obligationFootnote 414 on wealthier countries to provide aid.Footnote 415 In particular, there is no consensus on which states are subject to the duty to assist set by Art. 2(1), or on the sorts of action which are encompassed by the obligation to engage in “international assistance and cooperation, especially economic and technical.”Footnote 416 Most important, Art. 2(1) does not define how much assistance is required to meet a state’s obligation, or to whom that assistance should be directed.Footnote 417 The tentative nature of the duty is evident also from the rather soft language used in relevant general comments issued by the Committee on Economic, Social and Cultural Rights. States “should” provide aid to realize the right to food;Footnote 418 they “should” facilitate realization of the right to water in other countries;Footnote 419 they “should” provide the funds to facilitate access by all to basic healthcare;Footnote 420 and of most direct relevance to this study, they “should” provide disaster assistance and humanitarian assistance to meet the needs of refugees.Footnote 421 In no case, however, has the Committee found that the Economic and Social Covenant imposes precise and directly enforceable obligations to provide a given quantum or kind of assistance to states in any specified predicament.Footnote 422 Craven helpfully summarizes the historical basis for this caution with regard to the notion of a duty to provide development assistance:

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 438

The 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.

1.5.5 Duty not to Discriminate against Non-citizens, including Refugees

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 452

The 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

1.5.5.1 Categorical Approval of Differentiation based on Citizenship

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 481

In 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.

1.5.5.2 Unwarranted Deference to State Assertions of Reasonableness

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 492

In 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

1.5.5.3 Failure to Ensure Substantive Equality
A third concern is that the Human Rights Committee has traditionally shown only modest willingness to act on the principle that a rule that applies to everyone can nonetheless be discriminatory where the rule’s application impacts differently on different groups of people. In PPC v. Netherlands,Footnote 505 for example, the issue was whether an income support law that determined eligibility for assistance on the basis of revenue during the month of September alone was discriminatory. The applicant had received an income in excess of the minimum wage during only two months of the year, of which September was one. On the basis of consideration of nothing other than his September income, PPC was denied access to the income support program. In examining his complaint, the Human Rights Committee, however, did not even consider the fact that the applicant was clearly in no different need than a person who had received identical income during a month other than September, and who would consequently have been granted benefits under the law:

[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

Distressingly, though, the same Czech legislation has survived scrutiny when challenged as true indirect discrimination. While the early cases focused on the fact that non-citizens whose property had been expropriated were unable to enjoy the same compensation as citizens, more recent challenges have posited that the temporal bar on compensation for property confiscated before February 25, 1948 was indirectly discriminatory on grounds of nationality. Because expropriations in 1945 affected German and Hungarian nationals, it was argued that the legislative differentiation gave rise to effects-based discrimination. While the majority of the Committee dismissed the complaint on the simplistic basis that “the property lies outside the scope of the challenged 1991 law owing to temporary restrictions that were applicable to all equally,”Footnote 523 three members of the Committee dissented:

[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.

Footnotes

1 Convention relating to the Status of Refugees, 189 UNTS 2545 (UNTS 2545), done July 28, 1951, entered into force Apr. 22, 1954 (Refugee Convention).

2 See generally R. Lillich, The Human Rights of Aliens in Contemporary International Law (1984) (Lillich, Rights of Aliens), at 540.

3 C. Phillipson, The International Law and Custom of Ancient Greece and Rome (1911), at 122209.

4 Lillich, Rights of Aliens, at 6–7.

5 H. Walker, “Modern Treaties of Friendship, Commerce and Navigation,” (1958) 42 Minnesota Law Review 805 (Walker, “Treaties of Friendship”), at 823.

6 C. Amerasinghe, State Responsibility for Injuries to Aliens (1967) (Amerasinghe, State Responsibility), at 23; A. Roth, The Minimum Standard of International Law Applied to Aliens (1949) (Roth, Minimum Standard), at 113.

7 This carefully constructed list of rights universally held by aliens was based on an empirical survey spanning 150 years: Roth, Minimum Standard, at 134–185.

8 See generally Walker, “Treaties of Friendship,” at 810–812.

9 Walker, “Treaties of Friendship,” at 812.

10 “[T]he term ‘refugee’ shall apply to any person who … 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”: Refugee Convention, at Art. 1(A)(2). See generally A. Grahl-Madsen, The Status of Refugees in International Law (vol. I, 1966) (Grahl-Madsen, Status of Refugees I), at 150154; G. Goodwin-Gill and J. McAdam, The Refugee in International Law (2007) (Goodwin-Gill and McAdam, Refugee in International Law), at 63; and J. Hathaway and M. Foster, The Law of Refugee Status (2014) (Hathaway and Foster, Refugee Status), at 17–75.

11 “The fate of the individual is worse than secondary in this scheme: it is doctrinally non-existent, because the individual, in the eyes of traditional international law, like the alien of the Greek city-State regime, is a non-person”: Lillich, Rights of Aliens, at 12.

12 Diplomatic protection is rooted in “a statement by the Swiss jurist Emmerich de Vattel in 1758 that ‘whoever ill-treats a citizen indirectly injures the State, which must protect that citizen,’ and, secondly, in a dictum of the Permanent Court of International Justice in 1924 in the Mavrommatis Palestine Concessions case that ‘by taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right, the right to ensure, in the person of its subjects, respect for the rules of international law’”: International Law Commission, “Draft Articles on Diplomatic Protection with Commentaries,” [2006] 2 UN Yearbook of International Law 27. As the International Court of Justice has observed, “[t]he State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease”: Barcelona Traction, Light and Power Company Limited (Belgium v. Spain), [1970] ICJ Rep 3 at [79].

13 “It had been suggested that the traditional approach to diplomatic protection … should be developed to recognise that in certain circumstances where injury is the result of a grave breach of a jus cogens norm, the state whose national has been injured, should have a legal duty to exercise diplomatic protection on behalf of the injured person. As a corollary to that, states would be obliged to make provision in their municipal law for the enforcement of this right before a competent court or other independent national authority. It appears from the [International Law Commission] report [of 2000, UN Doc. A/CN.4/506] that although there was some support for this development, and some recent national constitutions made provision for such an obligation, presently this is not the general practice of states. Currently the prevailing view is that diplomatic protection is not recognised by international law as a human right and cannot be enforced as such”: Kaunda v. President of the Republic of South Africa, (2005) 4 SA 235 (SA CC, Aug. 4, 2004), at [28]–[29].

14 Cited in Amerasinghe, State Responsibility, at 59. As Amerasinghe demonstrates, however, many of the rules governing the procedures for assertion of a claim and calculation of damages are intimately related to the position of the injured alien: Footnote ibid. at 61–65.

15 “It is through the medium of their nationality only that individuals can enjoy benefits from the existence of the Law of Nations … Such individuals as do not possess any nationality enjoy no protection whatever, and if they are aggrieved by a State they have no way to redress, there being no State that would be competent to take their case in hand. As far as the Law of Nations is concerned, apart from morality, there is no restriction whatever to cause a State to abstain from maltreating to any extent such stateless individuals”: L. Oppenheim, International Law: A Treatise (1912), at 369. The International Law Commission has more recently championed the view that the state in which a refugee lawfully and habitually resides may choose to extend diplomatic protection to that refugee, though not for purposes of advancing a claim against the refugee’s country of nationality: International Law Commission, “Draft Articles on Diplomatic Protection with Commentaries,” [2006] 2 UN Yearbook of International Law 25, at Art. 8(2)–(3). This principle remains, however, de lege ferenda: R (Al Rawi) v. Secretary of State for the Home Department, [2006] EWCA Civ 1279 (Eng. CA, Oct. 12, 2006), at [63]. Interestingly, even the Commission declined to press for a right to exercise diplomatic protection against a refugee’s country of nationality in view of the predominance of nationality as the basis for the exercise of diplomatic protection, as well as on the policy grounds of “open[ing] the floodgates for international litigation” and not “deter[ring] States from accepting refugees”: International Law Commission, “Draft Articles on Diplomatic Protection with Commentaries,” [2006] 2 UN Yearbook of International Law 37, at Art. 8(10).

16 Roth, Minimum Standard, at 113.

17 “Nationality is a juridical and political link that unites an individual with a State and it is that link which enables a State to afford protection against all other States”: L. Sohn and T. Buergenthal, The Movement of Persons Across Borders (1992) (Sohn and Buergenthal, Movement of Persons), at 39.

18 Amerasinghe, State Responsibility, at 285.

19 Speech by United States President Wilson to the Peace Conference, May 31, 1919, cited in L. Sohn and T. Buergenthal, International Protection of Human Rights (1973), at 216217.

20 The Permanent Court of International Justice could be asked to render advisory opinions on contentious legal issues. See e.g. Greco-Bulgarian Communities, [1930] PCIJ Rep, Ser. B, No. 17; Access to German Minority Schools in Upper Silesia, [1931] PCIJ Rep, Ser. A/B, No. 40; Minority Schools in Albania, [1935] PCIJ Rep, Ser. A/B, No. 64.

21 Bilateral aliens treaties are discussed at note 5.

22 See generally J. Hathaway, “The Evolution of Refugee Status in International Law: 1920–1950,” (1984) 33 International and Comparative Law Quarterly 348 (Hathaway, “Evolution of Refugee Status”), at 350–361.

23 “Report by the Secretary-General on the Future Organisation of Refugee Work,” LN Doc. 1930.XIII.2 (1930), at 3.

24 “Communication from the International Refugee Organization to the Economic and Social Council,” UN Doc. E/1392, July 11, 1949, at App. I.

25 “A final solution of the refugees problem can accordingly only be furnished by naturalisation in the countries in which the refugees reside, or by restoring their original nationality to them. As neither of these alternatives is possible at the moment, it has been necessary to institute a provisional system of protection which is embodied in the Inter-Governmental Arrangements of 1922, 1924, 1926 and 1928 [emphasis added]”: “Report by the Secretary-General on the Future Organisation of Refugee Work,” LN Doc. 1930.XIII.2 (1930), at 3.

26 Arrangement relating to the Legal Status of Russian and Armenian Refugees, 89 LNTS 53, done June 30, 1928.

27 “Report by the Inter-Governmental Advisory Commission for Refugees on the Work of its Fourth Session,” 12(2) LN OJ 2118 (1931), at 2119.

28 “Report of the Intergovernmental Commission and Communication from the Governing Body of the Nansen International Office,” LN Doc. C.311.1933 (1933), at 1.

29 “Work of the Inter-Governmental Advisory Commission for Refugees during its Fifth Session and Communication from the International Nansen Office for Refugees,” 5(1) LN OJ 854 (1933), at 855.

30 159 LNTS 3663, done Oct. 28, 1933, entered into force June 13, 1935 (1933 Refugee Convention).

31 The 1933 Refugee Convention established the second voluntary system of international supervision of human rights (preceded only by the 1926 Slavery Convention, 60 LNTS 253, done Sept. 25, 1926, entered into force Mar. 9, 1927).

33 “Each of the Contracting Parties undertakes not to remove or keep from its territory by application of police measures, such as expulsions or non-admittance at the frontier (refoulement), refugees who have been authorised to reside there regularly, unless the said measures are dictated by reasons of national security or public order”: 1933 Refugee Convention, at Art. 3.

34 “Work of the Inter-Governmental Advisory Commission for Refugees during its Eighth Session,” LN Doc. C.17.1936.XII (1936), at 156.

35 See Chapters 3.2 and 3.3.

36 “Report Submitted by the Sixth Committee to the Assembly of the League of Nations: Russian, Armenian, Assyrian, Assyro-Chaldean, Saar and Turkish Refugees,” LN Doc. A.45.1935.XII (1935).

37 “Unfortunately, for various reasons, [naturalisation] encountered considerable difficulties even before countries became reluctant, owing to their unemployment problems, to increase the number of workers … [A] surprisingly small percentage of refugees had succeeded in obtaining naturalisation, and those modest results, combined with existing political and economic conditions, do not suggest that too much hope should be pinned to naturalisation as a general and early remedy for the refugee problem in Europe”: Footnote ibid. at 2.

38 “Work of the Inter-Governmental Advisory Commission for Refugees during its Eighth Session,” LN Doc. C.17.1936.XII (1936), at 156–157.

39 3952 LNTS 77, done July 4, 1936.

40 “Report Submitted by the Sixth Committee to the Assembly: Russian, Armenian, Assyrian, Assyro-Chaldean, Saar and Turkish Refugees,” LN Doc. A.45.1935.XII (1935), at 2.

41 “Work of the Inter-Governmental Advisory Commission for Refugees during its Eighth Session,” LN Doc. C.17.1936.XII (1936), at 159.

42 192 LNTS 4461, done Feb. 10, 1938 (1938 Refugee Convention).

43 1938 Refugee Convention, at Art. 15.

44 G. Coles, “Approaching the Refugee Problem Today,” in G. Loescher and L. Monahan eds., Refugees and International Relations 373 (1990).

45 See generally L. Holborn, The International Refugee Organization: A Specialized Agency of the United Nations (1956); Independent Commission on International Humanitarian Issues, Refugees: The Dynamics of Displacement (1986), at 32–38.

46 United Nations Department of Social Affairs, “A Study of Statelessness,” UN Doc. E/1112, Feb. 1, 1949 (United Nations, “Statelessness”).

47 See J. Hathaway, “A Reconsideration of the Underlying Premise of Refugee Law,” (1990) 31(1) Harvard International Law Journal 129, at 144–151.

48 “If the General Council accepts the recommendation … with regard to the termination of the [International Refugee] Organization’s care and maintenance programme, the Director-General [of IRO] assumes that Governments will wish to revert to their traditional pre-war policy in granting material assistance to refugees. Thus individual Governments would undertake to provide for any necessary care and maintenance of refugees living on their territories”: “Communication from the International Refugee Organization to the Economic and Social Council,” UN Doc. E/1392, July 11, 1949, at 8.

49 “The stateless person in the country he is able to reach and which is ready to admit him usually finds no encouragement to settle there. And yet, if he is not to remain beyond the pale of society and to become an ‘international vagabond’ he must be integrated in the economic life of the country and settle down”: United Nations, “Statelessness,” at 23.

50 “[T]he proposal to set up a high commissioner’s office would give that institution the functions of coordination and liaison, and would leave to States the political responsibility which should properly be theirs. The time had come to impose that responsibility on States. The principal States concerned in the refugee problem, in fact, were claiming it”: Statement of Mr. Fenaux of Belgium, 9 UNESCOR (326th mtg.), at 618 (1949).

51 “The French and Belgian Governments considered that an international convention was essential to settle the details of the measures which national authorities would have to put into effect”: Statement of Mr. Rochefort of France, Footnote ibid.

52 “The 1933 Convention could be used as a basis for the new convention”: Statement of Mr. Rundall of the United Kingdom, Footnote ibid. at 623.

53 “In effect, an appeal was made to all governments to accord the same treatment to all refugees, in order to reduce the burden on contracting governments whose geographical situation meant that the greater part of the responsibility fell on them”: Statement of Mr. Desai of India, UN Doc. E/AC.7/SR.166, at 18 (1950). See also Statement of Mr. Rochefort of France, 9 UNESCOR (326th mtg.), at 616 (1949): “Not the least of the merits of the International Refugee Organization was that it had enlisted many distant countries in the work of providing asylum for refugees, the burden of which had for long been supported by the countries of Europe alone.”

54 Communication from the International Refugee Organization to the Economic and Social Council, UN Doc. E/1392, July 11, 1949, at [35]–[37].

55 “Memorandum by the Secretary-General to the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950, at 6–7.

56 Universal Declaration of Human Rights, UNGA Res. 217A(III), adopted Dec. 10, 1948 (Universal Declaration).

57 These include the rights to non-discrimination, housing, naturalization, property, freedom of internal movement, and religious freedom. As a general matter, there was an assumption that rights declared in the Universal Declaration of Human Rights formed the clear backdrop to the Refugee Convention. In the words of the British delegate, “a Convention relating to refugees could not include an outline of all the articles of the Universal Declaration of Human Rights; furthermore, by its universal character, the Declaration applied to all human groups without exception and it was pointless to specify that its provisions applied also to refugees”: Statement of Sir Leslie Brass of the United Kingdom, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 8. Yet it is equally clear that there was no appetite on the part of all delegates to codify in binding form all of the rights recognized in the Declaration. France, for example, was of the view that the Refugee Convention ought not to render binding the full notion of freedom of opinion and expression codified in Art. 19 of the Universal Declaration of Human Rights: Statement of Mr. Rain of France, Footnote ibid. at 9.

58 These include protection against penalization for illegal entry, exemption from exceptional measures applied against co-nationals, and the right to transfer externally acquired assets to a country of resettlement: Refugee Convention, at Arts. 31 (“refugees unlawfully in the country of refuge”), 8 (“exemption from exceptional measures”), and 30 (“transfer of assets”).

59 Refugee Convention, at Art. 25. See generally Chapter 4.10.

60 Refugee Convention, at Art. 42(1).

61 Socioeconomic rights are of course guaranteed only as an aspect of protection, not with a view to achieving systemic economic reforms. As observed in the House of Lords, “[t]he humanitarian object of the Refugee Convention is to secure a reasonable measure of protection for those with a well-founded fear of persecution … [I]t is not to procure a general levelling-up of living standards around the world, desirable though of course that is”: Secretary of State for the Home Department v. AH (Sudan), [2007] UKHL 49 (UK HL, Nov. 14, 2007), at [7], per Lord Bingham.

64 See generally Chapter 7.2.

65 Refugee Convention, at Art. 1(C). See generally Grahl-Madsen, Status of Refugees I, at 367–411; Hathaway and Foster, Refugee Status, at 476–494; and Chapter 7.1.

66 Refugee Convention, at Arts. 28 and 30, discussed at Chapters 6.6 and 7.3.

67 Refugee Convention, at Art. 34, discussed at Chapter 7.4.

68 Fornah v. Secretary of State for the Home Department, [2006] UKHL 46 (UK HL, Oct. 18, 2006), at [35], per Lord Hope. See also Footnote ibid., per Lord Brown at [121]: “[T]hose granted refugee status enjoy a number of substantial rights beyond mere irremovability, for example, rights to engage in gainful employment …, rights to welfare …, travel documents enabling the refugee to travel abroad …, and the opportunity for expedited naturalization.”

69 “‘Reservation’ means a unilateral statement, however phrased or named, made by a State … when signing, ratifying, formally confirming, accepting, approving, or acceding to a treaty, or by a State when making a notification of succession to a treaty, whereby the State … purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”: International Law Commission, “Guide to Practice on Reservations to Treaties,” UN Doc. A/66/10/Add.1 (2011), at [1.1(1)].

70 The same rights are insulated from reservation under Art. VII(1) of the Protocol relating to the Status of Refugees, 606 UNTS 8791 [UNTS 8791], done Jan. 31, 1967 (“Refugee Protocol”). Interestingly, however, state parties to the Protocol – but not to the Convention – are allowed to enter a reservation to the provision authorizing settlement of disputes regarding interpretation or application of the Protocol by the International Court of Justice: Refugee Protocol, at Art. VII(1). While in principle a cause for concern (since the Protocol regulates the treatment of most modern refugees), the issue is moot in practical terms since no case involving the interpretation or application of refugee law has ever been referred to the International Court of Justice.

71 See generally S. Blay and M. Tsamenyi, “Reservations and Declarations under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,” (1990) 2(4) International Journal of Refugee Law 527.

72 “[H]e therefore appealed to representatives to seek the golden mean, and, if possible, by precept and example, to encourage others to withdraw their reservations at a later stage. If the Conference worked along those lines, he believed it might be possible to arrive at a just and effective instrument”: Statement of the President, Mr. Larsen of Denmark, UN Doc. A/CONF.2/SR.9, July 6, 1951, at 14. This approach is in line with the view of the International Law Commission that “[s]tates … which have formulated one or more reservations to a treaty should undertake a periodic review of such reservations and consider withdrawing those which no longer serve their purpose”: International Law Commission, “Guide to Practice on Reservations to Treaties,” UN Doc. A/66/10/Add.1 (2011), at [2.5.3(1)].

73 Only 34 of 148 state parties – less than 25 percent of the total number – have entered a direct or indirect reservation of any kind to Art. 17: https://treaties.un.org, accessed Dec. 21, 2020.

74 https://treaties.un.org, accessed Dec. 21, 2020. This means that more than 95 percent of state parties have assumed some duty to ensure the right of refugees to undertake employment. The most common reservation reduces or qualifies the “most-favored foreigner” level of attachment for this right (Belgium, Brazil, Cabo Verde, Denmark, Finland, Luxembourg, Netherlands, Norway, Portugal, Spain, and Uganda): Footnote ibid. Other states entering a partial reservation include Angola, Bahamas, Chile, Ethiopia, France, Honduras, Ireland, Jamaica, Madagascar, Malawi, Mexico, Mozambique, Papua New Guinea, Sweden, United Kingdom, Zambia, and Zimbabwe: Footnote ibid.

75 https://treaties.un.org, accessed Dec. 21, 2020.

76 International Law Commission, “Report on the Work of its Sixty-Third Session,” UN Doc. A/66/10/Add.1, at 347 (2011), at Guideline 3.1.3.

77 https://treaties.un.org, accessed Dec. 21, 2020.

78 Footnote Ibid. As observed by the US representative during the drafting of the Refugee Convention, “the mere fact that the provisions of a convention required a change in the existing laws of any country was not a valid argument against them. If all national laws were to remain unchanged, why should there be a convention?”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.37, Aug. 16, 1950, at 15.

79 The objecting parties were Belgium, France, Germany, Italy, Luxembourg, and the Netherlands: https://treaties.un.org, accessed Dec. 21, 2020.

81 A. Pellet, “Article 42 of the 1951 Convention/Article VII of the 1967 Protocol,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 1617 (Pellet, “Article 42”), at 1634, citing to the advisory opinion of the International Court of Justice in Reservations to the Genocide Convention, [1951] ICJ Rep 24.

82 Pellet, “Article 42,” at 1634.

83 Over the decade 2010–2019 there was only one accession to the refugee regime, that being Nauru in 2011: www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf, accessed Jan. 15, 2020. Only five withdrawals of reservations occurred over the same timeframe, including those of Honduras (2013), Korea (2009), Liechtenstein (2009), Mexico (2014), and Papua New Guinea (2013): https://treaties.un.org, accessed Dec. 21, 2020.

84 www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf, accessed Jan. 15, 2020; UNHCR, “Global Trends: Forced Displacement in 2018,” at Annex, Table 1. If Turkey – bound only by the Convention and hence with no obligation to protect modern refugees – is included, the number rises to more than 8.6 million refugees (43 percent of the total number of refugees in the world) who are living in a country not bound by international refugee law: Footnote ibid.

85 States attending the High Level Plenary Meeting on Addressing Large Movements of Refugees and Migrants “note[d] with satisfaction that 148 States are now parties to one or both instruments. We encourage States not parties to consider acceding to those instruments and States parties with reservations to give consideration to withdrawing them”: “New York Declaration for Refugees and Migrants,” UN Doc. A/71/L.1, Sept. 13, 2016, at [65].

86 While it might be argued that minimalist accession is at odds with the overarching duty to refrain from reservations that are incompatible with the object and purpose of the treaty (see Footnote note 76), on balance this position is not sound. Because the non-reservable substantive provisions (see text at note 69) suffice to bring refugees under the jurisdiction of a state party and hence to require respect for cognate rights under other treaties and general international law (see Chapter 1.5.4), they align with – even if only imperfectly ensuring – the object and purpose of the Refugee Convention and Protocol.

