Panel 2 of the NYU JILP Vol. 44:2 Online Symposium
John Tobin is an Associate Professor at Melbourne Law School where he teaches and researches in the area of human rights. In 2011 he was a Senior Scholar in Residence at the NYU Center for Human Rights and Global Justice. His book, The Right to Health in International Law, has just been released by Oxford University Press.
Using human rights in refugee law - The need to proceed with caution
A well-founded fear of being persecuted is a core requirement for a finding of refugee status under the Refugee Convention.
Although the Refugee Convention
does not define persecution and there is no universally accepted definition,
most definitions tend to stress the need for serious harm and link persecution in some way to a violation of human rights. For example, according to the UNHCR Guidebook a threat to life or freedom or ‘other serious violations
of human rights’ would constitute persecution.
The EC Council Directive 2004/83/EC provides that acts of persecution must be ‘sufficiently serious by their nature or repetition so as to constitute a severe violation of basic human rights’
And for Hathaway and Pobjoy, who affirm the test originally developed by Hathaway in 1991, and which has been widely cited with approval since, it is ‘necessary to show the “sustained or systemic violation of basic or core human rights
entitlements demonstrative of a failure of state protection.”
The theme common to each of these approaches is the idea of a serious or severe violation of a basic or core human right. Although this idea has become axiomatic within refugee law, it is problematic when viewed from the prism of a human rights jurist. For example, in human rights law, a violation
will occur where there has been a failure of state protection
Thus, it makes no sense to speak of a human rights violation and
a failure of state protection.
And even if a human rights violation is taken to be demonstrative of a failure of state protection (which is true in human rights discourse), the Refugee Convention
speaks of a state’s inability
to protect an applicant. But the inability of a State to protect a human right is not necessarily a violation
of a human right.
It will depend on the reasonableness of a state’s actions in responding to an interference with a right. So does this mean that the Refugee Convention
demands surrogate protection for an applicant in circumstances where the state of origin has not actually violated a human right? If so, this would mean that refugee status would be possible in the absence of a human rights violation by a state.
But if human rights remain central to an understanding of persecution, what constitutes a serious or severe violation of a human right? Is not every violation of a human right serious? And what is a basic, fundamental or core human right? Are not all human rights recognized in international treaties said to be fundamental and are not all human rights interdependent and indivisible?
And to which human rights do the various tests for persecution refer – all those recognized under international treaties and customary international law or only certain kinds of rights? And how is the meaning of each right to be assessed? Are developments in regional and domestic human rights systems relevant to the interpretation of international human rights and if so to what extent?