The Human Rights Approach to the Refugee Definition: Rising Sun or Falling Star?

Abstract

Until recently, the human rights approach to the refugee definition appeared destined to become a permanent feature of international refugee law. Now, however, doubts have set in. The object of this article is to address the main criticisms that have been levelled and to seek to put them in a wider perspective, reflecting briefly on where the law on refugee status is heading now that the 1951 Refugee Convention has entered its eighth decade. To this end, this article commences with a description of the human rights approach and a brief summary of how and why it came to become the 'dominant' approach and its underlying justifications. It then turns to consider the major criticisms raised, breaking these down into three clusters. The first cluster seeks to argue that such an approach is not warranted by proper application of the rules of treaty interpretation enjoined by the 1969 Vienna Convention on the Law of Treaties. The second cluster identifies a number of other conceptual concerns: that such an approach depends on extraneous standards that lack refugee specificity; that it substitutes one set of indeterminate terms for another (for example, torture as one form of persecution); that it is unduly complex and unwieldy; that it wrongly assumes an equivalency between international refugee law and international human rights norms; and that it promotes a 'principle of surrogacy' that lacks any clear foundation. A third cluster dwells on the deficiencies of the human rights approach as a paradigm when examined from an empirical and comparative perspective: its failure to have become entrenched at a global level; its 'sheer variety' and lack of any clear contents; and its failure to help with difficult questions of refugee law. The article seeks to rebut these criticisms one by one and, in the course of doing so, to highlight the ways in which, far from being in decline, the human rights approach is a rising sun rather than a falling star.