chapter  2
34 Pages

The state-refugee fiduciary relationship

The legal obligation to secure human rights-based capabilities
WithAnna Lise Purkey

Chapter 2 contains the true core of this manuscript, the main contribution to the development of theory. This chapter first introduces a human rights-based capabilities approach as an alternative to needs-based models. Centered on the capability of refugees and refugee communities to access and to use their rights in practice to realize a life of value, this modified capabilities approach proposes adopting the rights contained in the International Bill of Rights as core central capabilities which can be used to guide the development of policy. The fiduciary theory of state legal authority is then used to argue that claims to these central capabilities on the part of refugees are not only moral rights but can be understood as legal entitlements with correlative obligations. These obligations, it is contended, are a product of the fiduciary nature of the relationship between refugees and both the host state and UNHCR (as well as other stakeholders), and can be linked to the justification of the state’s own sovereignty and authority.