REFUGEE LAW JAMES The Oxford Handbook of International Refugee Law-Oxford University Press, USA (2021)

Part II Sources, Ch.
9 The Architecture of the UN

Refugee Convention and Protocol
James C Hathaway
From: The Oxford Handbook of International Refugee Law

Edited By: Cathryn Costello, Michelle Foster, Jane McAdam
Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Series: Oxford Handbooks
Published in print: 03 June 2021
ISBN: 9780198848639
Subject(s):
Asylum — Non-refoulement — International co-operation
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.
Subscriber: National Law University Orissa; date: 01 June 2021
(p. 171) Chapter 9 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.1 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.
(p. 172) 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.
1. The Refugee Convention and Protocol as Interlocking

Sources of Obligation
The Refugee Convention was drafted between 1948 and 1951 by a combination of United
Nations organs, ad hoc committees, and a conference of plenipotentiaries.2 Its orientation
was decidedly Eurocentric: while most Contracting States opted to apply its provisions to
non-European refugees, the mandatory scope of protection was limited to refugees whose
flight was prompted by a pre-1951 event within Europe. It was not until the adoption in
1967 of the Protocol that the duty to protect refugees was prospectively made both global
and temporally inclusive. In the result, Contracting States to the Refugee Convention that
have gone on to adopt the Protocol—as nearly all have done3—(p. 173) must now grant all
Convention rights to all refugees, including those in flight from contemporary phenomena
in any part of the world.
Whether the Protocol truly updated and universalized the scope of international refugee
protection is, however, debatable. While the explicit temporal and geographical limitations
were eliminated, the substantive test for refugee status—a well-founded fear of being
persecuted for reason of one of five forms of civil or political status—was not changed by
the Protocol.4 This raises the spectre of persons in flight from natural disasters, war, or
broadly based political or economic turmoil—arguably the dominant causes of flight in most
of the less-developed world today—being thought to fall outside the scope of internationally
protected refugee status.5 This has led some scholars, including most recently Betts and
Collier,6 to call for a new understanding of refugee status. Yet other voices7 recognize the
continuing value of the definition, in particular as expanded at the regional level8 and
taking into account the adoption of complementary or subsidiary protection regimes.9
Indeed, even in the absence of such formal initiatives, the creative reinterpretation of the
refugee definition by scholars and judges has in many cases succeeded in broadening
understandings of a risk of ‘being persecuted’, so that at-risk minorities in flight from war
or other broadly based forms of harm are recognized as refugees entitled to the protection
of the Convention and Protocol.10 As framed by Justice Kirby of the High Court of Australia:
Because the Convention is universal, it does not speak only of the grounds of
persecution that have been most familiar to Western countries…[I]n other societies,
(p. 174) and in modern times, different cultural norms and social imperatives may
give rise to different sources of persecution.…The concept is not a static one. Nor is
it fixed by historical appreciation.11
2. Refugee Status as a Non-reservable International Norm

As in the case of most treaties, States acceding to the Convention and Protocol may
generally enter a reservation to avoid particular obligations. The Refugee Convention,
however, insulates five core norms from any possibility of reservation or qualification—
including the Convention’s definition of a refugee entitled to international protection.12
Because the refugee definition in article 1A(2) may not be altered by Contracting States, it
is, for example, not lawful for a country to protect as refugees only those fleeing risk on
account of religion but not for reason of their particular social group; to decide that only
persons who have already experienced persecution (rather than all who have a ‘well-
founded fear’ of being persecuted) are to be treated as refugees; nor to exclude stateless
persons from refugee status. And because the Convention stipulates in great detail both the
circumstances under which refugee status comes to an end and the scope of permissible
exclusion from refugee status, Contracting States may not, for example, simply end refugee
status because of economic or political pressure or summarily bar persons from protection
on the basis of vague allegations that they present a ‘terrorist’ or other threat.13
It is of course true, as both Sztucki14 and Chetail15 have insisted, that Contracting States
enjoy significant latitude to interpret and apply the common refugee definition. Courts have
nonetheless recognized the importance of giving a common meaning to the Convention,
including to its definition of who is a refugee. As the Supreme Court of the United Kingdom
made clear, the refugee definition ‘must be interpreted as an international instrument, not a
domestic statute. It should not be given a narrow or restricted interpretation’.16 Because
there is a single refugee definition that binds all (p. 175) Contracting States, each State is
required to promote the effectiveness of the Convention as a treaty with a common
standard of entitlement to protection:
As in the case of other multilateral treaties, the Refugee Convention must be given
an independent meaning…without taking colour from distinctive features of the
legal system of any individual contracting state. In principle therefore there can
only be one true interpretation of a treaty…. In practice it is left to national courts,
faced with the material disagreement on an issue of interpretation, to resolve it. But
in doing so it must search, untrammelled by notions of its national legal culture, for
the true autonomous and international meaning of the treaty.17
3. Refugee Status as Declaratory

While it is common to speak of Contracting States ‘granting’ refugee status, this framing is
not in fact accurate. As detailed below,18 rights under the Convention and Protocol actually
accrue incrementally over time, with two important ‘bundles’ of rights explicitly owed to
persons who are not yet ‘lawfully present’ (much less ‘lawfully staying’ or durably residing)
in an asylum country. This innovative approach to the attribution of rights to refugees
reflects the sensible concern of the Convention’s drafters that some basic entitlements had
to be provisionally extended to all persons claiming refugee status, or recognizable as
refugees even before status adjudication, in order to safeguard the very purpose of the
regime.19 Put simply, if a Contracting State had no refugee protection obligations unless
and until an individual is affirmatively found to satisfy the criteria of the refugee definition,
a poorly intentioned State might opt to delay that (p. 176) inquiry or even to avoid it
altogether.20 If, on the other hand, core rights are provisionally guaranteed to those arriving
to seek protection unless and until found not to qualify as refugees, the Contracting State
has an incentive to inquire into the need for protection even as the basic interests of the
person claiming refugee status are safeguarded in the interim.21 The UNHCR Handbook
thus eloquently observes that:
A person is a refugee within the meaning of the 1951 Convention as soon as he

fulfils the criteria contained in the definition. 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.
He does not become a refugee because of recognition, but is recognized because he
is a refugee.22
This understanding that refugee status recognition is declaratory has been recognized by
the Inter-American Court of Human Rights,23 as well as by several senior national courts.24
European Union law also expressly provides that ‘[t]he recognition of refugee status is a
declaratory act’, as do the laws of a number of countries.25
This importance of the declaratory nature of refugee status truly cannot be overstated:26
perhaps most importantly, this principle provides a critical means to (p. 177) contest the
legality of non-entrée policies under which Contracting States have attempted to avoid even
access to their courts or protection from refoulement to persons arriving at their
jurisdiction to seek protection.27
4. Non-exclusive Catalogue of Rights

A critical attribute of the Convention and Protocol is that they contain a continuing
affirmation of the propriety of Contracting States legislating domestically beyond the
standards of the Refugee Convention and, particularly, of them continuing to accord
refugees all advantages that accrue to them by virtue of other agreements, such as bilateral
treaties with the refugee’s country of origin. Most important, article 5 should be read as
establishing how duties under refugee law are to be reconciled with the requirements of the
array of important accords negotiated since the advent of the Refugee Convention—
including expansions and interpretations of international refugee law itself, the advent of
regional refugee regimes, and especially the evolution of a dynamic system of international
human rights law.28 International human rights law generally grants rights to all persons
subject to a State’s jurisdiction, and is therefore a critical source of enhanced protection for
refugees. Article 5 of the Refugee Convention ensures that refugee rights are not seen as
limited to those set by the refugee treaty itself,29 but rather makes clear that refugees are
entitled to the benefit of more general human rights principles. As Chetail explains:
the Geneva Convention itself provides the means for resolving any potential
conflicts of norms [between refugee law and human rights law], for its Article 5
preserves the continuing applicability of more favourable standards granted apart
from [the Refugee] Convention without regard to the so-called specialty of the
norms.30
(p. 178) Edwards takes much the same position, noting that ‘Article 5 of the [Refugee]
Convention [may be] read as a “successive clause” or “conflict clause” ’.31 Article 5, in other
words, ensures that, in the event of any normative dissonance between the Refugee
Convention and simultaneously applicable general human rights standards, refugees are
entitled to the benefit of the higher standard.
5. Exceptions and Derogation

Another strength of the Refugee Convention and Protocol—in addition to the non-reservable
core definitional norm, the declaratory nature of refugee status, and the non-exclusive
catalogue of rights—is that refugee rights are less susceptible to exceptions and derogation
than are the rights set by some other core human rights treaties, including, in particular,
the two international human rights covenants.
While the rights set by the ICESCR explicitly inhere in ‘everyone’,32 they are not framed as
obligations of result.33 States parties agree instead ‘to take steps, individually and through
international assistance and co-operation…to the maximum of [their] available resources,
with a view to achieving progressively the full realization of the rights recognized in the
present Covenant’.34 Critically, this formulation ‘does not mean that States parties may
indefinitely postpone taking action’:35 to the contrary, there is a duty to give priority to the
realization of economic, social, and cultural rights, and to ensure that their realization is
subject to meaningful legal accountability and respect (p. 179) towards other requirements
of human rights law, in particular the duty of non-discrimination. But it remains that
general economic rights are subject to a more fungible standard of implementation than are
cognate rights under the Refugee Convention, which grant Contracting States no discretion
whatsoever to delay implementation on the basis of insufficient resources.
Similarly, article 2(3) of the ICESCR authorizes ‘[d]eveloping countries, with due regard to
human rights and their national economy, [to] determine to what extent they [will]
guarantee the economic rights recognized in the present Covenant to non-nationals’. As
Saul, Kinley, and Mowbray note, this provision contemplates not just the maintenance of
existing restrictions, but also ‘the introduction of new measures designed to limit the rights
which non-nationals had previously enjoyed’36—a potentially fatal concern for the
overwhelming majority of refugees who live in the less-developed world. The Refugee
Convention, in contrast, requires that a wide range of critical economic rights be granted to
refugees by all Contracting States.
While general civil and political rights must be immediately implemented, including by less
developed countries, most rights under the ICCPR are nonetheless subject to relatively
broad derogation authority in the context of a ‘public emergency which threatens the life of
the nation’.37 In contrast, article 9 of the Refugee Convention does not allow Contracting
States to derogate from their obligations on an ongoing basis, even in time of war or other
serious national emergency. As Grahl-Madsen concluded, ‘the Convention is to be applied
not only in normal time, but also in time of war or national emergency, and…States may
only derogate from the provisions within the limits of [article 9]’.38
Specifically, article 9 allows for derogation only as a provisional measure ‘pending a
determination by the Contracting State that that person is in fact a refugee’.39 A
Contracting State that wishes to avail itself of the provisional measures authority must
therefore proceed to verify the claims to refugee status of all persons whose rights are (p.
180) thereby suspended.40 If a particular person41 is found not to be a Convention refugee,
including on the basis of criminal or other exclusion provisions, no rights under the Refugee
Convention accrue, and removal from the territory or the imposition of other restrictions is
allowed.42 If, on the other hand, an individual is found to satisfy the Convention refugee
definition, article 9 establishes a presumption that the provisional measures must come to
an end.43
6. Rights Acquisition by Attachment