87 See J. Hathaway, “The Global Cop-Out on Refugees,” (2018) 30(4) International Journal of Refugee Law 591; and generally J. Hathaway ed., Reconceiving International Refugee Law (1997).

88 Protocol relating to the Status of Refugees, 606 UNTS 8791 [UNTS 8791], done Jan. 31, 1967, entered into force Oct. 4, 1967 (Refugee Protocol).

89 UNHCR has observed that “Madagascar has not acceded to the 1967 Protocol relating to the Status of Refugees neither did it ratify the 1969 OAU Convention governing the specific aspects of refugee problems in Africa (signed on 10 September 1969), thereby making the legal regime that governs the refugee protection in the country blurred”: UNHCR, “Submission by the United Nations High Commissioner for Refugees (UNHCR) for the Office of the High Commissioner for Human Rights’ Compilation Report: Universal Periodic Review: Madagascar” (March 2014), at 2. Making the situation murkier still, Madagascar only acceded to the 1951 Convention with the geographical reservation on December 18, 1967, more than two months after the entry into force of the Refugee Protocol. While accession to the Convention without accession to the Protocol is not formally barred, no other country has taken this tack.

90 “The present Protocol shall be applied by the States Parties hereto without any geographic limitation, save that existing declarations made by States already Parties to the Convention in accordance with article 1B(1)(a) of the Convention, shall, unless extended under article 1B(2) thereof, apply also under the present Protocol [emphasis added]”: Refugee Protocol, at Art. I(3).

91 “[A]rticle 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities”: UN Human Rights Committee, “General Comment No. 18: Non-discrimination” (1989), at [12]. See generally Chapter 1.5.5 at note 453 ff.

92 “Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens … The Covenant gives aliens all the protection regarding rights guaranteed therein, and its requirements should be observed by States parties in their legislation and in practice as appropriate”: UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), at [1], [4].

93 Civil and Political Covenant, at Art. 26. The Human Rights Committee has cautioned that “[a]lthough 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. Rather, it is necessary to judge every case on its own facts”: Karakurt v. Austria, HCR Comm. No. 965/2000, UN Doc. CCPR/C/74/D/965/2000, decided Apr. 4, 2002, at [8.4].

94 Civil and Political Covenant, at Art. 26. For example, a temporal distinction creating a permanent privilege was found not to be objective and reasonable in Haraldsson v. Iceland, HRC Comm. No. 1306/2004, UN Doc. CCPR/C/91/D/1306/24, decided Dec. 14, 2007, at [10.4].

95 See Chapter 1.5.5 at note 468.

96 As the Human Rights Committee has observed, “[t]he Covenant does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination … arise”: UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), at [5]. While it might be argued that the temporal and geographical limitation provisions of the Refugee Convention should govern under the lex specialis principle, the jus cogens character of the duty of non-discrimination would require that it be given priority in the event of a normative conflict. As found by the Inter-American Court of Human Rights, “the principle of equality before the law, equal protection before the law and non-discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws”: Juridical Condition and Rights of Undocumented Migrants (Advisory Opinion OC-18/03) (IACtHR, Sept. 17, 2003), at [10].

97 United Nations, “Memorandum by the Secretary-General to the Ad Hoc Committee on Statelessness and Related Problems,” UN Doc. E/AC.32/2, Jan. 3, 1950, at 31–33. Chapter IV was entitled “Responsibilities of Refugees and Obligations Incumbent Upon Them.”

98 Footnote Ibid. at 31.

99 Footnote Ibid. at 32.

100 “[T]he article was unnecessary, as it contained nothing which was not obvious. Indeed, it was generally known that the laws of a country applied not only to its nationals but also to the foreigners residing in its territory, whether they were refugees or not”: Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.11, Jan. 25, 1950, at 10. See also Statement of Mr. Guerreiro of Brazil, Footnote ibid., and Statement of Mr. Kural of Turkey, Footnote ibid. at 11. “Since an alien is subject to the territorial supremacy of the local state, it may apply its laws to aliens in its territory, and they must comply with and respect those laws”: R. Jennings and A. Watts eds., Oppenheim’s International Law (1992), at 905. See also Chapter 1.1 at Footnote note 2.

101 Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 7.

102 Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 22. This point was not entirely accurate, since individuals can be subject to obligations set by an international treaty: Jurisdiction of the Courts of Danzig, [1928] PCIJ Rep, Series B, No. 15. This point was clearly made by Justice Kirby, who cited Art. 2 in support of the view that while refugees “are not parties to the Convention; … they are certainly the subjects of the Convention provisions”: NAGV and NAGW of 2002, [2005] HCA 6 (Aus. HC, Mar. 2, 2005), at [68], per Kirby J.

103 Statement of Mr. Rochefort of France, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 4. See also Statements of Mr. Perez Perozo of Venezuela and Mr. Herment of Belgium, Footnote ibid. at 5. A similarly exigent understanding of the duties owed by refugees is clear in remarks made by Mr. Robinson of Israel, UN Doc. E/AC.32/SR.12, Jan. 25, 1950, at 7: “[A] refugee was a foreigner sui generis to whom the draft convention accorded special status and in certain cases even equality with the nationals of the recipient country. The refugee thus obtained certain privileges and it was only fair to balance those by conferring upon him greater responsibilities [emphasis added].”

104 Statement of Mr. Rochefort of France, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 7–8.

105 See e.g. Statements of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 8 and UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 6–7; and Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 8.

106 It does not follow, however, that requiring refugees to cooperate with the process of refugee status assessment, e.g. by submitting available and relevant evidence as soon as practicable (see e.g. Council Directive on common procedures for granting and withdrawing international protection (recast), Doc. 2013/32/EU, June 26, 2013, at Art. 13) is at odds with Art. 2 (but see H. Lambert, “Article 2,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 625 (Lambert, “Article 2”), at 637–638). So long as such duties are conceived and implemented in a manner consistent with both refugee law (e.g. Refugee Convention Art. 31) and international human rights law (e.g. Civil and Political Covenant Art. 14), they are no more than a refugee-specific application of the general responsibility of all persons under a state’s jurisdiction to cooperate with authorities seeking to enforce valid laws. Indeed, it is generally agreed that the duty to establish the facts relevant to assessment of refugee status is shared between the refugee applicant and the state: UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979, re-issued 1992 and 2019) (UNHCR, Handbook), at [195]–[205].

107 The essence of the French plea could be satisfied by the inclusion of “a moral per contra” falling short of an enforceable legal duty: Statement of Mr. Rochefort of France, UN Doc. E/AC.32/SR.34, Aug. 14, 1950, at 4.

108 “[T]he Committee had altered the structure of the draft convention, which was meant to cover the liabilities as well as the rights of refugees”: Statement of Mr. Weis of the International Refugee Organization, UN Doc. E/AC.32/SR.12, Jan. 25, 1950, at 10. Under the agreement negotiated, the denial of refugee protection for breach of a host country’s laws would only be possible if the very high standard of Art. 33(2) were met: G. Ben-Nun, “The British-Jewish Roots of Non-refoulement and its True Meaning for the Drafters of the 1951 Convention,” (2014) 28(1) International Journal of Refugee Law 93, at 107108.

109 “It was not too difficult to ask a foreign national to leave the country but it was often virtually impossible to expel a refugee. Different measures had to be taken for the two groups. Moreover, it had been the experience of some States that foreign nationals rarely engaged in political activity, while refugees frequently did so”: Statement of Mr. Cuvelier of Belgium, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 10–11.

110 A restriction of the political rights of refugees “should not be regarded as a discriminatory measure against refugees but rather as a security measure. While it was embarrassing to favour the withdrawal of rights from a group of people, it would be better to do that than to expose that group of people – refugees – to the more drastic alternative of deportation”: Statement of Mr. Devinat of France, Footnote ibid. at 9. See also Statement of Mr. Larsen of Denmark, UN Doc. E/AC.32/SR.10, Jan. 24, 1950, at 10: “[R]efugees who had found freedom and security in another country should not be permitted to engage in political activity which might endanger that country.”

111 France, “Proposal for a Draft Convention,” UN Doc. E/AC.32/L.3, Jan. 17, 1950, at Art. 8, General Obligations. See also Statement of Mr. Kural of Turkey, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 11: “[S]ince the draft convention was to be a definitive document governing the status of refugees, it might conveniently be invoked by the latter in order to sanction undesirable political activity.”

112 “[H]e regarded it as undesirable to include in a United Nations document a clause prohibiting political activities – a very broad and vague concept indeed … In the absence of a specific clause on the subject, [governments] would still have the right to restrict political activities of refugees as of any other foreigners. On the other hand, the inclusion of the clause might imply international sanction of such a restriction. The possibility of such an interpretation was undesirable”: Statement of Mr. Henkin of the United States, UN Doc. E/AC.32/SR.23, Feb. 3, 1950, at 8. See also Statements of Mr. Chance of Canada and Mr. Larsen of Denmark, Footnote ibid. at 9.

113 Statement of Mr. Perez Perozo of Venezuela, Footnote ibid. at 11. See also Statements by each of the representatives of the United States, Canada, Denmark, and China affirming a state’s sovereign authority to limit the political rights of foreigners: Footnote ibid. at 8–9. This view is, of course, consonant with the traditional view under international aliens law, discussed in Chapter 1.1 at Footnote note 6. In view of the general applicability of Art. 19 of the subsequently enacted International Covenant on Civil and Political Rights, 999 UNTS 172 (UNTS 14668), adopted Dec. 16, 1966, entered into force Mar. 23, 1976 (Civil and Political Covenant), however, it is questionable whether governments continue to enjoy a comparable discretion to limit the expression of political opinions by non-citizens. As observed by the Human Rights Committee, “the general rule is that each one of the rights must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof. This guarantee applies to aliens and citizens alike”: UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 140, [2]. See generally Chapter 1.5.5. Nor does the more recent general comment on freedom of expression allow for differential treatment of non-citizens in this regard: UN Human Rights Committee, “General Comment No. 34: Article 19: Freedoms of Opinion and Expression,” UN Doc. CCPR/C/GC/34, Sept. 12, 2011.

114 Robinson’s comment that “Article 2 must be construed to mean that refugees not only must conform with the laws and general regulations of the country of their residence but are also subject to whatever curbs their reception country may consider necessary to impose on their political activity in the interest of the country’s ‘public order’ [emphasis added]” is therefore not an accurate summary of the drafting history. See N. Robinson, Convention relating to the Status of Refugees: Its History, Contents and Interpretation (1953) (Robinson, History), at 72; and P. Weis, The Refugee Convention, 1951: The Travaux Préparatoires Analysed with a Commentary by Dr. Paul Weis (posthumously pub’d., 1995) (Weis, Travaux), at 38. To be valid under Art. 2, curbs on political activity cannot be directed solely at refugees or a subset of the refugee population, but must apply generally, for example to aliens or all residents of the asylum state. The duty of non-discrimination must, of course, also be respected in the designation of the group to be denied political rights (see generally Chapters 1.5.5 and 3.4). The interpretation of the duty to conform to “public order” measures, upon which Robinson and Weis base their arguments, is discussed at note 129.

115 Lambert cites Ghana, Kenya, Sierra Leone, South Africa, and Tanzania as examples of countries that have legislation codifying the duties of refugees per se: Lambert, “Article 2,” at 637. This may well be an echo of the unusual provision in African regional refugee law that takes a more aggressive approach to the duties of refugees: see Chapter 1.5.3 at note 269 ff.

116 See Chapter 4.5.2.

117 The vote to reject this provision was 4–3 (4 abstentions): UN Doc. A/AC.32/SR.12, Jan. 25, 1950, at 9. “The Committee was not, however, the appropriate body to legislate on the very difficult question of military service. No provision regarding that question should be included in the convention; it should be solved by the operation of national legislation within the general framework of international law”: Statement of Mr. Larsen of Denmark, Footnote ibid. at 8.

118 Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 21.

119 It is nonetheless not quite right to suggest that Art. 2 “was only intended to provide a moral obligation on refugees” (Lambert, “Article 2,” at 642). Art. 2 should instead be understood as a form of residual clause, confirming the clear legal duty of refugees to abide by domestic laws and regulations of general application excepting only to the extent these are inconsistent with the rights guaranteed by the Refugee Convention.

120 See generally Chapter 4.7.

121 See Chapter 4.2.1.

122 R v. Asfaw, [2008] UKHL 31 (UK HL, May 21, 2008), at [95], per Lord Rodger. See also the views of Lord Mance at [143], affirming the same understanding of Art. 2.

123 A proposal that would have required refugees, for example, to remain in the employment found for them by the host government was advanced by Australia: UN Doc. A/CONF.2/10. “The Australian Government was put to considerable expense in selecting migrants, in contributing to the cost of their journey to Australia, in arranging for their reception, and generally in helping them to adapt to their new place in the community. It had therefore been regarded as reasonable that migrants should recognize their obligations to their new country, and continue to do work for which they were most needed for a limited period”: Statement of Mr. Shaw of Australia, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 20. The United Nations High Commissioner replied that the Australian objective could best be met by enforcing the obligations against the refugee on the basis of domestic regulation or contract, rather than by a specific duty in the Refugee Convention itself: Statement of Mr. van Heuven Goedhart, UNHCR, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 4. More specifically, the British delegate observed that “[h]e believed that the Australian delegation was not so much concerned with the failure of a refugee to comply with conditions, as with the need for ensuring that the specific conditions imposed on entry to Australia conformed with the provisions of the draft Convention … [I]t seemed to him that the question of whether the Australian practice was permissible must be considered in the light of other articles of the draft Convention which imposed certain conditions upon States. He would therefore suggest that the Australian representative should withdraw his amendment [to Art. 2]”: Statement of Mr. Hoare of the United Kingdom, Footnote ibid. at 6. The Australian amendment to Art. 2 was subsequently withdrawn: Footnote ibid. at 7.

124 “Every refugee admitted under 8 U.S.C. § 1157 whose refugee status has not been terminated is required, one year after entry into the United States, to submit an application to adjust status and become an LPR, i.e., to be admitted for permanent residence [citing 8 C.F.R. § 209.1]”: Vasiliy Romanishyn v. Attorney General, 455 F. 3d 175 (US CA3, July 20, 2006), at [5]. The US Board of Immigration Appeals has applied this rule also to persons who arrive directly in the United States to seek protection (“asylees” in US parlance), an interpretation that one circuit court has recently questioned: Nadeem Ali v. Attorney General, 814 F. 3d 306 (US CA5, Feb. 22, 2016).

125 “A refugee whose refugee status was not terminated pursuant to 8 U.S.C. § 1157(c)(4), and who has not yet been adjudicated inadmissible by an immigration officer in the course of applying for [lawful permanent resident] status pursuant to 8 C.F.R. § 209.1, may not be placed in removal proceedings, even if he has engaged in conduct that would subject a non-refugee to removal … To that limited extent, refugee status is a protected status”: Vasiliy Romanishyn v. Attorney General, 455 F. 3d 175 (US CA3, July 20, 2006), at [6].

126 Under the Refugee Convention, removal for a crime committed inside the asylum state is only lawful if the requirements of Art. 33(2) are satisfied, namely conviction by a final judgment of a “particularly serious” crime and the making of a determination that as a result thereof the refugee “constitutes a danger to the community of that country”: see generally Chapter 4.1.4.

127 In a prominent case considered by both the Court of Appeals for the 3rd Circuit and the US Board of Immigration Appeals, a refugee was ordered deported from the United States under this rule for having committed retail theft offenses: Smriko v. Attorney General, 387 F. 3d 279 (US CA3, Oct. 26, 2004), In re Sejid Smirko, 23 I&N Dec. 836 (US BIA, Nov. 10, 2005). Despite the reservations earlier expressed by the Court of Appeals, the Board of Immigration Appeals determined “that an alien who has been admitted as a refugee and has adjusted his or her status to that of a lawful permanent resident may be placed in removal proceedings for acts or conduct amounting to grounds for removal under section 237(a) of the Act. Although some vestiges of refugee status are afforded by regulation to refugees who have been admitted as lawful permanent residents, termination of refugee status is not a precondition to the initiation of removal proceedings against refugees who have adjusted their status”: Footnote ibid.

128 “Once a person’s status as a refugee has been determined, it is maintained unless he comes within the terms of one of the cessation clauses”: UNHCR, Handbook, at [112].

129 UN Doc. E/AC.32/L.32, Feb. 9, 1950, at 3.

130 The term “public order” was selected to convey the meaning of the civil law concept of “ordre public”: Robinson, History, at 72; Weis, Travaux, at 38.

131 UN Doc. E/1850, Aug. 25, 1950, at 15. This language is identical to that included in the Convention as finally adopted.

132 It is doubtful, however, that “public order” encompasses all measures viewed as necessary in the interest of public morality. The Egyptian delegation proposed a specific provision to this effect. “In any case, whether the Belgian amendment was adopted or not, the Egyptian delegation considered it necessary to add to the end of article 2 the words ‘and of morality,’ for morality was inseparable from public order”: Statement of Mr. Mostafa of Egypt, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 23. This suggestion attracted no interest, and was not proceeded with. But see Weis, Travaux, at 38: “Although this is not explicitly stated, refugees may be expected to behave in such a manner, for example, in their habits and dress, as not to create offence in the population of the country in which they find themselves.”

133 Ordre public is a “highly dangerous civil law concept … [which] covers at least as much ground as public policy in English-American law and perhaps much more”: J. Humphrey, “Political and Related Rights,” in T. Meron ed., Human Rights in International Law: Legal and Policy Issues 171 (1984) (Meron, Human Rights in International Law), at 185. The contentious nature of the notion of ordre public is discussed e.g. in Chapter 4.7 at Footnote note 2376; in Chapter 5.1 at Footnote note 225; and in Chapter 6.5 at Footnote note 947.

134 W. Schabas, UN International Covenant on Civil and Political Rights: Nowak’s CCPR Commentary (2019) (Schabas, Nowak’s CCPR Commentary), at 319. Schabas makes specific reference to an attempt by South Africa to justify apartheid-era restrictions as necessary to its own particular ordre public.

135 “Since ordre public may otherwise lead to a complete undermining of freedom of expression and information – or to a reversal of rule and exception – particularly strict requirements must be placed on the necessity (proportionality) of a given statutory restriction. Furthermore, the minimum requirements flowing from a common international standard for this human right, which is so essential for the maintenance of democracy, may not be set too low”: Schabas, Nowak’s CCPR Commentary, at 571.

136 UNHCR, “Ghana: Deportation to Liberia,” Mar. 25, 2008, www.unhcr.org/en-us/news/briefing/2008/3/47e8f5722/ghana-deportation-liberia.html, accessed Jan. 15, 2020.

137 “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society”: Civil and Political Covenant, at Art. 21. A protected assembly is an intentional and temporary gathering of several persons for a specific purpose: Schabas, Nowak’s CCPR Commentary, at 595.

138 UN Doc. A/CONF.2/10. The Belgian delegate insisted that his amendment raised no issue of substance, but was instead “mainly a question of form”: Statement of Mr. Herment of Belgium, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 18. Later, however, he conceded that “[h]is amendment would permit Contracting States to withdraw the benefit of the provisions of the Convention from refugees contravening the laws and regulations of the receiving country, or failing to fulfil their duties towards that country or guilty of disturbing public order”: Footnote ibid. at 22.

139 Statement of Mr. Robinson of Israel, UN Doc. A/CONF.2/SR.3, July 3, 1951, at 21.

141 Statement of Mr. Hoare of the United Kingdom, Footnote ibid. at 22. See also Statement of Mr. Chance of Canada, Footnote ibid. at 23: “[T]he inclusion of [the] clause might frustrate the purposes of the Convention”; and Statement of Baron van Boetzelaer of the Netherlands, Footnote ibid. at 24.

142 UN Doc. A/CONF.2/18. “[T]he word ‘duty’ in the French amendment referred to the duties mentioned in the first line of article 2 itself, which were incumbent on the refugee as a resident in the receiving country … [T]he concept of ‘receiving country’ … covered … both the ‘receiving country’ and what was meant by the ‘country of selective immigration.’ With regard to the procedure to be adopted in respect of the forfeiture by the refugee of the rights pertaining to his status, it should be noted that the measures in question related to extremely serious – and, incidentally, rare – cases, and came within the category of counter-espionage operations. No country could possibly be expected to expatiate in an international forum on the measures which it proposed to adopt in that connexion. ‘Forfeiture’ of his rights by the refugee would transfer him from the jurisdiction of the international convention to that of the legislation currently in force in the countries concerned”: Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 9.

143 Statement of the President, Mr. Larsen, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 5. See also Statement of Mr. Hoare of the United Kingdom, Footnote ibid. at 6.

144 “[T]he person subjected to [the measures contemplated] would preserve his status as [a] refugee; the pronouncement of his forfeiture of rights would in no way withdraw that status from him, but would simply have the effect of depriving him of all or some of the benefits granted by the Convention”: Statement of Mr. Herment of Belgium, Footnote ibid. at 10.

145 Statement of Mr. Rochefort of France, Footnote ibid. at 11.

146 “[W]hile some provision such as that proposed by the French delegation was desirable, it would more appropriately be placed in article 1, among the provisions relating to the exclusion from the benefits of the Convention of certain categories of refugees … [A] refugee dealt with as proposed in the French amendment … would cease to be a refugee for the purposes of the Convention”: Statement of Mr. van Heuven Goedhart, UNHCR, Footnote ibid. at 9–10. The requirements for exclusion from refugee status are discussed in Grahl-Madsen, Status of Refugees I, at 262–304; Hathaway and Foster, Refugee Status, at 524–598; and Goodwin-Gill and McAdam, Refugee in International Law, at 162–197.

147 “In his view, it should be recognized that in the last resort a country might be obliged to return the offender to the country from which he came … [but] [i]t would be wrong to exclude any such person from the benefits of the Convention while he still remained as a refugee in a particular country”: Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 10. See generally Chapter 5.1.

148 Statement of Mr. Hoare of the United Kingdom, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 11.

149 Statement of Mr. Rochefort of France, UN Doc. A/CONF.2/SR.24, July 17, 1951, at 19.

150 “[N]on-observance [by a refugee] of his ‘duties’ according to Article 2 has no effect in international law”: Grahl-Madsen, Status of Refugees I, at 58. Lambert similarly concludes “that the non-observance of a duty covered by Art. 2 does not have any effect in international law (as opposed to national law); it does not entail the loss of refugee status or any particular right under the 1951 Convention”: Lambert, “Article 2,” at 632.

151 “What was important was that the refugee should not constitute a problem, and that he should conform to the laws and regulations to which he was subject. When he failed to do so, appropriate sanctions should be applied, and repeated violations of the regulations might reasonably warrant expulsion. Until he was expelled, however, he should be treated in accordance with the provisions of the Convention and be subject only to such sanctions as were applicable to other law-breakers”: Statement of Mr. Hoeg of Denmark, UN Doc. A/CONF.2/SR.4, July 3, 1951, at 4–5. The only exception is the right of refugees to receive travel documents, which may be suspended under the explicit terms of the Convention where required by “compelling reasons of national security or public order”: Refugee Convention, at Art. 28. See generally Chapter 6.6.

