(co-sponsored by the Refugee Law Initiative as a follow up to their conference ‘On the Borders of Refugee Protection: The Impact of Human Rights Law on Refugee Law – Comparative Practice and Theory held at the Institute of Advanced Legal Studies, London on 13th and 14th November 2013)
Guest contributors:
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Lilian Tsourdi, Institute for European Studies, Université Libre de Bruxelles (ULB), Université Catholique de Louvain (UCL), Belgium |
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Martin Jones, Centre for Applied Human Rights, University of York |
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Heaven Crawley, Centre for Migration Policy Research, Swansea University |
One of the first things I was told when I began to study refugee law was that “refugee law is not human rights law, it’s different”. It was a proposition that surprised me but that led to me better understanding the origins of refugee law and some of its peculiarities – like its “attachment” approach to conferring rights and its state-friendly exclusion clauses and exceptions, like Articles 1(F) and 33(2).
In more recent years, including at the recent conference hosted by the Refugee Law Initiative of the University of London, I am happy to say that this proposition has not only been challenged but reversed: refugee law and human rights law are now seen as twin siblings sadly separated at birth, only to be happily reunited in adulthood. As a personal aside, as someone now employed at a “human rights” centre, this makes the presentation of my research to my colleagues much easier! But more seriously, in many of the environments in which I work and research this has been a productive development. To take just a few concrete examples: Canada has since 2002 formally integrated human rights protection into its refugee protection regime and the ability of individuals seeking protection on human rights grounds has improved significantly; in Hong Kong a new refugee protection regime, integrating RSD and more general screening for human rights violations, has been built on the bedrock of strategic litigation of Article 3 of the CAT; and, in Egypt regional human rights mechanisms through the African Union offer new advocacy opportunities for refugees.
In each of these contexts, and many others, refugee protection has embraced, albeit in each instance imperfectly, elements of the human rights regime and the protection offered to refugees has been strengthened. Indeed, my earlier conception of a distinct and separate refugee law has been supplanted by a new entity, combining refuge and human rights norms: a broader “law of asylum” which embraces all the norms and institutions which offer protection to individuals at risk of human rights violations upon return to their country of origin.
This new amalgamated entity is not unproblematic. Does the embrace of an international human rights regime that is notoriously weak (at least in terms of its enforceability) really strengthen refugee protection? Looking at current refugee crises like the outflows from Syria and earlier outflows from Afghanistan, does the linkage with human rights weaken our ability to bring states (especially those in the Middle East and South / South East Asia, which are not generally party to the Refugee Convention) within the international refugee protection regime? Going back to a debate started by Hathaway back in 2006 at IASFM 10 (subsequently published in the JRS), how does bringing refugee protection closer to the human rights regime address our sense of the identity of the broader field of refugee studies and maintain a focus on the fairly successful incorporation of international refugee law into domestic law and policy in many states? Or from the point of view of human rights law, what does the more explicit incorporation of refugee law entail?
Many thanks for your comments Martin. Indeed in several national and regional contexts a broader “law of asylum” combining refuge and human rights norms is emerging. This is also the case of the EU, which since 1999 has been gradually establishing a Common European Asylum System (CEAS). Although the 1951 Refugee Convention is the “cornerstone” of this system, the EU legislation goes further than the Convention in establishing binding legal obligations for Member States to grant protection, i.e. a time-restricted (originally) residence permit and largely the same level of entitlements to persons who are not refugees but are fleeing certain forms of human rights violations in their country of origin.
At the same time national practitioners and national Courts and tribunals are becoming increasingly receptive in the use of human rights norms in order to interpret key concepts of refugee law, such as the concept of persecution. In the November 2013 conference hosted by the Refugee Law Initiative in London several presentations touched upon the issue of how the interpretation of rights and freedoms in human rights forums must inform refugee status proceedings.
One such example is the right to freedom of thought, conscience and religion. Although its interpretation under Human Rights Law can and must inform refugee status determination proceedings some caveats against ‘automatism’ need to be drawn. Firstly, the fact that certain aspects of the right can be limited should not impact the definition of persecution. I am referring here to the national practice of excluding violations of the right to manifest belief or religion from the protective framework of the 1951 Refugee Convention. This position is strengthened by the fact that no obligation to avoid persecution through ‘discretion’ can be derived through the 1951 Refugee Convention, as was affirmed in the EU context by the Court of Justice of the EU (Joined Cases X, Y and Z, C 199/12 to C 201/12 as well as Joined Cases C 71/11 and C 99/11 Y and Z).
However, this is not the only automatism which should be avoided. Limitations that have been found to be ‘unnecessary’ when examined under the framework of human rights law will not always amount to persecution. For example the measure of prosecuting and detaining conscientious objectors, in some national contexts repeatedly, is an act of a different gravity and severity than the request of an airline accompany to their staff member to remove a religious symbol while at work. However, they have both been found by adjudicating bodies to violate the freedom of conscience, thought and religion.
I agree with the points that you both make and perhaps I could add, at least from my own perspective, that I consider the 1951 Refugee Convention to be very much a human rights instrument. Indeed, Chapters II through to V of the 1951 Refugee Convention deal with human rights guarantees that States must provide to those it recognizes as refugees. It is also evident that some of the key provisions and elements of the definition of who is a refugee turns on the understanding and interpretation of what constitutes “a well-founded fear of persecution,” persecution being, of course, the most serious and severe breaches of a person’s human rights and human dignity, and “for reasons of race, religion, nationality, membership of a particular social group, and political opinion,” the nexus to the five grounds to the definition of Convention refugee. Clearly, each of these five grounds to the definition of refugee has human rights instruments intended, specifically, to protect persons and groups on each of these grounds. It is also worth pointing out that the Preamble to the 1951 Refugee Convention states in part that, “Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms” [as enunciated in the 1948 Universal Declaration of Human Rights]. All of which is intended to protect refugees’ rights and to promote refugee justice.