To this point, the architecture of the Refugee Convention and Protocol may seem skewed in
a way that is unrelentingly attuned to the needs of the refugee: refugee status (a) must be
based on the international definition of a refugee interpreted in a geographically and
temporally inclusive way; (b) accrues by virtue of facts on the ground rather than simply as
a function of formal status assessment; (c) is non-exclusive; and (d) is less amenable to
exceptions or derogation than are cognate norms under general international human rights
law. But these pro-refugee attributes are neatly balanced by two important features that
safeguard the legitimate concerns of the Contracting States to which the protection request
is addressed.
First, and in contrast to the usual approach in international human rights law, it is not the
case that all of the rights set out in the Convention are immediately owed to every
presumptive refugee arriving at a State’s territory. Refugees are instead entitled to an
expanding array of rights as their relationship with the asylum State deepens.44 At the (p.
181) lowest level of attachment, some refugees are simply subject to a State’s jurisdiction,
in the sense of being under its control or authority. A greater attachment is manifest when
the refugee is physically present within a State’s territory. A still more significant
attachment is inherent when the refugee is deemed to be lawfully or habitually present
within the State. The attachment is greater still when the refugee is lawfully staying in the
country. Finally, a small number of rights are reserved for refugees who can demonstrate
durable residence in the asylum State.45 As the refugee’s relationship to the asylum State is
solidified over the course of this five-part assimilative path,46 the Convention requires that a
more inclusive range of needs and aspirations be met.
The drafters’ decision to grant refugee rights on an incremental basis reflected the
experience of States confronted with the unplanned arrival of refugees at their frontiers.
While States outside Europe continued mainly to receive refugees preselected for
resettlement, several European countries were already faced with what has today become
the dominant pattern of refugee flows, namely the unplanned and domestically
unauthorized arrival of refugees at a State’s borders.47 The drafters of the Convention
explicitly considered how best to align the refugee rights regime with this transition from
an essentially managed system of refugee migration to a mixed system in which at least
some refugees would move independently:
the initial reception countries were obliged to give shelter to refugees who had not,
in fact, been properly admitted but who had, so to speak, imposed themselves upon
the hospitality of those countries. As the definition of refugee made no distinction
between those who had been properly admitted and the others, however, the
question arose whether the initial reception countries would be required under the
convention to grant the same protection to refugees who had entered the country
legally and those who had done so without prior authorization.48
The compromise reached was that any unauthorized refugee, whether already inside or
seeking entry into a Contracting State’s territory, would benefit from the protections of the
Refugee Convention.49 Such refugees would not, however, immediately acquire all the
rights of ‘regularly admitted’ refugees, that is, those pre-authorized to enter and to (p. 182)
reside in an asylum State. Instead, as under then-prevailing French law, basic rights would
be granted to all refugees, with additional rights following as the legal status of the refugee
was consolidated.50
This staggered approach to the attribution of refugee rights is a critical answer to the
concern that it would be unreasonable simply to demand that all of the Convention’s rights
—which provide an unusually strong arsenal of, in particular, rights of economic
participation—be instantly provided to each and every refugee arriving, whatever the
numbers concerned or the circumstances of the receiving State. Yes, some critical refugee
rights must be guaranteed immediately and to all under a Contracting State’s jurisdiction51
—to do otherwise would be fundamentally unjust to refugees. But the Convention’s more
sophisticated rights may be lawfully delayed, ideally allowing time for burden- and
responsibility-sharing mechanisms to attenuate the hardship for overtaxed receiving
countries, even as the refugee’s assimilation demands deeper enfranchisement over time.
7. Rights Defined by a Mix of Absolute and Contingent