152 Thus, for example, the threat of the Thai government in July 2003 to revoke the registration of any refugee who “break[s] any Thai laws” was clearly inconsistent with the requirements of the Refugee Convention: “Thais to Intern 1,500 Burmese,” International Herald Tribune, July 3, 2003, at 1. Swaziland also acted contrary to international law when it withdrew refugee status from thirty-seven refugees and ordered their “provisional isolation” because they had embarrassed Prince Sobandla by protesting during a visit to a refugee camp. The Prince justified the decision on the grounds of “gross misconduct and breach of refugee ethics”: Times of Swaziland, July 19, 2002.

153 Refugee Convention, at Arts. 32 and 33, discussed at Chapters 5.1 and 4.1 respectively.

154 Human Rights Watch, “Massive Expulsion of Cubans from Ecuador,” July 15, 2016.

155 “It is correct to state that the rights enjoyed by the refugees under the 1951 Convention are not absolute and [refugees] are expected to abide by the national law … Thus, one’s refugee status does not provide immunity from prosecution or other legal sanctions that the State is entitled to pursue”: Kituo Cha Sheria et al. v. Attorney General, Petitions Nos. 19 and 115 of 2013 (Ken. HC, July 26, 2013), at [86].

157 Indeed, as Haines has observed, “[i]t would be unfortunate … were Article 2 to be employed as a bed of Procrustes, exacting from refugees conformity to absolute standards of lawful conduct”: R. Haines, International Academy of Comparative Law National Report for New Zealand (1994), at [28].

158 “The committee also thought it advisable to make it clear that the adoption of the present Convention should not impair any greater rights which refugees might enjoy prior to or apart from this Convention”: “Report of the Ad Hoc Committee on Refugees and Stateless Persons, Second Session,” UN Doc. E/1850, Aug. 25, 1950, at 11.

159 See also A. Skordas, “Article 5,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 669 (Skordas, “Article 5”), at 675 (“Art. 5 is, in substance, a ‘may’ clause”). But Art. 5 plays a critical role in the event of normative conflict: see text at note 165.

160 Robinson, History, at 79.

161 The Refugee Convention does, however, replace the earlier refugee treaties of 1922, 1924, 1926, 1928, 1933, 1935, 1938, 1939, and 1946: Refugee Convention, at Art. 37.

162 Robinson, History, at 79. Indeed, as originally conceived, Art. 5 may even have been intended to authorize discrimination in favor of particular sub-groups of the refugee population, a matter now generally proscribed by general international human rights law: see Chapter 1.5.5.

163 Refugee Convention, at Art. 1(A)(1).

164 Footnote Ibid. at Arts. 1(A)(1) and 1(C)(5). See generally Grahl-Madsen, Status of Refugees I, at 108–119, 307–309, and 367–369; and Hathaway and Foster, Refugee Status, at 483–485.

165 Art. 5 is stated in peremptory terms (“[n]othing in this Convention shall be deemed to impair [emphasis added]”): Refugee Convention, at Art. 5.

166 Weis, Travaux, at 44.

167 UN Doc. E/AC.32/L.42/Add.1, at 8, adopted by the Committee as Art. 3(a): UN Doc. E/AC.32/SR.43, Aug. 25, 1950, at 14.

168 Statement of the President, Mr. Larsen, UN Doc. A/CONF.2/SR.5, Nov. 19, 1951, at 18.

169 See also Weis, Travaux, at 44: “It resulted from the history of the Article that both rights and benefits granted prior to the Convention and subsequently to its entry into force are meant.”

170 See generally Chapter 3.2.

171 Another possible source of complementary rights and benefits is the notion of diplomatic or territorial asylum more broadly conceived: see Skordas, “Article 5,” at 684–690.

172 See Chapter 1.5.4.

173 V. Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law,” in R. Rubio-Marin ed., Human Rights and Immigration 19 (2014) (Chetail, “Are Refugee Rights Human Rights?”), at 22. Skordas, in contrast, contends that it is “more appropriate to examine the relationship between refugee law and human rights law in Art. 7, which establishes a clear obligation of the contracting parties to afford refugees the same treatment as that accorded to aliens generally”: Skordas, “Article 5,” at 675; see also Footnote ibid. at 677 and 698. Art. 7, which establishes the general standard of treatment for refugees (see Chapter 3.2) does indeed reinforce the right of refugees to benefit from general norms of human rights law. But it is Art. 5 that most clearly resolves the potentially thorny question of how the two bodies of law should be reconciled, requiring that refugees receive the benefit of the cognate rights set by international human rights law.

174 Edwards takes much the same position, arguing that “[i]f Article 5 of the [Refugee] Convention is read as a ‘successive clause’ or ‘conflict clause,’ then Article 30(2) of the 1969 Vienna Convention on the Law of Treaties would support this interpretation”: A. Edwards, “Human Rights, Refugees, and the Right ‘to Enjoy’ Asylum,” (2005) 17(2) International Journal of Refugee Law 293, at 306. She also notes that Art. 30(3)–(4) of the Vienna Convention tends to the same result since “[it] provide[s] that where an earlier treaty is not terminated or suspended, the former applies only to the extent that its provisions are compatible with the latter treaty. While there is no refugee-specific replacement for the 1951 Convention, there is an overlap in relation to particular provisions … and application of sub-Articles 30(3) and (4) of the Vienna Convention would mean that all the provisions of the 1951 Convention and/or 1967 Protocol remain on foot apart from those which are incompatible with [international human rights law] instruments subsequently ratified”: Footnote ibid. Schabas describes the import of the cognate provision of the Civil and Political Covenant as “giv[ing] expression to the principle that the rights of the Covenant merely represent a minimum standard and that the combined effect of various human rights conventions, domestic norms and customary international law may not be interpreted to the detriment of the individual”: Schabas, Nowak’s CCPR Commentary, at 113.

175 As discussed in Chapter 1.4.5 at note 158, these rights were safeguarded under Art. 5 of the Refugee Convention.

176 See Chapter 1.5.3.

177 See Chapter 4.2.

178 See Chapter 4.1.

179 Refugee Protocol, Art. I(1).

180 See Chapter 1.4.3.

181 But see UNHCR, “Introductory Note to Text of the 1951 Convention and 1967 Protocol Relating to the Status of Refugees” (2010), at 2: “The Convention entered into force on 22 April 1954 and it has been subject to only one amendment in the form of the 1967 Protocol [emphasis added].”

182 P. Weis, “The 1967 Protocol relating to the Status of Refugees and Some Questions relating to the Law of Treaties,” (1967) 42 British Yearbook of International Law 39, at 60. More specifically, “[t]he procedure for revision of the 1951 Convention, as provided for in its terms, was not resorted to in view of the urgency of extending its personal scope to new groups of refugees and of the fact that the amended treaty would have required fresh consent by the states parties to the Convention. Instead, a new instrument, the 1967 Protocol relating to the Status of Refugees, was established, which does not amend the 1951 Convention and modifies it only in the sense that States acceding to the Protocol accept the material obligations of the Convention in respect of a wider group of persons. As between the state parties to the Convention, it constitutes an inter se agreement by which they undertake obligations identical ratione materiae with those provided for in the Convention for additional groups of refugees not covered by the Convention on account of the dateline of 1 January 1951. As regards states not parties to the Convention, it constitutes a separate treaty under which they assume the material obligations laid down in the Convention in respect of refugees defined in Art. 1 of the Protocol, namely those covered by Art. 1 of the Convention and those not covered by reason of the dateline”: Footnote ibid. at 59.

183 Minister for Immigration and Multicultural Affairs v. Savvin, (2000) 171 ALR 483 (Aus. FFC, Apr. 12, 2000), per Katz J. Justice Katz thus concludes that “for parliament to describe the 1951 Convention as having been ‘amended’ by the 1967 Protocol is inaccurate. At the same time, however, for a state like Australia, which was already bound by the 1951 Convention before acceding to the 1967 Protocol, the error is one of no practical significance”: Footnote ibid.

184 Under Art. VII(1) of the Refugee Protocol, a state may enter a reservation regarding Art. IV of the Protocol, which establishes the right of other state parties to refer a dispute to the International Court of Justice. In contrast, Art. 42 of the Refugee Convention, which addresses the scope of permissible reservations to that treaty, does not allow states to enter a reservation to Art. 38, the equivalent of Art. IV of the Protocol. “While the Convention provides for obligatory jurisdiction of the International Court of Justice in any dispute relating to its interpretation or application, one reason for the Protocol was for some States to be able to make reservations to this jurisdictional clause”: Sohn and Buergenthal, Movement of Persons, at 113. The Protocol incorporated the possibility of a reservation to the jurisdiction of the International Court of Justice in order to encourage participation by African and other states that preferred disputes to be resolved “by negotiation or conciliation and not by judicial means”: K. Oellers-Frahm, “Article 38 of the 1951 Convention/Article IV of the 1967 Protocol,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 1537, at 1552, Footnote n. 92. Pellet considers the Protocol’s revision of the Convention’s approach on this point was “a sign of the times – and of the change in the majority of States, now defiant towards any intervention of the ICJ”: Pellet, “Article 42,” at 1623. See UNHCR, “Addendum to the Report of the United Nations High Commissioner for Refugees,” UN Doc. A/6311/Rev.1/Add.1, Jan. 1, 1968, at [33].

185 Refugee Convention, at Art. 38.

186 See Chapter 1.4.3 at note 88.

187 UN Doc. A/CONF.78/12, Feb. 4, 1977. See generally A. Grahl-Madsen, Territorial Asylum (1980) (Grahl-Madsen, Territorial Asylum).

188 UN Doc. A/CONF.78/12, Feb. 4, 1977. See generally Grahl-Madsen, Territorial Asylum.

189 See UNHCR, “Conclusions on International Protection Adopted by the Executive Committee of the UNHCR Programme, 1975–2017,” UN Doc. HCR/IP/3/Eng/REV. 2017. UNHCR has also issued “A Thematic Compilation of Executive Committee Conclusions” (2014), which organizes relevant Executive Committee Conclusions under seventy-three major chapters. No Conclusions on International Protection were issued in 2018 or 2019, with a decision on a future workplan delayed until 2020: UNHCR Executive Committee, “Notes of the Rapporteur, 18–20 June 2019,” www.unhcr.org/5d0b442c7.pdf, accessed Jan. 15, 2020.

190 See UNHCR Executive Committee Conclusions Nos. 1 (1975), 5 (1977), 6 (1977), 17 (1980), 22 (1981), 29 (1983), 50 (1988), 52 (1988), 55 (1989), 62 (1990), 65 (1991), 68 (1992), 71 (1993), 74 (1994), 77 (1995), 81 (1997), 82 (1997), 85 (1998), 87 (1999), 89 (2000), 91 (2001), 94 (2002), 99 (2004), 100 (2004), 102 (2005), 103 (2005), and 108 (2008).

191 Footnote Ibid. at Nos. 22 (1981), 44 (1986), 55 (1989), 85 (1998), and 97 (2003).

192 Footnote Ibid. at Nos. 3 (1977), 7 (1977), 36 (1985), 44 (1986), 46 (1987), 47 (1987), 50 (1988), 55 (1989), 65 (1991), 68 (1992), 71 (1993), 85 (1998), 89 (2000), 93 (2002), 101 (2004), 106 (2006), and 107 (2007).

193 Footnote Ibid. at Nos. 7 (1977), 9 (1977), 17 (1980), 21 (1981), 44 (1986), 50 (1988), 55 (1989), 61 (1990), 68 (1992), 71 (1993), 79 (1996), 85 (1998), 96 (2003), and 102 (2005).

194 Footnote Ibid. at Nos. 1 (1975), 9 (1977), 15 (1979), 22 (1981), 24 (1981), 47 (1987), 74 (1994), 84 (1997), 85 (1998), 88 (1999), 91 (2001), 93 (2002), 100 (2004), 101 (2004), 103 (2005), 104 (2005), 105 (2006), 107 (2007), and 110 (2010).

195 Footnote Ibid. at Nos. 8 (1977), 18 (1980), 24 (1981), 35 (1984), 64 (1990), 65 (1991), 72 (1993), 73 (1993), 91 (2001), 93 (2002), 99 (2004), 100 (2004), 101 (2004), 102 (2005), 104 (2005), 105 (2006), 107 (2007), 111 (2013), and 114 (2017).

196 Footnote Ibid. at Nos. 20 (1980), 25 (1982), 29 (1983), 39 (1985), 44 (1986), 45 (1986), 46 (1987), 48 (1987), 54 (1988), 55 (1989), 58 (1989), 60 (1989), 64 (1990), 68 (1992), 72 (1993), 73 (1993), 74 (1994), 77 (1995), 79 (1996), 81 (1997), 87 (1999), 89 (2000), 90 (2001), 98 (2003), 99 (2004), 105 (2006), and 108 (2008).

197 Footnote Ibid. at Nos. 47 (1987), 58 (1989), 59 (1989), 74 (1994), 77 (1995), 80 (1996), 84 (1997), 85 (1998), 91 (2001), 93 (2002), 98 (2003), 100 (2004), 101 (2004), 102 (2005), 104 (2005), 105 (2006), 106 (2006), 107 (2007), 108 (2008), 109 (2009), 110 (2010), and 111 (2013).

198 Footnote Ibid. at Nos. 50 (1988), 58 (1989), 64 (1990), 88 (1999), 93 (2002), 95 (2003), 100 (2004), 101 (2004), 102 (2005), 104 (2005), 105 (2006), 107 (2007), 108 (2008), and 109 (2009).

199 Footnote Ibid. at Nos. 47 (1987), 59 (1989), 72 (1993), 73 (1993), 74 (1994), 79 (1996), 85 (1998), 87 (1999), 89 (2000), 98 (2003), 105 (2006), 107 (2007), and 113 (2016).

200 Footnote Ibid. at Nos. 32 (1983), 39 (1985), 46 (1987), 54 (1988), 60 (1989), 64 (1990), 68 (1992), 71 (1993), 73 (1993), 74 (1994), 77 (1995), 79 (1996), 81 (1997), 85 (1998), 87 (1999), 89 (2000), 98 (2003), 102 (2005), 105 (2006), 107 (2007), 108 (2008), 109 (2009), and 110 (2010).

201 Footnote Ibid. at Nos. 32 (1983), 85 (1998), 87 (1999), 89 (2000), 94 (2002), 102 (2005), 105 (2006), 108 (2008), 109 (2009), and 110 (2010).

202 Footnote Ibid. at Nos. 19 (1980), 22 (1981), 25 (1982), 44 (1986), 81 (1997), 85 (1998), 90 (2001), 100 (2004), 101 (2004), 104 (2005), 109 (2009), and 110 (2010).

203 The New Zealand Court of Appeal gave particular weight to determinations by the UNHCR Executive Committee, noting that their “value derives in part from the fact that the executive committee is itself an assembly of states which has debated the issue and settled on a formal statement concerning it”: Attorney General v. Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), at [100]. See also G. Gilbert, “UNHCR and Courts: Amicus curiaesed curia amica est?,” (2016) 28(4) International Journal of Refugee Law 622, arguing that Executive Committee Conclusions deserve real deference because of the breadth and commitment to protection of the states represented and the fact that the Conclusions are reached by consensus.

204 See UNHCR Executive Committee Conclusions Nos. 81 (1997), 103 (2005), and 104 (2005). McAdam observes that while Executive Committee Conclusions are “regularly invoked” by some courts, the Conclusions “have not received extensive curial discussion as to their value or purpose”: J. McAdam, “Interpretation of the 1951 Convention,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 75 (McAdam, “1951 Convention”), at 112. See generally M. Fresia, “Building Consensus within UNHCR’s Executive Committee: Global Refugee Norms in the Making,” (2014) 27(4) Journal of Refugee Studies 514 (Fresia, “Building Consensus”).

205 Re R, Dec. No. 59/91 (NZ RSAA, May 19, 1992), at 20.

206 Cases in which top courts have referenced Executive Committee Conclusions include Regina v. Immigration Officer at Prague Airport and Another (Respondents) ex parte European Roma Rights Centre, [2004] UKHL 55 (UK HL, Dec. 9, 2004), at [24], per Lord Bingham; Fornah v. Secretary of State for the Home Department, [2006] UKHL 46 (UK HL, Oct. 18, 2006), at [84], per Baroness Hale; and QAAH of 2004 v. Minister for Immigration and Multicultural and Indigenous Affairs, [2006] HCA 53 (Aus. HC, Nov. 15, 2006), at 118, per Kirby J. In their commissioned study, Deschamp and Dowd describe cases in which Executive Committee Conclusions were drawn upon to interpret domestic, regional, or international legislation; in which they were used to interpret the Refugee Convention; in which they informed analysis of customary law or consensus among states; and in which they informed the role of the decision-maker. The cases reported were from the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee, as well as from the national courts of Australia, Austria, Ireland, Japan, New Zealand, Poland, Slovenia, and the United Kingdom: B. Deschamp and R. Dowd, “Review of the Use of UNHCR Executive Committee Conclusions on International Protection,” UN Doc. PDES/2008/03 (April 2008) (Deschamp and Dowd, “Review”), at 24–27.

207 See Chapter 2.2 at Footnote note 80. See also McAdam, “1951 Convention,” at 112; and Deschamp and Dowd, “Review,” at [86].

208 “The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees … in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention”: Refugee Convention, at Art. 35(1). As the UK Supreme Court has noted, “[t]he guidance given by the UNHCR is not binding, but should be accorded considerable weight, in the light of the obligation of Member States under article 35 of the Convention to facilitate its duty of supervising the application of the provisions of the Convention”: Al-Sirri v. Secretary of State for the Home Department, [2012] UKSC 54 (UK SC, Nov. 21, 2012), at [36].

209 Rahaman v. Minister of Citizenship and Immigration, 2002 ACWSJ Lexis 1026 (Can. FCA, Mar. 1, 2002), per Evans J.A. To similar effect see Attorney General v. E, [2000] 3 NZLR 257 (NZ CA, July 11, 2000), at 269; Refugee Council of New Zealand Inc. v. Attorney General, [2003] 2 NZLR 577 (NZ HC, May 31, 2002), at [47]; and R v. Asfaw, [2008] 1 AC 1061 (UK HL, May 21, 2008), at [13].

210 The authority of the UN General Assembly under Art. 13 of the UN Charter to initiate studies and make recommendations relating to human rights is a “droit de regard” in the sense that it entitles the General Assembly and subordinate bodies to scrutinize and discuss human rights as well as to make recommendations, but includes no right to require conformity with any standard. See Certain Expenses of the United Nations, [1962] ICJ Rep 151, at 163–165.

211 The English Court of Appeal quoted this passage from the first edition (2005) of the current volume, at 114, accepting it arguendo, though finding that the facts of the case did not require it to decide the issue: HF (Iraq) and MK (Iraq) v. Secretary of State for the Home Department, [2013] EWCA Civ 1276 (Eng. CA, Oct. 13, 2013), at [46]. States have affirmed “the fundamental importance of UNHCR as the multilateral institution with the mandate to provide international protection to refugees … and recall[ed] [their] obligations as States Parties to cooperate with UNHCR in the exercise of its functions; [and] [u]rge[d] all states to consider ways that may be required to strengthen the implementation of the 1951 Convention and/or 1967 Protocol and to ensure closer cooperation between States Parties and UNHCR to facilitate UNHCR’s duty of supervising the application of the provisions of these instruments”: “Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees,” UN Doc. HCR/MMSP/2001/09, Dec. 13, 2001, incorporated in Executive Committee of the High Commissioner’s Program, “Agenda for Protection,” UN Doc. EC/52/SC/CRP.9/Rev.1, June 26, 2002, at Part I, [8]–[9].

212 Tension between some state members and the UNHCR staff apparently led to a 2008 request by states for an evaluation of the way in which Conclusions are drafted, “showing clear indications of a growing mistrust vis-à-vis the agency and of a will [of states] to regain ownership of the process”: Fresia, “Building Consensus,” at 525.

213 “Some judgments differentiate between the weight of the [Executive Committee] Conclusions and UNHCR Guidelines”: Deschamp and Dowd, “Review,” at [86]. A reasonable position suggested in a dissenting judgment in the Full Federal Court of Australia is simply to treat advice prepared by UNHCR staff as “documents prepared by experts to assist States … to carry out their obligations under the Convention”: QAAH of 2004 v. Minister for Immigration and Indigenous Affairs, [2005] FCAFC 136 (Aus. FFC, July 27, 2005), at [46], per Wilcox J. in dissent.

214 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979, re-issued 1992 and 2019).

215 In 1977, the Executive Committee “[r]equested the Office to consider the possibility of issuing – for the guidance of Governments – a handbook relating to procedures and criteria for determining refugee status”: UNHCR Executive Committee Conclusion No. 8, “Determination of Refugee Status” (1977), at [(g)], in UNHCR, “Conclusions on International Protection Adopted by the Executive Committee of the UNHCR Programme, 1975–2017,” UN Doc. HCR/IP/3/Eng/REV. 2017.

216 Immigration and Naturalization Service v. Cardoza Fonseca, (1987) 480 US 421 (US SC, Mar. 9, 1987), at 439, Footnote n. 22.

217 Immigration and Naturalization Service v. Aguirre Aguirre, (1999) 526 US 415 (US SC, May 3, 1999), at 427. The Handbook was also referenced in Negusie v. Attorney General, (2009) 555 US 511 (US SC, Mar. 3, 2009), at 536–537, per Stevens J. (in partial dissent).

218 “Opinion of Advocate General Sharpston, delivered on 4 March 2010,” in the case of Bolbol v. Germany, Dec. No. C-31/09 (CJEU, June 17, 2010), at [16].

219 Chan v. Canada, [1995] 3 SCR 593 (Can. SC, Oct. 19, 1995), at [119]. In the words of the House of Lords, “the UNHCR Handbook, although not binding on states, has high persuasive authority, and is much relied on by domestic courts and tribunals”: R v. Secretary of State for the Home Department, ex parte Adan and Aitseguer, [2001] 2 WLR 143 (UK HL, Dec. 19, 2000), per Lord Steyn. The Handbook has been treated as evidence of the current state of international practice on interpretation of refugee law: R (Hoxha) v. Secretary of State for the Home Department, [2002] EWCA Civ 1403 (Eng. CA, Oct. 14, 2002), at [36]; AH (Algeria) v. Secretary of State for the Home Department, [2015] EWCA Civ 1003 (Eng. CA, Oct. 14, 2015), at [12], though this characterization has been questioned by the Full Federal Court of Australia: NBGM v. Minister for Immigration and Multicultural and Indigenous Affairs, [2006] FCAFC 60 (Aus. FFC, May 12, 2006), at 162.

220 Chan v. Canada, [1995] 3 SCR 593 (Can. SC, Oct. 19, 1995), at [119]; Immigration and Naturalization Service v. Aguirre Aguirre, (1999) 526 US 415 (US SC, May 3, 1999), at 428.

221 AH (Algeria) v. Secretary of State for the Home Department, [2015] EWCA Civ 1003 (Eng. CA, Oct. 14, 2015), at [13].

222 R v. Secretary of State for the Home Department, ex parte Bugdaycay, [1987] AC 514 (UK HL, Feb. 19, 1987), per Lord Bridge of Harwich at 525; cited with approval in M v. Attorney General, [2003] NZAR 614 (NZ HC, Feb. 19, 2003). In the House of Lords case of Hoxha, “Lord Brown … noted the Handbook’s language of ‘aspiration and exhortation,’ and tracked the development of UNHCR’s positions from 1979 onwards, through a Conclusion adopted by the UNHCR Executive Committee in 1992, and then eventually to a statement of ‘obligation’ in revised guidelines published in 2003. He did not accept that the evidence justified such a progression”: G. Goodwin-Gill, “The Search for One True Meaning,” in G. Goodwin-Gill and H. Lambert eds., The Limits of Transnational Law (2010) 204, at 228.

