In a document released during the summer of 1998, the Austrian Presidency of the European Union formally questioned the continuing value of the United Nations Refugee Convention, and called for the adoption of a new "instrument of speedy assistance in the framework of the political possibilities."
The Austrian proposal would deny most refugees arriving in Europe the legal right to be protected. For the majority, protection would instead become a matter of political discretion. The proposal erroneously asserts that only a small minority of contemporary asylum seekers is entitled to Convention refugee status, in consequence of which a "new approach" should be devised to respond to ensure that other victims of human rights abuse, war, and other threats to human dignity do not come to Europe to seek protection. The new approach would be premised on intensified and carefully orchestrated deterrence, with purely discretionary and regionally exclusive responses as complementary policies. The Austrian Presidency's proposal argues that the Refugee Convention's commitment to both the rule of law and global solidarity is "not at all geared" to contemporary refugee flows.
Happily, virtually all of Austria's EU colleagues voted to reject this extremist view of the future - or non-future - of refugee law. This is, however, no cause for complacency. At least two lessons should be learned from this failed policy initiative.
First, the Austrian proposal makes clear that there is a pervasive failure to understand the real purposes and value of international refugee law. Specifically, it does not recognize that the Refugee Convention is capable of being implemented in a way that reconciles the need of refugees to secure access to protection to the legitimate concerns and aspirations of receiving states.
Second, and most directly related to your daily work as refugee law judges, the Austrian proposal's extraordinarily conservative reading of the Convention refugee definition suggests that there is an urgent need to reinvigorate the substantive content of refugee law, in order to prove that it remains absolutely relevant to the needs of contemporary asylum seekers.
To achieve both these goals, I believe that we need to embrace a vision of refugee law as human rights protection.
Publication Information & Recommended Citation
Hathaway, James C. "The Relationship Between Human Rights and Refugee Law: What Refugee Law Judges Can Contribute." In The Realities of Refugee Determination on the Eve of a New Millennium: The Role of the Judiciary, 80-90. Haarlem, The Netherlands: International Association of Refugee Law Judges, 1999.