International Protection and Human Rights: Divergence, Protection Gaps, and their Peril

• Author: Keire Murphy
• Position: Senior Sophister LLB (ling franc) candidate at Trinity College Dublin
• Pages: 349-383

© 2018 Keire Murphy and Dublin University Law Society

INTERNATIONAL PROTECTION AND HUMAN

RIGHTS: DIVERGENCE, PROTECTION GAPS, AND

THEIR PERIL

KEIRE MURPHY

On the pulse of morning

History despite its wrenching pain

cannot be unlived and if faced with courage

need not be lived again.

- Maya Angelou

1

Introduction

This article examines the relationship between international protection

law (IPL)

2

and international human rights law (IHR). It is argued that

states’ interpretation of IPL is out of step with their binding human rights

obligations and with the central purpose of IPL itself: human rights

protection. This is shown by reference to the main provisions and

instruments of IPL in Europe, and by identifying the protection gaps

within both these laws and states’ interpretations of them. It is argued that

these protection gaps illustrate the inconsistent interpretation of IPL and

human rights law. The possible consequences of this incongruity will be

briefly touched upon, drawing upon Arendt’s analysis of the separation of

state practices from rights logic in The Origins of Totalitarianism.

3

It is

argued that IPL and IHR share the same underlying rationale (a

recognition that the human rights of individuals often require state

protection if they are to have any meaning) and thus should be interpreted

 Senior Sophister LLB (ling franc) candidate at Trinity College Dublin. The author would

like to thank Dr Rosemary Byrne for her comments throughout the writing of this article,

Blánaid Ní Bhraonáin for her dedication to making this article the best it could be, and her

family for their love and support in this and all of her endeavours. She would also like to

thank Dr Patricia Brazil for her helpful comments.

1

Maya Angelou, On the Pulse of Morning (Random House 1993).

2

‘International protection law’ is used throughout to reflect the fact that not all recipients

of international protection are refugees. Subsidiary protection, temporary protection, and

humanitarian protection (a general term for a range of different state practices) are all

discussed here and fall under the umbrella term of IPL.

3

(2nd edition, Harcourt 1966).

350 Trinity College Law Review [Vol 21]

consistently and in good faith by states in order to develop a coherent

framework for rights protection.

Section I outlines the core provisions of IPL in Europe. Section II

places IPL in its broader context, analysing its relationship with IHR and

outlining some discontinuities. Section III expands upon these divergences

with an analysis of situations in which IPL in the EU falls below the

threshold of protection required by states’ IHR obligations. Section IV

explores possible consequences of these divergences, drawing on Hannah

Arendt’s seminal work.

Protection is at the heart of this discussion. To understand where

protection is not being afforded to those who require it, we must first ask

what the level of protection required is. This question is inherently tied to

the conception of the minimum protection duties of a state towards its

citizens and the role of the international community in ensuring that this

minimum level is guaranteed. The United Nations High Commissioner for

Refugees (UNHCR) defines international protection as ‘the actions by the

international community on the basis of international law, aimed at

protecting the fundamental rights of a specific category of persons outside

their countries of origin, who lack the national protection of their own

countries’.

4

Thus, the justification for providing international protection is

a lack of national protection, and the purpose of international protection

is the protection of fundamental rights. This gives little indication,

however, of the threshold of protection (both the protection to be provided

by protecting states, and what is deemed a ‘lack of national protection’)

and whether or not the level of protection required by protecting states

and an individual’s home state is the same.

According to James Hathaway, IHR provides an answer to this

question. He identifies four categories of state obligations created by the

International Covenant on Civil and Political Rights (ICCPR), the

International Covenant on Economic, Social, and Cultural Rights (ICESC),

and the Universal Declaration of Human Rights (UDHR): 1) rights made

binding under the ICCPR from which no derogation is permitted (freedom

from arbitrary deprivation of life, protection against torture or cruel,

inhuman, or degrading punishment); 2) rights binding under the ICCPR

from which derogation is permitted during a public emergency (right to

internal movement, right to a fair public hearing, freedom of opinion,

expression, assembly, and association); 3) rights made binding by the

ICESC which are not absolute but require steps towards progressive

4

UNHCR, Master Glossary of Terms Rev 1 (June 2006).

351 International Protection and Human Rights [Vol 21]

realisation and non-discrimination in implementation

5

(the right to work;

entitlement to food, housing, medical care, and education); 4) rights

recognised by the UDHR but not codified in the ICCPR or the ICESC

(protection from arbitrary deprivation of property, right to be protected

against unemployment).

6

Hathaway argues that it is the state’s minimum

duty to provide an appropriate level of protection for the first three

categories of rights.

This is a convincing account of state obligations, as it is rooted in

binding covenants signed by the vast majority of states (and all EU states).

7

This standard of minimum state protection is adopted for the purpose of

this article, both to determine what constitutes a lack of state protection,

and what level of protection is required of surrogate states. The concept of

protection is inherently linked to the concept of need, and it is by reference

to the needs of individuals for protection that all concepts of international

protection have developed.

These are urgent questions in light of the plight of displaced persons

worldwide, now at the highest levels since World War II,

8

and the

subsequent explosion in arrivals of involuntary migrants

9

in 2014-15 in the

EU (see Figure 1, page 358) has propelled this topic to the forefront of the

European media and the political agenda. The growth of far-right groups

in many European countries and the subsequent change in policies

towards migrants who are often targets of their rhetoric

10

mean that

international protection law is now more important than ever before. As

generous policies become rarer, and states try to limit their obligations to

the bare minimum, it is the contours of IPL and IHR that define that

minimum obligation. As Section III will show, the exposure of gaps in

5

Note, however, that this standard for compliance is somewhat outdated; compliance is

now based on an absolute ‘minimum core’ standard which states must guarantee;

Committee on Economic, Social, and Cultural Rights ‘General Comment No 13’ (1999); Eibe

Riedel, Gilles Giacca, Christophe Golay, Economic, Social, and Cultural Rights: Contemporary

Issues and Challenges (Oxford 2014) 13-4.

6

James Hathaway, The Law of Refugee Status (Butterworths 1996), hereafter Hathaway,

Refugee Status, 109-111.

7

The ICCPR has 169 State parties, the ICESC 166; OHCHR, ‘Status of Ratification’, available

at: http://indicators.ohchr.org/ accessed 19/01/2018.

8

Isabel Mota Borges, ‘The EU-Turkey Agreement: Refugees, Rights and Public Policy’

(2017) 18 Rutgers Race & L Rev 121.

9

Defined as those who were forced to flee their homes due to lack of state protection to the

standard described above.

10

See, for example, Hungary’s increasingly restrictive practices, Rick Lyman, ‘Already

Unwelcoming, Hungary now Detains Asylum Seekers’ (New York Times, April 18 2017),

available at: https://www.nytimes.com/2017/04/18/world/europe/hungary-orban-populism-

migrants-border-european-/union.html accessed 23/01/2018.