ABSTRACT
International refugee law, which governs refugee protection as a branch of international law, originates from the revolution in Russia and the collapse of the Ottoman Empire after the First World War in Europe, events which caused mass movements of people.1 The international community modified the legal basis for international action in the early 1950s, creating a new regime to respond to the refugee flows of the dark years of the Second World War and in the era of the Cold War. This regime2 – the international refugee regime – was initially established to
1 Whereas both H Grotius and E de Vattel referred to the concept of the right of asylum, neither of them spoke of the right in the sense of human rights in modern international law. Grotius asserted ‘the right of suppliants’ as a right which belonged to an individual. However, his idea was based on natural rights: Hugo Grotius, De Jure Belli ac Pacis Libri Tres Vol Two, Translation Book II (Translation by Francis W Kelsey and Others) (James Brown Scott (ed.), Oceana Publications Inc, New York, 1964) 186-205, 530-531. He did not intend to imply a right of asylum in the structural framework of the relationship between individuals and states. Vattel insisted that ‘the right to emigrate’ was a natural right and that any action that prevented exercise of the right should be recognised as a wrong: Emer de Vattel, Le Droit des Gens ou Principes De La Loi Naturelle (German Translation by Wilhelm Euler, JCB Moher) (Paul Siebeck, Tubingen, Germany, 1959) 149-150. Although his argument recognised the right as pertaining to an individual, Vattel considered that the right was one of the ‘imperfect rights’ which does not impose any obligation of implementation. Thus, the right of asylum, Vattel claimed, was nothing more than a moral obligation in terms of its implementation. See the argument in Paul Weis, ‘The UN Declaration on Territorial Asylum’ (1969) VII: CYBIL 119; Atle Grahl-Madsen, The Status of Refugees in International Law Vol II (AW Sijthoff-Leiden, The Netherlands, 1972) 16. The legal basis for international refugee law altered several times during the era of the League of Nations. It included the Arrangements of 1928 and 1929, the Convention Relating to the International Status of Refugees (28 October 1933) 159 LNTS 199 and the Convention Concerning the Status of Refugees (10 February 1938) 129 LNTS 59. They were weak in terms of legal justification since arrangements were non-binding and the few states that joined the Conventions did so with reservations. After the Second World War, in 1947, a new legal basis was formed. It was the Constitution of the International Refugee Organisation (15 December 1946) 18 UNTS 3, referred to as the IRO Constitution in this book. The IRO Constitution included the original form of the definition of refugee used in the current Convention. See C1(i)(a) of Annex I to the IRO Constitution.
