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Moreover, while the erga omnes nature of these kinds of treaties clearly informs their application and interpretation, experience has shown that referral to the ICJ remains the exception rather than the rule. It, accordingly, offers a limited avenue for defending collective interests. In practice, Article 38 has never been invoked by states parties to the Geneva Convention, thus highlighting the limits inherent in such interstate means of dispute settlement for ensuring the effective protection of individuals.
As a compromise to this state-centred mechanism of implementation, UNHCR has been conceived of as the guardian of the Geneva Convention. This reporting duty is curiously not accompanied by a proper monitoring mechanism for examining periodical reports of states parties on the implementation of the Geneva Convention. There is, however, nothing irremediable nor insurmountable in this situation. The dual obligation enshrined in Article 35 to cooperate with UNHCR and provide relevant information on the implementation of the Geneva Convention constitutes an adequate legal basis to establish a reporting and evaluation procedure.
More generally, the very notion of international supervision includes by definition an enforcement component for the purpose of monitoring state compliance and asserting violations. While the Refugee Agency plays a key role by providing interpretative guidance on the Geneva Convention and encouraging a harmonized application of its provisions by states parties, enforcement-related activities still remain the weakest p.
Its inability to assume the monitoring tasks inherent in its supervisory responsibility is commonly attributed to two interrelated reasons. It is becoming the most prominent UN operational agency for delivering humanitarian relief on the ground. The schizophrenic position of UNHCR has contributed in turn to the isolation of refugee law from the other branches of international law.
The lack of an independent mechanism for monitoring the Geneva Convention sharply contrasts with the control-oriented paradigm of human rights law. Both universal and regional human rights treaties are supported by their own treaty bodies specifically mandated to monitor state compliance with their conventional obligations. Within the UN, most treaty bodies are entrusted with three core functions: As abundantly exemplified by this chapter, the two first functions have played a critical role in ensuring the protection of refugees and asylum seekers through a contextual interpretation of general human rights treaties.
The vital importance of treaty bodies can be further asserted by the fact that between 80 and 90 per cent of all individual complaints submitted to the Committee against Torture are based on Article 3. The ExCom steadily reaffirms in this sense that. While human rights monitoring missions must investigate and encourage prosecution of human rights violations, action in support of refugees and returnees is essentially humanitarian, involving confidence-building and creation of conditions conducive to peace and reconciliation.
To many observers, maintaining the two distinctive protection regimes appears ineluctable for preserving the vital operational function carried out by UNHCR on the ground. Hence, despite the growing normative convergence between the two bodies of international law, monitoring and enforcement-related measures represent the core—and perhaps irreducible—difference between refugee law and human rights law. The prevailing dichotomy between their respective implementation schemes may nevertheless be largely attenuated provided that all the stakeholders are willing to do so.
This would require the concerted adoption of a complementary set of practical measures at three distinct levels. On the one hand, the former option would be a peer-review process more easily acceptable to states but its intergovernmental nature presents obvious risks of politicization and confrontations.
On the other hand, the latter option would present the advantage of being an independent and objective assessment and it would preserve UNHCR from being involved in any conflict of interests. For these reasons, establishing an independent monitoring process is both more credible and more appropriate. Second, at the Human Rights Council level, a Special Rapporteur on the human rights of refugees and asylum seekers should be established with a view to promoting better awareness and application of the human rights norms applicable to these particularly vulnerable groups.
Undoubtedly, a new special procedure cannot be considered an antidote to the absence of a monitoring process of the Geneva Convention. It would nevertheless considerably enrich and strengthen the current p. It would also ensure by the same token a more holistic approach within the Human Rights Council in complementing the work carried out by the Special Rapporteur on the human rights of migrants established in and the Special Rapporteur on the human rights of internally displaced persons created in With this aim in mind, each treaty body should adopt a general comment specifically devoted to the rights of refugees and asylum seekers under their respective treaties.
While the Committee on the Elimination of Racial Discrimination CERD has already adopted a comment on the right to return, this exercise should be undertaken in a more systematic way by all the nine UN treaty bodies so as to clarify the scope and the content of the relevant human rights instruments. These three proposals would not only ensure a more consistent approach between the two protection regimes, they would also improve to a large extent due respect for refugee rights.
