The Refugee in International Law

Abstract

The refugee in international law occupies a legal space characterized, on the one hand, by the principle of State sovereignty and the related principles of territorial supremacy and self-preservation; and, on the other hand, by competing humanitarian principles deriving from general international law (including the purposes and principles of the United Nations) and from treaty. Refugee law nevertheless remains an incomplete legal regime of protection, imperfectly covering what ought to be a situation of exception. It goes some way to alleviate the plight of those affected by breaches of human rights standards or by the collapse of an existing social order in the wake of revolution, civil strife, or aggression; but it is incomplete so far as refugees and asylum seekers may still be denied even temporary protection, safe return to their homes, or compensation.1 The international legal status of the refugee necessarily imports certain legal consequences, the most important of which is the obligation of States to respect the principle of non-refoulement through time. In practice, the (legal) obligation to respect this principle, independent and compelling as it is, may be difficult to isolate from the (political) options which govern the availability of solutions. The latter necessarily depend upon political factors, including whether anything can be done about the conditions which gave rise to the refugee’s flight. For any solution to be ultimately satisfactory, however, the wishes of the individual cannot be entirely disregarded, for example the connections which he or she may have with one or another State.

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