223 S v. Refugee Status Appeals Authority, [1998] 2 NZLR 291 (NZ CA, Apr. 2, 1998), at 300. See also M v. Attorney General, [2003] NZAR 614 (NZ HC, Feb. 19, 2003).

224 Gjon Rrotaj v. Minister of Citizenship and Immigration, [2016] FC 152 (Can. FC, Feb. 8, 2016), at [22]. In reaching this decision the court referenced the earlier findings of the Supreme Court of Canada in Pushpanathan v. Canada, [1998] 1 SCR 982, at [53–54], and Chan v. Canada, [1995] 3 SCR 593, at [46]: Footnote ibid.

225 Dobrosav Gavrić (Afghanistan) v. Refugee Status Determination Officer, [2018] ZACC 38 (SA CC, Sept. 28, 2018), at [35].

226 In WAGO of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs, 194 ALR 676 (Aus. FFC, Dec. 20, 2002), the Australian Full Federal Court declined to find any error in the determination that the provisions in the UNHCR Handbook “were not part of the law of Australia and did not provide grounds for legal review of the Tribunal’s decision.” The Scottish Court of Session has also made clear that decision-makers are not obliged to refer to the Handbook when making a decision on a relevant point: Morteza Fafschi, [2006] CSOH 125 (Sc. CSOH, Aug. 15, 2006), at [26].

227 NBGM v. Minister for Immigration and Multicultural and Indigenous Affairs, [2006] FCAFC 60 (Aus. FFC, May 12, 2006), at 162.

228 NADB of 2001 v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 326 (Aus. FFC, Oct. 31, 2002). See also Todea v. MIEA, (1994) 20 AAR 470 (Aus. FC, Dec. 22, 1994), at 484.

229 Sepet and Bulbul v. Secretary of State for the Home Department, [2003] UKHL 15 (UK HL, Mar. 20, 2003), at [12].

230 See text at note 219.

231 Judges have certainly not treated UNHCR Guidelines as requiring a rethinking of domestic refugee law. In assessing the relevance of the Guidance Note on Refugee Claims Relating to Female Genital Mutilation (May 2009), a US appeals court noted that it was “doubtful whether this particular guidance note offers persuasive authority, as it appears to contradict the express terms of the [Immigration and Naturalization Act]”: Abou Kane v. Attorney General, 581 F. 3d 231 (US CA5, Aug. 26, 2009), at 242. The Irish High Court did not defer to UNHCR’s guidelines and statement of good practice on separated children, noting that they “are all useful and authoritative sources of guidance … But that is all that they are: guidelines. They have no force of law”: U and Another v. Minister for Justice, Equality, and Law Reform, [2010] IEHC 317 (Ir. HC, July 30, 2010), at [14].

232 For example, in his endorsement of giving weight to UNHCR advice, Justice Kirby observed that “[p]articularly is this so in the absence of clear national jurisprudence and relevant State practice”: MIMIA v. QAAH, [2006] HCA 53 (Aus. HC, Nov. 15, 2006), at [80], per Kirby J.

233 See J. Hathaway, “A Forum for the Transnational Development of Refugee Law: The IARLJ’s Advanced Refugee Law Workshop,” (2003) 15(3) International Journal of Refugee Law 418.

234 In a case involving exclusion under Art. 1(F)(c), for example, the English Court of Appeal declined to follow the approach of Guideline on International Protection No. 5 on the grounds that it did not align with the Court’s understanding of the approach adopted in relevant UN Security Council resolutions: Hany El-Sayed El-Sebaai Youssef v. Secretary of State for the Home Department, [2018] EWCA Civ 933 (Eng. CA, Apr. 26, 2018).

235 “The purpose of this ‘holistic’ approach to understanding treaty provisions is to ‘enable a simultaneous consideration of the treaty text and valid extrinsic materials elucidating it’”: MIMIA v. QAAH, [2006] HCA 53 (Aus. HC, Nov. 15, 2006), at [75], per Kirby J. “Generally, commentaries and explanatory documents, such as the UNHCR Handbook on Procedures, are regarded as having persuasive value as aids to construing the treaty to which they relate”: McAdam, “1951 Convention,” at 112.

236 “Opinion of Advocate General Mengozzi, delivered on 1 June 2010,” in the case of Germany v. B and D, Dec. Nos. C-57/09 and C-101/09 (CJEU, Nov. 9, 2010), at [43].

237 “In disagreeing with the interpretation put forward by the Office of the UNHCR, I am guided primarily by the clear text of the provision, which has not been amended in over 50 years. In contrast, it seems to me that the UNHCR’s reading has varied over time”: “Opinion of Advocate General Sharpston, delivered on 4 March 2010,” in the case of Bolbol v. Germany, Dec. No. C-31/09 (CJEU, June 17, 2010), at [76]. It is also noteworthy that despite the strong plea made by Kirby J. in dissent (at [81]), the majority of the High Court of Australia declined to draw on either the UNHCR Handbook or Guidelines in MIMIA v. QAAH, [2006] HCA 53 (Aus. HC, Nov. 15, 2006).

238 As of January 2020, thirteen sets of Guidelines had been issued by UNHCR: UN Docs. HCR/GIP/02/01 (gender-related persecution); HCR/GIP/02/02 (membership of a particular social group); HCR/GIP/03/03 (cessation); HCR/GIP/03/04 (internal relocation alternative); HCR/GIP/03/05 (exclusion); HCR/GIP/04/06 (religion-based claims); HCR/GIP/06/07 (trafficking-based claims); HCR/GIP/09/08 (asylum claims by children); HCR/GIP/12/09 (claims based on sexual orientation or gender identity); HCR/GIP/13/10 (claims by conscientious objectors); HCR/GIP/15/11 (prima facie recognition of refugee status); HCR/GIP/16/12 (claims arising out of armed conflict or violence); and HCR/GIP/17/13 (exclusion of Palestinian refugees). Commentators have voiced various concerns about the Guidelines. Bailliet notes various process concerns, as well as the failure of early guidelines to take adequate account of a broad range of national jurisprudence (a concern largely addressed in the more recent Guidelines): C. Bailliet, “National Case Law as a Generator of International Refugee Law: Rectifying an Imbalance Within UNHCR Guidelines on International Protection,” (2015) 29 Emory International Law Review 2059, at 2063. Juss argues that the Guidelines have had insufficient impact due to “the UNHCR’s own reluctance to posit a definitive guide for the determination of refugee claims by states parties,” arguing the need for a UNHCR-authored “authoritative benchmark”: S. Juss, “The UNHCR Handbook and the Interface between ‘Soft Law’ and ‘Hard Law’ in International Refugee Law,” in S. Juss and C. Harvey eds., Contemporary Issues in Refugee Law 31 (2013), at 3839. The latter position is at odds with the view advanced here: see text at note 250.

239 At its fifty-third session, the UNHCR’s Executive Committee requested UNHCR “to produce complementary guidelines to its Handbook on Procedures and Criteria for Determining Refugee Status, drawing on applicable international legal standards, on State practice, on jurisprudence and using, as appropriate, the inputs from the debates in the Global Consultations’ expert roundtable discussions”: Executive Committee of the High Commissioner’s Program, “Agenda for Protection,” UN Doc. EC/52/SC/CRP.9/Rev.1, June 26, 2002, at Part III, Goal 1, Point 6. The Executive Committee clearly did not intend that these guidelines should be the sole, or even the primary, means of advancing the development of refugee law, since it simultaneously agreed that the agency should “explore areas that would benefit from further standard-setting, such as [Executive Committee] Conclusions or other instruments to be identified at a later stage”: Footnote ibid. at Goal 1, Point 7. The Executive Committee has encouraged state parties to take account of guidelines on the subject of gender-based persecution and violence: see UNHCR Executive Committee Conclusions Nos. 98 (2003), 99 (2004), and 105 (2006). The Executive Committee has not, however, expressly endorsed other guidelines nor more generally promoted the guidelines initiative.

240 Executive Committee of the High Commissioner’s Program, “Agenda for Protection,” UN Doc. EC/52/SC/CRP.9/Rev.1, June 26, 2002, at Part III, Goal 1, Point 6.

241 For example, on the question of what has traditionally been referred to as the “internal flight alternative,” the Handbook directs attention to the retrospective question of whether the applicant “could have sought refuge in another part of the same country”: UNHCR, Handbook, at [91]. Yet in its “Guideline on International Protection: Internal Flight or Relocation Alternative,” UN Doc. HCR/GIP/03/04 – expressly said to be a “supplement” to the Handbook – UNHCR suggests that assessment should instead focus on “whether the proposed area provides a meaningful alternative in the future. The forward-looking assessment is all the more important”: Footnote ibid. at [8]. The point is not that the new standard is less appropriate than that set by the Handbook, but simply that the effort to promote inconsistent approaches will only engender confusion and lack of respect for UNHCR standard-setting. Adding to this concern, while the new Guidelines are in principle intended to “draw on” the expert advice received during the agency’s Global Consultations process (Executive Committee of the High Commissioner’s Program, “Agenda for Protection,” UN Doc. EC/52/SC/CRP.9/Rev.1, June 26, 2002, at Part III, Goal 1, Point 6), the Guidelines at times diverge from even the formal conclusions reached through that process. See e.g. J. Hathaway and M. Foster, “Membership of a Particular Social Group,” (2003) 15(3) International Journal of Refugee Law 477, at [44]. Yet in at least one case, an appellate court gave weight to the new Guidelines on the express grounds that “[t]hey … result from the Second Track of the Global Consultations on International Protection Process”: Minister for Immigration and Multicultural Affairs v. Applicant S, [2002] FCAFC 244 (Aus. FFC, Aug. 21, 2002).

242 “By consensus, it was agreed [at the Lisbon Expert Roundtable of the Global Consultations] on the question of balancing [the risks of return against the seriousness of the crime committed] … [that] state practice indicates that the balancing test is no longer being used in common law and in some civil law jurisdictions”: NADB of 2001 v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 326 (Aus. FFC, Oct. 31, 2002).

243 Rahaman v. Minister of Citizenship and Immigration, 2002 ACWSJ Lexis 1026 (Can. FCA, Mar. 1, 2002).

244 “Opinion of Advocate General Sharpston, delivered on 4 March 2010,” in the case of Bolbol v. Germany, Dec. No. C-31/09 (CJEU, June 17, 2010), at [17], [18], [20], [76].

245 Saadi v. United Kingdom, Dec. No. 13229/03 (ECtHR, Jan. 29, 2008), at [65].

246 Attorney General v. Refugee Council of New Zealand Inc., [2003] 2 NZLR 577 (NZ CA, Apr. 16, 2003), per McGrath J. at [111]. Justice Glazebrook gave the Guidelines somewhat greater weight, noting that “it is also appropriate to have regard to … the Guidelines … because the Immigration Service refers to them … and cannot be seen to ‘pick and choose’ the parts it wishes to comply with. It is also relevant that New Zealand will be judged in the light of those Guidelines by the Office of UNHCR in its monitoring role”: Footnote ibid. at [271].

247 Secretary of State for the Home Department v. MA (Somalia), [2018] EWCA Civ 994 (Eng. CA, May 2, 2018).

248 UNHCR reports that it has intervened hundreds of times before national and regional courts and tribunals: www.refworld.org/type,AMICUS,,,,,0.html, accessed Jan. 15, 2020. As the agency notes, “[i]nterventions before courts by UNHCR and other organizations are an important tool through which protection standards can be developed and a consistent application of refugee law fostered. Interventions before courts may take different forms, depending on the national or supranational context, including formal amicus curiae briefs, advisory opinions or letters to the court or parties involved, as well as public statements”: Footnote ibid.

249 Speaking to UNHCR risk assessments for refugee returns, the UK Upper Tribunal observed, “We find it difficult to overlook altogether the apparent conflict in UNHCR’s position in relation to risk on return to Iraq … Whilst … we continue to have unanswered questions as to how UNHCR can reconcile its ‘facilitation’ of voluntary returns with a position … that certain areas of Iraq are unsafe, we do not propose to treat that as a reason for attaching any less weight to its assessment of international protection needs”: HM (Iraq) and Others v. Secretary of State for the Home Department, [2012] UKUT 00409 (UK UT-IAC, Nov. 13, 2012), at [279], [281]. In the same context, the English Court of Appeal noted that “it was not inappropriate for the tribunal to comment on the potentially conflicting interests of the UNHCR, notwithstanding that they did not affect the standing of the report in this case. The UNHCR is responsible not merely for objectively assessing risk but also for returnees, and a court is entitled to be alive to the possibility that the latter function may possibly colour the risk assessment, even if only subconsciously”: HF (Iraq) and MK (Iraq) v. Secretary of State for the Home Department, [2013] EWCA Civ 1276 (Eng. CA, Oct. 13, 2013), at [58].

250 As the review conducted for UNHCR by Deschamp and Dowd attests, this advocacy role can also be an extremely effective means to bring relevant Conclusions of the Executive Committee to the attention of courts: Deschamp and Dowd, “Review,” at 15–16.

251 The agency’s core mandate is the implementation of protection: Statute of the Office of the United Nations High Commissioner for Refugees, UNGA Res. 428, Dec. 14, 1950, at Arts. 8–9.

252 This is the approach adopted in the Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45 (UNTS 14691), adopted Sept. 10, 1969, entered into force June 20, 1974 (“AU Refugee Convention”), in which the refugee definition has been broadened to include inter alia a person “who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave”: Footnote ibid. at Art. I(2). But the same Convention also provides for the exclusion from protected status of any person who “has seriously infringed the purposes and objectives of this [AU] Convention” (Footnote ibid. at Art. I(4)(g)), a provision that is illegal to the extent it excludes persons for reasons not foreseen by the UN Refugee Convention, the refugee definition of which cannot be varied by any state: Refugee Convention, at Art. 42(1). Similarly, the League of Arab States’ Arab Convention on Regulating Status of Refugees in Arab Countries, adopted 1994 (“Arab Refugee Convention”), defines a refugee as including a Convention refugee and also “[a]ny person who unwillingly takes refuge in a country other than his country of origin or his habitual place of residence because of sustained aggression against, occupation and foreign domination of such country or because of the occurrence of natural disasters or grave events resulting in major disruption of public order in the whole country or any part thereof” (though notably this treaty also purports to omit “political opinion” as a ground for refugee status): Arab Refugee Convention, at Art. 1(2). There is also an expanded refugee definition under the non-binding OAS Cartagena Declaration, OAS Doc. OEA/Ser.L/II.66, Rev.1, at 190–193 (“OAS Cartagena Declaration”), which recommends that “the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”: Footnote ibid. at Art. III(3). It has been suggested that referring to such notions as an expanded definition “is not correct” because they “change[] the focus of analysis … from the individual to … the objective situation in the country of origin”: F. Piovesan and L. Jubilut, “Regional Developments: Americas,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 205, at 219. This may, however, be a distinction without a difference since a class-based rather than individuated definition remains a definition; indeed class-based definitions of refugee status were the norm in the earliest refugee treaties: Hathaway, “Evolution of Refugee Status”.

253 In contrast to other regional systems, the EU has adopted a distinct “subsidiary protection status” which requires a showing of a risk of “[s]erious harm consist[ing] of: (a) the death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”: Directive on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, Doc. 2011/95/EU, Dec. 13, 2011 (“EU Qualification Directive”), at Art. 15.

254 See generally Hathaway and Foster, Refugee Status, at 390–394.

255 AU Refugee Convention, adopted Sept. 10, 1969, entered into force June 20, 1974.

256 On May 26, 2001, the Organization of African Unity (OAU) was legally transformed into the African Union (AU): Constitutive Act of the African Union, adopted July 11, 2000, at Art. 33(1). References to the OAU in the treaty must therefore now be read as referring to the AU.

257 AU Refugee Convention, Preamble, at [9].

258 Footnote Ibid. at Art. VIII(2). See generally M. Sharpe, The Regional Law of Refugee Protection in Africa (2018) (Sharpe, Africa), at chapter 4.

259 “Member States of the OAU shall use their best endeavours consistent with their respective legislation to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin or nationality”: AU Refugee Convention, at Art. II(1). Given both the “best endeavours” language and qualification by reference to national legislation, it surely overstates the case to argue that this really amounts to an explicit right to asylum: but see G. Okoth-Obbo, “Thirty Years On: A Legal Review of the 1969 OAU Refugee Convention Governing the Specific Aspects of the Refugee Convention in Africa,” (2001) 20(1) Refugee Survey Quarterly 79, at 88; and J. Oloka Onyango, “Plugging the Holes: Refugees, OAU Policy and the Practice of Member States,” (1986) USC Issue Brief, at 7. Sharpe takes the view that while the AU Refugee Convention leaves the discretion to grant asylum to states, “it nevertheless significantly ‘strengthens the institution of asylum’ [inter alia] by providing [that] ‘Member States … shall use their best endeavours consistent with their respective legislations to receive refugees’”: Sharpe, Africa, at 71. Overall, Art. II(1) is best described as “a quasi right to asylum”: A. Abass and D. Mystris, “The African Union Legal Framework for Protecting Asylum Seekers,” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An International Law Perspective (2016) 19 (Abass and Mystris, “AU Legal Framework”), at 23.

260 The duty of non-refoulement is explicitly recognized to prohibit “rejection at the frontier,” and to apply whenever there is a risk to the refugee’s “life, physical integrity, or liberty”: AU Refugee Convention, at Art. II(3). See generally Sharpe, Africa, at 72–76.

261 AU Refugee Convention, at Art. V. While it has been suggested that this article “contains another distinctive right in making provision for voluntary repatriation” ( G. Naldi and C. D’Orsi, “The Role of the African Human Rights System with Reference to Asylum Seekers,” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An International Law Perspective (2016) 45, at 61), there is really nothing substantively novel here. Repatriation under the AU Refugee Convention need only be “voluntary” so long as the person in question remains a “refugee.” This is consistent with the Refugee Convention, Arts. 1(C)(4) and 33. If and when refugee status is lost, including by a fundamental change of circumstances in the country of origin (AU Refugee Convention, Art. I(4)(e)), then repatriation need not be voluntary, though it must of course be conducted in a rights-regarding way: see Chapter 7.1.

262 AU Refugee Convention, at Art. II(3). See G. Abi-Saab, “The Admission and Expulsion of Refugees with Special Reference to Africa,” (2000) 8 African Yearbook of International Law 71, at 90; and Chapter 4.1.4.

263 AU Refugee Convention, at Art. V(4).

264 Footnote Ibid. at Art. V(2) and (5).

265 Footnote Ibid. at Art. IV. It is curious that this provision replaces the Refugee Convention’s guarantee against discrimination based on “country of origin” with a prohibition of discrimination based on “nationality.” While this might raise the concern that the AU Refugee Convention fails to prohibit discrimination against stateless refugees coming from a particular country of former habitual residence, this possibility is foreclosed by modern understandings of statelessness as a form of nationality: see Hathaway and Foster, Refugee Status, at 397–399. On a more positive note, African regional human rights law requires that children entitled to refugee protection shall “receive appropriate protection and humanitarian assistance in the enjoyment of the rights set out in this Charter and other international human rights and humanitarian instruments to which the States are Parties” and specifically that “[w]here no parents, legal guardians or close relatives can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his family environment for any reason”: African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), at Art. 23.

266 Some commentators argue that at least from 2010, the African Commission on Human and Peoples’ Rights was empowered “to monitor States’ compliance with the [AU] Refugee Convention and to encourage States to implement the [AU] Refugee Convention in domestic law”: J. van Garderen and J. Ebenstein, “Regional Developments: Africa,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 185 (van Garderen and Ebenstein, “Africa”), at 201. Yet as Sharpe points out, “[t]he authors do not specify what AU organ endowed the Commission with this mandate, nor do they cite any other legal basis for it”: M. Sharpe, “The Supervision (or Not) of the 1969 OAU Refugee Convention,” (2019) 31(2/3) International Journal of Refugee Law 261 (Sharpe, “Supervision”), at 270. While it is true that Art. VII of the AU Refugee Convention requires state parties “to make reports to the competent [AU] organs,” Sharpe correctly notes that this is a “stand-alone provision; it does not follow from any preceding paragraph endowing the [AU] with a supervisory duty in relation to the 1969 Convention”: Footnote ibid. at 275.

267 Protocol, Art. 3(1), Rule of Court 26(1)(a), in force June 2, 2010. “There was originally no regional mechanism tasked with implementation and enforcement, albeit this has changed with the [African Court on Human and Peoples’ Rights] mandate being extended to cover the 1969 OAU Convention”: Abass and Mystris, “AU Legal Framework,” at 26. More precisely, the Court’s jurisdiction stems from its right to hear contentious cases regarding any instrument ratified by the states concerned (which would include the AU Refugee Convention). The challenge, however, is that individuals (including refugees) can only bring a complaint to the Court against one of the nine countries that has authorized individual standing. Most promising therefore is the right of the Court to issue advisory opinions at the request even of an African NGO enjoying AU observer status: Sharpe, “Supervision,” at 278.

268 AU Refugee Convention, Preamble, at [1].

269 Footnote Ibid., Preamble, at [3].

270 Footnote Ibid. at Art. III(2).

271 See Chapter 6.5 and Sharpe, Africa, at 145–148. More generally, it has been suggested that this Article’s prohibition of “subversive activities” is legally vulnerable on the grounds that it “limits refugees’ right to freedom of expression and contradicts the rights enshrined in the [African Convention on Human and Peoples’ Rights]”: van Garderen and Ebenstein, “Africa,” at 193.

272 AU Refugee Convention, at Art. II(6).

273 Refugee Convention, at Art. 26. See Chapter 5.2 and Sharpe, Africa, at 116–118.

274 AU Refugee Convention, at Art. VI. This provision largely mirrors Art. 28 of the Refugee Convention, though it adds the qualification that “[w]here an African country of second asylum accepts a refugee from a country of first asylum, the country of first asylum may be dispensed from issuing a document with a return clause”: Footnote ibid. at Art. VI(2).

275 At most, “in exceptional cases” the right to return can be limited to not less than three months: Refugee Convention, Schedule, at [13.3]. See generally Chapter 6.6 at Footnote note 1148.

276 Abass and Mystris, “AU Legal Framework,” at 22.

277 Van Garderen and Ebenstein, “Africa,” at 189. “While the OAU preferred local integration during the 1960s and 1970s, in more recent years a shift has occurred to promote voluntary repatriation as the most appropriate solution to Africa’s problems”: Footnote ibid. at 194. See also B. Rutinwa, “The End of Asylum: The Changing Nature of Refugee Policies in Africa,”(2002) 21 Refugee Survey Quarterly 12. In truth, much of the repatriation practice in Africa is not voluntary in any meaningful sense: see C. D’Orsi, Asylum Seeker and Refugee Protection in Sub-Saharan Africa: The Peregrination of a Persecuted Human Being in Search of a Safe Haven (2015), at 271; see generally Chapter 4.1.

278 “A treaty basis for an EU asylum policy was only established with the Treaty of Amsterdam … in 1997. This instrument [in Art. 63] called for the development of common minimum standards in all key areas of asylum law within a timeframe of 5 years … It also confirmed that all measures adopted must comply with international human rights and refugee law, and it established the jurisdiction of the [Court of Justice of the European Union] over asylum”: A. Klug, “Regional Developments: Europe,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 119 (Klug, “Europe”), at 128. See also P. Mathew and T. Harley, Refugees, Regionalism, and Responsibility (2016) (Mathew and Harley, Refugees, Regionalism), at 36–37.

