REFUGEE PROTECTION

The international regime of refugee protection

The international regime of refugee protection

In the past few decades, many state parties to the 1951 Convention Relating to the Status of Refugees (the Refugee Convention) have responded to perceived problems with the international regime for refugee protection by adopting measures designed to discourage persons from seeking protection in the developed North. The strategies, though diverse, are all premised on the supposition that certain categories of refugees should not be afforded the opportunity to obtain protection in the territory of the state in which they have sought, or intend to seek, such protection. One of the most discussed and well documented of these measures is the practice of sending a refugee applicant who has reached the territory of a state party to a third country.

Under this practice, the state party neither allows the refugee to stay nor returns her to the country of origin; rather, the refugee is transferred to a third country in which it is said she will find protection. The third country is often identified as either the "country of first asylum" (implying that the refugee has already found protection in that country) or a "safe third country" (implying that the refugee could seek protection in that country). Some states apply these concepts to a situation where a person has only transited briefly through the relevant third state. More recent practices and proposals have suggested that these concepts may even permit the transfer of a refugee to a country to which the refugee has never been.

These practices have been controversial precisely because they are understood as an attempt to circumvent state obligations towards refugees. This is particularly so because the idea of requiring a refugee to seek protection elsewhere is not explicitly anchored in the text of the Refugee Convention. Rather, these policies are founded on an implicit authorization-a form of reasoning based on the fact that the Refugee Convention does not provide a positive right to be granted asylum. The key protection in the Refugee Convention is non-refoulement (Article 33), the obligation on states not to return a refugee to a place in which he will face the risk of being persecuted. States reason that, as long as they do not violate this prohibition, they are not required to provide protection to refugees who reach their territory, but rather they are free to send refugees to other states, possibly even states that are not parties to the Refugee Convention.

The Convention, later supplemented by the Protocol of 1967, implies the establishment of a comprehensive system of refugee protection internationally in the context of the United Nations. The most important feature of the conventional definition is that for the first time, an international instrument does not depend on the refugee concept of the criterion of nationality. Until then there was no general definition of refugee in international instruments, which merely list the groups of people worthy of that classification by virtue of their national origin. This was so because the historical circumstances that ...