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

AuthorKeire Murphy
PositionSenior Sophister LLB (ling franc) candidate at Trinity College Dublin
© 2018 Keire Murphy and Dublin University Law Society
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
This article examines the relationship between international protection
law (IPL)
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.
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.
Maya Angelou, On the Pulse of Morning (Random House 1993).
‘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.
(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
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
UNHCR, Master Glossary of Terms Rev 1 (June 2006).
351 International Protection and Human Rights [Vol 21]
realisation and non-discrimination in implementation
(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).
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).
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,
and the
subsequent explosion in arrivals of involuntary migrants
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
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
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.
James Hathaway, The Law of Refugee Status (Butterworths 1996), hereafter Hathaway,
Refugee Status, 109-111.
The ICCPR has 169 State parties, the ICESC 166; OHCHR, ‘Status of Ratification’, available
at: accessed 19/01/2018.
Isabel Mota Borges, ‘The EU-Turkey Agreement: Refugees, Rights and Public Policy’
(2017) 18 Rutgers Race & L Rev 121.
Defined as those who were forced to flee their homes due to lack of state protection to the
standard described above.
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:
migrants-border-european-/union.html accessed 23/01/2018.

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