Standards
In addition to the fact that refugee rights are owed only incrementally rather than
immediately, the Convention normally calibrates the nature of a Contracting State’s duties
with what it provides to other persons under its jurisdiction.52 While a few rights are
guaranteed absolutely to refugees, the standard for compliance normally varies as a
function of the relevant treatment afforded another group under the laws and practices of
the receiving country. The general idea is that most refugee rights are framed as contingent
standards, with the exception of a core group of rights that are owed in (p. 183) absolute
terms because they are either refugee-specific (such as the duty of non-refoulement and the
right not to be penalized for illegal entry or presence) or deemed of consummate
importance (such as the rights to non-discrimination and to freedom of religion). Under
these contingent rights standards, refugees are assimilated to citizens of the asylum
country, to nationals of a most-favoured State, or non-citizens generally in the asylum
State.53 But, in any case, refugees must be exempted from any criteria which a refugee is
inherently unable to fulfil,54 and may not be subjected to any exceptional measures applied
against the citizens of their State of origin.55
The frequent reliance of the Convention and Protocol on contingent standards of treatment
helps to ensure that asylum countries are not asked to do more than is demonstrably within
their capacity. It also guards against the prospect of refugees being said to be ‘privileged’
vis-à-vis citizens and others living in the asylum State, since normally refugees are entitled
to no more than what others already receive. Like the notion of incremental acquisition of
rights, the Convention’s reliance on a mix of absolute and contingent rights thus attenuates
the otherwise seemingly absolute duty of protection arising from the simple fact of a
refugee arriving at a Contracting State’s jurisdiction.
8. State-by-State Implementation
The Refugee Convention and Protocol can thus be seen to embody a sensible compromise.
On the one hand, their architecture is hugely attentive to the needs of refugees—including
by the attribution of rights on the basis of a non-reservable and flexible definition, a
commitment to declaratory rather than constitutive status assessment, non-exclusivity of
rights accrual, and no more than constrained exceptions and derogation authority. On the
other hand, the real needs of host countries are catered for by the structure of incremental
rights acquisition through attachment and by the conceptualization of most rights on a
contingent basis.
Despite the wisdom of this balance, the Refugee Convention and Protocol are today less
influential on the ground than they should be, due in no small measure to the fact that they
are implemented on an ad hoc, State-by-State basis rather than in a coordinated manner.56
In part, this concern mirrors the critique noted above that both the refugee (p. 184)
definition and refugee rights are interpreted in varying ways by Contracting States in a
manner that erodes the intended commonality of protection standards.57 With no more than
a never-used right of Contracting States to challenge another Contracting State’s
interpretation before the International Court of Justice,58 the refugee regime is today the
only widely subscribed UN human rights regime that lacks an independent supervisory
mechanism capable of defining its terms in an authoritative way.59 While this is both
historically explicable (the Convention came into force before independent supervision was
routine60) and mitigated both by UNHCR’s role under article 35 of the Convention (though
the agency cannot enforce compliance,61 lacks autonomy from the Contracting States that
fund it,62 and takes on roles that arguably suggest that it should itself be supervised63) and
the existence of a vibrant transnational conversation amongst refugee law judges (who
often draw on international and comparative norms when enforcing law at the domestic
level64), the ability to sustain the Convention’s vitality without truly independent and
authoritative oversight is increasingly doubtful.65
Yet, as real as the threat from interpretive inconsistency is, the most profound challenge to
the longevity of the Convention and Protocol comes from the fundamentally uncoordinated
way in which they are implemented. Simply put, neither refugee rights (p. 185) nor the
protection of legitimate host State interests can be guaranteed under the current ‘accidents
of geography’ mechanism for the allocation of protection burdens and responsibilities.
Despite the recognition in the preamble of the Convention that ‘the grant of asylum may
place heavy burdens on certain countries, and that a satisfactory resolution of a problem of
which the United Nations has recognized the international scope and nature cannot
therefore be achieved without international co-operation’,66 the Convention and Protocol
are today implemented on a State-by-State basis, the default position being that refugees
are the sole legal responsibility of whatever country they arrive at. This is not only
grotesquely unfair to States—with only 10, mostly poor, countries hosting roughly half of
the global refugee population67—but at least as important is a huge threat to the vindication
of refugee rights, with more than three-quarters of the world’s refugees consigned to long-
term indeterminate status in protracted refugee situations.68 The most recent response69 of
the United Nations to this predicament has been to offer only general principles and a
multiplicity of fora in which to discuss voluntary coordination of protection efforts, with no
hard commitments to share burdens and responsibilities, much less to establish a true
oversight mechanism that would ensure a fair and dependable global implementation of the
Convention and Protocol.70
We thus stand at a precipice. The thoughtful compromises built into the architecture of the
Refugee Convention and Protocol are important, but clearly insufficient to withstand the
pressures of continuous large-scale refugee flows in the absence of significantly enhanced
oversight and coordination. This poses the very real risk that, despite the smart
compromises at the heart of this normative regime, the Refugee Convention and Protocol
will founder—leaving both refugees, and the poorer countries that receive most of them, in
the lurch.
Footnotes:
* The analysis here draws on the more detailed examination of these issues in The Rights
of Refugees under International Law (2nd edn, CUP 2021). Jamila Odeh (JD, Michigan,
2019) provided outstanding research assistance for this chapter.
1
See generally Stefanie Schmahl, ‘General Provision’ in Andreas Zimmermann (ed), The
1951 Convention relating to the Status of Refugees and Its 1967 Protocol: A Commentary
(OUP 2011).
2
See Terje Einarsen, ‘Drafting History of the 1951 Convention and the 1967 Protocol’ in
Zimmermann (n 1); James C Hathaway, ‘The Evolution of Refugee Status in International
Law: 1920–1950’ (1984) 33 ICLQ 348.
3
Two States—Madagascar and Saint Kitts and Nevis—acceded to the Refugee Convention
but have not gone on to adopt the Protocol. These two States are therefore not formally
bound to protect the rights of modern refugees. While the option under the Convention to
protect only European refugees is in most cases denied to States that sign the Protocol, one
Contracting State, Madagascar, exercised the ‘European refugee only’ option when it
acceded to the Convention and it has not yet become a party to the Protocol—meaning that
it is still formally entitled to refuse to protect non-European refugees. In addition, the
Protocol includes a ‘grandfathering’ provision that allows Contracting States that were
parties to the Convention before 1967 to maintain any pre-existing geographical restriction
even upon ratifying or acceding to the Protocol. Congo and Turkey fall into this category:
having ratified the Convention with a geographical limitation and not having elected to
withdraw that limitation (as, for example, Malta did in 2002), these countries are also
exempted from obligations towards non-European refugees.
4
James C Hathaway, ‘A Reconsideration of the Underlying Premise of International
Refugee Law’ (1990) Harvard International Law Journal 129; Schmahl (n 1) 612.
5
See Chapters 45 and 46 in this volume.
6
Alexander Betts and Paul Collier, Refuge: Transforming a Broken Refugee System (Allen
Lane 2017); see also Jerzyv Sztucki, ‘Who Is a Refugee? The Convention Definition:
Universal or Obsolete?’ in Frances Nicholson and Patrick Twomey (eds), Refugee Rights
and Realities: Evolving International Concepts and Regimes (CUP 1999); Jacqueline
Bhabha, ‘International Gatekeepers?: The Tension between Asylum Advocacy and Human
Rights’ (2002) 15 Harvard Human Rights Journal 155, 161; Matthew Gibney, ‘The Ethics of
Refugees’ (2018) 13(10) Philosophy Compass <https://onlinelibrary.wiley.com/toc/
17479991/2018/13/10> accessed 1 October 2019.
7
This approach is comprehensively developed in James C Hathaway and Michelle Foster,
The Law of Refugee Status (2nd edn, CUP 2014). See also Jean-Yves Carlier, ‘The Geneva
Refugee Definition and the “Theory of Three Scales” ’ in Frances Nicholson and Patrick
Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes
(CUP 1999); Einarsen (n 2) 37; Kristen Walker, ‘Defending the 1951 Convention Definition
of Refugee’ (2003) 17 Georgetown Immigration Law Journal 583; Max Cherem, ‘Refugee
(p. 152) Chapter 8 The Intersection of International
Refugee Law and International Statelessness Law
We recognize that statelessness can be a root cause of forced displacement and that
forced displacement, in turn, can lead to statelessness.
New York Declaration for Refugees and Migrants1
1. Introduction
INTERNATIONAL refugee law and international statelessness law share common roots. To
determine how to deal with the situation of the millions of people who were left displaced
and denationalized in the wake of the Second World War, the Economic and Social Council
of the newly formed United Nations ordered a study to be undertaken to inform ‘interim
measures to afford protection to stateless persons [and] action by Member nations in co-
operation with the United Nations to ensure that everyone shall have an effective right to a
nationality’.2 The resulting Study of Statelessness3 provided the foundation for the
development of the Refugee Convention and the 1954 Convention (p. 153) relating to the
Status of Stateless Persons (followed later by the 1961 Convention on the Reduction of
Statelessness).4 Born of the same process, yet distinct in their scope and aims, these UN
treaties went on to take very different paths in the half-century that followed. While refugee
law, policy, doctrine, and research evolved, ‘in a litter of two offspring, statelessness was
the metaphorical runt’.5 It was not until after the turn of the twenty-first century that
international statelessness law started to draw much attention and to begin to emerge as a
field of its own.
As global interest in (tackling) statelessness grows, the interaction between statelessness
and forced displacement has also come back under the spotlight. Today, for those working
in either field, it is not only important to have knowledge of the scope and application of
that area of the law, but also to understand the relationship between these two sub-domains
of international law. This entails, in particular, the ability to critically reflect on the
challenges that arise out of the separation, yet interaction, between refugee law and
statelessness law. Indeed, at the nexus of these two sub-fields, a number of important
conceptual questions arise as well as some very practical difficulties in ensuring an
appropriate and effective response to situations in which statelessness and displacement
occur together.
This chapter provides an insight into the relationship between statelessness and forced
displacement, and between statelessness law and refugee law. It starts by unpacking how
statelessness can manifest itself as a cause or consequence of displacement, as well as how
statelessness can be a complicating factor for refugee protection and durable solutions. The
chapter then offers a brief overview of key norms relating to the protection of stateless
persons and the prevention and resolution of statelessness, setting out the contours of
international statelessness law for readers who are less familiar with this area. Thereafter,
the chapter looks at the implications of the statelessness–displacement nexus by exploring
the conceptual and practical questions that arise when a refugee is also stateless, and when
a stateless person is also a refugee. It draws to a close with some reflections on the
importance of forging a stronger dialogue between international refugee and statelessness
law scholars and practitioners.
2. The Interaction between Statelessness and Forced
Displacement
A stateless person is defined under international law as someone ‘who is not considered as
a national by any state under the operation of its law’.6 Whether a person is stateless or (p.
154) not therefore hinges solely on whether the person enjoys a nationality or not7—a
‘mixed question of law and fact’ which turns on an assessment of ‘how a State applies its
nationality laws in an individual’s case in practice’.8 For the purposes of the application of
this definition, it is irrelevant whether they have ever crossed an international border,
whether they once did have a nationality (that is now lost) or might again in the future. The
definition of a refugee encompasses an element of cross-border movement (ie departure
from the country of nationality or habitual residence) against a context of persecution,
conflict, or violence. The possession or absence of a nationality is not the defining factor—a
refugee can be,9 but does not need to be, stateless—although this can and sometimes
should weigh into the assessment.10 The upshot is that it is possible to meet both the
definition of a refugee under the 1951 Refugee Convention and be a stateless person
according to the 1954 Convention relating to the Status of Stateless Persons (1954
Statelessness Convention).
As illustrated by the quote from the New York Declaration for Refugees and Migrants at the
opening of this chapter, statelessness is in fact recognized to be both a root cause and a
potential consequence of forced displacement.11 A stateless person may also be(come) a
refugee and a refugee may also be(come) stateless. To explain why statelessness is so often
accompanied by displacement requires looking more closely at the function and regulation
of nationality, as well as the impact of statelessness.
Statelessness is a root cause of forced displacement because the removal of, or refusal to
grant, citizenship may be one element of—and an indicator to identify—the severe
marginalization of an individual or community: so severe that it encompasses the wholesale
denial of their place in society. Indeed, historically and today, the production of
statelessness and the production of refugeehood can be intrinsically connected to one and
the same underlying project of statecraft. The universalization of the nation-State model
combined with the arbitrary drawing of borders resulted in the mass generation of refugees
—but also of statelessness, where the belonging of communities perceived as being in the
‘wrong’ place is contested.12 (p. 155) Moreover, as Achiume observes, nationality has been
used as a tool to facilitate racial exclusion13 and so where racial discrimination operates as
a root cause for refugee movements, the denial or deprivation of citizenship may be one of
the ways in which this discrimination also manifests. ‘Nation-building and nationalist
ideology privileging certain racial, ethnic or religious groups’ as well as ‘unresolved
historical ethno-nationalist legacies’ have led to the construction of national identities to the
exclusion of minorities and indigenous peoples,14 taking its toll in terms of access to
citizenship and in some cases precipitating forced displacement.15 Statelessness has even
been described as ‘a form of forced displacement in situ’,16 further reinforcing the
potentially close relationship between the production processes of statelessness and
refugeehood.
The lack of the legal bond of membership to a State also entails the absence, or more often
the deliberate denial, of government protection. Although States are today required to
respect the human rights of everyone under their jurisdiction, in most cases regardless of
nationality or statelessness, some rights can still be granted exclusively to nationals or
more easily limited in the case of non-nationals.17 In reality, stateless persons are commonly
exposed to much wider, structural discrimination and their basic human rights are violated
in many States with worrying impunity. Many studies document the detrimental impact of
statelessness on the enjoyment of the right to education, health, work, an adequate
standard of living, free movement, legal personhood, property, a family, access to justice,
and other rights.18 The insecurity and vulnerability that statelessness perpetuates can
trigger forced displacement. In some cases, the denial or deprivation of nationality has been
accompanied with, or followed by, widespread violence, persecution, or enforced
deportation, precipitating mass refugee movements. The decades-long oppression of the
stateless Rohingya in Myanmar, (p. 156) which has forced as much as three-quarters of the
population to flee, is one of the most heinous examples of this,19 but there are others.20
Statelessness can also be a result of forced displacement because the way that nationality is
regulated does not always accommodate the situation of people who have had to flee their
country, especially if their exile is protracted and extends across multiple generations. One
of the challenges is that, because nationality is understood to be the legal expression of a
‘genuine link’, when a person or group is forced into exile, then over time the link may be
seen as growing more tenuous and this can lead to situations in which the bond of
nationality is no longer recognized.21 The legislation of some States allows for the loss or
withdrawal of nationality if a person resides outside the country for an extended period—
even if they have not naturalized in the country of refuge.22 Other laws place conditions on
or limit the conferral of nationality to children via jus sanguinis (through descent from a
parent who is a national) if the child is born abroad or if they are the second generation to
be born outside the country. Yet birth on the territory is not sufficient in most countries to
secure that State’s nationality.23 This negative conflict of nationality laws can lead to
statelessness if neither of the States concerned provides safeguards to ensure the child’s
right to nationality.24 The context of forced displacement can also hamper the full
application of safeguards where they do exist.25
Refugee families can also struggle to access birth registration, which makes it difficult to
establish the link that a child born in exile has to the country of birth and the country of his
or her parents, generating a risk that neither State will recognize the child as a (p. 157)
national.26 Where there is an intergenerational problem of lack of documents, this can
heighten the risk of statelessness because it becomes ever more difficult to establish the
facts that are determinative of nationality (place and date of birth, identity and nationality
of the parents).27 If displacement was precipitated by conflict that ultimately leads to the
fracturing of States, then people may find themselves living on the other side of a new
border from where they or their ancestors originated, which may cause them not to be
recognized as nationals of either state.28
Finally, it is important to note that statelessness can also be a complicating factor in a
situation of displacement and may give rise to additional obstacles in the pursuit of durable
solutions.29 Research into the experience of stateless refugees from Syria has demonstrated
this, showing that their lack of nationality in some cases made it harder to flee and to cross
international borders in search of protection, that it affected some refugees’ access to
international protection and assistance, and that being stateless could obstruct access to
naturalization or resettlement and raise questions about prospects of future voluntary
return.30
The manifold ways in which situations of statelessness and forced displacement can
intersect raise a number of challenges when it comes to ensuring that the response to such
cases is adequately tailored to give effect to the protection offered by refugee law and
statelessness law—respectively, but also collectively. This means building a stronger
understanding of how the two sub-domains interact.
3. International Statelessness Law

