Refugee Protection in International Law

Who is a Refugee?

A refugee is a person who “owing to a 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”.

The movement of people between states, whether refugees or ‘migrants’, takes place in a context in which sovereignty remains important, and specifically that aspect of sovereign competence which entitles the state to exercise prima facie exclusive jurisdiction over its territory, and to decide who among non-citizens shall be allowed to enter and remain, and who shall be refused admission and required or compelled to leave. Like every sovereign power, this competence must be exercised within and according to law, and the state’s right to control the admission of non-citizens is subject to certain well-defined exceptions in favour of those in search of refuge, among others. Moreover, the state which seeks to exercise migration controls outside its territory, for example, through the physical interception, ‘interdiction’, and return of asylum seekers and forced migrants, may also be liable for actions which breach those of its international obligations which apply extra-territorally.[1]


The refugee in international law occupies a legal space characterized, on the one hand, by the principle of State sovereignty and the related principle of territorial supremacy and self-preservation; and on the other hand by competing humanitarian principles deriving from general international law and from treaty. The international legal status of a refugee necessarily imports certain legal consequences, the most important of which is the obligation of States to respect the principle of non-refoulement through time. The existence of the class of refugees in international law not only entails legal consequences for States but also the entitlement and the responsibility to exercise protection on behalf of refugees.

 The Office of the United Nation High Commissioner for refugees (UNHCR) is the agency presently entrusted with his function, as the representative of the international community, but States also have a protecting role, even though their material interests are not engaged, and notwithstanding their common reluctance to take up the cause.[2] Moreover, the ‘interest’ of the international community is expanding, and this is raising new legal and institutional questions on the issue such as international displacement, complex humanitarian emergencies, and the ‘responsibility to protect’.

The refugee in national and international law

Refugee protection is not only about the rules governing the relation between States but also about how States themselves treat those in search of asylum. The substantial growth and elaboration of refugee determination procedures in the developed world, and the equally substantial body of jurisprudence that has accompanied it at various levels of appeal, have exposed the world to the 1951 convention to close security, often apparently at one or more remove from its protection objectives. No treaty is self-applying and the meaning of the words, such as ‘well founded’, ‘prosecution’, ‘expel’, ‘return’ or ‘refouler’, is by no means self-evident. The Vienna Convention on a law of treaties confirms that a treaty ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and light of its object and purpose’.[3]  For the 1951 Convention relating to the status of refugees, this means interpretation by reference to the object and purpose of extending the protection of the international community to refugees, and assuring to ‘refugees the widest possible exercise of… fundamental rights and freedoms’.[4]

Refugees for the purposes of the United Nations

The Office of the United Nations High Commissioner for Refugees (UNHCR) succeeded the IRO as the principle UN agency concerned with refugees; the scope and extent of its competence are considered more fully below, taking account of the impact of development within the UN including article 14(1) of the Universal Declaration of Human Rights,[5] the relation of asylum to persecution, the adoption of the 1967 Declaration on Territorial Asylum, and the emergence and consolidation of a human rights base for protection. The foundations for an international legal concept of the refugees are thus securely fixed in treaties, State and United Nations practice, and in the Statute of the UNHCR.[6]

Statute Of The United Nations High Commissioner For Refugees (UNHCR)

UNHCR was established by the General Assembly to provide International Protection and to seek permanent solutions for the problem of refugees. According to its Statute, the work of the Office shall be of an entirely non-political character; it is to be humanitarian and social and to relate as a rule, to groups and categories of refugees.

The Statute first brings within UNHCR’s competence refugee covered by various earlier treaties and arrangements. It next includes refugees resulting from events occurring before 1 january 1951, who are outside their country of origin[7] and unable or unwilling to avail themselves of its protection, ‘owing to a well-founded fear of being prosecuted’ or ‘for reasons other than personal convenience’.