279 The Charter of Fundamental Rights of the European Union, OJ 2012 C326/02, Dec. 7, 2000 (“EU Charter”), at Art. 18.

280 Directive on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, Doc. 2011/95/EU, Dec. 13, 2011 (“EU Qualification Directive”).

281 Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, Doc. 2001/55/EC, July 20, 2001 (“EU Temporary Protection Directive”).

282 Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, Doc. 604/2013, June 26, 2013 (“EU Dublin Regulation”).

283 Directive laying down standards for the reception of applicants for international protection, Doc. 2013/33/EU, June 26, 2013 (“EU Reception Directive”).

284 Directive on common procedures for granting and withdrawing international protection, Doc. 2013/32/EU, June 26, 2013 (“EU Procedures Directive”).

285 “It is generally accepted that the rights enshrined in the 1951 [Refugee] Convention and its 1967 Protocol … form part of [the] body of fundamental rights and are considered to be general principles of EU law. Within asylum and migration law, the Treaty of Amsterdam established an obligation for secondary legislation to comply with the 1951 [Refugee] Convention. The new [Treaty on the Functioning of the European Union] contains a similar provision [in Article 78]”: Klug, “Europe,” at 135. See also F. Ippolito, “Establishing the Common European Asylum System: ‘It’s a Long Way to Tipperary,’” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An International Law Perspective 113 (2016) (Ippolito, “Long Way to Tipperary”), at 116.

286 EU Qualification Directive, Preamble, at [4].

287 Footnote Ibid. at Art. 20(1). A draft recast of the EU Reception Directive proposes an acknowledgment that the “Common European Asylum System (CEAS), which is based on the full and inclusive application of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967, is a constituent part of the European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Union”: Proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast), Doc. COM(2016) 465 final, July 13, 2016 (“Draft Recast of EU Reception Directive”).

288 Treaty Establishing the European Community, Doc. 2002/C 325.01, Dec. 24, 2002, at Art. 68.

289 The Court declined to interpret Art. 31 of the Refugee Convention on the grounds that there was no clear adoption of this provision into European Union law, thus depriving the Court of jurisdiction: Dec. No. C-481/13 (CJEU, July 17, 2014), at [25]. As Bank observes, “despite the exceptionally strong role accorded to the 1951 Convention and other relevant treaties, the practical role accorded to international refugee law in the judgments of the CJEU is rather marginal”: R. Bank, “The Potential and Limitations of the Court of Justice of the European Union in Shaping International Refugee Law,” (2015) 27(2) International Journal of Refugee Law 213, at 224–225.

290 Kreis Warendorf v. Ibrahim Alo and Amira Osso v. Region Hannover, Dec. Nos. C-443/14 and C-444/14 (CJEU, Mar. 1, 2016), at [28].

291 Footnote Ibid. at [29]. This does not mean, however, that the Refugee Convention is itself directly enforceable as a matter of European Union law: MIF v. International Protection Appeals Tribunal, [2018] IECA 36 (Ir. CA, Feb. 19, 2018), at [27].

292 The Common European Asylum System comprises an amalgam of primary and secondary legislation. In general terms, as Klug observes, “[t]he 1999 Tampere Conclusions, which emphasized ‘the absolute respect for the right to seek asylum, full and inclusive application of the 1951 Convention,’ brought a welcome shift in emphasis and complemented the control-driven approach to asylum policies with protection objectives. Nevertheless, the EU’s asylum policy has never lost its close connection with immigration control objectives or the notion of what is referred to by critics as a ‘fortress Europe’”: Klug, “Europe,” at 128.

293 Of particular concern, EU asylum law fails to incorporate the duty not to penalize refugees for unlawful entry or presence set by Art. 31: Qurbani v. Germany, Dec. No. C-481/13 (CJEU, July 17, 2014), at [24]. Among the other Refugee Convention rights with no explicit parallel in the EU asylum regime are Arts. 2–15, 29, 30, and 34. In some instances, of course, relevant protections may be advanced under general human rights norms. Yet as Klug notes, “unlike the 1951 [Refugee] Convention, the [European Convention on Human Rights] does not provide any guidance on the specific legal questions that arise in a refugee context, such as determining the laws that govern a refugee’s personal status or how to proceed if the refugee cannot obtain documentation on his or her family’s civil status or his or her education and degrees”: Klug, “Europe,” at 124.

294 “Despite this clear policy objective and legal obligations, the asylum instruments adopted during the first phase of the EU harmonization process do not fully comply with international or regional human rights and refugee law”: Klug, “Europe,” at 136. Nor did the second phase leading to the 2011 recast of the EU Qualification Directive fully align EU law with the refugee rights regime: S. Peers, “The Second Phase of the Common European Asylum System: A Brave New World – or Lipstick on a Pig?,” Statewatch Analysis, Apr. 8, 2013 (Peers, “Second Phase”), at 16; Mathew and Harley, Refugees, Regionalism, at 194–198.

295 Only a “beneficiar[y] of international protection,” defined as “a person who has been granted refugee status,” is entitled to engage in self-employment: EU Qualification Directive, at Arts. 18 and 2(b). Even if self-employment is considered an aspect of “access to the labour market” and hence regulated by Art. 15(1) of the EU Reception Directive, the right to self-employment may still be delayed for up to nine months from the date on which the protection application is lodged. In contrast, the Refugee Convention requires access to self-employment for those merely lawfully present, even if not yet lawfully staying, and hence must be granted as of the time when the applicant is admitted to a status determination procedure: see Chapters 5.3 and 3.1.3.

296 Persons undergoing refugee status assessment may be “assigned” to an area for a variety of reasons not authorized by the Refugee Convention, including “public interest” and “for the swift processing and effective monitoring of his or her application for international protection”: EU Reception Directive, at Art. 7(1)–(2). An additional proposed reason for assignment – “for the swift processing and effective monitoring of his or her procedure for determining the Member State responsible” (Draft Recast of EU Reception Directive) would also be outside the bounds of what is allowed by the Refugee Convention. It is moreover of concern that the EU standard does not condition constraints on freedom of movement on a showing of necessity as Art. 31(2) of the Refugee Convention requires. See Chapter 4.2.4.

297 Freedom of movement, but not choice of residence, is guaranteed under EU asylum law: EU Qualification Directive, at Art. 33. But see Chapter 5.2.

298 There is a duty to “grant to minor children of applicants and to applicants who are minors access to the education system under similar conditions as their own nationals for so long as an expulsion measure against them or their parents is not actually enforced. Such education may be provided in accommodation centres”: EU Reception Directive, at Art. 14(1). In contrast, the Refugee Convention requires that refugees receive “the same treatment as is accorded to nationals with respect to elementary education” – not “similar,” and not segregated: see Chapter 4.8. More generally, while EU law provides that States “shall grant full access to the education system to all minors granted international protection,” the definition of a “beneficiar[y] of international protection” is limited to “a person who has been granted refugee status”: EU Qualification Directive, at Arts. 27 and 2(b). Under Art. 22 of the Refugee Convention, in contrast, all refugees – whether or not already formally recognized as such – must be granted access to elementary education: see Chapters 4.8 and 3.1.1.

299 “The heavily criticized Protocol No. 29 [on Asylum for Nationals of Member States of the European Union, Dec. 29, 2006, OJ 2006 C321 E, at 306–307] (the so-called ‘Aznar Protocol’), adopted as a result of pressure from the Spanish government following the recognition of ETA terrorists in France, restricts the right to asylum to third country nationals. As a consequence, the asylum claims of EU nationals are to be treated as manifestly unfounded. Furthermore, EU nationals are excluded from the scope of all EU asylum instruments”: Klug, “Europe,” at 129. As Mathew and Harley observe, “[i]t is assumed that all EU countries are safe countries of origin, which is demonstrably untrue. Roma, who are theoretically EU citizens, face many forms of discrimination and even persecution. Theoretically, EU citizens could just exercise their freedom of movement rights within the EU to escape persecution, but in addition to the many barriers to Roma exercising those freedoms, there have been disturbing mass expulsions of Roma from a number of EU states, which highlights the importance of refugee status for those Roma facing persecution”: Mathew and Harley, Refugees, Regionalism, at 38.

300 It is proposed that any reduction or withdrawal “should in all circumstances ensure access to health care and a dignified standard of living for applicants”: Draft Recast of EU Reception Directive.

301 EU Reception Directive, at Art. 20(1). The rights that may be reduced or withdrawn include “housing, food and clothing provided in kind, or as financial allowances or in vouchers, or a combination of the three, and a daily expenses allowance”: Footnote ibid. at Art. 2(g).

302 EU Dublin Regulation, at Art. 3. The international legal requirements for requiring a refugee to accept protection in a state not of his or her choosing are discussed in Hathaway and Foster, Refugee Status, at 30–49.

303 See e.g. MSS v. Belgium and Greece, Dec. No. 30696/09 (ECtHR, Jan. 21, 2011).

304 NS v. Secretary of State for the Home Department, Dec. Nos. C-411/10 and C-493/10 (CJEU, Dec. 21, 2011), at [94].

305 “The … argument that … only the existence of systemic flaws in the Member State responsible is capable of affecting the obligation to transfer an asylum seeker to that Member State is unfounded”: CK v. Slovenia, Dec. No. C-578/16 PPU (CJEU, Feb. 16, 2017), at [91]. In the same case, the Court clarified that states must implement Dublin Regulation obligations with regard to the requirements of the EU Charter, taking account for example of the duty to avoid inhuman or degrading treatment – meaning for example that there is a duty to suspend a transfer if critical health considerations so require.

306 As correctly observed by the Supreme Court of the United Kingdom, “[t]he presumption [of partner state respect for refugee rights] should not operate to stifle the presentation and consideration of evidence … [regarding] the consequences of enforced concern. Nor should it be required that, in order to rebut it, it must be shown, as a first and indispensable requirement, that there is a systemic deficiency in the procedure and reception conditions provided for the asylum seeker”: R (EM, Eritrea) v. Secretary of State for the Home Department, [2014] UKSC 12 (UK SC, Feb. 19, 2014), at [41]. See generally Hathaway and Foster, Refugee Status, at 39–49.

307 EU Reception Directive, at Art. 15. “[T]he labour market … must now be opened to asylum seekers no later than nine months (instead of the original 12 months) after the [asylum] application [is] lodged. Whereas the Commission and the European Parliament proposed a six-month period, this provision of the [Reception] Directive improves access to the labour market compared to the 2003 [version of the Reception] Directive”: Ippolito, “Long Way to Tipperary,” at 137.

308 EU Qualification Directive, at Art. 30; EU Temporary Protection Directive, at Art. 13; EU Reception Directive, at Arts. 17–19. “The Reception Directive … obliges all Member States to offer basic reception arrangements to asylum seekers, including those Member States that previously offered limited or non-functioning arrangements. However, its standards remain minimal”: Klug, “Europe,” at 134. Yet “the revised [Reception] Directive … expressly permits asylum-seekers to be treated less generously than a Member State’s own citizens”: Peers, “Second Phase,” at 4.

309 All “beneficiaries of refugee status,” rather than simply those who are “lawfully staying” as the Refugee Convention requires, are entitled to a Convention Travel Document: EU Qualification Directive, at Art. 25. See also EU Reception Directive at Art. 6(5), authorizing states to issue travel documents for humanitarian reasons to persons whose refugee status has not yet been verified. It has been proposed, however, that governments “should only provide applicants with a travel document when serious humanitarian or other imperative reasons arise. The validity of travel documents should also be limited to the purpose and duration needed for the reason for which they are issued”: Draft Recast of EU Reception Directive.

310 Most critical is the EU Charter, at Art. 18. “The EU Charter … is generally understood to reaffirm existing fundamental rights … [But] [d]espite its unclear wording and divergence in official language versions, a number of arguments support the interpretation that Art. 18 … establishes an individual right which can be directly invoked before the national courts of Member States”: Klug, “Europe,” at 129–130. See also EU Qualification Directive, Preamble, at [16], and at Art. 13; EU Dublin Regulation, at Art. 3(1); EU Procedures Directive, at Art. 6.

311 EU Procedures Directive. “The Procedures Directive includes a number of important procedural guarantees which include, inter alia, the right to provisional residence for asylum seekers, the prohibition of time limits for submission of asylum applications, the necessity to provide reasons for rejections in writing, the right to legal aid, and the right to an effective remedy against negative decisions. However, these rights are accompanied by limitations and broad derogations”: Klug, “Europe,” at 134–135.

312 EU Reception Directive, at Arts. 9–11.

313 EU Qualification Directive, at Art. 22.

314 Footnote Ibid. at Art. 23; EU Temporary Protection Directive, at Art. 15; EU Dublin Regulation, at Arts. 9–10. The Family Reunification Directive, EC Directive 2003/86, Sept. 22, 2003, OJ 2003 L251, also applies to refugees, enabling them for example to avoid some of the restrictions normally imposed on migrants seeking visas for family members.

315 EU Qualification Directive, at Art. 24.

316 Footnote Ibid. at Art. 34. See Ippolito, “Long Way to Tipperary,” at 118.

317 EU Charter, at Art. 19(1).

318 The only remaining disparities “concern the rights to residence permits for beneficiaries of international protection and their families (for ‘less than 3 years’ for beneficiaries of subsidiary protection and for ‘at least 3 years’ for refugees) and social welfare (limited to core benefits for beneficiaries of subsidiary protection)”: Ippolito, “Long Way to Tipperary,” at 118–119.

319 OAS Doc. OEA/Ser. L/II.66, Doc.10, Rev.1, at 190–193 (“OAS Cartagena Declaration”).

320 UNHCR,OAS General Assembly: An Inter-American Initiative on Refugees,” (1986) 27 Refugees 5.

321 OAS Cartagena Declaration, at Art. III(1).

322 The Inter-American Court of Human Rights has jurisdiction to interpret and apply Art. 22(7) of the American Convention on Human Rights, which codifies the right of “[e]very person … to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes”: American Convention on Human Rights, 1144 UNTS 123 (UNTS 17955), adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, November 22, 1969, entered into force July 18, 1978 (“American Convention”). In OAS states that have not adopted the American Convention, the Inter-American Commission on Human Rights is entitled to scrutinize laws and practices by reference to the American Declaration of the Rights and Duties of Man, Art. XXVII of which provides that “[e]very person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements”: American Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of American States, Bogotá, Colombia, 1948 (“American Declaration”). See generally L. Jubilut, M. Vera Espinoza, and G. Mezzanotti eds., Latin America and Refugee Protection: Regimes, Logics and Challenges (forthcoming 2021).

323 States commit themselves “[t]o ensure that the countries of the region establish a minimum standard of treatment for refugees, on the basis of the provisions of the 1951 Convention and 1967 Protocol and of the American Convention on Human Rights, taking into consideration the conclusions of the UNHCR Executive Committee, particularly No. 22 on the Protection of Asylum Seekers in Situations of Large-Scale Influx”: OAS Cartagena Declaration, at Art. III(8).

324 Footnote Ibid. at Arts. II(f) and III(5). It is noteworthy that the formulation of the duty of non-refoulement included in both the American Declaration of the Rights and Duties of Man and even the American Convention on Human Rights situates it in the narrower context of persons fleeing abuse of criminal law authority. But this narrower regional human rights protection cannot, of course, reduce the duty under Art. 33 of the Refugee Convention which simultaneously binds states.

325 The states affirm “the voluntary and individual character of repatriation of refugees and the need for it to be carried out under conditions of absolute safety, preferably to the place of residence of the refugee in his country of origin”: OAS Cartagena Declaration, at Art. III(12).

326 Footnote Ibid. at Art. II(1).

327 States agree “[t]o reinforce programmes for protection of and assistance to refugees, particularly in the areas of health, education, labour and safety,” and to study “the possibilities of integrating them into the productive life of the country by allocating to the creation or generation of employment the resources made available by the international community through UNHCR, thus making it possible for refugees to enjoy their economic, social and cultural rights”: Footnote ibid. at Arts. II(h) and III(11).

328 See text at note 272.

329 OAU Cartagena Declaration, at Art. III(6).

330 See text at note 269.

331 OAU Cartagena Declaration, at Art. II(p).

332 Mathew and Harley report that “[a]lthough non-binding, the Cartagena Declaration has been translated into the national laws of 14 countries [citing Argentina, Belize, Bolivia, Brazil, Chile, Colombia, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru, and Uruguay], and there is a periodic review process that has resulted in further regional arrangements to improve refugee protection”: Mathew and Harley, Refugees, Regionalism, at 42. “States seem to be inspired by the collective initiatives adopted by the region and try to include the developments … [in] the national legal systems, which may lead to improved protection … Some States have kept the original wording of the Declaration and others have changed it, but maintaining the so-called ‘spirit of Cartagena’ … has come to mean an approach to International Refugee Law and protection that is … broader in scope … more closely related to human rights and … more beneficial in terms of people being protected given the added criteri[a] for refugee status”: L. Jubilut, “Fora and Programmes for Refugees in Latin America,” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An International Law Perspective 245 (2016), at 245–246, 256.

333 American Declaration, at Art. XXVII.

334 American Convention, at Art. 22(7).

335 D. Cantor and S. Barichello, “Protection of Asylum Seekers under the Inter-American Human Rights System,” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An International Law Perspective 267 (2016) (Cantor and Barichello, “Protection”), at 275, citing Inter-American Commission on Human Rights, “Report on Terrorism and Human Rights,” Doc. OEA/Ser.L/V/II.115/Doc 5 rev 1 corr, at [394].

336 Cantor and Barichello, “Protection,” at 276–277.

337 Pacheco Tineo v. Bolivia, Ser. C No. 272 (IACtHR, Nov. 25, 2013).

338 Footnote Ibid. at [147].

339 Footnote Ibid. at [141].

340 Footnote Ibid. at [139].

341 “Based on the special needs for protection of migrant persons and groups, this Court interprets and provides content to the rights that the Convention recognizes to them, in keeping with the evolution of the international corpus juris applicable to the human rights of migrants”: Footnote ibid. at [129].

342 Indeed, it has recently been suggested that “[o]verall … the Inter-American system appears to provide the most expansive set of protections for asylum seekers and refugees of any human rights system”: Cantor and Barichello, “Protection,” at 290.

343 League of Arab States, Arab Convention on Regulating Status of Refugees in the Arab Countries, adopted 1994, available at: www.refworld.org/docid/4dd5123f2.html, accessed Jan. 15, 2020 (“Arab Refugee Convention”).

344 Footnote Ibid., Preamble, at [3].

345 Footnote Ibid. at Art. 3.

346 Footnote Ibid. at Arts. 4, 9.

347 Footnote Ibid. at Art. 7.

348 League of Arab States “standards provide narrower protection than the 1951 UN Refugee Convention, for example by having no specific provisions relating to a number of rights, including the right to education, relief, housing and religion”: M. Rishmawi and J. Rashmawi, “The League of Arab States and the Protection of Migrants,” in F. Ippolito and S. Trevisanut eds., Migration in the Mediterranean: Mechanisms of International Cooperation 68 (2015) (Rishmawi and Rashmawi, “League of Arab States”), at 74.

349 Arab Refugee Convention, at Art. 5.

350 See Chapter 3.2.1.

351 See Chapter 3.3.

352 See text at note 270.

353 Arab Refugee Convention, at Art. 12.

354 Footnote Ibid. at Art. 13. The draft of a revised text for the Arab Refugee Convention prepared in 2012 deletes this provision: Rishmawi and Rashmawi, “League of Arab States,” at 77.

355 See text at note 271.

356 Communication from the Department of Legal Affairs of the League of Arab States, Feb. 27, 2017 (on file with the author). One-third of the member states of the Arab League must ratify the treaty before it enters into force: Arab Refugee Convention, at Art. 17.

357 ASEAN Human Rights Declaration, adopted Nov. 18, 2012 (“ASEAN Declaration”).

358 ASEAN Declaration, Preamble, at [3].

359 ASEAN Declaration, at [16].

360 The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, a forty-eight-member forum co-chaired by Australia and Indonesia, arose in the context of the 1999 Bangkok Declaration on Irregular Migration in which “international migration is conceived as involving irregular migration and ‘smuggling and trafficking in human beings.’ There is no reference to refugees or human rights in this document”: S. Kneebone, “ASEAN and the Conceptualization of Refugee Protection in Southeastern Asian States,” in A. Abass and F. Ippolito eds., Regional Approaches to the Protection of Asylum Seekers: An International Law Perspective 295 (2016) (Kneebone, “ASEAN”), at 299. More recently, however, the organization’s Regional Support Office in Bangkok “has commenced a number of projects for tackling irregular migration in the region and these include significant refugee protection elements”: Mathew and Harley, Refugees, Regionalism, at 51–52.

361 Despite the success of the Comprehensive Plan of Action for Indochinese Refugees (“CPA”) in providing for protection by a system of global burden and responsibility sharing, it is arguable that the CPA’s focus on extra-regional resettlement led to a belief among Southeast Asian states that they ought not to be required to provide for durable protection on their own territory: S. Davis, Legitimising Rejection: International Refugee Law in Southeast Asia (2008), at 18. Reference is also sometimes made to the work of the Asian-African Legal Consultative Organization in 1966 (the “Bangkok Principles on Status and Treatment of Refugees”), though these recommendations of an advisory group “are non-binding and hardly impact on refugee law and practice”: S. Blay, “Regional Developments: Asia,” in A. Zimmermann ed., The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2011) 145, at 149; see also Mathew and Harley, Refugees, Regionalism, at 35.

362 ASEAN, “Political-Security Community Blueprint,” adopted at the Fourteenth Summit, 2009, at [13.3.1(ii)].

363 Kneebone, “ASEAN,” at 306.

364 ASEAN Declaration, at Art. 16.

365 See text at note 345.

366 The Declaration has also been criticized for failing to include refugees as an example of a vulnerable and marginalized group, as ASEAN did in 1993: Kneebone, “ASEAN,” at 311.

367 See C. Renshaw, “The ASEAN Human Rights Declaration 2012,” (2013) 13(3) Human Rights Law Review 557, at 559.

368 ASEAN Declaration, at Art. 15. Refugee Convention Art. 31(2) – which does provide a presumptive right of all refugees in a state not to be subject to restrictions on freedom of movement – imposes certain criteria, set out in Art. 31(1), for entitlement to that protection: see Chapters 4.2.1 and 4.2.4. The right of a refugee to choose her place of residence only inheres with lawful presence: see Chapter 5.2.

369 Kneebone, “ASEAN,” at 313.

370 The Refugee Convention was preceded by the Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 (UNTS 1021), adopted Dec. 9, 1948, entered into force Jan. 12, 1951.

371 UNGA Res. 217A(III), adopted Dec. 10, 1948.

372 UNHCR Executive Committee Conclusion No. 81, “General Conclusion on International Protection” (1997), at [(e)], in UNHCR, “Conclusions on International Protection Adopted by the Executive Committee of the UNHCR Programme, 1975–2017,” UN Doc. HCR/IP/3/Eng/REV. 2017. Of particular importance, Art. 3 of the nearly universally subscribed Convention on the Rights of the Child, 1577 UNTS 3 (UNTS 27531), adopted Nov. 20, 1989, entered into force Sept. 2, 1990, requires that “[e]very legislative, administrative and judicial body or institution … apply the best interests [of the child] principle by systematically considering how children’s rights and interests are or will be affected by their decisions or actions”: J. Pobjoy, “The Best Interests of the Child Principle as an Independent Source of International Protection,” (2015) 64(2) International and Comparative Law Quarterly 327. See generally J. Pobjoy, The Child in International Refugee Law (2017).

