The following essay is based on a similar discussion that appeared in World Refugee Survey 1996 (© 1996 U.S. Committee for Refugees). Publication is by permission.
International refugee law rarely determines how governments respond to involuntary migration. States pay lip service to the importance of honoring the right to seek asylum, but in practice devote significant resources to keep refugees away from their borders. Although the advocacy community invokes formal protection principles, it knows that governments are unlikely to live up to these supposedly minimum standards. The United Nations High Commissioner for Refugees (UNHCR) shows similar ambivalence about the value of refugee law. It insists that refugees must always be able to access dignified protection, even as it gives tacit support to national and intergovernmental initiatives that undermine this principle. So long as there is equivocation about the real authority of international refugee law, many states will feel free to treat refugees as they wish, and even to engage in the outright denial of responsiblity toward them.
Ironic though it may seem, I believe that the present breakdown in the authority of international refugee law is attributable to its failure explicitly to accommodate the reasonable preoccupations of governments in the countries to which refugees flee. International refugee law is part of a system of state self-regulation. It will therefore be respected only to the extent that receiving states believe that it fairly reconciles humanitarian objectives to their national interests. In contrast, refugee law arbitrarily assigns full legal responsibility for protection to whatever state asylum-seekers are able to reach. It is a peremptory regime. Apart from the right to exclude serious criminals and persons who pose a security risk, the duty to avoid the return of any and all refugees who arrive at a state's frontier takes no account of the potential impact of refugee flows on the receiving state. This apparent disregard for their interests has provided states with a pretext to avoid international legal obligations altogether.
James C. Hathaway,
Can International Refugee Law be Made Relevant Again?,
Law Quadrangle (formerly Law Quad Notes)
Available at: https://repository.law.umich.edu/lqnotes/vol41/iss3/12