Abstract
How can international law protect both international security and the human rights of displaced people? Existing international law protects only displaced refugees: those who flee persecution on the basis of religion, race, nationality, or political opinion. This article argues that a new Displaced Persons Convention must be created to protect the human rights of the world’s other 35 million victims of civil conflict and climate change who do not meet this narrow definition. International Refugee Law must be preserved as it is because it enshrines critical protections for minority rights that must not be diluted. However, an additional instrument of international law is necessary to resolve an issue that is at once one of the greatest human rights issues of our time and a threat to international peace and security. To support this argument, this article presents a comprehensive history of refugees in international law, combining primary sources and original interview data to trace how states have agreed for centuries that refugee law should protect minority rights, even as shifting state interests have changed refugee protection over time. This article refutes other scholarly proposals and UN practices that expand the category of “refugee.” It also contributes to growing scholarly interest in the history of human rights law by arguing that refugee law predates the modern human rights regime, challenges its foundations, and extends its claims to universality.
Highlights
How can international law protect both international security and the human rights of displaced people? Existing international law protects only displaced refugees: those who flee persecution on the basis of religion, race, nationality, or political opinion
This article presents a comprehensive history of refugees in international law, combining primary sources and original interview data to trace how states have agreed for centuries that refugee law should protect minority rights, even as shifting state interests have changed refugee protection over time
Scholarly debate exists as to whether the Genocide Convention was designed as a human rights instrument or an instrument of criminal law, it undoubtedly represented a critical step toward creating binding international law to protect minority rights.[137]
Summary
“Since the Peace Treaties of 1919 and 1920 the refugees and the stateless have attached themselves like a curse to all the newly established states on earth which were created in the image of the nation-state.”1 – Hannah Arendt. These reforms would improve protections for refugees, displaced people, and states alike by clarifying who should receive international protection It would buttress other major goals of international human rights law, such as religious freedom, freedom of expression, and protection against racial discrimination.[8] The improved doctrinal clarity would help shape the behavior of both states and individuals in the international system and present a stronger, less politicized, legal framework for humanitarian burden-sharing by the international community. Deeper.[11] Discussion of the need for the protection of refugees under international law is at least as old as the modern Westphalian nation-state, and the concept of protecting those fleeing persecution has roots in all of the world’s major religious legal traditions.[12] International refugee law was among the first major human rights projects of the fledgling United Nations. After sketching what a Displaced Persons Convention might look like, I will conclude with some implications for what this analysis implies for our understanding of international human rights law overall
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