The universal rights of refugees are today derived from two primary sources - general standards of international human rights law, and the Refugee Convention itself. As the analysis in Chapter 1 makes clear, the obligations derived from the Refugee Convention remain highly relevant, despite the development since 1951 of a broad-ranging system of international human rights law. In particular, general human rights norms do not address many refugee-specific concerns; general economic rights are defined as duties of progressive implementation and may legitimately be denied to non-citizens by less developed countries; not all civil rights are guaranteed to non-citizens, and most of those which do apply to them can be withheld on grounds of their lack of nationality during national emergencies; and the duty of non-discrimination under international law has not always been interpreted in a way that guarantees refugees the substantive benefit of relevant protections.
On the other hand, general human rights law adds a significant number of rights to the list codified in the Refugee Convention, and is regularly interpreted and applied by supervisory bodies able to refine the application of standards to respond to contemporary realities. Because both refugee law and general human rights law are therefore of real value, the analysis in Chapters 4-7 synthesizes these sources of law to define a unified standard of treatment owed to refugees.
This chapter examines the fairly intricate way in which rights are attributed and defined under the Refugee Convention. Most fundamentally, the refugee rights regime is not simply a list of duties owed by state parties equally to all refugees. An attempt is instead made to grant enhanced rights as the bond strengthens between a particular refugee and the state party in which he or she is present. While all refugees benefit from a number of core rights, additional entitlements accrue as a function of the nature and duration of the attachment to the asylum state. The most basic set of rights inheres as soon as a refugee comes under a state's de jure or de facto jurisdiction; a second set applies when he or she enters a state party's territory; other rights inhere only when the refugee is lawfully or habitually within the state's territory; some when the refugee is lawfully staying there; and a few rights accrue only upon satisfaction of a durable residency requirement. Before any given right can be claimed by a particular refugee, the nature of his or her attachment to the host state must therefore be defined. The structure of the attachment system is incremental: because the levels build on one another (a refugee in a state's territory is also under its jurisdiction; a refugee lawfully or habitually present is also present; a refugee lawfully residing is also lawfully present; and a refugee durably residing is also lawfully residing), rights once acquired are retained for the duration of refugee status.
Publication Information & Recommended Citation
Hathaway, James C. “The Structure of Entitlement under the Refugee Convention.” In The Rights of Refugees Under International Law, 2nd ed., 173–311. Cambridge: Cambridge University Press, 2021. doi:10.1017/9781108863537.004.