Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law

Abstract

The present chapter questions the multifaceted interactions between international refugee law and human rights law. It argues that, contrary to prevailing professional wisdom, the Geneva Convention is not a human rights treaty in the orthodox sense, for both historical and legal reasons. However, human rights law has radically informed and transformed the distinctive tenets of the Geneva Convention to such an extent that the normative frame of forced migration has been displaced from refugee law to human rights law. As a result of this systemic evolution, the terms of the debate should be inversed: human rights law is the primary source of refugee protection, while the Geneva Convention is bound to play a complementary and secondary role. This assertion is grounded on a comparative assessment of refugee law and human rights law. This normative inquiry into their respective scope and content is centred on the three major pillars of the refugee protection regime, namely (1) the access to international protection (primarily determined by the refugee definition and the principle of non-refoulement), (2) the content of international protection (as defined by the refugee status and reinforced by human rights) and (3) its implementation scheme at both the domestic and international levels.

Keywords: refugee law, human rights law, non-refoulement, expulsion, UNHCR, detention, refugee status, asylum procedure, asylum-seeker