Migration is not a new phenomenon in human history. Since the evolution in Homo Herectus and then Homo Sapiens, people have always migrated, driven by various factors, including the search for better opportunities, survival, and escape from persecution. This phenomenon continues today on an unprecedented scale, with the latest United Nations report showing that 304 million people worldwide were international migrants in 2024, representing approximately 3.7% of the global population. This figure has doubled since 1990, when there were an estimated 154 million international migrants globally.

While migration has been constant throughout human history, the international refugee protection system is relatively recent, having emerged as a response to the unique horrors of the 20th century’s world wars. In the aftermath of World War I, when millions of people fled their home-countries seeking refuge, the international community, through the League of Nations, began addressing the migration issue by developing the 1933 Convention. This instrument laid the foundation for the legitimisation of “irregular” migration, enabling individuals to move to other countries for protection. However, it was the devastating displacement caused by World War II and the Holocaust, which led to an estimated 65 million displaced people in Europe alone, that truly catalysed the development of the current international refugee law framework, centred around the 1951 Convention relating to the Status of Refugees (1951 Refugee Convention).

This Chapter examines the legal underpinnings of International Refugee Law, the key features of the status and rights of refugees under international refugee law, the complementary framework of human rights law, and analyses the principle of non-refoulement under both regimes and the role of the UNHCR. The chapter concludes with a reflection on contemporary challenges, such as climate mobility.

Fundamental Instruments

International Refugee Law (IRL) is a branch of public international law that governs the status and rights of refugees. Its central aim is to ensure that refugees who are compelled to leave their countries because they no longer enjoy the protection of their own governments receive the protection of their basic rights by another state. The IRL comprises of treaties and customary international law.

The 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees serve as the bedrock of this legal framework. Adopted in the aftermath of World War II, these instruments were shaped by the inadequacies of the 1933 Convention, which failed to protect Jewish refugees during the rise of the Third Reich. The scope of the 1951 Refugee Convention was initially limited to people fleeing events that occurred before 1 January 1951 and within Europe. However, these temporal and geographical restrictions were overcome by adopting the 1967 Protocol, which broadened the scope of the 1951 Refugee Convention to include all people fleeing events occurring at any time. Thus, the definition of what constitutes a refugee is found in the 1951 Refugee Convention, read in conjunction with the 1967 Protocol. In terms of customary international law, the principle of non-refoulement, which prohibits the return of individuals to territories where they face threats to life or freedom, is the most relevant. This is a cornerstone principle of refugee law, but it has evolved to become central to the broader realm of human rights law.

In addition to core treaties, several regional instruments have emerged to complement the IRL framework. Notable among these are the 1969 Convention governing the specific aspects of refugee problems in Africa (OAU Refugee Convention) and the Cartagena Declaration on Refugees which provides an expansive definition of refugee status applicable to the African and Latin American contexts, respectively. The European Union’s asylum acquis, which comprises a series of regulations and directives, further integrates refugee protection into EU law.

IRL is also informed by international human rights law, which is a complementary yet distinct regime. The IRL is premised on Article 14 of the Universal Declaration of Human Rights (UDHR), which establishes the right “to seek and enjoy in other countries asylum from persecution”; however, it has departed from international human rights law to establish a specific targeted regime of protection. The 1951 Refugee Convention is a human rights treaty insofar as it codifies a set of state obligations to respect, protect, and fulfil fundamental rights. However, it is distinctive in that its protections are specifically tailored to the situation of refugees. Notably, the Convention legitimises the “irregular” entry or presence of individuals seeking asylum by affording them a distinct legal status—that of a refugee—thus differentiating them from other categories of migrants, as will be elaborated upon in the following sections. In contrast, international human rights law has a universal reach, applying to all individuals regardless of their immigration or any other status, thereby addressing the gaps left by the refugee protection regime. As will be explained, international human rights law can offer irregular migrants who do not meet the criteria for refugee status under the 1951 Refugee Convention certain protections against return (refoulement). Taken together, these legal systems operate synergistically to ensure a comprehensive architecture for the protection of individuals in need.

The mandate and functions of the UN High Commissioner for Refugees (UNHCR) are also part of the refugee regime. It plays a vital role in the operationalisation and supervision of the application of the 1951 Refugee Convention and its 1967 Protocol, including by providing guidance through handbooks, guidelines, and legal opinions, coordinating international responses to refugee crises, and providing humanitarian assistance by engaging in cooperation with states. The latter, in turn, are required to cooperate with the UNHCR in the exercise of its functions, as well as to inform it of any laws or regulations enacted relating to refugees. The UNHCR also maintains databases, collects statistics, and works with both the government and civil society to enhance refugee protection.