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The interaction between human rights law and refugee law is extremely dense. As a result of a gradual normative process, they have become so intimately interdependent and imbricated that it is now virtually impossible to separate one from the other. Notwithstanding this impressive convergence, the conceptualization of their interrelation still diametrically diverges when seen from the standpoints of different observers. On the contrary, for others, the terms of this relation should be reversed: On the one hand, a closer examination of their respective norms clearly demonstrates that human rights law has become the primary source of refugee protection.
The Geneva Convention has been accordingly relegated to a supporting role. Treaty bodies have been instrumental in developing a contextual interpretation of general human rights norms, which—intentionally or not—counterbalances restrictive interpretations carried out by individual states parties to the Geneva Convention in the absence of a proper monitoring mechanism. Furthermore, this phenomenon of appropriation is structurally grounded on the distinctive characteristics of human rights law regarding both its personal and material scope.
Its personal scope is obviously broader, since it includes not only refugees but also asylum seekers and any other persons in need of protection. On the contrary, the Geneva Convention is essentially applicable to recognized refugees, whereas asylum seekers have been consciously excluded from its scope except for a few elementary provisions, such as penal immunity and the principle of non-refoulement.
The centrality of human rights law is further reinforced by its material scope, for it sets out a wide range of rights which are not covered by the Geneva Convention. This concerns an extensive number of civil, political and cultural rights for refugees and, under rare exceptions, all human rights of asylum seekers. By contrast, extremely few rights remain exclusively governed by the Geneva Convention.
This primarily concerns very technical and specific matters, such as equality in fiscal charges Article 29 and transfer of assets Article One could still argue that, from a conceptual and normative perspective, these two provisions are practical derivatives of the general principle of equality before the law and of the broader human right to property. The same reasoning can be applied with regard to identity papers Article 27 and travel documents Article 28 , which are frequently heralded as the distinctive advantages of refugee status.
Although these two provisions do not have exact human rights equivalents, delivering identity papers to refugees can be considered as a positive obligation deriving from the right to recognition everywhere as a person before the law. In sum, compared to human rights law, the Geneva Convention has much more to receive than to give. On the other hand, one could nevertheless argue that, despite its marginal added value, the Geneva Convention still remains a primary source of protection, not only because it is considered as such by states but, more fundamentally, because human rights law has considerably refined, reinforced, and sustained its normative frame.
As noted above, refugee status is primarily structured by the traditional distinction between citizens and non-citizens. In the absence of any other normative frame of reference, the content of the applicable standards was supposed—initially at least—to be determined by the domestic law of each state party. Against such a background, human rights law has given a second life to the Geneva Convention by internationalizing its frame of reference.
It provides a vital baseline for determining the minimum standard which domestic legislation cannot go beyond without breaching international human rights law. The cumulative application of the two branches of international law reinforces the international refugee protection regime through a mutually supportive process of normative sedimentation. As a result of such intermingling, refugee law is now indissociable from human rights law, each branch of international law being part of the same normative continuum.
Following such a stance, one can even argue further that refugee law has been absorbed by human rights law. While the Geneva Convention retains some symbolic relevance, the distinction between nationals and aliens which conditions the very content of refugee status has been largely marginalized and superseded by the general applicability of human rights to non-citizens. The transformation of refugee law by human rights law has far-reaching effects largely beyond the content of its norms.
The gravitational force of human rights law has attracted the Geneva Convention into its orbit and anchored it as a satellite within the constellation of other applicable human rights treaties. As a result of this centripetal force, the conception of the Geneva Convention as a whole has been revisited and reframed through the lens of human rights law. The single and evasive reference to human rights in its preamble has been retrospectively viewed as the ultimate evidence of its human rights origin.
The Geneva Convention has thus been reconstructed as a human rights treaty in its own right. This is rather ironic, given that the Refugee Convention is not a human rights treaty per se simply because it is a duty-driven—and not a human rights-based—instrument.
Clearly perception counts more than reality. In a normative environment largely dominated by human rights, all observers are now convinced of the human rights nature of the Geneva Convention. Both in principle and in practice, human rights law has thus become the new orthodoxy of refugee law. From a systemic perspective, human rights law considerably informs the very function of refugee law.