I was privileged to begin practising refugee law just as the 1998 Human Rights Act was coming into force in the United Kingdom. Among refugee law practitioners, a slightly breathless excitement reigned about how the incorporation of such European human rights standards into UK domestic law might further change the parameters of refugee protection. All bets were off and uncertainty took hold as we tried to understand: what does human rights law mean for refugee law?
Undoubtedly, some of the positive expectation among refugee lawyers has been met by the more progressive elements of the resulting jurisprudence. The UK Supreme Court’s recourse to human rights law to determine that the absence of a political opinion will, in some circumstances, constitute a protected characteristic in terms of the Article 1A(2) refugee definition is a prime example.
At the same time, other elements of the jurisprudence emphatically demonstrate that there are limits on the extent to which the courts (let alone the executive) are prepared to implement human rights law in the refugee arena. I have a strong sense that, in the UK jurisprudence at least, the way in which human rights law is used to determine whether (feared) ill-treatment constitutes persecution has impoverished the concept more than enriched it.
The point here is not to ask whether human rights law has broadened or reduced the scope of refugee protection, although this is surely an important concern. Rather, my feeling is that, taken together, these sorts of developments raise more fundamental theoretical questions about whether there really is a coherent ‘human rights’ approach or philosophy being applied in this field. In this regard, a number of important fault-lines are apparent as my conference paper illustrated.
In trying to disentangle the impact of human rights law on refugee protection, we can start by separating out the different ways in which the former can influence the latter.
As Martin and James observe, in general, human rights law provides a broader rights context for refugees and other seekers and beneficiaries of international protection. At least in principle, this has particular relevance in such areas as resisting removal, accessing entitlements in the host state, providing procedural standards for status determination, and even offering procedural routes through which such matters can be aired and determined at the international level.
Most of these questions are straightforwardly questions of human rights and can be resolved as such. Where a conflict of standards exists, its resolution is not usually problematic legally, although it may be politically, as with the human rights barriers to removing persons suspected of being serious criminals or dangers to the host whom refugee law would not protect.
The more challenging area is, in fact, deciding how – or whether, or where – the conceptual elements of the refugee definition should be interpreted by reference to human rights law and concepts. To my mind, refugee law practice – as evidenced particularly in statute and jurisprudence internationally – is far from being settled, coherent or even necessarily helpful on this point.
As per Lilian’s analysis, it is crucial to engage realistically with what is happening here. Human rights law does not represent a panacea for all the problems of refugee law and we should think critically about where and how it can indeed add to clarifying the refugee concept. Human rights law also comes with its own fault lines and their implications in the context of current practice in the UK – and beyond – need to be carefully considered if the debate is truly to move forward.
This is a very interesting discussion, thank you for the opportunity to contribute to it!
My own research has very much been in relation to gender issues in the asylum claim and strongly influenced by Hathaway’s framework for interpreting the harm that individuals experience (or fear) through the lens of international human rights law. I agree with a number of feminist scholars and practitioners, Deborah Anker among them, that applying this framework to the harms that more typically affect women has enabled us to argue, in some cases very convincingly, that women are also ‘human’ and therefore entitled to protection under international refugee law. In other words, we have used international human rights law to argue that the things that happen to women matter in the context of international refugee protection. I think this case has been made particularly strongly in relation to certain types of violence and harm that have typically been marginalised or somehow considered ‘less bad’, rape and sexual violence being the obvious example but there are also others (population control measures, FGM, domestic violence to some extent).
Without in any way wanting to undermine these efforts and the implications that they have had for the protection available to (some) women I do however have some concerns about the way in which these issues have been incorporated into international refugee law and wonder (aloud in this case) whether the focus on violations of women’s human rights has not, in some ways, done us (and more specifically the women we aspire to help) a disservice. I get the importance of ‘bringing human rights in’ to an analysis of gendered claims but it concerns me that the emphasis is usually on the issue of ‘harm’ (more specifically whether it is sufficient to constitute ‘persecution’ within Hathaway’s framework) rather than on the structural conditions (legal, social, political, economic) that allow these harms to be perpetrated.
From the perspective of gender-related claims this is highly problematic in my view because the emphasis is often on the ‘horrible stuff’ that happens to women rather than on the broader context of gendered power relations that makes such harm possible and enables the perpetrators in many cases to be protected from any consequences. This particular conceptualisation has profound implications for understanding of the ‘reasons for’ the persecution which brings us to the tricky and to my mind as yet unresolved issue of nexus and the ongoing emphasis on women as ‘members of a particular social group’ who should be protected on an almost discretionary basis.
So I guess my point is that whilst international human rights can be a useful framework or approach for ‘bringing women in’ it is also important how we bring women in. I’m not convinced that human rights law helps us very much in this respect not least because historically it has suffered from all the same problems as international refugee law in terms of the ways in which women are positioned and in many cases marginalised, for example through a particular understanding of ‘the family’ (as reflected in the UDHR) or in on-going debates around the extent to which violations of women’s human rights are not violations at all because they are a product of ‘culture’ rather than power. In that sense I very much agree with David’s comments above that human rights law does not represent a panacea for all the problems of refugee law and we should think critically about where and how it can indeed add to clarifying the refugee concept.