When it comes to addressing statelessness, the international community has long pursued
two broad goals. The first is to offer international protection to stateless persons who have
been left ‘unprotected’ as a result of their lack of any nationality. (p. 158) This is an
objective that is familiar to refugee lawyers because it also underpins the Refugee
Convention; indeed the 1954 Statelessness Convention shares a common drafting history
that has left the two instruments almost identical in approach and substance.31 As is the
case with refugee law, the protection framework offered by the 1954 Statelessness
Convention is also reinforced and complemented by the body of human rights law that
applies to all people, regardless of nationality or statelessness.32
The second—and ultimate33—goal is the avoidance and reduction of the occurrence of
statelessness, for which the fundamental right to a nationality has become a central norm.
This focus on preventative action sets international statelessness law apart from
international refugee law, which does not, strictly speaking, concern itself with stemming
the production of refugeehood.34 The goal of avoiding and reducing statelessness achieved
its first significant milestone in 1930 with the adoption of the League of Nations’ Hague
Convention on Certain Questions relating to the Conflict of Nationality Laws, along with a
Protocol Relating to a Certain Case of Statelessness. These instruments reflected a shared
understanding among States that it was in their own interests to ensure that everyone has a
nationality, prompting the elaboration of some common standards for regulating acquisition
or loss of nationality in situations where statelessness might otherwise arise.35 In the
1950s, following affirmation of the right to a nationality as a human right in the UDHR
(article 15), the International Law Commission began work on a draft convention to codify
standards for the avoidance of statelessness. After a difficult series of negotiations and
compromises, States agreed to proceed with the less ambitious of the two alternative texts
that had been prepared, namely on the reduction—rather than elimination—of
statelessness.36 The adoption of the 1961 Convention on the Reduction of Statelessness
(1961 Statelessness Convention) marked the completion of UN efforts to put in place a
dedicated international law regime to tackle the problem of statelessness.37
(p. 159) The main contours of international statelessness law are thus established by the
1954 and 1961 Statelessness Conventions. The first of these defines statelessness and
establishes a protection regime for (non-refugee) stateless persons, as well as urging
naturalization to be facilitated so that a person’s statelessness can be resolved through the
acquisition of nationality. The second concentrates on prescribing safeguards to avoid
situations of statelessness from arising, focusing on three different contexts: acquisition of
a nationality at birth; renunciation, loss, or deprivation of nationality in later life; and
change of nationality upon State succession.38
Over time, international norms relating to statelessness continued to evolve—as refugee law
did in parallel—through the progressive development of human rights law in particular. This
included the articulation of such norms as the right of every child to a nationality in the
CRC39 and the emergence of jurisprudence affirming the justiciability of the right to a
nationality within the UN, African, European, and Inter-American human rights systems.40
The 1997 European Convention on Nationality and 2006 Council of Europe Convention on
the Avoidance of Statelessness in relation to State Succession41 complement the 1961
Statelessness Convention with a more elaborate regional framework for Europe; and a
Protocol to the African Charter on Human and Peoples Rights on the Specific Aspects of the
Right to a Nationality and the Eradication of Statelessness in Africa had reached advanced
stages of negotiations at the time of writing.42 The issue of statelessness has been receiving
significant attention within the (p. 160) UN Human Rights Council’s Universal Periodic
Review process,43 and has been flagged as an issue of concern in relation to the UN’s
Sustainable Development Agenda 2015–2030.44 In 2014, the profile of international
statelessness law also received a significant boost with the launch of the UNHCR-led
#IBelong campaign to end statelessness by 2024.45
Today, international statelessness law is a rich field composed of a multitude of treaties,
jurisprudence, and soft law instruments, complemented by other international frameworks
and initiatives that are helping to place the issue higher on the agenda of States and the
international community. As this occurs, a question that is increasingly being asked is how
the strong relationship between statelessness and forced displacement should shape the
application of international statelessness—and refugee—law.
4. When a Refugee is also Stateless, or a Stateless Person is

also a Refugee
In situations where a refugee is also stateless, the traditional understanding has been that
he or she be treated first and foremost as a refugee—with statelessness generally seen as a
secondary consideration that only really becomes relevant when refugee status ceases. In
its Handbook on Protection of Stateless Persons, UNHCR explains:
When an applicant raises both a refugee and a statelessness claim, it is important

that each claim is assessed and that both types of status are explicitly recognised.
This is because protection under the 1951 Convention generally gives rise to a
greater set of rights at the national level than that under the 1954 Convention.
Nevertheless, there may be instances where refugee status ceases without the
person having acquired a nationality, necessitating then international protection as
a stateless person.46
UNHCR’s guidance goes on to elaborate that ‘although an individual can be both stateless
as per the 1954 Convention and a refugee as per the Refugee Convention, at a minimum, a
stateless refugee must benefit from the protection of the Refugee Convention and
international refugee law’.47
(p. 161) This means that statelessness has received relatively little attention in situations of
forced displacement.48 Stateless refugees are dealt with as refugees and included as such
in the data published by UNHCR, without differentiation. When it began to report statistics
on the number of stateless persons under its mandate, from 2004 onwards, UNHCR
included only non-refugee stateless persons in this dataset, to avoid double counting.49 One
implication of this is that it is difficult to quantify the number of stateless refugees globally
and, by extension, accrue a comprehensive picture of the number of people living without a
nationality in the world (refugee and non-refugee stateless combined).50 This is
notwithstanding the already distinctly challenging task of measuring the magnitude of
statelessness in any context, due to the complexities of data gathering and reporting on this
issue.51 In a survey of publicly available statistics carried out in 2014, the Institute on
Statelessness and Inclusion estimated that at least 1.5 million people included in UNHCR’s
refugee statistics, as well as some 3.5 million Palestinian refugees who are reported in
separate data compiled by UNRWA and not (also) included in UNHCR’s datasets, are likely
also to be stateless—suggesting that approximately one in three stateless persons is a
refugee.52 Yet this is obscured by the emphasis on the separation of these issues and the
manner in which global data reporting is organized.
Meanwhile, as international attention on statelessness grew, it was at first deliberately
presented as an issue distinct from refugeehood, in order to raise awareness and build up
knowledge and capacity to more effectively implement international statelessness law.
When UNHCR published expert guidance under its statelessness mandate, it spelled out
explicitly that:
Most stateless persons […] have never crossed borders and find themselves in their
‘own country’. Their predicament exists in situ, that is in the country of their long-
term residence, in many cases the country of their birth.53
(p. 162) The UNHCR Global Action Plan to End Statelessness 2014–2024, similarly reminds
readers that ‘while some stateless people are also refugees, most are not’ and explains that
this Action Plan ‘focuses primarily on non-refugee stateless populations’.54 Likewise, as
statelessness started to evolve as its own field of scholarship, interest has also been
predominantly in statelessness as a phenomenon that may be related to, but is to be
distinguished from, refugee situations.55 When civil society organizations and networks
dedicated to statelessness first started to emerge, it was in part a response to the fact that
the distinct problem of statelessness had been overshadowed (and left behind) as the
refugee field developed. This meant that their work also initially concentrated on
understanding the challenges in the implementation of international statelessness law in
non-refugee settings and promoting better adherence to this overlooked set of norms.
However, this two-way effort to keep separate questions of refugee law and statelessness
law has started to change, for broadly two reasons. First, scholars and organizations
engaged in statelessness started to question the validity and wisdom of (over)emphasizing
the separation from refugee law and refugee contexts, because the commonplace
interaction between them in practice was so evident.56 Secondly, those in the refugee field
started to take notice of the work being done on statelessness, because this was a problem
they regularly encountered in their work, even if it was not one to which they had devoted
much attention. In fact, to progress the understanding on both sides and benefit optimally
from the respective knowledge and tools produced, the nexus between statelessness and
forced displacement needed to be acknowledged and explored. A greater urgency was also
felt in this regard as the interaction between statelessness and displacement became hard
to ignore in the context of Syria’s humanitarian crisis and the plight of the Rohingya from
Myanmar.
One of the specific questions that demanded a response following the 2017 wave of
displacement of Rohingya from Myanmar was how to account for this in global statistical
reporting. The exodus of more than 650,000 Rohingya to Bangladesh in late 2017, swelling
the numbers there to close to a million stateless refugees, prompted UNHCR to reflect on
whether it could continue to report on stateless persons and refugees separately, with
stateless refugees only counted in the refugee numbers. This would have meant a drastic
reduction in the number of stateless persons reported in Myanmar and, by extension,
globally—a change in data that may inadvertently and incorrectly (p. 163) have been
interpreted as a success in efforts to reduce statelessness, while in fact their statelessness
remained unresolved and their situation deteriorated.57 Against this backdrop, UNHCR
approached Myanmar as a special case in the updated Global Trends data released
mid-2018. Acknowledging that ‘reporting on stateless populations is a particular challenge
for UNHCR as many displaced people are also stateless’, UNHCR explains that ‘in 2017, it
was decided to report the displaced Rohingya population as stateless’ and thereby break
with its previous policy of avoiding double counting.58 The report goes on to recognize that
‘this approach is inconsistent with the methodology applied for other displaced stateless
populations’ and indicate that UNHCR is ‘currently reviewing its statistical reporting for
stateless populations’.59 How to reconcile, within global datasets, the overlap between the
categories of stateless and refugee—as well as potentially with other groups which are
reported separately by UNHCR in IDP data or as Palestine Refugees by UNRWA under its
mandate—is one of the unsettled questions at the nexus of statelessness and forced
displacement.
In situations where a refugee is also stateless, there are also fundamental conceptual and
practical challenges to be considered. As discussed in Chapter 44 in this volume, a person’s
statelessness and the circumstances surrounding this may be relevant to whether they meet
the definition of a refugee and qualify for protection as such. Even if their statelessness is
not a constitutive element of the refugee claim, identifying a refugee to also be stateless
can be critical. On the one hand, this is needed to avoid inadvertently discriminating
against stateless refugees in relevant procedures because due consideration is not given to
their lack of nationality—that is, in order to ensure the full operation of international
refugee law in a statelessness context. On the other hand, identification of statelessness is
necessary to ensure the full operation of international statelessness law in a refugee
context—for instance to apply the safeguards prescribed by the 1961 Statelessness
Convention, as relevant, to avoid new cases of statelessness from emerging. As mentioned
above, the experience of some stateless refugees has been that their lack of nationality
impedes their ability to access international protection or durable solutions and that not
enough is done to address the risk of statelessness among refugees with possible nationality
problems.60
A study of the relationship between statelessness and forced displacement in Europe,
published in 2019, found that the failure to identify and suitably account for statelessness in
asylum procedures was indeed the cause of an array of problems encountered by (p. 164)
stateless refugees—in registration, refugee status determination, family reunification,
naturalization, and other procedures.61 An underlying issue, according to this research is
the ‘fundamental lack of knowledge and limited interaction between stakeholder groups’ on
how statelessness interacts with forced displacement.62 The report makes a number of
practical recommendations to address this, but even if the knowledge and capacity gaps
were to be overcome, the modalities for the establishment of refugee status and of
statelessness are different, and combining the two will not always be straightforward or
even feasible. As Gyulai explains:
Given that the most common procedural act in statelessness determination (contact
with and information gathering from foreign authorities) is strictly prohibited in
asylum procedures, the regulatory framework ought to clarify the relationship
between these two.63
If contacting foreign authorities to seek clarity on the interpretation and application of their
nationality rules in the case at hand would ‘compromise the confidentiality to which
refugees and asylum seekers are entitled’ and without this there ‘is insufficient information
to conclude that an individual is stateless’, then the determination of statelessness will have
to be suspended.64 In such instances, the necessary prioritization of refugee protection may
therefore impact on the recognition of statelessness and application of international
statelessness law standards.
A concrete scenario that arises is as follows: due to the failure—or inability—to determine a
refugee to be stateless, a child born to that refugee is not identified as a beneficiary of the
safeguard prescribed in article 1 of the 1961 Statelessness Convention to confer nationality
jus soli where the child would otherwise be stateless.65 International refugee law does not
contain an equivalent obligation with regards to children of refugees born on the territory
of the host State more generally, but if the child of a refugee would otherwise be stateless,
then the statelessness-related safeguard applies—regardless of the refugee context. States
that ‘have deliberate policies not to confer nationality to children born to refugees,
especially when a parent is unable to confirm their identity’,66 would be in breach of
international statelessness law if no special accommodation is made where the child would
be left stateless. Guidelines (p. 165) issued by UNHCR under its statelessness mandate on
how to apply this safeguard against childhood statelessness recognize the challenge and
ask States to adopt a child-rights-based approach. In making the ‘determination of the non-
possession of any foreign nationality’ the guidelines indicate that States are required to
‘take into account Articles 3 [best interests of the child] and 7 [right to nationality] of the
CRC and adopt an appropriate standard of proof’ and not to leave a child in a prolonged
situation of undetermined nationality.67 It is therefore not necessary to make a (formal)
determination that the child’s parent is stateless, but rather the focus should be on
assessing all relevant evidence of the nationality status of the child. This means that it
should be possible to secure the operation of this safeguard in a refugee context. The same
UNHCR guidelines also address the situation of refugee children who would be entitled to
the nationality of their parent(s) but are precluded from completing the necessary
procedures to effect this claim, owing to their status as refugees, making clear that the
same safeguard against statelessness should apply.68 In short, States must protect the
child’s right to a nationality and ensure the operation of safeguards to prevent children
from being left stateless, whether this is in a refugee context or not. The application of
international statelessness law is not limited by the presence of a claim under international
refugee law (and vice versa), demonstrating how important it is for those working in either
field to have at least a baseline understanding of both areas of law.
This example also hints at a deeper dilemma at the nexus of these two fields—that of the
(relative) attribution of State responsibility. If the above approach to the fulfilment of the
child’s right to a nationality were to be scrupulously applied in situations of large-scale
displacement of a stateless community across an international border—such as the case of
the Rohingya—this would lead stateless refugee children born in exile to receive the
nationality of the host State. Childhood statelessness would thereby be avoided and through
securing the child’s right to a nationality, access to and enjoyment of other (child) rights
would be strengthened.69 Moreover, this approach would disrupt an existing problem of
statelessness, breaking what has likely been an intergenerational cycle of denial of
nationality. However, such a solution (p. 166) would be effected in a way that neglects the
genuine link of the stateless refugee population to their ‘own country’70—the State that has
denied or stripped them of nationality in violation of international law and from which they
have been forcibly displaced.71 The international statelessness law-compliant, and child
rights-sensitive, action of the host State could have the inadvertent impact of absolving the
home State of responsibility and, where deprivation of nationality has been utilized to purge
a community from its own country, may contribute to effectuating ethnic cleansing.
Moreover, the expectation that any stateless child of a refugee must be able to access the
nationality of the State in which they are born would likely lead to a further shrinking of
international protection space, with States being reluctant to provide safe haven specifically
to stateless refugees. Yet, in situations of protracted displacement, determining which State
is the stateless refugee’s ‘own country’ becomes more complex. The Human Rights
Committee has indicated that the language of article 12, paragraph 4 [of the ICCPR]
‘permits a broader interpretation that might embrace other categories of long-term
residents, including but not limited to stateless persons arbitrarily deprived of the right to
acquire the nationality of the country of such residence’.72 In this light, it would seem very
difficult for a host State to justify allowing statelessness to persist across several
generations of refugees born in exile—which is in practice the case for Rohingya refugees in
many countries and other stateless refugee groups as well.
As this chapter has discussed, the definition of a stateless person under international law
‘applies in both migration and non-migration contexts’.73 This definition is widely
understood, including on the basis of commentary by the International Law Commission, to
have attained the status of customary international law.74 As such, international norms
directed at the avoidance of statelessness and the realization of the right to a nationality
employ a similarly unqualified understanding of statelessness as a phenomenon that may be
either migratory or in situ. Yet, this dichotomy is widely used, in some contexts specifically
to distinguish different courses of action that would be appropriate. As Vlieks explains in
her survey of the use of the terms ‘migratory’ and ‘in situ’ statelessness:
(p. 167)
the main reason for making a distinction […] is the difference in response that the
distinct situations represented by these two concepts require. […] there are two
ways of responding to statelessness from a legal perspective: (1) statelessness
determination and a protection status (as well as access to facilitated
naturalization) […] for persons who are stateless in the migratory context—or (2)
recognition of statelessness—for persons who are stateless in situ.75
However, as Vlieks goes on to expose, drawing a line between these two purportedly
distinct contexts is extremely challenging. A situation of intergenerational statelessness in a
protracted refugee setting would be one example of a very blurred line. There is a tension,
in such contexts, between international norms and respective State responsibilities that is
difficult to reconcile. International statelessness law prescribes both the (re)acquisition of
the nationality of the country of origin that has denied nationality in violation of requisite
norms, and a pathway to nationality in the host country to reduce statelessness, especially
for children born in exile who thereby enjoy a genuine fact of attachment to that State.
Understanding such difficulties helps to contextualize why UNHCR has focused primarily
on non-refugee statelessness under its statelessness mandate, including in the Global
Action Plan to End Statelessness 2014–2024: ‘the Global Action Plan focuses primarily on
non-refugee stateless populations but also complements UNHCR’s efforts to resolve
protracted refugee situations’.76 Given the strong and enduring interaction between
statelessness and forced displacement, however, digging deeper into the nexus of
statelessness and refugee law to identify, unpack, and perhaps find ways to constructively
resolve areas of potential tension is critical.
5. Final Observations: The Need for Stronger Dialogue between