Another state is to provide a surrogate protection where protection is not available in the home state. The convention assumes that every state has the obligation to protect its own nationals. But it recognises that circumstances may occur where that protection may be inadequate. The purpose of the convention is to secure that a refugee may in the surrogate state enjoy the rights and freedoms to which all are entitled without discrimination and which he cannot enjoy in his own state. Although the reverse has not always been true, human rights law is refugee law. One question still remains to be addressed: Undoubtedly, state sovereignty is more visible in refugee law than in many other fields of international law.
Territorial sovereignty is both the foundation and the limit of international refugee law. On the one hand, refugees are protected against persecution from their own countries, as a consequence of the territorial jurisdiction of asylum states. The duty of every state to respect the territorial integrity of others means that countries of origin can no longer exercise any act of authority upon their nationals who found asylum abroad.
On the other hand, asylum states do not have the correlative obligation to grant protection within their own territory. However, such a normative dilemma is not specific to refugee law, since human rights law is framed by the same dialectic. Under both branches of international law, the sovereign right of granting or refusing asylum is mitigated and sometimes neutralized by the obligation of non-refoulement.
In short, while state sovereignty influences the content of the applicable norms, its does not fundamentally affect the very nature of refugee law. Humanitarian law is grounded on a precarious balance between military necessity p. But there are still some obstacles to overcome before they will truly become human rights lawyers.
The last step is perhaps the most difficult one. It requires a cultural revolution in the profession, not only in recognizing the centrality of human rights law, but also by accepting all its consequences. While the fetishism of the Geneva Convention is no longer tenable, human rights law requires a holistic approach of refugee protection.
This may ultimately revive the ancestral function to asylum: In essence, granting asylum reflects the judgment that the state of origin has failed to fulfil its duty of protection and has, accordingly, lost its legitimacy. Whereas the Geneva Convention exclusively focuses on the obligations of asylum states, human rights law provides a broader avenue for encapsulating the correlative responsibility of states of origin.
This presupposes in turn that the so-called neutral and humanitarian character of asylum is abandoned to assume the political nature of human rights. Acknowledging the multifaceted intermingling between refugee rights and human rights paves the way towards a radical change in perception. It calls for revisiting the international regime of refugee protection as a whole, while forcing both states of origin and of asylum to face their responsibilities.
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Complementing the Geneva Convention? Urbano de Sousa and P. HRJ ; J. Among a copious literature asserting the human rights nature of the Geneva Convention, see Hathaway n 7 at 5; Edwards n 7 at ; L. Globalisation and International Law 1 ; Gorlick n 7 at ; F. Twomey eds , Refugee Rights and Realities. For a more conceptual and critical stance, see however: Strategies Toward Interpretative Harmony , —7. McAdam n 6 at 1. Towards a New Merger in International Law See, contra , J. Skran, Refugees in Inter-War Europe. The Emergence of a Regime ; J. Ward  DLR 4th 1, 67—8.
Melander, The Two Refugee Definitions A Commentary , —58; M. Refugee from Deprivation 27—86 ; von Sternberg n 4 at 1—18; D. Ward  DLR 4th 1; Horvath v. Secretary of State for the Home Department n 26 ; K. The House of Lords acknowledges in the same vein: First, they expressly show that a premise of the Convention was that all human beings shall enjoy fundamental rights and freedoms.
Secretary of State for the Home Department, R. See also Pushpanathan v. Secretary of State for the Home Department and R. Immigration and Naturalization Service  F. For further assessment of the French practice, see: For an overview of the principle of non - refoulement , see W. A Commentary ; Wouters n 5 ; J. It does not apply to all asylum-seekers but only to those who satisfy the three following conditions imposed by Art.
Khawar  HCA 14, para. For a recent acknowledgement, see: See also among many other similar judicial statements: Zaoui n 69 para. See also Attorney General v. Zaoui n 69 paras and ; NSH v. Grahl-Madsen, Territorial Asylum , 61—8.
