Regional models of asylum : a comparative overview

Abstract

Regionalism in the field of human rights can be a contentious issue, being read by some as an attempt to undermine the universality of human rights. In refugee law, however, it has proven to be an important complement to the universal system. It expanded the scope of protection whilst addressing the specific needs and circumstances of the individual regions. The regional instruments adopted a pragmatic and humanitarian approach to protection, even if this, the thesis argues, does not absolve the political nature of asylum. The aim of the thesis is to outline the grounds for protection in the various regions, providing an overview of the criteria for refugee status. Africa, Latin America, the Arab States and Asia, have adopted expansive definitions of the term 'refugee'. Besides adopting the concept as enshrined in the 1951 Geneva Convention (the basic requirements of which are discussed in Chapter 2), they provided further, more objective, grounds of protection. These include, inter alia, external aggression, internal conflicts, generalized violence, events disturbing public order and massive human rights violations. This is discussed in detail in Chapter 3. The European Union, on the other hand, developed a system based on a two-tier approach to protection whereby recognition as a refugee was restricted to the 1951 Convention (even including some further limitations) and other persons may be protected through subsidiary or temporary forms of protection. The discussion on the system in the European Union is undertaken in Chapter 4. Irrespective of the broader interpretation of the needs for international protection, all the regional instruments retain measures which exclude persons from protection or cause the protection to cease in specific circumstances. Fundamental rights are, nevertheless, safeguarded through the reference, and expansion, of the concept of non-refoulment. These elements are discussed in detail in Chapter 5. A key weakness of the universal and many of the regional systems is the failure to address procedural matters. It is only the European Union, and to a lesser extent the African system that provide for this as explained in Chapter 6. The discussions of the thesis lead to some key conclusions relating mainly to the humanitarian approach to asylum and the opportunities presented by the regional developments. These are, in turn, elaborated upon in the conclusion.