Two (Sub-)Fields
As any account of the ‘origin story’ of international refugee and statelessness law must
acknowledge, the two fields sprung from the same roots. As efforts to protect refugees
became separated from efforts to protect those without nationality, the journey taken by
these two areas of law considerably diverged. The revival of interest in statelessness in the
early 2000s initially spurred an array of efforts to generate a better understanding of the
content and scope of international statelessness law and to improve its (p. 168)
implementation—with a particular focus on non-refugee settings. But it was not long before
these efforts led scholars and international actors alike back to the relationship between
statelessness and forced displacement, and with it the nexus between refugee and
statelessness law.
As work continues to bring these two fields (back) together, there are some important
questions to be answered. This chapter raises a number of them, from the practicalities of
strengthening the mutual understanding of statelessness law among refugee specialists and
vice versa so as to ensure the effectiveness of both sets of standards in situations where
statelessness and forced displacement intersect, to the normative difficulties inherent in
asserting and protecting the right to a nationality in a situation of (protracted) displacement
and reconciling respective State responsibilities. Raising, investigating, and debating these
questions can also help to tease out areas of international statelessness law that must
operate in a non-refugee setting, including, for instance: the obligations owed in terms of
international protection to non-refugee stateless persons inside their own country,
especially in intergenerational situations, as well as to stateless persons in a migratory but
non-refugee context; how to deal with situations of cessation of refugee status where the
person concerned remains stateless and voluntary return is impeded by this; and the scope
for, and appropriateness of, the use of resettlement as a durable solution for non-refugee
stateless persons.77 Perhaps the study and debate of statelessness law can assist those
working in the refugee field to generate new insights of refugee law in the same way.
Maintaining a transparent, reflective and critical dialogue between these two fields will
ultimately be of great value to both.
Footnotes:
1
UNGA res 71/1 (19 September 2016) para 72.
2
Economic and Social Council, ‘Resolution 116 (V) D: Stateless Persons’ preamble in
‘Resolutions adopted by the Economic and Social Council during its sixth session from 2
February to 11 March 1948’, UN doc E/77 (12 March 1948) 16.
3
UN Economic and Social Council, ‘A Study of Statelessness’, UN doc E/1112 (August
1949).
4
Convention relating to the Status of Stateless Persons (adopted 28 September 1954,
entered into force 6 June 1960) 360 UNTS 117 (1954 Statelessness Convention);
Convention on the reduction of Statelessness (adopted 30 August 1961, entered into force
13 December 1975) 989 UNTS 175 (1961 Statelessness Convention).
5
Mark Manly, ‘UNHCR’s Mandate and Activities’ in Alice Edwards and Laura van Waas
(eds), Nationality and Statelessness under International Law (CUP 2014) 92.
6
1954 Statelessness Convention (n 4) art 1.
7
Nationality here referring to a particular type of legal bond between a person and a
State, commonly also referred to as citizenship. See further Alice Edwards, ‘The Meaning of
Nationality’ in Edwards and van Waas (n 5) 12–14.
8
UNHCR, ‘Handbook on Protection of Stateless Persons: Under the 1954 Convention
relating to the Status of Stateless Persons’ (2014) 12 <https://www.unhcr.org/dach/wp-
content/uploads/sites/27/2017/04/CH-UNHCR_Handbook-on-Protection-of-Stateless-
Persons.pdf> accessed 23 May 2019.
9
This is also explicit in art 1A(2) of the Refugee Convention.
10
See Chapter 44 in this volume. See also Eric Fripp, Nationality and Statelessness in the
International Law of Refugee Status (Bloomsbury 2016); Michelle Foster and Hélène
Lambert, International Refugee Law and the Protection of Stateless Persons (OUP 2019).
11
For a discussion of the wider interaction between statelessness and migration, see eg
Sophie Nonnenmacher and Ryszard Cholewinski, ‘The Nexus between Statelessness and
Migration’ in Edwards and van Waas (n 5) 247–63; Jyothi Kanics, ‘Migration, Forced
Displacement, and Childhood Statelessness’ in The World’s Stateless: Children (Institute on
Statelessness and Inclusion 2017) 209–22.
12
Consider, for instance, the examples of statelessness produced following decolonization
in East Africa as discussed in Bronwen Manby, ‘Statelessness and Citizenship in the East
African Community’ (UNHCR 2018) <https://www.refworld.org/docid/5bee966d4.html>
accessed 30 September 2019.
13
See Chapter 2 in this volume.
14
UN Human Rights Council, Report of the Special Rapporteur on Contemporary Forms of
Racism, Racial Discrimination, Xenophobia and related Intolerance UN doc A/HRC/38/52
(25 April 2018) 14–15. See also Lindsey Kingston, Fully Human: Personhood, Citizenship,
and Rights (OUP 2019).
15
Consider the examples of the Lhotshampas of Bhutan following 1985 changes to the
citizenship law, as discussed in Michael Hutt, Unbecoming Citizens: Culture, Nationhood,
and the Flight of Refugees from Bhutan (OUP 2005); and Black Mauritanians who were
Part I International Refugee Law— Reflections on
the Scholarly Field, Ch.7 Refugees as Migrants
Idil Atak, François Crépeau
From: The Oxford Handbook of International Refugee Law