Refugee Definition

The 1951 Refugee Convention and its 1967 Protocol establish who is and who is not a refugee and specify the range of rights to which refugees are entitled. According to Article 1A(2), a refugee is someone who:

From this provision, the term “refugee” has a specific legal meaning. In particular, to be granted refugee status, a person must meet four basic legal requisites: 1) a well-founded fear of persecution; 2) persecution must relate to the five grounds identified in the provision such as race, religion, nationality, membership of a particular social group, or political opinion; 3) be outside the country of nationality; and 4) be unable or unwilling to avail himself of the protection of that country, or to return there.

The 1951 Refugee Convention does not define “well-founded fear” and “persecution”. However, the UNHCR has produced numerous guidelines to support governments and courts in determining who qualifies as a refugee. Of notable interest are the Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook) and relevant Guidelines on International Protection. These constitute the most authoritative interpretation of the 1951 Refugee Convention’s provisions. The subsequent sections examine the criteria established under Article 1A(2) of the 1951 Refugee Convention, considering these authoritative interpretations.

Well-founded fear of Persecution

The “well-founded fear of being persecuted” is the key element of the definition of refugee, pursuant to Article 1A(2) of the Refugee Convention. This combines the general concept of “fear” and the notion of “persecution”. Fear has two components: subjective and objective. The first element of “fear” invokes the state of mind of the applicant which is the subjective component. This requires an evaluation of the applicant’s statement rather than a judgement of the situation prevailing in their country of origin. In particular, it requires an assessment of the applicant’s personality, personal and family background, interpretation of their situation, and any other relevant personal experience. However, to grant refugee status, the “fear” must be supported by an objective element. This is why “fear” must be “well-founded” and relate to a risk of “persecution”.

With reference to what constitutes a “well-founded fear”, the UNHCR Handbook specifies  that the applicant must demonstrate that any reasonable person would flee because of intolerable conditions in the country of origin that the government is unable or unwilling to prevent. The decision involves a forward-looking assessment of all relevant facts and circumstances of each case, combining both contextual elements and personal backgrounds. For example, what happened to his friends and relatives or other members of his social group or the law of the country and how it is applied may be relevant to assess the existence of a “well-founded fear”. The situation of each person must be assessed on its own merit.

With reference to “persecution”, there is no universal definition of what this term means; the 1951 Refugee Convention does no provide a specific definition. The intention of the drafters of the 1951 Refugee Convention was to allow for a sufficient degree of flexibility to provide protection to those who need it. According to the UNHCR Handbook, “persecution” should comprise human rights abuses or other serious harm, often but not always with a systematic or repetitive element, including threats to life or freedom, gender-based violence and discrimination.

Persecution can arise from a single activity, provided that the latter is sufficiently serious by its nature or repetition to constitute a severe violation of basic human rights. Persecution can also arise on the basis of a “cumulative effect” of less severe measures which, taken together, are sufficiently severe as to affect an individual. This applies in particular to discrimination, which usually does not amount to persecution unless a consistent pattern of discrimination, on cumulative grounds, is demonstrated. Discrimination must be of a substantially prejudicial nature for the person concerned, for example, serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities. In other words, the nature of the act, its repetitiveness, and the consequences of the accumulated measures must be considered.

Persecution implies the existence of a persecutor. According to the UNHCR Handbook, agents of persecution are usually the authorities of the country from which the person fled. EU law has further refined this concept by stating that acts of persecution can also emanate from a) non-state actors if they are knowingly tolerated by the authorities of the state of origin, or if the authorities refuse or prove unable to offer effective protection, or b) quasi-states or de facto authorities that have gained control over an area or the whole territory. Hence, persecution underpins the state’s unwillingness or inability to prevent harm. The drafting history of the 1951 Refugee Convention is silent on the intent of the persecutor as a controlling factor. Neither the recent legal considerations issued by the UNHCR in 2020 clarify this point. From its interpretation, though, the UNHCR appears to refer to both intentional and unintentional acts of persecution. However, persecution alone is insufficient, as it must be based on one of the five grounds specified under Article 1A(2).

Five grounds of Persecution

If the “well-founded fear of being persecuted” is the key element to receive refugee status, it means that the 1951 Refugee Convention assumes that no one leaves his/her country of origin without some compelling reasons. However, not any “well-founded fear of being persecuted” triggers the protection offered by the refugee status. Persecution must have a causal nexus based on one of the specified Convention grounds: race, religion, nationality, membership in a particular social group, or political opinion.

