The Architecture of the UN Refugee Convention and Protocol

The heart of international refugee law is the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees, with some three-quarters of the world’s governments having bound themselves to respect the standards set by these treaties. Contracting States may—and often have—accepted additional refugee protection responsibilities under national or regional law. But, as a matter of international law, these additional duties complement rather than supplant the fundamental commitments made under the Refugee Convention and Protocol. The architecture of this core normative standard is in many ways unusual. As a formal matter, it derives from two interlocking UN treaties—the Refugee Convention and the Protocol—rather than from a single treaty. Perhaps the regime’s best-known feature is a definition of refugee status that must be accepted without any qualification or variation by States, and which embraces persons on the basis of the facts of their situation rather than only as a function of legal adjudication or official declaration. Any persons so qualifying must be granted the benefit of an extraordinary array of refugee rights—rights that must be respected in addition to, not instead of, other entitlements including those that have been codified in international human rights law. The duty to respect refugee rights is not, moreover, conditional on the sufficiency of resources and may be derogated from in only relatively limited circumstances. However, and in contrast to most other human rights treaties, refugee rights are not all owed immediately to a refugee coming under a Contracting State’s jurisdiction, but rather arise on the basis of a sophisticated structure of levels of attachment. Nor is the nature of refugee rights generally defined in absolute terms; the content of most entitlements is instead contingent on what a particular host State provides to a specified group of non-refugees under its jurisdiction. These two features—the incremental acquisition of rights and the definition of many rights on the basis of contingent standards of compliance—are critical means of taking account of legitimate host State concerns that might otherwise arise from the core obligation to protect all persons coming under their jurisdiction who meet the international refugee definition. The continuing viability of this careful compromise embedded in the architecture of the Convention and Protocol is, however, increasingly threatened by the failure to establish an independent mechanism to supervise compliance with obligations or to ensure the fair distribution of protection burdens and responsibilities arising thereunder