Edited By: Cathryn Costello, Michelle Foster, Jane McAdam
Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Series: Oxford Handbooks
Published in print: 03 June 2021
ISBN: 9780198848639
Subject(s):
Migration — Asylum — Non-refoulement — Migrants
(p. 134) Chapter 7 Refugees as Migrants
THERE is no universally agreed definition of an ‘international migrant’. According to the
UN’s Recommendations on Statistics of International Migration of 1998, a ‘long-term
migrant’1 is a person who is outside the territory of the State of which they are nationals or
citizens and who has resided in a foreign country for more than one year, irrespective of the
causes, voluntary or involuntary, and the means, regular or irregular, used to migrate.2
Similarly, Eurostat’s definition emphasizes the length of at least 12 months’ residence in
Europe.3
The International Organization for Migration suggests a more open working definition,
which seems nowadays more appropriate:
An umbrella term, not defined under international law, reflecting the common lay
understanding of a person who moves away from his or her place of usual
residence, whether within a country or across an international border, temporarily
or permanently, and for a variety of reasons. The term includes a number of well-
defined legal categories of people, such as migrant workers; persons whose
particular types of movements are legally defined, such as smuggled migrants; as
well as those whose status or means of movement are not specifically defined under
international law, such as international students.4
(p. 135) Many other organizations accept a similarly broad definition. According to the
International Labour Office’s Department of Statistics, international migrants are ‘persons
who are usual residents of that country and who are citizens of another country (foreign
population) or whose place of birth is located in another country (foreign born
population)’.5 The International Federation of Red Cross and Red Crescent Societies
underlines that migration can be forced or voluntary, but most of the time a combination of
choices and constraints is involved.6 Interestingly, it notes an intent to live abroad for an
extended period of time, whereas the motivation or length of stay are not considered
defining elements of migration in most other contexts. For instance, in the International
Convention on the Protection of All Migrant Workers and Members of their Families, ‘the
term “migrant worker” refers to a person who is to be engaged, is engaged or has been
engaged in a remunerated activity in a State of which he or she is not a national’.7
Indeed, the term ‘migrant’ covers a broad spectrum of people, from the tourist to the
survivor of human trafficking. On this spectrum, a refugee is a migrant. However, there has
been a long-standing debate as to whether refugees should be portrayed as migrants.8
Several organizations, refugee advocates, and scholars argue for a clear line between
‘migrants’ and ‘refugees’, as a means of protecting the refugee regime.9 They point to the
inherently distinct motivations driving refugee movements compared to other types of
migration, as well as to the specific normative and institutional framework for refugee
protection.10 Thus, former Assistant High Commissioner for Refugees (Protection), Erika
Feller, argued that it was dangerous, and detrimental to refugee protection, to confuse the
two groups, and that as the line between ‘migrant’ and ‘refugee’ blurs, so does the
distinction between migration control and refugee protection.11
(p. 136) More recently, the topic sparked a public controversy at the peak of the so-called
European ‘migration crisis’ in 2015, when more than a million asylum seekers, mostly from
war-torn Syria, reached Europe. It began with the announcement by the news website Al
Jazeera that it would no longer refer to ‘migrants’ in the Mediterranean, but to ‘refugees’,
where appropriate.12 It was contended that ‘migrant’ is a term that strips suffering people
of their voice and undermines the rights of those fleeing violence and conflict.13 This was
followed by a heated media discussion about the use of appropriate terminology and the
potential impact on public responses to refugees.14 UNHCR warned against ‘conflating
refugees and migrants’, noting that this could ‘have serious consequences for the lives and
safety of refugees…[by] politiciz[ing] the debate and undermin[ing] public support for
refugees and the institution of asylum’.15 Efforts to keep refugees distinct from migrants
were also prominent in the discussions leading to the adoption in 2018 of the Global
Compact on Refugees and the Global Compact for Migration.
We argue that refugees are indeed migrants. We underscore the overlap between these two
categories in a global context that is characterized by restricted avenues for legal
migration, limited durable solutions for refugees, and punitive policies towards asylum
seekers. In so doing, we do not deny that refugees are special, nor do we question the
international refugee protection regime. On the contrary, the current institutional and
normative refugee protection framework should be supported and the specific rights and
entitlements for refugees set forth in the Refugee Convention and Protocol should be
implemented and reinforced.
Our aim is to show why the forced/voluntary and political/economic binaries that underlie
the refugee/migrant distinction are questionable. We contend that conceptualizing refugees
as migrants does not undermine the specific normative and institutional framework for
refugee protection. Rather, it further promotes refugees’ access to asylum and safety.
Refugees, like all migrants, are already protected by international human rights law, which
has proven effective in addressing many intersecting factors (such as age, gender, religion,
ethnicity, and nationality) that exacerbate refugees’ vulnerability. As well, insisting on a
migrant/refugee dichotomy leads many to believe that refugees need protection while
migrants do not, a belief that is false: refugees may singularly need ‘international
protection’ as conceptualized in the Refugee Convention, but all migrants—indeed all
human beings—need the protection of States against violations of their human rights.
(p. 137) Our goal is to plead for a global mobility regime that would ultimately lead to the
better protection of rights for all those on the move, including refugees. International
migration law is still nascent and fragmented, but the Global Compact for Migration
constitutes a major political step towards structuring States’ responses more coherently.
One could cautiously suggest that, just as the UDHR created the post-1948 momentum for
numerous subsequent human rights instruments and institutions, so might the Global
Compact have a similarly catalytic role over the coming decades.
The first section of this chapter examines the literature on the refugee/migrant distinction,
and whether upholding it is accurate and justifiable. It highlights the increasingly
overlapping and interconnected motivations and contexts driving forced migration. Section
2 focuses on the mounting barriers refugees face to reach safety, noting that difficulties in
finding durable solutions may result in secondary movements, in turn further blurring the
distinction between migrants and refugees in political and media discourse. Section 3
explores the avenues to safeguarding and promoting access to asylum and refugee rights. It
explains why the special status of refugees in international law does not guarantee their
effective protection (given the absence of durable solutions for so many). Section 4
contends that migrants (including refugees) benefit from the international human rights
regime, which sometimes offers a more robust protection to refugees than the international
refugee regime. Section 5 articulates the role that freedom of movement should play in
protecting the rights of all migrants (including refugees). The chapter concludes with a plea
for increased facilitated mobility for all, as championed by the Global Compact for
Migration.
1. The Problematic Refugee/ Migrant Binary
There are several reasons why refugees are special compared to other categories of
migrants. First, the refugee protection regime is premised on forced,16 rather than
voluntary,17 movement: a refugee is someone with a well-founded fear of being persecuted
for at least one of five enumerated grounds. Secondly, as Carens argues,—from an ethical
perspective, democratic States should admit refugees on the basis of ‘causal connection,
humanitarian concerns and the normative supposition of the state system’, in the sense that
‘because the state system assigns people to states, states collectively have a responsibility
to help those for whom this assignment is disastrous’.18 (p. 138) Gibney suggests that
refugees have a stronger moral claim than economic migrants because ‘[i]f economic
migrants are refused entry, they are forced to remain in a situation of poverty; if refugees
are turned away, their very lives may well be on the line’.19 Moore agrees that concern for
basic rights justifies the obligations that different political communities have to refugees. If
people’s lives and liberties are threatened, they should be entitled to a safe haven.20
The distinctive conceptual features of the refugee have been debated and sometimes
revised and contested. An example is the additional grounds for protection in certain
regional refugee protection instruments, such as the OAU Convention and the Cartagena
Declaration.21 The former was adopted during a period of violent struggle for self-
determination and national development in Africa,22 and as a result, its refugee definition
includes people fleeing ‘external aggression, occupation, foreign domination or events
seriously disturbing public order’.23 In a similar vein, the Central American political
situation in the 1980s informed the extension of the refugee definition in the Cartagena
Declaration to people ‘fleeing generalized violence, foreign aggression, internal conflicts,
massive violation of human rights or other circumstances which have seriously disturbed
public order’.24 Shacknove notes that the OAU definition of refugee ‘[r]ecognizes, as the UN
[Refugee Convention] definition does not, that the normal bond between the citizen and the
state can be severed in diverse ways, persecution being but one’.25
Similarly, the categorical distinction between forced and voluntary migration has been
widely contested. De Genova, Mezzadra, and Pickles hold that this clear-cut distinction is
empirically untenable, as the motivations for movement are always mixed and cannot be
encapsulated in such simple dichotomies.26 In particular, it has been argued that all
migration involves both choices and constraints. Even refugees may have a degree of
control over their destination and the means they choose to reach it.27 As well, it may at
times be very difficult to distinguish between voluntary and forced migrants:
voluntary migrants may feel compelled to seek new homes because of pressing
problems at home; forced migrants may choose a particular refuge because of
family and community ties or economic opportunities. Moreover, one form of
migration often leads to another. Forced migrants who settle in a new country may
then bring family members to join them.28
(p. 139) This difficulty was acknowledged in the 2016 New York Declaration for Refugees
and Migrants29—a not insignificant point given that the Declaration was, in part, spurred on
by the dramatic movement of refugees across Europe in 2015–16, which encouraged States
to seek greater coordination on migration and asylum.30
It is noteworthy that the current global context differs greatly from that which gave rise to
the contemporary refugee regime and the Refugee Convention, in particular, which
arguably conceived of refugees as ‘products of oppressive, totalitarian regimes in which the
normal responsibilities of a State to its citizens were deliberately and directly violated’.31
Today, often interrelated factors compound the blurring of the line between the economic
and political motivations to leave one’s country. Forced migration linked to armed conflicts,
political unrest, and undemocratic societies has increased considerably in the past few
decades, further exacerbated by climate change and struggles for scarce resources.32
According to UNHCR, 70.8 million people were forcibly displaced in 2018 compared to 42
million a decade ago.33 While persecution, conflict, violence, and human rights violations
continue to uproot people from their homes, conflicts (such as those in Syria and
Afghanistan), which have caused large refugee outflows, are lasting longer, pushing the
number of refugees in the world steadily upward.
Castles underlines that forced migration is linked to the globalization that created ‘a system
of selective inclusion and exclusion of specific areas and groups’.34 Bivand and Oeppen
likewise stress the interconnectedness of factors such as poverty, corruption, and political
violence.35 Betts suggests that ‘so-called slow-onset environmental displacement is
generally based on the complex interaction of the environment with other factors notably,
livelihoods and state fragility’,36 and McAdam remarks that although international refugee
law may apply to people displaced by the impacts of climate change, it is generally an
inappropriate normative framework for responding to the needs of such people.37
(p. 140) Thus, voluntary/forced and economic/political binaries that underlie the Refugee
Convention do not offer adequate explanatory frameworks for those who leave their homes
on account of extreme poverty created by protracted conflict or oppressive governments or
because of environmental or climate-related factors—and nor do they reflect migrants’
personal experiences of constraints and choices.38 Against this background, some scholars
question the ethical permissibility of treating refugees as a distinct category from migrants.
Kukathas, for instance, contends that ‘making refugees special neither makes sense
conceptually, nor looks possible practically on the evidence we have to date’.39
The controversy about voluntary/forced migration shows how these categories are
malleable. Some States’ refugee jurisprudence has been liberal. As noted by Hathaway,
decision-makers in some Global North countries have increasingly recognized that threats
to core social and economic rights constitute persecution, in the sense that they amount to
‘sustained or systemic violation of basic human rights demonstrative of a failure of state
protection’.40 Despite UNHCR’s objection to conflating migrants with refugees, its own
mandate has shown remarkable adaptability in the face of this reality. As the number of
forced migrants has steadily increased globally, so have the persons of concern to UNHCR
whose mandate now comprises, in addition to refugees, groups such as returnees, stateless
persons, internally displaced persons, and people displaced by disasters. These changes
have also impacted the terminology employed by UNHCR. Crisp noted in 2009 that, from
the mid-1990s to the mid-2000s, the refugee concept was progressively replaced by the
notion of ‘persons of concern to UNHCR’. UNHCR’s website now refers to ‘refugees,
stateless persons, IDPs and other persons of concern’.41
States have instrumentalized the refugee/migrant dichotomy to stem unwanted migration.
Many have rhetorically recognized their obligations towards refugees, while denying any
rights to ‘illegal aliens’, a category in which asylum seekers are too often included.
Moreover, refugees in comparable situations may receive radically different treatment in
different contexts. For example, hundreds of thousands of North Korean asylum seekers
who fled into China since 1995 have been labelled ‘illegal economic migrants’ by the
Chinese government, which has refused to assess their refugee claims and forcibly
repatriated many to North Korea.42 By contrast, millions of Venezuelans (p. 141) who have
fled their country for similar reasons have been welcomed in neighbouring Latin American
countries, with Colombia accounting for some 1.3 million, followed by Peru with 768,000 in
2019.43 Interestingly, Latin American countries welcomed all persons fleeing Venezuela,
irrespective of their eventual status as refugee or migrant. The so-called Quito Process
includes mechanisms for coordinating their response and facilitating the legal, social, and
economic inclusion of these Venezuelan citizens, refugees and migrants alike.44 This
exemplifies how in some cases States may overlook the refugee/migrant binary. After all,
they have a sovereign right to decide who can enter and reside on their territory.
In other cases, States simply choose to ignore the special treatment owed to refugees. The
travel bans issued by US President Donald Trump is an example of an arbitrary political
decision that indiscriminately targets all migrants (including refugees).45 Overall, then, the
binary distinguishing voluntary/economic migration from forced/political displacement is
very unsatisfactory at a conceptual level, and probably not an effective practical tool to best
advance refugee rights.
2. The Voluntary/Forced Migration Binary and the Mounting

