The crisis of refugee protection under the international refugee convention: exploring a complementary way of improving refugee protection through international human rights law, international humanitarian law, and international criminal law
One of the most pressing humanitarian issues of our era is the growing number of people who are being forcibly displaced as a result of wars and armed conflicts. This number reached a staggering 100 million in 2022. Further, in 2021, this figure stood at 89.3 million, already 8% higher than in the preceding year. This increasing number is aggravated by the absence of formal accountability mechanisms at every stage of the refugee cycle. This includes not only where refugee flows are instigated, but also in receiving states that owe a legal obligation towards asylum seekers and refugees under international law. The primary dilemma is that international refugee law (‘IRL’) is not, on its own, capable of addressing these contemporary challenges. The nature of refugee protection is shifting, and IRL must align itself with the broader evolution of international law. The limitations in the international refugee protection regime warrant a searching reappraisal of existing international law, encompassing not only IRL but also international human rights law (‘IHRL’), international humanitarian law (‘IHL’) and international criminal law (‘ICL’). This holistic analysis is imperative to alleviate the refugee protection crisis.
In such a context, this thesis seeks to (a) identify protection gaps in the 1951 Convention Relating to the Status of Refugees (‘1951 Convention’) and the 1967 Protocol Relating to the Status of Refugees (‘1967 Protocol’); and (b) explore pathways for enhancing refugee protection beyond the narrow confines of the 1951 Convention and the 1967 Protocol. In doing so, this thesis examines the nexus between IRL, IHRL, IHL and ICL in order to provide viable complementary ways of addressing the gaps in the refugee protection regime.
The thesis argues that IHRL, IHL and ICL have potential to address the protection and accountability gaps in the 1951 Convention and the 1967 Protocol, emphasising the emerging role of ICL in filling the gaps in IRL particularly when the issue of accountability gaps under IRL arises. To examine this particular issue further, the thesis undertakes two detailed case studies, one of a sending state and one of a receiving state. The first case study is that of Afghanistan. As a sending state, Afghanistan has for decades been among the countries that generate the most refugees and is a state where conflict-induced violence has been the main cause of forced displacement. The second case study is that of Australia. As a receiving state, Australia has received significant international attention for its longstanding policies on the treatment of refugees and asylum seekers. In light of these case studies, and recent developments in ICL jurisprudence, this thesis concludes that ICL offers an under-explored opportunity to fill the accountability gap in IRL, both in sending and receiving states. This thesis recommends that the adoption of a systematic complementary approach to interpreting IRL with IHRL, IHL and ICL could result in enhanced protection to asylum seekers, refugees and internally displaced persons and could also ensure the greater accountability of those who violate these laws.