European Refugee Crisis: Failure of International Legal Instruments Pertaining To Rights And Status Of Refugees

European Refugee Crisis: Failure of International Legal Instruments Pertaining To Rights And Status Of Refugees

As the European refugee crisis escalates, it raises some serious concerns over the inadequacies of the international legal instruments pertaining to the status and rights of refugees. Product of the post-Second World War and Cold War era, these instruments have now become largely redundant and outdated, the severity of which is reflected in the deplorable conditions of refugees in the Lesbos, Greece, Calais, France and the people making the perilous journey to Europe. The only conclusion which can be drawn out from the situation faced by these refugees is that of the need to reform the international law and its legal instruments. The most important aspect of this shall include flexibility on part of the Western powers, which they failed to show when the existing legal instruments were drawn more than six decades ago.

The UN Refugee Convention 1951 and the 1967 Protocol Relating to the Status of Refugees are products of a time which is radically different from the world today. They fail to provide safeguard and relief to people who are escaping violence and persecution across the whole world. During the time when these laws came in to force, there was no prospect of such an influx of trans-border refugees. Exit restrictions in the communist countries did not allow a large number of people to leave their countries; on the other hand provision of asylum to defectors from these states provided strategic advantage to Western European nations and catered to the need of unskilled labor to develop war ridden Europe.

The nature of global conflict has changed leaps and bounds. The people escaping violence are now escaping not only communist regimes, but also civil wars, ethnic and communal conflicts and generalized violence, or natural disasters, or famine – usually in combinations rather than individually targeted persecution by an oppressive regime. The change in the nature of conflict has brought an unprecedented increase in the number of refugees, which renders the aforementioned instruments redundant and incapable of dealing with the prevalent scenario. A small fraction of people are able show the need for asylum. The prior exercise of granting sanctuary on a case-by-case basis is unreasonable in the current scenario.

Judicial activism in Western Europe further exacerbates the situation faced by refugees. Vague and confusing provisions and definitions under the Convention have allowed the judiciary to develop the law of refugees in their own terms or to meet the political and social atmosphere of the country. They have allowed governments to wield arbitrary power over the influx and status of refugees, thus making the development of this law highly contentious. It is very important to highlight the fact that, back when the existing legal instruments were drafted, they presented a large compromise by the Western European Countries, who were unwilling for an open-ended responsibility towards refugees. To avoid such responsibility, the Convention was initially drafted with temporal limits on time and geography of the conflict. Even though the temporal limits were removed by the 1967 Protocol, the entire document still lingers with the sense of unwillingness on account of the international powers, especially Western European states to take an open-ended responsibility towards refugees. The arbitrary interpretation of documents, which was already plagued by inflexibility, has serious consequences, especially by limiting the circumstances in which an individual can qualify as a refugee or an asylum seeker to seek protection.

One of the most important aspects of the Convention, which has now taken the status of ‘international customary law’, is the policy of non-refoulment, which prohibits the states from returning refugees escaping violence and persecution. On the face of it, the provision makes sense, it allows the refugees an escape from persecution, but on closer analysis, the policy of non-refoulment seems rather ironic. Western European countries are going to extreme lengths to deny any passage to these individuals to set foot in their countries, thus emasculating the policy of non-refoulment to be of any use to people in need.

The ever growing number of people running for their lives, and the change in the dynamics of conflict all across the world, is a befitting case for reform in the international law pertaining to refugees. As situation in the Middle East deteriorates, there are high chances that more people will be making the perilous journey through the Mediterranean. With thousands of lives at stake, including those of women and children, it has become imperative that international powers, especially the West, show interest in reform, otherwise this ticking time bomb shall result in one of the worst humanitarian disasters of our age.


The views expressed in this article are those of the author and do not necessarily represent the views of or any other organization with which he might be associated.

Jehanzeb Jehangiri

Author: Jehanzeb Jehangiri

The writer is a graduate of the LL.B (Hons.) Program of the University of London. With an experience in the practice of Human Rights law, he is also focusing on teaching law to students at The Institute of Legal Studies, with special emphasis on developing legal research skills.