Why Refugee Law Still Matters

CONTENTS I Misinterpretation of International Refugee Law A Governmental Obfuscation B Advocates' Absolutism II Reinvigorating International Refugee Law A Refugee Law Embodies a Principled Compromise B Revitalising the Principled Compromise III Still a Convention-Based Regime I MISINTERPRETATION OF INTERNATIONAL REFUGEE LAW I am concerned that the singular importance of international refugee law is profoundly misunderstood. My more specific worry is that erroneous and competing claims by governments and the refugee advocacy community about the structure and purpose of refugee law threaten its continuing ability to play a truly unique human rights role at a time when no meaningful alternative is in sight. In particular, governments of the developed world are now appropriating the language of burden-sharing in order to further an only mildly attenuated global apartheid regime under which most refugees not only remain in the less developed world, but remain there under conditions which are generally rights-abusive and often literally life-threatening. These states have distorted the true object and purpose of the Convention relating to the Status of Refugees ('Refugee Convention'), (1) erroneously suggesting that it sets only protection obligations of'last resort' (2)--that is, that refugees may be routinely sent away to any other state that will admit them without risk of return to their country of origin. Governments have further stigmatised refugees who arrive without pre-authorisation as 'illegal' (3) despite the fact that the Refugee Convention itself requires otherwise. (4) And perhaps most disingenuously, these same governments have sought to justify their harsh--and often illegal--treatment of refugees arriving at their territory on the grounds that such harshness is the necessary means to a more rational protection end, namely the reallocation of resources towards meeting the needs of the overwhelming majority of refugees located in the less developed world, with resettlement opportunities to be made available only to those said to be most acutely in need. This rhetoric is largely a distortion of international refugee law. A Governmental Obfuscation First and most fundamentally, there is no duty whatsoever on a refugee to seek protection either in the first country where he or she arrives, or more generally within his or her region of origin. (5) Nothing in either the Refugee Convention (6) or in the so-called 'soft law standards' agreed to by the Member States of the Executive Committee of the United Nations High Commissioner's Programme ('UNHCR Executive Committee') so requires. To the contrary, unless a refugee has already found protection elsewhere (7)-'found' meaning actually acquired (not just 'could ask for') and 'protection' meaning the whole bundle of protections guaranteed by treaty (not just not being removed) (8)--then present standards actually require deference to the wishes of the refugee regarding where to take his or her chances. (9) This does not require deference to the wishes of the refugee as to where they are to be admitted. But the essential structure of the Refugee Convention makes clear that even as states were given the power of status determination once reserved to the international oversight agency, refugees were to be afforded the prerogative to decide where to take their chances on status determination. (10) Second, refugees who arrive at a state's territory--indeed, refugees who come under a state party's jurisdiction, including parts of the high seas over which a state has taken effective jurisdiction--are entitled to the benefit of the Refugee Convention. (11) Efforts to resist such responsibility on the basis of the alleged illegality of arrival or presence are fundamentally at odds with the Refugee Convention's requirement that refugees in flight from persecution are to be granted immunity from any penalties for illegal entry or presence. …