373 The General Assembly adopted the Declaration on the Human Rights of Individuals Who are Not Nationals of the Country in which They Live (UNGA Res. 40/144, adopted Dec. 13, 1985), but has yet to consider the codification of a binding catalog of rights specifically for non-citizens.

374 2220 UNTS 3 (UNTS 39481), adopted Dec. 18, 1990, entered into force July 1, 2003. Only fifty-five states have signed and/or ratified the treaty: https://treaties.un.org, accessed Dec. 21, 2020.

375 Importantly, however, the treaty provides that “the present Convention shall not apply to … refugees and stateless persons, unless such application is provided for in the relevant national legislation of, or international instruments in force for, the State Party concerned”: Footnote ibid. at Art. 3(d).

376 In 1939, the ILO adopted Convention No. 66, the Convention concerning the Recruitment, Placing and Conditions of Labor of Migrants for Employment, together with the accompanying Recommendation No. 61, Recommendation concerning the Recruitment, Placing and Conditions of Labor of Migrants for Employment. Convention No. 66 never secured sufficient ratifications to enter into force. It was updated in 1949 by Convention No. 97, the Convention concerning Migration for Employment (Revised) and its Recommendation No. 86, Recommendation concerning Migration for Employment (Revised). Convention No. 97 came into force shortly after the adoption of the Refugee Convention, and is a parallel source of rights for refugees lawfully admitted to residence in a state party. The ILO has since produced Convention No. 143, the Migrant Workers (Supplementary Provisions) Convention, 1975 and the companion Recommendation No. 151, Migrant Workers Recommendation, 1975. The 1975 accord deals with migration in abusive conditions and provides for equality of opportunity and treatment of migrant workers.

377 Recent non-binding standards of relevance include “ILO Declaration on Fundamental Principles and Rights at Work,” International Labour Conference, 86th Sess., adopted June 18, 1998 (Annex revised June 15, 2010); and International Labour Office, “ILO Multilateral Framework on Labour Migration: Non-Binding Principles and Guidelines for a Rights-Based Approach to Labour Migration” (2006). Earlier standards of note include Recommendation No. 86 (1949) which proposes a model agreement for the regulation of labor migration. Several of these non-binding standards speak explicitly to the needs of refugees, regarded as a subset of persons who seek employment outside their own country. First, some additional rights are added to the binding list of matters to be guaranteed on terms of equality with nationals. These include rights to recognition of travel documents, adaptation assistance, naturalization, participation in collective labor agreements, private property, and of access to food and suitable housing. Second, equal access to trades and occupations is established, but only “to the extent permitted under national laws and regulations.” Third, migrant workers who are “lawfully within” the territory are entitled to equality of treatment with respect to hygiene, safety, and medical assistance; and, as far as the state regulates such matters, to weekly rest days, admission to educational institutions, recreation, and welfare. Fourth, the model agreement extends most of these equality rights to refugees’ family members, an entitlement not proposed for the families of other alien workers. See International Labor Conference et al., Conventions and Recommendations Adopted by the International Labor Conference, 1919-1966 (1966).

378 See generally F. Wolf, “Human Rights and the International Labour Organization,” in T. Meron ed., Human Rights in International Law: Legal and Policy Issues (1984), at 273.

379 “[T]he traditional law of aliens grounded on diplomatic protection has been progressively superseded by human rights law”: V. Chetail, “The Human Rights of Migrants in General International Law: From Minimum Standards to Fundamental Rights,” (2013) 28(1) Georgetown Immigration Law Journal 225 (Chetail, “Human Rights of Migrants”), at 242.

380 “The Rights of Non-citizens: Final Report of the Special Rapporteur,” UN Doc. E/CN.4/Sub.2/2003/23, May 26, 2003.

381 As he has written more recently, “the principal objective is not to define and delineate separate categories of non-citizens. It is to mobilize and implement human rights norms and techniques that already apply across the various categories of non-citizens”: D. Weissbrodt, The Human Rights of Non-Citizens (2008), at 244. It is nonetheless true that “[t]he criticism of international human rights law as ‘dispersive and fragmentary’ in its protection of migrants remains valid, because migrants’ rights derive from many legal sources”: S. Grant, “The Recognition of Migrants’ Rights Within the UN Human Rights System: The First 60 Years,” in M. Dembour and T. Kelly eds., Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States 25 (2011) (Grant, “Migrants’ Rights”), at 47.

382 “The Rights of Non-citizens: Final Report of the Special Rapporteur,” UN Doc. E/CN.4/Sub.2/2003/23, May 26, 2003, at [31]–[33], [39]–[40].

383 Racial Discrimination Convention, at Art. 1(1).

384 “The Rights of Non-citizens: Final Report of the Special Rapporteur,” UN Doc. E/CN.4/Sub.2/2003/23, May 26, 2003, at [34].

385 “Article 1, paragraph 2 [of the Convention on the Elimination of All Forms of Racial Discrimination] provides for the possibility of differentiating between citizens and non-citizens … [But it] must be construed so as to avoid undermining the basic prohibition of discrimination; hence it should not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in particular in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights … [D]ifferential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the [Racial Discrimination] Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim”: UN Committee on the Elimination of Racial Discrimination, “General Recommendation XXX: Discrimination against Non-citizens” (2004), UN Doc. CERD/C/64/Misc.11/rev.3, at [1], [2], [4].

386 See generally Grant, “Migrants’ Rights,”; and Chetail, “Human Rights of Migrants,” at 239–242. For example, in relation to the most widely ratified international human rights treaty – the Convention of the Rights of the Child – the supervisory body has insisted that unless clearly stated otherwise in the treaty, children’s rights must “be available to all children – including asylum-seeking, refugee and migrant children – irrespective of their nationality, immigration status or statelessness”: UN Committee on the Rights of the Child, “General Comment 6: Treatment of Unaccompanied and Separated Children outside their Countries of Origin” (2009), UN Doc. CRC/GC/2005/6, at [12].

387 http://indicators.ohchr.org, accessed Jan. 15, 2020, and UNHCR, “Global Trends: Forced Displacement in 2018,” at Annex, Table 1. The two most critical exceptions are Malaysia (which hosts some 120,000 refugees) and South Sudan (which hosts more than 290,000 refugees).

388 In the result, guarantees against discrimination apply: see Chapter 1.5.5.

389 One commentator grounded his analysis in the notion of nationality as a “distinction of any kind”: Lillich, Rights of Aliens, at 46.

390 UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 140, [2].

391 The exceptions are that only citizens are granted the rights to vote, to run for office, and to enter the public service: Civil and Political Covenant, at Art. 25.

392 UN Human Rights Committee, “General Comment No. 31: The Nature of the General Legal Obligations of States Parties to the Covenant” (2004), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 192, [10]. This understanding was explicitly endorsed by the Supreme Court of Canada in Nevsun Resources Ltd. v. Gize Yebeyo Araya et al., [2020] SCC 5 (Can. SC, Feb. 28, 2020), at [119].

393 Even as he argues the primacy of human rights law to protect migrants, Chetail forthrightly concedes that “[a] non-citizen must be lawfully within the territory of a state in order to benefit within that territory from the right to liberty of movement and freedom to choose his/her residence. But, even when lawfully within the territory, he or she may still be deported from that territory as long as some basic conditions and procedural guarantees are fulfilled”: Chetail, “Human Rights of Migrants,” at 245. Under the Refugee Convention, in contrast, these concerns are more thoroughly catered for: Refugee Convention, at Arts. 31, 32, 33.

394 Compare Civil and Political Covenant, at Arts. 14–16, with the Refugee Convention, at Art. 16.

395 The rights which cannot be suspended are the rights to life; freedom from torture, cruel, inhuman, or degrading treatment or punishment; freedom from slavery; freedom from imprisonment for contractual breach; freedom from ex post facto criminal law; recognition as a person; and freedom of thought, conscience, and religion: Civil and Political Covenant, at Art. 4(2).

396 Ordinarily, emergency derogation must not be imposed in a discriminatory way. However, the grounds of impermissible discrimination for emergency derogation purposes explicitly omit reference to several of the general grounds on which discrimination is prohibited under the Civil and Political Covenant. The omissions include discrimination on the grounds of political or other opinion; national origin; property; birth or other status. Compare Civil and Political Covenant, at Arts. 2(1) and 4(1). A UN Special Rapporteur on the Rights of Non-Citizens has suggested that “[t]his omission, according to the travaux préparatoires, was intentional because the drafters of the Covenant understood that States may, in time of national emergency, have to discriminate against non-citizens within their territory”: UN Commission on Human Rights, “Preliminary Report of the Special Rapporteur on the Rights of Non-Citizens,” UN Doc. E/CN.4/Sub.2/2001/20, June 6, 2001, at [37].

397 Refugee Convention, at Art. 9. See generally Chapter 3.5.1.

398 “[T[he position of migrants under general international law is more precarious when it comes to economic, social, and cultural rights”: Chetail, “Human Rights of Migrants,” at 247.

399 International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (UNTS 14531), adopted Dec. 16, 1966, entered into force Jan. 3, 1976.

400 See UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights,” (2009) UN Doc. E/C.12/GC/20, July 2, 2009, at [3], [5], [30]. Two kinds of distinction are sometimes asserted. First, while state parties to the Civil and Political Covenant agree to grant rights to all without discrimination, the contemporaneously drafted Economic and Social Covenant requires only an undertaking that whatever rights are granted may be exercised without discrimination: compare Civil and Political Covenant, at Art. 2(1) and Economic and Social Covenant, at Art. 2(2). Superficially, this would suggest that whereas the Civil and Political Covenant prohibits limitation of the category of rights holders, the formulation in the Economic and Social Covenant does not. In fact, however, the various rights in the Economic and Social Covenant are granted to “everyone” or “all,” nullifying any practical distinction between the non-discrimination clauses in the two Covenants. Second, the non-discrimination provision in the Civil and Political Covenant seems to be more inclusively framed than its counterpart in the Economic and Social Covenant. Whereas the former prohibits “distinction of any kind, such as” a distinction based on the listed forms of status, the Economic and Social Covenant prohibits “discrimination of any kind as to” the enumerated types of status. But unless it is suggested that no differentiation, even on patently reasonable grounds, can ever be permissible in relation to rights under the Civil and Political Covenant, no concrete consequences flow from use of the word “distinction” rather than “discrimination.” Nor does it matter that one Covenant prohibits discrimination “such as” that based on certain grounds, while the other proscribes discrimination “as to” those same grounds. Because the list under both Covenants includes the generic term “other status,” the net result in each case is an inclusive duty of non-discrimination, including, for example, non-discrimination in relation to refugees and other aliens.

401 For example, the Committee on Economic, Social and Cultural Rights has made clear that “[t]he right to adequate housing applies to everyone. While the reference to ‘himself and his family’ reflects assumptions as to gender roles and economic activity patterns commonly accepted in 1966 when the Covenant was adopted, the phrase cannot be read today as implying any limitations upon the applicability of the right to individuals or to female-headed households or other such groups”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 4: The Right to Adequate Housing” (1991), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [6]. See also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [1]: “The human right to adequate food is of crucial importance for the enjoyment of all rights. It applies to everyone; thus the reference in article 11.1 to ‘himself and his family’ does not imply any limitation upon the applicability of this right to individuals or to female-headed households.”

402 Economic and Social Covenant, at Art. 2(2). One commentator has argued that the enumerated grounds on which discrimination is prohibited are exhaustive: A. Bayefsky, “The Principle of Equality or Non-Discrimination in International Law,” (1990) Human Rights Law Journal 1, at 5. The better position notes the clearly open-ended nature of the reference to “discrimination of any kind as to … other status,” and concludes that the list of prohibited grounds is illustrative: M. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1995) (Craven, ICESCR Commentary), at 168. See also A. Chapman, “A ‘Violations Approach’ for Monitoring the International Covenant on Economic, Social and Cultural Rights,” (1996) 18 Human Rights Quarterly 23, at 5455: “It is notable that in a world which offers few protections of ‘illegal immigrants,’ the [Economic, Social and Cultural Rights] Committee has disagreed with the interpretation of at least one government (the government of Hong Kong) that asylum-seekers are not entitled to enjoy … rights in view of their status as ‘illegal immigrants.’”

403 UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [3], [6]. Indeed, “a lack of available resources cannot be considered as an objective and reasonable justification for difference in treatment ‘unless every effort has been made to use all resources that are at the State party’s disposition in an effort to address and eliminate the discrimination, as a matter of priority’”: Footnote ibid. at [5]. See also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights” (2009), UN Doc. E/C.12/GC/20, July 2, 2009, at [30] (“The Covenant rights apply to everyone including non-nationals, such as refugees [and] asylum seekers”); and UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [16], noting the duty to meet the needs of refugees for water on terms of equality with those of citizens.

404 In the case of the Civil and Political Covenant, the Human Rights Committee has observed that “[t]he requirement under article 2, paragraph 2, to take steps to give effect to the Covenant rights is unqualified and of immediate effect. A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State”: UN Human Rights Committee, “General Comment No. 31: The Nature of the General Legal Obligations Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 192, [14].

405 As Saul et al. observe, “[t]he tone and nature of the demands made of states are quite different from the equivalent Article 2(1) in the [Civil and Political Covenant], being more exhortatory than mandatory, more progressive than immediate”: B. Saul et al., The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (2014) (Saul, ICESCR Commentary), at 134.

406 Economic and Social Covenant, at Art. 2(1). “The term ‘progressive realization’ is often used to describe the intent of this phrase. The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [9]. The Committee has helpfully explained the measures it uses to assess “adequate” or “reasonable” steps to implement Covenant rights: UN Committee on Economic, Social and Cultural Rights, “An Evaluation of the Obligation to Take Steps to the ‘Maximum of Available Resources’ under an Optional Protocol to the Covenant,” UN Doc. E/C.12/2007/1, Sept. 21, 2007, at [8].

407 UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [9].

408 The Committee on Economic, Social and Cultural Rights has specifically adumbrated standards that are to be applied in the event that “resource constraints” are asserted as justification for retrogressive steps: UN Committee on Economic, Social and Cultural Rights, “An Evaluation of the Obligation to Take Steps to the ‘Maximum of Available Resources’ under an Optional Protocol to the Covenant,” UN Doc. E/C.12/2007/1, Sept. 21, 2007, at [10]. In such circumstances, it has insisted that “the burden of proof rests on the State party to show that such a course of action was based on the most careful consideration and can be justified by reference to the totality of the rights provided for in the Covenant and by the fact that full use was made of available resources”: Footnote ibid. at [9].

409 UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [4].

410 See D. Trubek, “Economic, Social, and Cultural Rights in the Third World,” in T. Meron ed., Human Rights in International Law: Legal and Policy Issues 205 (1984), at 215: “I believe the available resources language should be read as establishing a priority for social welfare. Given the purpose of the Economic Covenant, it is hard to see how the alternative reading would make any sense. It is clear that the drafters of the Economic Covenant wished to impose obligations on states. Yet if the only obligation arising from the Economic Covenant was that a state could spend what it wanted on social welfare, then this would be no obligation at all and the drafters would have failed in their goal. This reasoning from purpose is supported by the legislative history.”

411 UN Committee on Economic, Social and Cultural Rights, “General Comment No. 9: The Domestic Application of the Covenant” (1998), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [2].

412 “A final element of article 2(1), to which attention must be drawn, is that the undertaking given by all States parties is ‘to take steps, individually and through international assistance and cooperation, especially economic and technical’”: Footnote ibid. at [13]. The Committee notes that the phrase “to the maximum of its available resources” was intended by the drafters of the Covenant to refer to both the resources existing within a state and those available from the international community through international cooperation and assistance: Footnote ibid. More generally, “[a] failure to remove differential treatment on the basis of a lack of available resources is not an objective and reasonable justification unless every effort has been made to use all resources that are at the State party’s disposition in an effort to eliminate the discrimination, as a matter of priority”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights” (2009), UN Doc. E/C.12/GC/20, July 2, 2009, at [13]. See also UN Committee on Economic, Social and Cultural Rights, “An Evaluation of the Obligation to Take Steps to the ‘Maximum of Available Resources’ under an Optional Protocol to the Covenant,” UN Doc. E/C.12/2007/1, Sept. 21, 2007, at [10(f)], indicating that the Committee will take account of efforts to seek international aid in determining whether a state’s failure to meet its obligations was justifiable.

413 To date, only a non-binding declaration on this subject has been adopted. See “Declaration on the Right to Development,” UNGA Res. 41/128 (1986).

414 “Although there seems to be agreement that the rights in the Covenant are contingent, to a degree, on the provision of international assistance, the nature, scope, and obligatory nature of such assistance is unclear”: Craven, ICESCR Commentary, at 145.

415 The Committee on Economic, Social and Cultural Rights has framed the duty in typically vague terms. “The Committee wishes to emphasize that in accordance with Articles 55 and 56 of the Charter of the United Nations, with well-established principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard. The Committee notes in particular the importance of the Declaration on the Right to Development adopted by the General Assembly in its resolution 41/128 of 4 December 1986 and the need for States parties to take full account of all of the principles recognized therein. It emphasizes that, in the absence of an active programme of international assistance and cooperation on the part of all those States that are in a position to undertake one, the full realization of economic, social and cultural rights will remain an unfulfilled aspiration in many countries”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [14]. But see Saul, ICESCR Commentary, at 140: “[T]he assertion that there are ‘well-established principles of international law’ that oblige states to so cooperate is simply incorrect. That states ought to so cooperate is a principle often and rightly advanced in legal and non-legal circles. That, beyond this, there may be grounds to argue that there already exists (or nearly so) a duty to cooperate in international law is also a contention not infrequently advanced in international legal debates. But to maintain still further, not only that the principle exists (the ‘ought’ being now accepted as an ‘is’), but that it is a matter ‘well-established,’ is hyperbole.”

416 The most direct conclusion of the Committee is that “given that some diseases are easily transmissible beyond the frontiers of a State, the international community has a collective responsibility to address this problem. The economically developed States parties have a special responsibility and interest to assist the poorer developing States in this regard”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [40]. See generally Craven, ICESCR Commentary, at 146–147.

417 At the 2001 session of the UN Commission on Human Rights, a Cuban proposal to establish an independent expert to monitor the fulfillment by developed countries of their political pledge to allocate 0.7 percent of their GNP to development assistance was abandoned for lack of support: M. Dennis, “The Fifty-Seventh Session of the UN Commission on Human Rights,” (2002) 96(1) American Journal of International Law 181.

418 “In the spirit of Article 56 of the Charter of the United Nations, the specific provisions contained in articles 11, 2.1, and 23 of the Covenant and the Rome Declaration of the World Food Summit, States parties should recognize the essential role of international cooperation and comply with their commitment to take joint and separate action to achieve the full realization of the right to adequate food. In implementing this commitment, States parties should take steps to respect the enjoyment of the right to food in other countries, to protect that right, to facilitate access to food and to provide the necessary aid when required. States parties should, in international agreements whenever relevant, ensure that the right to adequate food is given due attention and consider the development of further international legal instruments to that end”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [36].

419 UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [34].

420 “Depending on the availability of resources, States should facilitate access to essential health facilities, goods and services in other countries wherever possible and provide the necessary aid when required. States parties should ensure that the right to health is given due attention in international agreements and, to that end, should consider the development of further legal instruments. In relation to the conclusion of other international agreements, States parties should take steps to ensure that these instruments do not adversely impact upon the right to health. Similarly, States parties have an obligation to ensure that their actions as members of international organizations take due account of the right to health”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [39].

421 “States have a joint and individual responsibility, in accordance with the Charter of the United Nations, to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons. Each State should contribute to this task in accordance with its ability”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [38]. “In disaster relief and emergency assistance, including assistance to refugees and displaced persons, priority should be given to Covenant rights, including the provision of adequate water”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [34].

422 “While there would appear to be considerable scope for strengthening States’ external obligations … it is an area in which States are unlikely, in the foreseeable future, to agree to specific demands on the amount of distribution of aid to third countries”: Craven, ICESCR Commentary, at 150.

423 Footnote Ibid. at 148–149.

424 “Even if duties do exist, what sort of obligations flow from the duty in a world of mass poverty and deprivation with limited global resources? Can they be identified with any precision? Who is the duty-bearer when different States have the capacity to assist?”: M. Langford et al., “Extra-Territorial Duties in International Law,” in M. Langford et al. eds., Global Justice, State Duties: The Extra-Territorial Scope of Economic, Social and Cultural Rights in International Law (2013), at 52.

425 The unwillingness to suggest a clear duty to assist was recently made clear in the refugee context: UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [18].

426 See generally Chapter 1.5.5.

427 While still employing irresolute language, the Committee has concluded that “[p]riority in the provision of international medical aid, distribution and management of resources, such as safe and potable water, food and medical supplies, and financial aid should be given to the most vulnerable or marginalized groups of the population”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [40]. With respect to the aid provided by international organizations, see Footnote ibid. at [65].

428 See Chapter 1.5.5 at note 462 ff.

429 There is, of course, also the question of whether the duty of non-discrimination binds a state in its extraterritorial actions. It has been persuasively argued that there is no principled reason to release states which act extraterritorially from legal obligations that would otherwise circumscribe the scope of their authority. According to Meron, “[i]n view of the purposes and objects of human rights treaties, there is no a priori reason to limit a state’s obligation to respect human rights to its national territory. Where agents of the state, whether military or civilian, exercise power and authority (jurisdiction, or de facto jurisdiction) over persons outside national territory, the presumption should be that the state’s obligations to respect the pertinent human rights continues. That presumption could be rebutted only when the nature and content of a particular right or treaty language suggest otherwise”: T. Meron, “Extraterritoriality of Human Rights Treaties,” (1995) 89(1) American Journal of International Law 78, at 80–81.

430 See Chapter 1.5.5 at note 471 ff.

431 “[T]he Committee avoids any direct attribution of responsibility or duty on the part of richer states in particular, or the international community more generally, to provide assistance and cooperation to less well-off states … It is, in other words, largely up to the individual [poorer] state to avail itself of those opportunities for assistance that are available, rather than there being any specific obligation on other countries or international organizations to make such assistance available, still less any duty on them to render assistance”: Saul, ICESCR Commentary, at 138–139.

432 Footnote Ibid. at 215. The authors seek to constrain the impact of this analysis by invoking the drafting history to argue that “Article 2(3) was … intended to allow developing countries to address structural inequalities in their economies which resulted from colonialism [emphasis added]” and that “Article 2(3) would therefore seem to refer to countries which are economically weak and which were formerly subject to colonial rule”: Footnote ibid. at 215–216. While reliance on the travaux is of course appropriate (see Chapter 2.3), they are simply one component of what should be an interactive process of treaty interpretation. Evidence of historical intent should in particular be balanced against more contemporary evidence of the social and legal context within which original intentions are now to be implemented, as well as the plain language of the text. It is thus doubtful that a country such as Afghanistan – never colonized but generally recognized as one of the “least developed countries” (https://unctad.org/topic/vulnerable-economies/least-developed-countries/list, accessed Dec. 21, 2020) – should be excluded from the category of “developing countries” for purposes of Art. 2(3).

433 This leads Warren McKean to conclude that the language of Art. 2(3) “is unconscionably vague. It must therefore be regarded as an unfortunate inclusion in a covenant of this nature and likely to cause invidious and unreasonable distinctions to be made against aliens on the ground of their foreign nationality”: W. McKean, Equality and Discrimination under International Law (1983) (McKean, Equality and Discrimination), at 201.