Barriers Refugees Face to Reach Safety
Since the 1980s, a defining feature of the global migration context has been States’ efforts
to stem unwanted migration. Not only has legal immigration become more difficult and
increasingly limited to the privileged few,46 but States have also implemented a
containment strategy through a range of preventative and deterrent policies.47
Facilitated mobility was the trend until the oil crises of the late 1970s, when many States in
the Global North attempted to close their borders to labour migration, thus spurring a
considerable increase in asylum applications and the appearance of the (p. 142) expression
‘asylum seeker’.48 Until then, many of those who would have qualified as refugees instead
came as workers and settled in their host country with their family, thanks to a residence
visa and a work permit.49
States often consider undocumented people on the move to be ‘irregular economic
migrants’ and a threat to their sovereignty and security.50 This approach has been used to
justify the tightening of the criteria for granting refugee status in many destination
countries with the pretext of deterring ‘abuse’ and reducing the ‘burden’ of ‘manifestly
unfounded’ asylum claims.51 For instance, under the Dublin regime, asylum seekers must
have their application for refugee status processed by the State that is responsible for their
entry into the European Union (EU). In most cases, this is the country responsible for the
external European border crossed by the asylum seeker. During the ‘migration crisis’ of
2015–16, the Dublin system was completely overwhelmed, and, given the reticence of EU
States to accept refugees for resettlement from the main EU entry points (Italy and
Greece), neither of these two countries had any incentive to ensure the efficient operation
of the Dublin system.52
Considering the administrative difficulties, financial cost, and political repercussions of
detecting, detaining, and deporting undocumented migrants (including asylum seekers), the
phenomenon of externalization of migration control has become widespread.53 What’s
more, destination countries increasingly cooperate with source and transit countries to
enable the latter to efficiently control their borders and contain asylum seekers. As
Hathaway has noted, ‘if there has been a single overarching trend in refugee protection
over the last decade or so, it has been the official drive to rein-in, to control, to constrain, to
render orderly and hence manageable the arrival of refugees. The goal has been to render
the refugee as much a migrant as possible.’54
The concept of ‘precarious migrants’, developed by Goldring and Landolt in the Canadian
context,55 refers to authorized and unauthorized forms of migration that are (p. 143) legally
produced. Precarious migrants, including asylum seekers, share a precarity56 rooted in
conditionality of presence in the host country and access to entitlements. The concept
underscores the non-linear and unpredictable migration trajectory experienced by some
migrants, such as asylum seekers, making their vulnerability to rights violations and
exploitation pervasive. De Genova, Mezzadra, and Pickles suggest that the present refugee
protection regime produces more rejected refugees than ones with ‘status’, and effectively
intensifies the precarious existence for many, while offering protection to only a few.57
As stated above, some of these policies have proven to be counterproductive. It should not
come as a surprise that the number of asylum seekers has increased steadily in the past
decades: worldwide, there were 827,000 people awaiting a decision on their application for
asylum in 2008, and this number reached 3.5 million in 2018.58 There is evidence that many
refugees choose to remain in an undocumented status rather than risk applying for asylum
in those countries where recognition rates are particularly low.59 Similarly, obstacles like
truncated timelines to lodge and/or examine refugee claims may create a disincentive for
asylum seekers to make their claim upon arrival in the country of asylum: this can result in
individuals preferring to remain undocumented until they compile evidence needed to
support their claim, although, in some States, this may mean that they are precluded from
applying for asylum at a later stage.60
3. The Limits of Durable Solutions for Refugees and their

Consequences
Another defining feature of the global migration regime has been the limited nature of
durable solutions for refugees. Voluntary repatriation to the country of origin has been
constrained considerably by the lack of safety and ongoing political instability in major
refugee-producing countries like Afghanistan, Syria, and South Sudan.61 Similarly, (p. 144)
resettlement places for refugees remain few compared to need.62 Acts of leadership, such
as Germany taking in more than a million refugees during the 2015–16 ‘migration crisis’,
and Canada’s special intake of more than 45,000 (mostly Syrian) refugees in 2015–17, have
been the exception rather than the rule.
Against this backdrop, there has been mounting pressure on so-called first countries of
asylum and transit countries to redouble efforts to locally integrate the refugees they are
already hosting. Today, developing regions host 85 per cent of the refugees under UNHCR’s
mandate.63
Unsurprisingly, many refugees do not see a future for themselves in first countries of
asylum or transit countries, given scarce livelihood opportunities, political and economic
pressures, discrimination, and a lack of access to rights or to citizenship. This is why some
move onwards in search of protection.64 Whether such secondary movement should be seen
as a continuation of the original journey or a separate migration experience is debatable.
Crawley and Skleparis see it as ‘a separate process driven by its own motivations, decision-
making, planning and aspirations’.65 In contrast, UNHCR emphasizes ‘the wider factors at
play’ that push refugees to move onward, such as lack of comprehensive solutions, and
barriers to access to asylum procedures in host countries.66 Interviews with refugees in
Greece and Turkey led Crawley and Skleparis to note that ‘at times in their lives, some of
our Afghan respondents were ‘refugees’ fleeing conflict, at others they were ‘migrants’
looking to improve their economic situation, albeit in the context of discrimination’.67 This
provides a perfect illustration of how individuals can move between various legal and
administrative categories of migrants (including refugees) over space and time, in
particular due to complex and conflicting State policies.
Secondary movements have become a major concern for policymakers in the Global North.
The Comprehensive Refugee Response Framework (CRRF), annexed to the 2016 New York
Declaration and reiterated in the Global Compact on Refugees, encourages States to
regulate refugees’ onward movement and explore complementary pathways to protection.
These include humanitarian visas or corridors, and other humanitarian (p. 145) admission
programmes, such as labour mobility opportunities for refugees.68 As scholars have noted,
(temporary) labour migration is a possible fourth ‘durable solution’, which can enable
refugees to lead more dignified and self-sustained lives, particularly in situations of
protracted forced displacement.69
The CRRF emphasizes the importance of refugees’ economic and social inclusion in their
host countries as an essential step towards long-term solutions. The focus is on empowering
refugees through building human capital and transferable skills, with the involvement of the
private sector and the World Bank, as well as new innovative financial mechanisms.70 This
echoes calls by researchers and international organizations in favour of a ‘bottom-up’
approach whereby refugees, as social innovators, engage in problem-solving and create
opportunities for themselves and their communities. Key elements of a positive enabling
environment include the right to work, freedom of movement, access to education, good
infrastructure, banking and credit facilities, and transnational networks.71
Historical precedents inform these discussions and illuminate how mobility is central to
durable solutions. When the international refugee protection regime was first established in
the 1920s, refugees were considered migrants. The Nansen Passport, a refugee travel
document first introduced in 1922, was intended to facilitate refugees’ onward movement
and through this, their access to labour markets. Long contends that the approach to
refugee protection in the 1920s was centred on facilitating individual freedom of movement
as a form of burden-sharing.72 Bivand and Oeppen remark that some Pakistani participants
in their research refused to be classified as either refugees or economic migrants.73
Likewise, McAdam’s empirical research reveals that those who may be displaced due to
environmental or climate-related factors in Tuvalu and Kiribati do not want to be
categorized as ‘refugees fleeing from their own government, perceiving them as passive
victims, waiting helplessly in camps and relying on handouts, with no prospects for the
future’.74 In this sense, conceptualizing refugees as migrants may acknowledge the desire
of most refugees to establish themselves in a country where they can create a future for
themselves and their family, and where they may thrive thanks to their economic and other
skills—a desire which they share with all migrants.
(p. 146) The downside of treating refugees as migrants is that it may lead State authorities
and opinion makers to downplay the distinctive tenets of the Refugee Convention, and thus
the States’ specific obligations to refugees. A focus on refugees as agents of economic
development, rather than as individuals in need of international protection, may also push
States to curtail their responsibilities to address the specific needs of vulnerable groups. In
the past, some States have screened out ‘non-preferred’ classes of refugees or refrained
from resettling those who are sick, old, or impaired.75 Unless accompanied by the effective
enforcement of civil, social, and economic rights, there is also a risk that refugees could be
turned into a cheap workforce. International human rights law, more than the Refugee
Convention, plays an important role in this respect.
4. International Human Rights Law and the Protection of all