UNHCR’s responsibility to seek permanent solutions for the problem of refugees is commonly translated into a preferential hierarchy, with voluntary repatriation as a first priority, followed by local asylum and resettlement in a third state.

Ultimate purpose of protection is not to ensure that refugees forever, and voluntary repatriation reflects the right of the individual to return to his or her country of citizenship. No The universal instrument deals with this, but the right to return is widely accepted as an inalienable incident of nationality. The only formal reference appears in the 1969 OAU Convention, Article 5(1) of which emphasizes that the ‘essentially voluntary character of repatriation shall be respected in all cases and no refugees shall be repatriated against his will’. On several occasions, the UNHCR Executive Committee has proposed standards and guidelines for voluntary repatriation operations.[8] The general rule is that refugees should return voluntarily and in condition of security, and the international community has a legal interest in the follow-up to any repatriation movement; the security of those returning and the implementation of amnesties and other guarantees are rightly considered matters of international concern, and therefore subject to monitoring against relevant legal standards.

Refugees and Human Rights

The refugee problem cannot be considered apart from the field of human rights as a whole, which touches on both causes and solutions, so that knowledge and appreciation of the rights at issue helps to understand the refugee concept. The treatment of refugees and asylum seekers within a state is governed not only by the refugee treaties, but also by the broader human rights treaties, which sets out general standards, whether of a procedural or substantive nature.

The 1951 Convention remains quite ‘state-centric’, in the sense that it represents undertakings and obligations, accepted between the parties, to respect, protect, or accord certain rights and benefits.[9]


The 1951 Convention is sometimes portrayed today as a relic of the cold war, inadequate in the face of new refugees from ethnic violence and gender-based persecution, insensitive to security concerns, particularly terrorism and organized crimes, and even redundant, given the protection now due in principle to everyone under international human rights law.

The concept of the refugee as an individual with a well-founded fear of persecution continues to carry weight, and to symbolize one of the essential, if not exclusive, reasons for flight. The scope and extent of the refugee definition, however, have matured under the influence of human rights law and practice, to the point that, in certain well-defined circumstances, the necessity for protection against the risk of harm can trigger an obligation to protect.


[2] Cf.R(on the application of All ravi and others) v. Secretary of State for Foreign and commonwealth Affairs(UNHCR intervening)[2006] EWCA Civ 1279.

[3] Art.31(1), 1969 Vienna Convention on the Law of Treaties.

[4] 1951 Convention Preamble.

[5] ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution’.

[6] An understanding of the historical concept of UNHCR’s creation is also important; see Salomon K. Refugees in the cold war: towards a new international refugee regime in the early postwar era,(1991)

[7] The phrase ‘country of origin’ is used for convenience here and throughout the text; it signifies as appropriate, the refugee country of nationality or, if he/she has no nationality, his /her country of former habitual residence.

[8] Executive Committee Conclusion No. 18, 1980;

Executive Committee Conclusion No.40, 1985;

Executive Committee Conclusion No. 101, 2004.

[9] The 1984 Convention against Torture is somewhat similar in this respect.


1.     Brownlie,l.,and Goodwin-Gill, G.S(eds.)(2010)
2.     Brownlie’s Documents on Human Rights(6th edn.).
3.     Oxford: Oxford University Press.
4.     Goodwin-Gill, G.S (2008) ‘The Politics of Refugee Protection’.
5.     Goodwin-Gill,G.S, and McAdam,J. (2007)The Refugee in International Law.Oxford:
6.     Oxford University Press.
7.     Hathaway,J.(2005)The Rights of Refugees. Cambridge; Cambridge University Press.
8.     McAdam,J.(2007)Complementary Protection in International Refugee Law. Oxford: Oxford University Press.


●      Soering v. United Kingdom (1989) 11 EHRR 439.
●      Chahal  v. United Kingdom (1996) 23 EHRR 413.
●      Hirsi v. Italy (Appl. No. 27765/09), 23 February 2012.

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