Race

Race must be understood in its broadest sense to include all ethnic groups. It usually entails membership in a specific social group of common descent, forming a minority within a larger population. Given that discrimination on account of race is considered one of the most striking violations of human rights, racial discrimination is a relevant element in determining persecution.

Religion

Persecution based on religion can take various forms. It usually entails the prohibition of membership of a religious community, worship in private or in public, religious instruction, or serious measures of discrimination imposed on persons because they practice their religion or belong to a particular religious community.

Nationality

The term nationality is not to be understood only as “citizenship” but as denoting ethnicity or ethnic origin, as well. As such, it may occasionally overlap with other grounds of persecution, such as race or political opinion, especially in ethnic or politically based conflicts. Persecution for reasons of nationality may consist of adverse attitudes and measures directed against a national (ethnic, linguistic) minority, and in certain circumstances, the fact of belonging to such a minority may in itself give rise to a well-founded‑fear of persecution.

Membership in particular social group

The term encompasses people “of similar background, habit, or social status”. There is no closed list of what groups may constitute a particular social group, as this ground should be read in an evolutionary manner. However, some parameters have been developed to determine who qualifies as a member of a particular group: a) those who share common protected characteristics which are innate, unchangeable, or otherwise fundamental to identity, conscience, or the exercise of one’s human rights, and b) those who are visible as a group in society. Women, tribes, and LGBTIQ+ individuals have been identified as members of a particular social group pursuant to Article 1A(2). Typically, these groups have some aversion to or are in opposition to the government. A claim under this heading may frequently overlap with a claim of fear of persecution on other grounds, that is, race, religion, or nationality.

Political opinion

Political opinion is broader than affiliation with a particular political movement or ideology. It is understood as “any opinion on any matter in which the machinery of the State, government, society, or policy may be engaged.” This assumes that the opinions are ones “that are not tolerated by the authorities, which are critical of their policies or methods”. This also presupposes that such opinions have come to the notice of the authorities or are attributed to the applicant. It is not relevant if they are genuinely believed, publicly expressed by the applicant, or simply brought to the attention of the authorities. What matters is that they are imputed to the applicant by the authorities.

Outside the country of nationality

Pursuant to Article 1A(2), to benefit from refugee status protection, the person must have fled and crossed the border of their country of nationality or normal residence. There are no exceptions to this rule. This means that international protection can be granted only when a person is outside their country of nationality. Hence, the 1951 Refugee Convention identifies borders as being extremely relevant. This is due to the international principle of sovereignty and non-interference, according to which each state is supposed to take care of its own people and the latter are entitled to seek that protection from their states. However, it could be the case that the country of nationality is no longer able or willing to guarantee protection, and in such cases, pursuant to the 1951 Refugee Convention, the international community must step in and provide legal protection.

Unable or Unwilling to Return

Pursuant to Article 1A(2), the applicant must be unable or unwilling to avail themselves of state protection. This entails that, for reasons beyond their control, the person reasonably distrusts the government of their State to provide the necessary protection. According to the UNHCR Handbook, “being unable” implies circumstances that are beyond the applicant’s will, for example, a state of war, civil war, or other grave disturbance, which prevents national governments from extending protection or makes such protection ineffective, or cases in which the applicant has been denied the protection of his country. The term “unwilling” refers to applicants who refuse to accept the protection of their government. It is qualified by the phrase “owing to such fear” given that, whenever the protection of the country of nationality is available, and there is no ground based on well-founded‑fear for refusing it, the person concerned cannot be considered in need of international protection and classified as a refugee.

Refugees and other Migrants

The 1951 Refugee Convention defines at the international level who is and who is not a refugee, thereby granting or denying refugee status. As such, the 1951 Refugee Convention definition must be distinguished from other definitions and terms commonly used in the migration field.