Migrants (including Refugees)
The Refugee Convention sets out a range of fundamental rights and freedoms in articles 2
to 34, and ‘refugees become entitled to an expanding array of rights as their relationship
with the asylum State deepens’.76 However, it has been criticized for being State-centric in
the sense that it represents undertakings and obligations, accepted between the
Contracting States, to respect, protect, or accord certain rights and benefits,77 and it does
not impose requirements to establish refugee status determination procedures or minimum
procedural standards.78 Consequently, the criteria for refugee status determination vary
considerably between countries and are inconsistently applied, as do procedural rights,
such as access to legal aid and the right to appeal.79
The Refugee Convention also lacks an oversight or treaty-monitoring body.80 While article
38 enables disputes pertaining to interpretation to be referred to the International Court of
Justice, this inter-State procedure has never been activated. Under article 35, (p. 147)
UNHCR has supervisory responsibilities, including taking steps to ensure the consistent
and correct interpretation of the Convention. However, this has been criticized for
providing no legal ‘teeth’.81 In addition, States have consistently sought to undermine the
two major entitlements of refugees in articles 31 and 33 of the Refugee Convention by
criminalizing undocumented arrivals, arbitrarily detaining asylum seekers, and deporting
people to life-threatening situations.
As noted by Chetail, ‘human rights law provides a universal and uniform set of standards
which represents a particularly persuasive device for harmonizing the unilateral and
frequently diverging interpretations of states parties’.82 The ICCPR and the ICESCR set out
fundamental rights available to ‘all’ persons, regardless of their legal status. Both
instruments are the base line common to all, including all migrants (including refugees).
The Refugee Convention provides refugees with specific, supplementary rights. Additional
human rights treaties on racial discrimination, torture, children, women, persons with
disabilities, and so on, are all core universal human rights instruments, which again apply
to all migrants (including refugees). All States have ratified at least one of these treaties
and, owing to the non-discrimination principle, are thus obliged to respect the human rights
of all.
Unlike the Refugee Convention, universal (and regional) human rights treaties are
supported by their own treaty bodies specifically mandated to monitor State compliance
with their treaty obligations. Although the UN treaty bodies’ recommendations are not
legally binding as such, they point to protection gaps and exert pressure for action.
Moreover, a number of the universal treaties have optional communications mechanisms
that allow anyone, including migrants, to make individual complaints to the relevant UN
treaty body.83 At the regional level, the European Court of Human Rights, the Inter-
American Commission on Human Rights, and the Inter-American Court of Human Rights
have played important roles in the protection of migrants’ (including refugees’) human
rights, through a reinforcement of the principle of non-refoulement, the prohibition of
inhuman and degrading treatment and arbitrary detention, and the right to an effective
remedy.84
In some cases, international human rights law offers a stronger protection to refugees than
the Refugee Convention. The principle of non-refoulement contains an exception in article
33(2) of the Convention (on security grounds), whereas it is absolute under the ICCPR and
CAT.85 As noted above, it also enlarges the scope of rights available to refugees: for
instance, refugee children have better access to education under the CRC (p. 148) than
under the Refugee Convention. As Goodwin-Gill rightly notes, the Refugee Convention’s
approach differs markedly from that of the human rights instruments, where the individual
is identified ‘as the point of departure—whether simply by virtue of being human, or a child,
a woman, a worker, or someone with a disability’.86 As a woman, a child, a person with
disability, the refugee benefits cumulatively from all the international human rights
instruments protecting those particular groups, as well from all other generally applicable
human rights instruments benefiting all human beings. As do all migrants.
5. Freedom of Movement as a Fundamental Right

This section highlights the key role of freedom of movement as a fundamental right, arguing
that, in a context characterized by repetitive ‘migration crises’ and limited durable solutions
for refugees, enhancing migrants’ (including refugees’) mobility would also ensure more
effective protection of their human rights.
The right to freedom of movement set out in article 13 of the UDHR and article 12 of the
ICCPR, includes an individual’s right to leave any country, including their own, and to
return to their country. Juss describes it as ‘half’ a right because migrants generally do not
have the right to enter another country without that country’s permission.87 By contrast, for
Guild and Stoyanova, the absence of a right to enter another country may be one of the
most important strengths of article 12 in the sense that the right to leave is a right in and of
itself; it is not dependent on any right to enter a specific country of destination (or, indeed,
any country at all).88
For refugees, freedom of movement is a vital part of securing protection.89 Yet, it has been
dramatically curtailed by a range of measures, including restrictions on the right to leave by
some countries of origin, border controls by transit countries, and deterrence policies by
destination States, such as interception measures beyond their borders.90 Zieck argues that
restricting the right to leave in order to assist other States in controlling undocumented
movement, even if carried out pursuant to relevant international (p. 149) obligations,
cannot be justified on the basis of public order.91 Indeed, as stated by Goodwin-Gill and
McAdam, ‘[T]he right to seek asylum, when read in conjunction with the right to freedom of
movement and the totality of rights protected by the UDHR and ICCPR, implies an
obligation on States to respect the individual’s right to leave his or her country in search of
protection’.92 Likewise, drawing on the international and European human rights case law,
Guild and Stoyanova contend that ‘demonstrating that an individual has the possibility or
right to enter another country is not a ground on the basis of which States are permitted to
interfere with the free-standing right of that person to leave their territory’.93
International refugee law does not address mobility for refugees. Article 26 of the Refugee
Convention relates only to the right of refugees who are lawfully present in the host country
to choose their place of residence and to move freely within that country. For instance, the
Refugee Convention does not determine where a refugee’s international mobility must end,
and refugees are under no obligation to apply for asylum in any particular State. By
contrast, facilitating human mobility for all is an integrated policy objective of the 2015
Sustainable Development Goals94 and has been included in the Global Compact for
Migration,95 which provides a list of the changes in both policy and practice that need to
occur for international mobility to be liberalized.
As the first global (albeit soft-law) instrument on migration to synthesize negotiated norms
and mesh them with State obligations under international human rights law, the Global
Compact for Migration details the many human rights, including labour rights, guarantees
that generally apply to all people—regardless of status.96 There is a clear rule-based
governance approach, which brings the treatment of migrants closer to that of citizens and
reduces the administrative discretion of government authorities towards foreigners. The
Global Compact draws on various principles and standards deriving from State sovereignty,
international human rights law, and international refugee law, and it sets forth rules and
principles for cooperation amongst States to govern the international movement of people.
As such, it has strong potential to contribute to the consolidation of a still fragmented and
nascent ‘international migration law’.97 This could, in turn, facilitate constructive responses
to ‘migration crises’, such as financial and technical support for transit countries and an
increase in resettlement options. If most migrants were offered legal pathways for easier
mobility, undocumented migration would considerably decrease (and with it, a number of
people requesting asylum who (p. 150) do not, in fact, need international protection, but
whose claims choke refugee determination mechanisms). Greater mobility for all would
mean enhanced protection for refugees.
6. Conclusion
This chapter contended that refugees are, indeed, one category of migrants. This does not
negate the fact that refugees are special. The normative and institutional framework for the
recognition and protection of refugees must be safeguarded and supported. However, the
voluntary (economic) versus forced (political) binary that underlies many of the concerns
about conceptualizing refugees as migrants is not an effective approach to advance refugee
rights, especially in the current context of forced migration.
Some of the basic premises of the Refugee Convention have the effect of excluding large
numbers of forced migrants from its protection. To some extent, international and regional
human rights law has helped to fill the gap. Human rights law takes better account of the
intersecting elements of vulnerability that may precipitate flight (such as gender, age,
religion, and so on) and has been instrumental in shaping and expanding refugee rights.
Unsurprisingly, deterrence strategies by States have fuelled illicit activities. Underground
labour markets in transit or destination countries allow undocumented migrants, including
refugees, to survive in the margins. Smuggling rings provide migrants with mobility
options, at a cost. Unscrupulous recruiters, landlords, employers, and others take
advantage of this precarity to exploit migrants under the threat of denouncing them to the
authorities. This threat silences most undocumented migrants, who do not dare denounce
the exploitation. Restricting mobility thus pushes many migrants (including refugees),
underground and ultimately subsidizes criminal rings.
This chapter argued that, by contrast, States need to govern mobility, that is, to legalize,
regulate, and tax mobility. This will avoid creating an increasingly unmanageable and costly
‘fortress’, and will progressively allow more people to come and go in the pursuit of their
own goals, and to make their own choices about their lives—one of the core elements of
human dignity.
The final part of the chapter pleaded for the effective facilitation of international mobility
for all, as a solution to ‘migration crises’. This does not mean diminishing border controls.
On the contrary, it would make them more effective by offering foreigners easier access to
appropriate travel documents which can be checked by border guards, and allowing
security agencies to screen them openly and target their efforts on the dangerous few.
Thriving economies have the capacity to integrate millions of migrants (including refugees).
Business communities are constantly calling for more workers. Cities around the world have
absorbed millions of migrants from the countryside or from abroad, (p. 151) mostly without
erecting barriers. Migrants themselves, including refugees, have shown agency, resilience,
courage, and creativity, and have positively influenced their host communities.
However, there remains a collective crisis of moral and political leadership. The present
‘migration crisis’ cannot be tackled until politicians adhere to a long-term, sustainable
vision in which human rights-based strategic mobility and diversity policies and practices
are championed. Despite contemporary nationalist, populist narratives, one can envision a
different, peaceful, more productive approach whereby migrants are empowered to defend
their rights, just like anyone else.
Footnotes:
* The authors thank Lorielle Giffin for her research assistance.

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Part II Sources, Ch.

9 The Architecture of the UN

From: The Oxford Handbook of International Refugee Law

Content type: Book content

1. The Refugee Convention and Protocol as Interlocking

2. Refugee Status as a Non-reservable International Norm

3. Refugee Status as Declaratory

A person is a refugee within the meaning of the 1951 Convention as soon as he

4. Non-exclusive Catalogue of Rights

5. Exceptions and Derogation

6. Rights Acquisition by Attachment

7. Rights Defined by a Mix of Absolute and Contingent

3. International Statelessness Law

4. When a Refugee is also Stateless, or a Stateless Person is

When an applicant raises both a refugee and a statelessness claim, it is important

5. Final Observations: The Need for Stronger Dialogue between

From: The Oxford Handbook of International Refugee Law

Content type: Book content

2. The Voluntary/Forced Migration Binary and the Mounting

3. The Limits of Durable Solutions for Refugees and their

4. International Human Rights Law and the Protection of all

5. Freedom of Movement as a Fundamental Right

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