Questioning Treaty Interpretation as the Legitimizing Foundation of the Internal Relocation Principle under Refugee and Human Rights Treaties

Abstract

The internal relocation principle (IRP) – also known as internal relocation/protection/flight alternative (IRA/IPA/IFA) – permits the refusal of protection status, such as refugee status, to aliens who can find adequate protection by relocating to an alternative area in the country of origin. As a creation of State practice since the late 1970s, it has become an well-established norm under the Convention relating to the Statue of Refugees (1951 Convention) and started to be considered under the European Convention on Human Rights, International Covenant on Civil and Political Right, and Convention against Torture. While the legality of IRP is being established as fait accompli under refugee and human rights treaties, the legitimizing foundation of IRP is still unclear. The dominant position seems to base IRP’s legitimacy on a narrative of treaty interpretation, perceiving Article 1(A)(2) of the 1951 Convention as the exclusive textual home of IRP. This article questions treaty interpretation as IRP’s legitimizing foundation in two respects: first, the formation of IRP under the 1951 Convention did not qualify as authentic interpretation of Article 1(A)(2); and second, the character of IRP as a common and permissive norm under refugee and human rights treaties calls for a unitary legitimizing foundation that goes beyond the particularity of treaty texts. After rejecting treaty interpretation as IRP’s legitimizing foundation, Louis Henkin’s theory of “constitutional international law” is proposed as a possible alternative to legitimize IRP under refugee and human rights treaties, which provides not only a new method to determine the applicability of IRP but also a principled approach to its interpretation under different treaty regimes.