434 UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [8]. It is regrettable that the Committee does not provide clear reasoning for its position that education is not properly deemed an economic right subject to Art. 2(3).

435 Despite the open-ended nature of the text of Art. 2(3), Chetail is right to note that the clause is permissive, not mandatory; may only be invoked by “developing countries”; applies only to economic, not to social and cultural, rights; may not be relied upon to justify breach of obligations under other treaties; and may only be resorted to for economic imperatives: Chetail, “Human Rights of Migrants,” at 249–251. More generally, he argues that the historical intention of the clause was quite narrow – namely to address the risk of continuing economic influence of non-nationals in newly independent states: Footnote ibid. at 248.

436 While conceding the “admittedly significant limitations of the [Economic and Social] Covenant” and that it is “not clear what Art. 2(3) means,” Mathew nonetheless provides a thoughtful argument that vulnerable groups such as refugees ought not to be caught by the Art. 2(3) limitation, drawing on for example the historical concern that motivated the provision and the overarching human rights purpose of the clause: P. Mathew, Reworking the Relationship between Asylum and Employment (2012), at 104 and 109 ff. See also E. Lester, “Work, the Right to Work, and Durable Solutions: A Study on Sierra Leonean Refugees in The Gambia,” (2005) 17(2) International Journal of Refugee Law 331, at 350. A contrary view is, however, taken in McKean, Equality and Discrimination, at 201.

437 “The essential minimum content of each right should be preserved in all circumstances and the corresponding duties extended to all people under the effective control of the State, without exception”: UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [9]. “[T]hese standards oblige states to provide protection that has immediate effect. That is – at least on the face of it – that no excuses are acceptable in the view of the Committee for not so providing. Thus, for example, the Committee has made clear that security concerns, including (indeed, especially) in situations of conflict, are not justifiable reasons for the neglect of basic Convention rights”: Saul, ICESCR Commentary, at 152.

438 UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [5].

439 UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10].

440 The Committee has reaffirmed its commitment to the notion of core rights. “Should a State party argue that resource constraints make it impossible to provide access to food for those who are unable by themselves to secure such access, the State has to demonstrate that every effort has been made to use all the resources at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations. This follows from article 2.1 of the Covenant, which obliges a State party to take the necessary steps to the maximum of its available resources, as previously pointed out by the Committee in its General Comment No. 3, paragraph 10”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 12: The Right to Adequate Food” (1999), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [17]. See also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest Attainable Standard of Health” (2000), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [43]: “In General Comment No. 3, the Committee confirms that States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant, including essential primary health care. Read in conjunction with more contemporary instruments, such as the Programme of Action of the International Conference on Population and Development, the Alma-Ata Declaration provides compelling guidance on the core obligations arising from article 12.”

441 “There is an unavoidable subjectivity in the command that a state utilize ‘the maximum of its available resources’”: Saul, ICESCR Commentary, at 143.

442 In relation to the right to water, for example, the Committee has determined that “[t]o demonstrate compliance with their general and specific obligations, States parties must establish that they have taken the necessary and feasible steps towards the realization of the right to water. In accordance with international law, a failure to act in good faith to take such steps amounts to a violation of the right. It should be stressed that a State party cannot justify its non-compliance with the core obligations … which are non-derogable”: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 15: The Right to Water” (2002), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [40].

443 UN Committee on Economic, Social and Cultural Rights, “General Comment No. 3: The Nature of States Parties’ Obligations” (1990), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at [10]. But “[a]lthough the concept of ‘minimum core obligations’ may provide an intellectual framework with which one might be able to establish objective standards against which the states’ efforts to protect economic, social and cultural rights can be measured, it still lacks precision, or even easy application in practice”: Saul, ICESCR Commentary, at 147.

444 Saul, ICESCR Commentary, at 147.

445 UN Committee on Economic, Social and Cultural Rights, “Duties of States towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights,” UN Doc. E/C.12/2017/1, Mar. 13, 2017, at [4]. More specifically, “they would not in principle be justified in restricting the enjoyment of the essential content of the Covenant rights on the basis of a lack of resources, even when confronted with a sudden and quantitatively significant flow of refugees”: Footnote ibid. at [10].

446 Thus, even as he makes the case for reliance on general human rights law to protect migrants, Chetail observes that whatever the import of Art. 2(3) of the Economic, Social and Cultural Covenant, “it cannot be used to avoid articles 17, 18, and 19 of the Refugee Convention governing access to employment”: Chetail, “Human Rights of Migrants,” at 249–250.

447 Chetail thus overclaims when he argues that “human rights law is the primary source of protection, while the [Refugee] Convention is bound to play a complementary and secondary role”: Chetail, “Are Refugee Rights Human Rights?,” at 22. The better view is that neither refugee law nor general human rights law is sufficient fully to meet the needs of refugees, and that each plays a critical or primary role in relation to some components of the protection paradigm.

448 S. Fredman, Discrimination Law (2011) (Fredman, Discrimination), at 109.

449 C. McCrudden, “Equality and Non-Discrimination,” in D. Feldman ed., English Public Law 499 (2009) (McCrudden, “Equality”), at [11.61].

450 “[W]e must try to develop ‘discrimination’ as a separate independent legal concept. To call all possible instances of unequal treatment … ‘discrimination’ would deprive that word of its very raison d’être”: E. Vierdag, The Concept of Discrimination in International Law, with a Special Reference to Human Rights (1973) (Vierdag, Concept of Discrimination), at 51.

451 Fredman, Discrimination, at 177.

452 McCrudden, “Equality,” at [11.156].

453 See generally J. Pobjoy, “Treating Like Alike: The Principle of Non-Discrimination as a Tool to Mandate the Equal Treatment of Refugees and Beneficiaries of Complementary Protection,” (2010) 34 Melbourne University Law Review 181 (Pobjoy, “Treating Like Alike”), analyzing article 26 of the Civil and Political Covenant as a valuable tool in protecting the rights of highly vulnerable individuals.

454 Civil and Political Covenant, at Art. 26.

455 UN Human Rights Committee, “General Comment No. 18: Non-discrimination” (1989), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 146, [12]. This principle has been affirmed in the jurisprudence of the Human Rights Committee, including, for example, in Pepels v. Netherlands, HRC Comm. No. 484/1991, UN Doc. CCPR/C/51/D/484/1991, decided July 15, 1994, at [7.2]; and Pons v. Spain, HRC Comm. No. 454/1991, UN Doc. CCPR/C/55/D/454/1991, decided Oct. 30, 1995, at [9.3]. In Teesdale v. Trinidad and Tobago, HRC Comm. No. 677/1996, UN Doc. CCPR/C/74/D/677/1996, decided Apr. 1, 2002, for example, the Committee “recall[ed] its established jurisprudence that article 26 of the Covenant prohibits discrimination in law and in fact in any field regulated and protected by public authorities”: Footnote ibid. at [9.8]. It thus held that it had the authority to determine whether the President exercised his authority to commute the death penalty in a discriminatory way.

456 UN Doc. A/C.3/SR.1098, at [25].

457 UN Doc. A/C.3/SR.1101, at [21].

458 “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”: Universal Declaration, at Art. 7.

459 Schabas, Nowak’s CCPR Commentary, at 749.

460 A narrow view of the scope of Art. 26 is argued by Vierdag, who concludes that “[t]he starting point was, and remained, to provide a guarantee of ‘equality before the law.’ All later additions were proposed and adopted with the strengthening of this principle in mind”: Vierdag, Concept of Discrimination, at 126.

461 Schabas, Nowak’s CCPR Commentary, at 742–745. It is true that the provision was originally drafted as no more than a guarantee of “equality before the law,” and that the second sentence’s prohibition of discrimination was amended to reinforce this purpose by linking the duty of non-discrimination to the goal of equality before the law through insertion of the words “[i]n this respect.” But an intervening amendment expanded the scope of the first sentence’s guarantee to include also the sweeping notion of “equal protection of the law.” In the result, the correlative phrase “[i]n this respect” is logically read to require the prohibition of discrimination and the effective protection against discrimination in both senses stipulated in the first sentence, namely equality before the law and equal protection of the law. “[B]ecause of the adoption of the Indian amendment, the passage ‘in this respect’ no longer related only to equality before the law but also to equal protection of the law. That this involved two completely different aspects of the principle of equality was made unmistakably clear by the Indian delegate”: Footnote ibid. at 745.

462 UN Human Rights Committee, “General Comment No. 15: The Position of Aliens under the Covenant” (1986), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, at 140, [2]. In the Committee’s decision of Karakurt v. Austria, HRC Comm. No. 965/2000, UN Doc. CCPR/C/74/D/965/2000, decided Apr. 4, 2002, two members of the Committee took the opportunity to affirm that “[i]n [their] view distinctions based on citizenship fall under the notion of ‘other status’ in article 26”: Footnote ibid. at Individual Opinion of Members Rodley and Scheinen. The Committee on Economic, Social and Cultural Rights has similarly determined that “nationality” is a form of “other status” for purposes of protection against discrimination under Art. 2 of the Economic and Social Covenant: UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights” (2009), UN Doc. E/C.12/GC/20, at [27], [30].

463 UN Human Rights Committee, “General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant” (2004), UN Doc. HRI/GEN/1/Rev.7, May 12, 2004, 192, at [10]; see also UN Committee on Economic, Social and Cultural Rights, “General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights” (2009), UN Doc. E/C.12/GC/20, at [30].

464 In Nahlik v. Austria, HRC Comm. No. 608/1995, UN Doc. CCPR/C/57/D/608/1995, decided July 22, 1996, the Committee was faced with an objection by Austria that “the communication [was] inadmissible … since it relates to alleged discrimination within a private agreement, over which the State party has no influence. The Committee observes that under articles 2 and 26 of the Covenant the State party is under an obligation to ensure that all individuals within its territory and subject to its jurisdiction are free from discrimination, and consequently the courts of States parties are under an obligation to protect individuals against discrimination, whether this occurs within the public sphere or among private parties in the quasi-public sector of, for example, employment”: Footnote ibid. at [8.2]. In Waldman v. Canada, HRC Comm. No. 694/1996, UN Doc. CCPR/C/67/D/694/1996, decided Nov. 3, 1999, the Human Rights Committee observed that “[t]he material before the Committee does not show that members of the Roman Catholic community or any identifiable section of that community are now in a disadvantaged position compared to those members of the Jewish community that wish to secure the education of their children in religious schools. Accordingly, the Committee rejects the State party’s argument that the preferential treatment of Roman Catholic schools is nondiscriminatory because of its Constitutional obligation”: Footnote ibid. at [10.4] – implying that differentiation which was directed to combating disadvantage would not likely be found to be discriminatory. Such a construction is in line with the jurisprudence of many developed states with respect to comparably framed domestic guarantees of non-discrimination. “What is required by Congress is the removal of artificial, arbitrary, unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification”: Griggs v. Duke Power Co., 401 US 424 (US SC, Mar. 8, 1971), at 430–431. “At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups”: President of the Republic of South Africa v. Hug CCT, (1997) 4 SA 1 (SA CC, Apr. 8, 1997).

465 But in Sahak v. Minister for Immigration and Multicultural Affairs, [2002] FCAFC 215 (Aus. FFC, July 18, 2002), the Full Federal Court of Australia was called upon to consider whether there was a breach of the duty of non-discrimination contained in Art. 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, 60 UNTS 195 (UNTS 9464), adopted Dec. 21, 1965, entered into force Jan. 4, 1969 (Racial Discrimination Convention). Under Art. 5, states “undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of … [t]he right to equal treatment before the tribunals and all other organs administering justice”: Footnote ibid. at Art. 5(a). The claim involved persons seeking recognition of their refugee status who did not speak English, and who were detained in a facility with only limited availability of interpreters. They had done everything in their power to meet the twenty-eight-day deadline for applying for judicial review of the rejection of their refugee claims but could not comply because of lack of documentation, interpreters, and lawyers in the detention facility. Their argument that the judicial review rules amounted, in effect, to race-based discrimination was, however, rejected on the formal grounds that “the Act does not deprive persons of one race of a right [to judicial review] that is enjoyed by another race, nor does it provide for differential operation depending on the race, color, or national or ethnic origin of the relevant applicant. For example, persons whose national origin is Afghani or Syrian are able to take advantage of the relevant right if their comprehension of the English language is sufficient, or if they have access to friends or professional interpreters so as to overcome the language barrier … Any differential effect … is not based on race, color, descent or national or ethnic origin, but rather on the individual personal circumstances of each applicant.” North J., in dissent, opted for an effects-based understanding of the duty of non-discrimination, writing that “to say that any differential impact is suffered not because of national origin, but rather as a result of individual personal circumstances, appears to me to adopt a verbal formula which avoids the real and practical discrimination.” Invoking the decision of the US Supreme Court in Griggs v. Duke Power Co., 401 US 424 (US SC, 1971), at 430–431, he concluded that “[t]o approach anti-discrimination provisions in [a formal, intent-based] way would rob them of much of their intended force.”

466 “[I]nequality does not equate to discrimination. Equal and unequal treatment certainly function as the basis for consideration of whether particular treatment constitutes discrimination. But something more is required before unequal treatment (or, in some circumstances, equal treatment) will amount to discrimination”: Pobjoy, “Treating Like Alike,” at 197. But see T. Clark and J. Niessen, “Equality Rights and Non-Citizens in Europe and America: The Promise, the Practice, and Some Remaining Issues,” (1996) 14(3) Netherlands Quarterly of Human Rights 245, in which it is argued that the duty of non-discrimination requires the minimization of distinctions between aliens and nationals.

467 The original amendment of India to add to the first sentence the words “and are entitled to equal protection of the law” (UN Doc. A/C.3/L.945) was sub-amended by a proposal of Argentina and Chile (UN Doc. A/C.3/L.948) to insert between the words “are entitled” and “to equal protection of the law” the words “without any discrimination”: UN Doc. A/5000, at [103] (1961).

468 As Pobjoy observes, “[t]he ‘reasonable and objective’ standard … should not be viewed as an exception to the prohibition on discrimination. Rather, the standard is built into the concept of discrimination itself”: Pobjoy, “Treating Like Alike,” at 208. For example, the Committee determined in Broeks v. Netherlands, HRC Comm. No. 172/1984, decided Apr. 9, 1987, at [13], that “[t]he right to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26.” See also Danning v. Netherlands, HRC Comm. No. 180/1984, decided Apr. 9, 1987; and Zwaan-de Vries v. Netherlands, HRC Comm. No. 182/1984, decided Apr. 9, 1987. At one point, the test appeared to have been watered down to a simple assessment of “reasonableness.” In Simunek et al. v. Czech Republic, HRC Comm. No. 516/1992, UN Doc. CCPR/C/54/D/516/1992, decided July 19, 1995, the Committee held that “[a] differentiation which is compatible with the provisions of the Covenant and is based on reasonable grounds does not amount to prohibited discrimination within the meaning of article 26”: Footnote ibid. at [11.5]. But since that decision the traditional “reasonable and objective” formulation has nonetheless been affirmed: see e.g. Oord v. Netherlands, HRC Comm. No. 658/1995, UN Doc. CCPR/C/60/D/658/1995, decided July 23, 1997, at [8.5]; Foin v. France, HRC Comm. No. 666/1995, UN Doc. CCPR/C/67/D/666/1995, decided Nov. 3, 1999, at [10.3]; Waldman v. Canada, HRC Comm. No. 694/1996, UN Doc. CCPR/C/67/D/694/1996, decided Nov. 3, 1999, at [10.4]; and Wackenheim v. France, HRC Comm. No. 854/1999, UN Doc. CCPR/C/67/D/854/1999, decided July 15, 2002, at [7.4].

469 An additional concern follows from a decision in which the Committee refused to find gender-based discrimination in Russia’s decision to exempt women but not men from the death penalty. The determination was that because “all measures of abolition should be considered as progress … the Committee considers that this exemption from the death penalty cannot constitute differential treatment contrary to article 26” – clearly a nonsensical proposition that does not even address issues of discrimination on the merits: Marz v. Russian Federation, HRC Comm. No. 1425/2005, UN Doc. CCPR/C/97/D/1425/2005, decided Oct. 21, 2009, at [5.5].

470 “Fair equality of opportunity differs from the simple non-discrimination principle … in being positive as well as negative in its requirements and in taking into account some of the prior existing disadvantages … The two principles differ also in the conception of the social processes of inequality on which they tend to be grounded. A demand for fair equality of opportunity is more often than not based on a recognition of the structural sources of unequal opportunity and in particular on an acceptance of what has become known as ‘institutional discrimination.’ Finally, fair equality of opportunity, again unlike the simple non-discrimination principle, requires questions to be asked not only about the precise basis on which the good being distributed is deserved but also about the nature of the good being distributed”: C. McCrudden, “Institutional Discrimination,” (1982) 2(3) Oxford Journal of Legal Studies 303, at 344345.

471 “[T]he decision to enter into a legal status by marriage, which provides, in Netherlands law, both for certain benefits and for certain duties and responsibilities, lies entirely with the cohabiting persons. By choosing not to enter into marriage, Mr. Danning and his cohabitant have not, in law, assumed the full extent of the duties and responsibilities incumbent on married couples. Consequently, Mr. Danning does not receive the full benefits provided for in Netherlands law for married couples [emphasis added]”: Danning v. Netherlands, HRC Comm. No. 180/1984, decided Apr. 9, 1987, at [14]. See also Sprenger v. Netherlands, HRC Comm. No. 395/1990, UN Doc. CCPR/C/44/D/395/1990, decided Mar. 31, 1992. The use of the conjunction “consequently” erroneously suggests a logical nexus between the absence of the legal duties and responsibilities of married spouses and ineligibility for social welfare benefits. Whatever reasonable differentiation may be made between married and unmarried cohabitants, the needs of couples of both classes for income support consequent to the disability of one partner are not obviously distinct. The Human Rights Committee did not, however, even consider this question. The Committee has affirmed this approach in its decision of Derksen v. Netherlands, HRC Comm. No. 976/2001, UN Doc. CCPR/C/80/D/1976/2001, decided Apr. 1, 2004, at [9.2]; and in X v. Colombia, HRC Comm. No. 1361/2005, UN Doc. CCPR/C/89/D/1361/2005, decided Mar. 30, 2007, at [7.2].

472 “He merely alleges that he is being subjected to different treatment during the period of his military service because he cannot appeal against a summons like a civilian. The Committee observes that the Covenant does not preclude the institution of compulsory military service by States parties, even though this means that the rights of individuals may be restricted during military service, within the exigencies of such service [emphasis added]”: RTZ v. Netherlands, HRC Comm. No. 245/1987, decided Nov. 5, 1987, at [3.2]. See also MJG v. Netherlands, HRC Comm. No. 267/1987, decided Mar. 24, 1988; and Brinkhof v. Netherlands, HRC Comm. No. 402/1990, UN Doc. CCPR/C/48/D/402/1990, decided July 27, 1993, at [6.2]. While the Committee suggests that military status “means” that due process rights may be restricted, it is incredible that the Human Rights Committee would not even ask why it was necessary to deprive all conscripts of their general legal right to contest a summons.

473 Hinostroza Solís v. Peru, HRC Comm. No. 1016/2001, UN Doc. CCPR/C/86/D/1016/2001, decided Mar. 27, 2006, at [6.4]. The dissenting members correctly observed that “this is tantamount to saying that age as such is an objective and reasonable criteri[on] for deciding who would have to leave the public service”: Footnote ibid. at Appendix, [1]. In an earlier case involving an allegation of age discrimination in the context of a mandatory retirement requirement for commercial airline pilots, the Committee observed that “it is by no means clear that mandatory retirement age would generally constitute age discrimination. The Committee takes note of the fact that systems of mandatory retirement age may include a dimension of workers’ protection by limiting the life-long working time, in particular when there are comprehensive social security schemes that secure the subsistence of persons who have reached such an age. Furthermore, reasons related to employment policy may be behind legislation or policy on mandatory retirement age … In the present case, as the State party notes, the aim of maximising safety to passengers, crew and persons otherwise affected by flight travel was a legitimate aim under the Covenant … In the circumstances, the Committee cannot conclude that the distinction made was not, at the time of Mr Love’s dismissal, based on objective and reasonable considerations:” Love v. Australia, HRC Comm. No. 983/2001, UN Doc. CCPR/C/77/D/983/2001, decided Mar. 25, 2003, at [8.2]–[8.3]. While of course questions such as workers’ protection and safety are relevant to whether age differentiation is reasonable and objective in a given case, the preparedness of the Committee categorically to assume that such concerns arise in all cases is disturbing.

474 Albareda et al. v. Uruguay, HRC Comm. No. 1637/2007, UN Doc. CCPR/C/103/D/1637/2007, decided Oct. 4, 2011, at [9.3]–[9.4].

475 See UN Docs. E/CN.4/SR.122, at 5–7; E/CN.4/SR.173, at [46], [67], and [76]; and E/CN.4/SR.327, at 7.

476 Statement of the Representative of France, UN Doc. E/CN.4/SR.173, at [19].

477 This oral proposal by the Representative of Indonesia (UN Doc. A/C.3/SR.1102, at [48]) was ultimately withdrawn.

478 See UN Docs. A/C.3/SR.1098, at [10], [55]; A/C.3/SR.1099, at [18], [26], [31], [36]; A/C.3/1100, at [10]; A/C.3/SR.1101, at [40], [43], [53]; A/C.3/SR.1102, at [17], [24], [27], [29], [51].

479 “The Committee observes … that the categories of persons being compared are distinguishable and that the privileges at issue respond to separately negotiated bilateral treaties which necessarily reflect agreements based on reciprocity. The Committee recalls its jurisprudence that a differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26”: Oord v. Netherlands, HRC Comm. No. 658/1995, UN Doc. CCPR/C/60/D/658/1995, decided July 23, 1997, at [8.5]. See also Shergill et al. v. Canada, HRC Comm. No. 1506/2006, UN Doc. CCPR/C/94/D/1506/2006, decided Oct. 30, 2008, at [3.2], [7.6].

480 Mr. X and Ms. X v. Denmark, HRC Comm. No. 2186/2012, UN Doc. CCPR/C/112/D/2186/2012, decided Oct. 22, 2014, at [6.3].

481 Leghaie v. Australia, HRC Comm. No. 1937/2010, UN Doc. CCPR/C/113/D/1937/2010, decided Mar. 26, 2015. The technical objection relied upon by the Committee (Footnote ibid. at [9.3]) – that the author had failed to exhaust domestic remedies – is unconvincing since Australian law provided a remedy only for persons alleging discrimination on grounds of a “particular” nationality, not on the basis of non-citizenship in general (Footnote ibid. at [7.6]).

482 Karakurt v. Austria, HRC Comm. No. 965/2000, UN Doc. CCPR/C/74/D/965/2000, decided Apr. 4, 2002, at [8.4]. While an Austrian reservation was found to prevent the Committee from examining the issue of distinctions between non-nationals and Austrians, the Committee considered the question of whether distinctions as among categories of non-nationals – specifically, treating European Economic Area citizens differently than other non-citizens – was a form of prohibited discrimination.

