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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

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 24 February 2024

Subject(s):
Asylum — Non-refoulement — International co-operation

The architecture of the Refugee Convention and Protocol is unique in the world of international human rights law. Rather than being framed in absolutist terms, these treaties embody a principled compromise between attention to the needs of refugees, on the one hand, and recognition of the legitimate interests of host countries, on the other. Refugees are advantaged not only by the attribution of rights on the basis of a non-reservable and flexible definition of refugee status, but also by a commitment to declaratory rather than constitutive status assessment, non-exclusivity of rights accrual, and the existence of no more than constrained exceptions and derogation authority. The legitimate concerns of host countries are catered for by the structure of incremental rights acquisition through attachment and the conceptualization of most rights on a contingent basis.

Sadly, the workability of the compromise embedded in the architecture of the Refugee Convention and Protocol is today threatened by critical failures at the level of implementation: specifically, that these treaties continue to rely on ad hoc, State-by-State efforts rather than coordinated action, and that States have failed to allocate protection responsibilities and burdens on the basis of relative capacities and resources. The challenge is thus not to renegotiate the foundational refugee treaties, but rather to change the way in which protection is operationalized.

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