Ibrahim  HCA 55, para. The right of asylum shares the same fate as the right to property, being the only rights proclaimed in the UDHR that were not restated in the UN Covenants.http://webdisk.openpress.alaska.edu/26139.php
Other regional instruments are even more vague and permissive: I , para. For further discussions about the possible rationale underlying the implicit duty of non - refoulement , see also H. Noll, Negotiating Asylum , — Netherlands DR 38, Beside the specific examples mentioned by the Commission, assessing whether the level of severity amounts to degrading treatment requires an in concreto examination of all the circumstances of each case.
Moreover, an accumulation of human rights violations may cross the threshold under Art.
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For the time being, the most relevant practice essentially relates to the rights to liberty and security rather than non-refoulement per se. See, in particular, W. Alland and Teitgen-Colly n 37 at Assessing the Scope for Judicial Protection , Such an assertion is arguably not correct. Under both refugee law and human rights law, the principle of non - refoulement is conceived as a duty-driven norm addressed to states and not as a right of individuals per se.
Moreover, the choice between admission and removal to a safe third country pertains to the state and not the individual.
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Belgium and Greece n 87 para. Among the rare examples of true rights or freedoms directly bestowed on refugees by the Geneva Convention, see Art. This mis perception has also found an increasing echo among domestic courts. Goodwin-Gill, Refugees and their Human Rights 7. This is, however, a descriptive term which does not coincide with the legal meaning of residence under private international law. It essentially includes the prohibition of discrimination, access to courts, and the principle of non - refoulement. The importance of these core obligations is further asserted by the prohibition of any reservations to the relevant provisions as laid down in Art.
In any case, there is no causal relation between the entitlement criteria and the standards of treatment, for refugees are assimilated to most favoured aliens for the purpose of wage-earning employment, whereas self-employment and liberal profession are determined by reference to the minimum treatment accorded to ordinary aliens. More generally, the already complicated structure of entitlements provided by the Geneva Convention has been exacerbated by the substantial number of reservations formulated by states parties. This would necessarily occur prior to the time at which his refugee status is formally determined.
Recognition of his refugee status does not therefore make him a refugee but declares him to be one. See also Qualification Directive, Recital Minister of Citizenship and Immigration  3 1 FC 74, para. See also General Comment No. Among many other similar assertions, see also McAdam n 6 at ; Jastram n 11 at —7.
In a case concerning a Libyan refugee recognized in Switzerland, the Committee considered that the confiscation of passport and refusal of Libya to permit the departure of his wife and children constituted a violation of Art. In another particularly complex case concerning a person initially recognized as a refugee under the Geneva Convention although the decision was later cancelled and was still under review at that time , the Committee concluded that the removal of his wife and children breached Art. See also among the numerous and somewhat repetitive Excom Conclusions: A Lexicon , RSQ.
The Pinheiro Principles elaborate key human rights relating to the equitable restitution of housing and property and provide guidelines to states and international actors for ensuring access to these rights. One should recall in this regard that, contrary to the UDHR and the Geneva Convention, the two UN Covenants do not contain an explicit provision on the right to property because of the diverging conceptions prevailing at the time of the Cold War. However this difference between human rights law and refugee law remains marginal.
As will be shown later, the equal protection before the law under Art. Moreover, all regional human rights instruments guarantee the right to property.
However, states parties to both the Covenant and one of these regional instruments are bound to apply the most favourable treatment enshrined in the Covenant. In any case, the prohibition of subversive activities has to be compatible with the lawful restrictions provided in the other relevant provisions Arts. See however Hathaway n 7 at —1. But the identification process may take other forms. Secretary of State for the Home Departement, ex parte Jahangeer et al.
See contra, Krishnapillai v. In this case, the Committee implicitly admitted the applicability of the right to a fair trial in a refugee status determination procedure by assessing the fairness of the asylum procedure. See also Dranichnikov v. The Court then transposed its conclusion mutatis mutandis to asylum procedures.
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Cyprus n para. In this case, the European Court held that the refusal of an asylum request on the sole ground that it was not submitted within five days after the arrival of the asylum-seeker is a violation of the right to an effective remedy. Turkey n para. The United Kingdom n 92 para. The United Kingdom n 92 paras and See also Conka v.