483 Footnote Ibid. The unwillingness to assume nationality to be a valid ground for differential treatment is clear also from an earlier decision of the Committee in response to a complaint brought by 743 Senegalese nationals who had served in the French army prior to independence in 1960. The Committee found that French legislation that froze their military pensions on the grounds of nationality (while simultaneously allowing for increases to the pensions of comparably situated retired soldiers of French citizenship) was not based on objective and reasonable criteria, and was therefore discriminatory. It observed that “[t]here has been a differentiation by reference to nationality acquired upon independence. In the Committee’s opinion, this falls within the reference to ‘other status’ in the second sentence of article 26”: Gueye v. France, HRC Comm. No. 196/1985, decided Apr. 3, 1989, at [9.4].

484 In Blom v. Sweden, HRC Comm. No. 191/1985, decided Apr. 4, 1988, the Committee declared that “[i]n deciding whether or not the State party violated article 26 by refusing to grant the author, as a pupil of a private school, an education allowance for the school year 1981/82, whereas pupils of public schools were entitled to education allowances for that period, the Committee bases its findings on the following observations. The State party’s educational system provides for both private and public education. The State party cannot be deemed to act in a discriminatory fashion if it does not provide the same level of subsidy for the two types of establishment, when the private system is not subject to State supervision [emphasis added]”: Footnote ibid. at [10.2]–[10.3]. That the Committee failed to grapple with the issue of whether there was truly a difference in the needs of the two categories of students is readily apparent from its reference to the legitimacy of withholding funds from one of two kinds of establishment.

485 “In the light of the explanations given by the State party, the Committee finds that the different treatment of parents and children and of other relatives respectively, contained in the regulations under the Social Security Act, is not unreasonable nor arbitrary, and its application in the author’s case does not amount to a violation of article 26 of the Covenant”: Neefs v. Netherlands, HRC Comm. No. 425/1990, UN Doc. CCPR/C/51/D/425/1990, decided July 15, 1994, at [7.4].

486 “In the instant case, the contested differentiation is based only superficially on a distinction between employees who retired before 1 January 1992 and those who retired after that date. Actually, this distinction is based on a different treatment of active and retired employees at the time. With regard to this distinction, the Committee considers that the author has failed to substantiate, for purposes of admissibility, that the distinction was not objective or how it was arbitrary or unreasonable. Therefore, the Committee concludes that the communication is inadmissible”: Nahlik v. Austria, HRC Comm. No. 608/1995, UN Doc. CCPR/C/57/D/608/1995, decided July 22, 1996, at [8.4].

487 “As regards the claim that the exclusion of civilian detainees from entitlements under the War Pensions Act is discriminatory, the Committee notes from the information before it that the purpose of the Act is specifically to provide pension entitlements for disability and death of those who were in the service of New Zealand in wartime overseas, not to provide compensation for incarceration or for human rights violations. In other words if disability arises from war service it is irrelevant to the entitlement to a pension whether the person suffered imprisonment or cruel treatment by captors. Keeping in mind the Committee’s prior jurisprudence according to which a distinction based on objective and reasonable criteria does not constitute discrimination within the meaning of article 26 of the Covenant, the Committee considers that the authors’ claim is incompatible with the provisions of the Covenant and thus inadmissible”: Drake v. New Zealand, HRC Comm. No. 601/1994, UN Doc. CCPR/C/59/D/601/1994, decided Apr. 3, 1997, at [8.5]; see also Rizvanović et al. v. Bosnia and Herzegovina, HRC Comm. No. 1997/2010, UN Doc. CCPR/C/110/D/1997/2010, decided Mar. 21, 2014, at [3.9].

488 “The Committee recalls that differences in treatment do not constitute discrimination, when they are based on objective and reasonable criteria. In the present case, the Committee considers that representation of a person presenting a civil claim in a criminal case cannot be equalled to representing the accused. The arguments advanced by the author and the material he provided do not substantiate, for purposes of admissibility, the author’s claim that he is a victim of discrimination”: Lestourneaud v. France, HRC Comm. No. 861/1999, UN Doc. CCPR/C/67/D/861/1999, decided Nov. 3, 1999, at [4.2].

489 “The Committee is aware of the fact that there are other activities which are not banned but which might possibly be banned on the basis of grounds similar to those which justify the ban on dwarf tossing. However, the Committee is of the opinion that, given that the ban on dwarf tossing is based on objective and reasonable criteria and the author has not established that this measure was discriminatory in purpose, the mere fact that there may be other activities liable to be banned is not in itself sufficient to confer a discriminatory character on the ban on dwarf tossing. For these reasons, the Committee considers that, in ordering the above-mentioned ban, the State party has not, in the present case, violated the rights of the author as contained in article 26 of the Covenant”: Wackenheim v. France, HRC Comm. No. 854/1999, UN Doc. CCPR/C/67/D/854/1999, decided July 15, 2002, at [7.5].

490 The law in question presumes that foreigners who have served in the armed forces of another country pose a threat to Estonian national security. In this case, “the Tallinn Administrative Court … found that the author had not been refused citizenship because he had actually acted against the Estonian state and its security in view of his personal circumstances. Rather, for the reasons cited, the author was in a position where he could act against Estonian national security … It observed that there was no need to make out a case of a specific individual threat posed by the author, as he had not been accused of engaging in actual activities against the Estonian state and its security”: Borzov v. Estonia, HRC Comm. No. 1136/2002, UN Doc. CCPR/C/81/D/1136/2002, decided Aug. 25, 2004, at [2.5]. The Committee nonetheless determined that “the State party concluded that a grant of citizenship to the author would raise national security issues generally on account of the duration and level of the author’s military training, his rank and background in the armed forces of the then USSR … [T]he author did enjoy a right to have the denial of his citizenship application reviewed by the courts of the State party. Noting, furthermore, that the role of the State party’s courts in reviewing administrative decisions, including those decided with reference to national security, appears to entail genuine substantive review, the Committee concludes that the author has not made out his case that the decision taken by the State party with respect to the author was not based on reasonable and objective grounds”: Footnote ibid. at [7.4]. Much the same reasoning was adopted in the subsequent cases of Tsarjov v. Estonia, HRC Comm. No. 1223/2003, UN Doc. CCPR/C/91/D/1223/2003, decided Oct. 26, 2007, at [3.3]; and Sipin v. Estonia, HRC Comm. No. 1423/2005, UN Doc. CCPR/C/93/D/1423/2005, decided July 9, 2008, at [7.3]. As Joseph observes, “the HRC’s reasoning here was arguably inconsistent. On the one hand, it found that the distinction in the law was reasonable and objective … [but] [i]t would not go further and examine the reasonableness of the application of the law to [the applicants]”: S. Joseph, “Analysis of Tsarjov v. Estonia,” Oxford Public International Law, July 4, 2008.

491 Despite evidence that the Irish government refused to permit certain members of the Provisional Irish Republican Army to benefit from an early prisoner release scheme, the Committee opined that it was “not in a position to substitute the State party’s assessment of facts with its own views, particularly with respect to a decision that was made nearly ten years ago, in a political context, and leading up to a peace agreement”: O’Neill v. Ireland, HRC Comm. No. 1314/2004, UN Doc. CCPR/C/87/D/1314/2004, decided July 24, 2006, at [8.4]. As noted by dissenting member Mr. Hippólito Solari-Yrigoyen, “the Committee gives undue weight to the State party’s claim that it based its decision … on the exceptional impact and repercussions of the offence [of which they were convicted] on public opinion.”

492 Maria et al. v. Greece, HRC Comm. No. 1570/2007, UN Doc. CCPR/C/95/1570/2007, decided Mar. 19, 2009, at [2.4], [7.2]. In a stinging dissent, member Mr. Abdelfattah Amor wrote, “Was it advocacy of racial hatred or just words? Was there the intention to offend, and who must prove this? These are questions that should have been discussed, analysed and assessed on the merits. To say, subsequently, that the facts have been insufficiently established for the purposes of inadmissibility is indefensible both legally and factually” (emphasis in original).

493 Gillot v. France, HRC Comm. No. 932/2000, UN Doc. CCPR/C/75/D/932/2000, decided July 15, 2002, at [14.7].

494 “The authors also consider the period of residence determining the right to vote in referendums from 2014 onwards, namely 20 years, to be excessive. They again assert that the French authorities are seeking to establish an electorate of Kanaks and Caldoches for whom, moreover, the right to vote is maintained even in the event of lengthy absences from New Caledonia”: Gillot v. France, Footnote ibid. at [3.10].

495 The Swedish school benefits cases might, however, have been legitimately rejected on the basis that they do not involve differentiation on the grounds of actual or imputed group identity. They may, in other words, be examples of arbitrariness in rights allocation, rather than discrimination as such. But the Committee has more recently seen fit to find discrimination even where the differentiation arguably bore no relationship to any of the prohibited grounds for discrimination: Haraldsson and Sveinsson v. Iceland, HRC Comm. No. 1306/2004, UN Doc. CCPR/C/91/D/1306/2004, decided Oct. 24, 2007, at [10.4]. Several members of the Committee dissented from this unfortunate opinion.

496 For example, to determine whether a law that infringes a protected right may nonetheless be adjudged a “reasonable limitation” for Canadian constitutional law purposes, the Supreme Court of Canada has determined that the government’s objective must be pressing and substantial, and that there is proportionality between means and end. To determine the latter question of proportionality, consideration should be given to whether the limitation on the right is carefully designed to achieve its objective; whether it constrains the right to the minimum extent truly necessary; and whether the benefit of the limitation outweighs the harm occasioned by infringement of the right: R v. Oakes, [1986] 1 SCR 103 (Can. SC, Feb. 28, 1986). The importance of a law’s objective cannot compensate for its patent over-breadth. As such, the Supreme Court of Canada has struck down legislation advancing critical objectives when the means adopted are not proportional to the objective, e.g. involving the protection of children from sexual offenders (R v. Heywood, [1994] 3 SCR 761 (Can. SC, Nov. 10, 1994)), the protection of female children from the harm caused to them by premature intercourse (R v. Hess, [1990] 2 SCR 906 (Can. SC, Oct. 4, 1990)) and the protection of persons from the health risks of tobacco use (RJR-Macdonald Inc. v. Canada, [1995] 3 SCR 199 (Can. SC, Sept. 25, 1995)).

497 HRC Comm. No. 500/1992, UN Doc. CCPR/C/53/D/500/1992, decided Apr. 3, 1995.

498 Similarly, the Committee upheld the reasonableness of the retroactive reclassification of a member of the Polish civic militia as a member of the prior regime’s security forces, thereby making him ineligible for reappointment in the post-Communist government: Kall v. Poland, HRC Comm. No. 552/1993, UN Doc. CCPR/C/60/D/552/1993, decided July 14, 1997. In a dissenting opinion, Members Evatt and Medina Quiroga wrote that “it has to be examined whether the classification of the author’s position as part of the Security Police was both a necessary and proportionate means for securing a legitimate objective, namely the re-establishment of internal law enforcement services free of the influence of the former regime, as the State party claims, or whether it was unlawful or arbitrary and or discriminatory, as the author claims”: Footnote ibid.

499 HRC Comm. No. 198/1985, decided July 9, 1987.

500 Stalla Costa v. Uruguay, Footnote ibid. at [10].

501 HRC Comm. No. 295/1988, UN Doc. CCPR/C/39/D/295/1988, decided July 25, 1990.

502 Foin v. France, HRC Comm. No. 666/1995, UN Doc. CCPR/C/67/D/666/1995, decided Nov. 3, 1999, at [10.3]. See also Maille v. France, HRC Comm. No. 689/1996, UN Doc. CCPR/C/69/D/689/1996, decided July 10, 2000; and Venier and Nicolas v. France, HRC Comm. Nos. 690/1996 and 691/1996, UN Docs. CCPR/C/69/D/690/1996 and CCPR/C/69/D/691/1996, decided July 10, 2000. But in Young v. Australia, HRC Comm. No. 941/2000, UN Doc. CCPR/C/78/D/941/2000, decided Aug. 6, 2003, the Committee’s refusal to defer to the government’s assertion that it was “reasonable” to distinguish between same-sex and opposite-sex couples for purposes of entitlement to veterans’ benefits led to a finding of discrimination contrary to Art. 26. In contrast to the usual pattern of deference, the Committee here noted that “[t]he State party provides no arguments on how this distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, and no evidence which would point to the existence of factors justifying such a distinction has been advanced”: Footnote ibid. at [10.4]; affirmed in X v. Colombia, HRC Comm. No. 1361/2005, UN Doc. CCPR/C/89/D/1361/2005, decided Mar. 30, 2007, at [7.2].

503 Sadly, “the Committee generally offers sparse reasoning in its Views as to whether or not different treatment is reasonable and objective”: Pobjoy, “Treating Like Alike,” at 225. A rather unstructured analysis underpins many of the Committee’s decisions. For example, in one case the Committee explicitly articulated the view that the disfranchisement of past property owners in favor of current tenants was rendered reasonable by virtue of the existence of a system to compensate the former owners. “The State party has justified the (exclusionary) requirement that current tenants of former State-owned residential property have a ‘buy first option’ even vis-à-vis the former owner of the property with the argument that tenants contribute to the maintenance of the property through improvements of their own. The Committee does not consider that the fact of giving the current tenants of former State-owned property priority in the privatization sale of such property is in itself unreasonable; the interests of the ‘current tenants’, who may have been occupying the property for years, are deserving of protection. If the former owners are, moreover, compensated on equal and non-discriminatory terms … the interplay between Act XXV of 1991 and … Act LXVIII of 1993 can be deemed compatible with article 26 of the Covenant”: Somers v. Hungary, HRC Comm. No. 566/1993, UN Doc. CCPR/C/53/D/566/1993, decided July 23, 1996, at [9.8].

504 See e.g. Fredman, Discrimination, at 190–202. Indeed, the failure of the Human Rights Committee to adopt a structured framework for discrimination analysis has been said to lead to unwarranted subjectivity: S. Joseph and M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2013), at [23.49].

505 HRC Comm. No. 212/1986, UN Doc. CCPR/C/OP/2, decided Mar. 24, 1988.

506 PPC v. Netherlands, Footnote ibid. at [6.2]. Like the Swedish school benefits cases, discussed at note 484, the facts in this case may not amount to discrimination, since the differential rights allocation was not the result of stigmatization on the grounds of actual or imputed group identity. This does not, however, make the differentiation “reasonable.”

507 Ballantyne and Davidson v. Canada and McIntyre v. Canada, HRC Comm. Nos. 359/1989 and 385/1989 (joined on Oct. 18, 1990), UN Docs. CCPR/C/40/D/359/1989 and CCPR/C/40/D/385/1989, decided Mar. 31, 1993, at [11.5]. See also Singer v. Canada, HRC Comm. No. 455/1991, UN Doc. CCPR/C/51/D/455/1991, decided July 26, 1994.

508 Ballantyne and Davidson v. Canada and McIntyre v. Canada, HRC Comm. Nos. 359/1989 and 385/1989 (joined on Oct. 18, 1990), UN Docs. CCPR/C/40/D/359/1989 and CCPR/C/40/D/385/1989, decided Mar. 31, 1993, at [11.5]. This is a case that cried out for nuanced analysis under the affirmative action rubric. There are some important social reasons that suggest the need to reinforce the place of the French language in Quebec society, but the Committee ought logically to have given careful consideration to whether the particular approach adopted was reasonable in the sense of adequately taking account of the individuated capabilities and potentialities of persons outside the beneficiary group. Relevant issues would include whether the legislation impairs the rights of members of the non-beneficiary class more than is necessary to accomplish its objectives, and whether the negative impact of the affirmative action program on members of the non-beneficiary group is disproportionate to the good thereby sought to be achieved for those within the target group.

509 Prince v. South Africa, HRC Comm. No. 1474/2006, UN Doc. CCPR/C/91/D/1474/2006, decided Oct. 31, 2007, at [7.5].

510 A pension in Belarus would only be granted if the applicant secured a personal identity number (rather than applying by name). The applicant, a devout Orthodox Christian, argued that “replacing her name with a number for the purposes of interaction with the State authorities and society is demeaning, equating an individual, created in the image of God, with a soulless object”: Yachnik v. Belarus, HRC Comm. No. 1990/2010, UN Doc. CCPR/C/111/D/1990/2010, decided July 21, 2014, at [2.1].

511 Footnote Ibid. at [8.4], [2.4].

512 Footnote Ibid. at Dissenting Opinion, at [5]. The dissenters would have taken the view that the requirement to secure an identity number was a reasonable limitation mandated by public safety and order, consistent with Covenant Art. 18(3): Footnote ibid. at [4].

513 HRC Comm. No. 68/1980, decided Mar. 31, 1981. It was held that the negative resettlement assessment was “in conformity with the provisions of existing Canadian law, the application of which did not in the circumstances of the present case give rise to any question of discrimination”: Footnote ibid. at [8.2(c)].

514 Oulajin and Kaiss v. Netherlands, HRC Comm. Nos. 406/1990 and 426/1990, UN Docs. CCPR/C/46/D/406/1990 and CCPR/C/46/D/426/1990, decided Oct. 23, 1992.

515 Footnote Ibid. at [2.5].

516 Footnote Ibid. at [5.4].

517 Footnote Ibid. at [3] of the Individual Opinion of Messrs. Kurt Herndl, Rein Müllerson, Birame N’Diaye, and Waleed Sadi.

518 HRC Comm. No. 475/1991, UN Doc. CCPR/C/50/D/475/1991, decided Mar. 31, 1994.

519 “[T]he Act does not distinguish between New Zealand citizens and foreigners … [A] deduction takes place in all cases where a beneficiary also receives a similar [government-administered] benefit … from abroad”: SB v. New Zealand, HRC Comm. No. 475/1991, UN Doc. CCPR/C/50/D/475/1991, decided Mar. 31, 1994, at [6.2].

520 The seminal case was Simunek et al. v. Czech Republic, HRC Comm. No. 516/1992, UN Doc. CCPR/C/54/D/516/1992, decided July 19, 1995. Much the same approach has been adopted in Zavrel v. Czech Republic, HRC Comm. No. 1615/2007, UN Doc. CCPR/C/99/D/1615/2007, decided July 27, 2010; Drda v. Czech Republic, HRC Comm. No. 1581/2007, UN Doc. CCPR/C/100/D/1581/2007, decided Oct. 27, 2010; and Klain and Klain v. Czech Republic, HRC Comm. No. 1847/2008, UN Doc. CCPR/C/103/D/1847/2008, decided Nov. 1, 2011. In some instances, however, the Committee has dismissed comparable claims, citing inadmissibility concerns due to delay in submitting the communication or taking account of temporal limits in the legislation deemed to be generally applicable.

521 The issue in Simunek et al. v. Czech Republic, HRC Comm. No. 516/1992, UN Doc. CCPR/C/54/D/516/1992, decided July 19, 1995, was whether the Czech government had discriminated by passing a law which granted restitution for property confiscated during the Communist era, but only to those who were citizens and permanent residents of the Czech Republic on September 30, 1991.

522 Adam v. Czech Republic, HRC Comm. No. 586/1994, UN Doc. CCPR/C/57/D/586/1994, decided July 23, 1996. See also e.g. Blazek v. Czech Republic, HRC Comm. No. 857/1999, UN Doc. CCPR/C/72/D/857/1999, decided July 12, 2001, at [5.8]; and Brok v. Czech Republic, HRC Comm. No. 774/1997, UN Doc. CCPR/C/73/D/774/1997, decided Oct. 31, 2001, at [7.2].

523 X v. Czech Republic, HRC Comm. No. 1961/2010, UN Doc. CCPR/C/113/D/1961/2010, decided Apr. 2, 2015, at [6.4].

524 Footnote Ibid. at Individual opinion of members Olivier de Frouville, Mauro Politi, and Victor Manuel Rodríguez-Rescia, at [5], [7]. Similar concerns were earlier raised by the same Committee members, also dissenting in B and C v. Czech Republic, HRC Comm. No. 1967/2010, UN Doc. CCPR/C/113/D/1967/2010, decided Apr. 2, 2010. Indeed, the Committee had earlier agreed in principle that “an indirect discrimination may result from a failure to treat different situations differently, if the negative results of such failure exclusively or [disproportionately] affect persons of a particular race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”: Godfried and Pohl v. Austria, HRC Comm. No. 1160/2003, UN Doc. CCPR/C/81/D/1160/2003, decided July 9, 2004.

525 It is important to note that in both the progressive strand of property restitution cases and even in the decision of Derksen v. Netherlands, HRC Comm. No. 976/2001, UN Doc. CCPR/C/80/D/1976/2001, decided Apr. 1, 2004, the impugned legislation was, in fact, explicit about the category of persons to whom benefits would be denied (non-citizens in the former cases, children born before a particular date in the latter decision). The Committee has yet to apply the indirect discrimination doctrine to a situation in which there is no such explicit limitation in the law or practice being scrutinized. Moreover, the Committee in Derksen, Footnote ibid., seemed at pains to make clear that the government’s decision to extend survivorship benefits to the children of unmarried parents was critical to the finding of discrimination. “In the circumstances of the present case, the Committee observes that under the earlier [law] the children’s benefits depended on the status of the parents, so that if the parents were unmarried, the children were not eligible for the benefits. However, under the new [law], benefits are being denied to children born to unmarried parents before 1 July 1996 while granted in respect of similarly situated children born after that date”: Footnote ibid. at [9.3]. Yet if the Committee is truly committed to an effects-based approach to the identification of indirect discrimination, it is unclear why a law designed along the lines of the former law – which provided benefits for the children of married parents, but not for the children of unmarried parents – would not amount to discrimination in fact against the children of unmarried parents. Indeed, the rejection in this same case of a claim by the child’s mother for benefits on the grounds that she and her (now deceased) partner failed to be married and hence to establish entitlement under the survivorship regime applicable to spouses suggests the extraordinarily fragile nature of the Committee’s new-found commitment to the eradication of indirect discrimination.

526 As the International Court of Justice has observed, the Human Rights Committee has appropriately insisted in other contexts of consideration on the proportionality of restrictions of rights before finding them to be lawful. “The Court would observe that the restrictions provided for under Article 12, paragraph 3, of the International Covenant on Civil and Political Rights [dealing with freedom of movement] are, by the very terms of that provision, exceptions to the right of freedom of movement contained in paragraph 1. In addition, it is not sufficient that such restrictions be directed to the ends authorized; they must also be necessary for the attainment of those ends. As the Human Rights Committee put it, they ‘must conform to the principle of proportionality’ and ‘must be the least intrusive instrument amongst those which might achieve the desired result’ (CCPR/C/21/Rev.1/Add.9, General Comment No. 27, [14])”: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004)] ICJ Rep 136, decided July 9, 2004, at [136].

527 “These victims of political persecution sought residence and citizenship in other countries. Taking into account that the State party itself is responsible for the departure of the authors, it would be incompatible with the Covenant to require them permanently to return to the country as a prerequisite for the restitution of their property or for the payment of appropriate compensation”: Simunek et al. v. Czech Republic, HRC Comm. No. 516/1992, UN Doc. CCPR/C/54/D/516/1992, decided July 19, 1995, at [11.6].

528 In Blazek v. Czech Republic, HRC Comm. No. 857/1999, UN Doc. CCPR/C/72/D/857/1999, decided July 12, 2001, the Committee observed “that it cannot conceive that the distinction on grounds of citizenship can be considered reasonable in the light of the fact that the loss of Czech citizenship was a function of their presence in a State in which they were able to obtain refuge”: Footnote ibid. at [5.8]. This is consistent with Art. 6 of the Refugee Convention, which requires that refugees be exempted from requirements “which by their nature a refugee is incapable of fulfilling”: Refugee Convention, at Art. 6. See generally Chapter 3.2.3.

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