The 1951 Refugee Convention does not apply to Palestinian refugees owing to the specific clause contained in Article 1(D). This provision stipulates that persons who are receiving protection or assistance from United Nations organs other than the UNHCR fall outside the Convention’s scope. Since their displacement following the 1948 Arab-Israeli conflict and subsequent hostilities, Palestinians have been assisted by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), established in 1949 to provide relief, education, and social services in its areas of operation—namely Gaza, the West Bank, Jordan, Lebanon, and Syria. The establishment of UNRWA followed the partition of Palestine, administered by the United Kingdom since 1922, into separate Arab and Jewish territories. Article 1(D)(2) nonetheless provides that once UNRWA’s protection or assistance ceases for any reason, the affected individuals shall, ipso facto, be entitled to the benefits of the 1951 Refugee Convention without having to demonstrate a well-founded fear of persecution as defined under Article 1(A)(2). In recent years, the Israeli military operations in 2023 and the 2025 Israeli law banning UNRWA activities within areas defined by Israel as its sovereign territory, have raised questions regarding the continuing availability and effectiveness of UNRWA’s protection. Although the Agency formally maintains its operational mandate across the occupied Palestinian territories, the situation—characterised as an “unprecedented humanitarian catastrophe”—may trigger the application of Article 1(D)(2).

The 1951 Refugee Convention definition of “refugee” must be distinguished from regional refugee definitions. The Cartagena Declaration on Refugees and the OAU Refugee Convention provide a broader definition of “refugee”. They both include, despite using slightly different wordings, people who are compelled to leave their country of origin for reasons of external aggression, conflicts, and violence, massive or systemic human rights violations, or any events seriously disturbing public order. According to scholars (see here for the African and Latin American contexts), these instruments offer a more progressive and comprehensive refugee definition which better reflects contemporary migration realities.  While providing a definition of refugee that is similar to the 1951 Refugee Convention, the EU asylum acquis expands the protection to those who do not qualify for refugee status by introducing the “subsidiary protection status”and other additional forms of protection, although recent reforms appear to limit the scope of this regime.

The term “refugee” must be distinguished from “asylum seeker.” An asylum seeker is someone who seeks international protection in another country but has not yet been legally recognised as a refugee or for complementary protection status and is waiting to receive a decision on his asylum claim. They are accorded similar forms of protection as refugees while under the asylum procedure (see the section below). Moreover, the term refugee should not be confused with “internally displaced person.” These are people who move within their own countries for reasons similar to those of refugees but do not cross international borders. The UN Guiding Principles on Internal Displacement apply to this category of migrants. The 1951 Refugee Convention also does not cover any other type of “migrant” who moves across borders for reasons other than those contained in the refugee definition, including “economic migrants” who travel to improve their standard of living. Migrants may be further classified as regular if they enter a country by satisfying the entry requirements of the receiving country (visa, resident permit, etc.) and irregular when they cannot be classified as refugees and do not have the receiving country’s consent for entry. Finally, refugees are distinct from stateless people. People that are stateless seek protection in another country whether by choice or compulsion,  and are “not considered a national by any State under the operation of its law”. Rohingyas in Myanmar and Bidoon people in Kuwait, for example, have been denied Myanmar and Kuwaiti nationality, respectively. The two UN Conventions on Statelessness apply to this category.

Figure 1. Refugee definition ex Art. 1A(2) 1951 Refugee Convention

Fundamental Elements of IRL

The 1951 Refugee Convention provides specific forms of protection for refugees. In particular, such protection can be broken down into four fundamental elements which are the backbone of the IRL regime.

First, the IRL regime is anchored in the principle of non-discrimination. This is captured in Article 3 of the 1951 Refugee Convention which states that “[t]he Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin”. This is reinforced by Article 7 which requires states “to accord to refugees the same treatment as is accorded to aliens generally”, even in the absence of reciprocity.

Second, the 1951 Refugee Convention provides for a guarantee of non-penalization. People seeking refuge in another country are rarely able to move through regular paths of migration. As such, they are usually classified as “irregular migrants”, as they do not satisfy the immigration entry requirements of the receiving state. However, since they are able to “show a good cause”, penalties (both criminal and administrative) cannot be imposed on account of their illegal entry or presence.

Third, the Convention ensures an absolute prohibition of refoulement. Pursuant to Article 33, refugees are protected against expulsion or return (refoulement) to their country of origin, where they may face threats to life or freedom on account of one of the five grounds of persecution. This provision is echoed in multiple human rights instruments, thus making it a norm of customary international law, in addition to having expanded its scope beyond the refugee regime, as explained in the dedicated section below.

Finally, under the 1951 Refugee Convention, those granted refugee status are to enjoy the widest possible exercise of their fundamental rights. Articles 3 to 34 of the 1951 Refugee Convention contain a range of rights to which refugees are entitled, while Article 2 notes that refugees are subject to the laws and regulations of the host country and have a duty to respect them. Some of these rights apply to asylum seekers, while others are exclusively reserved for refugees. The next section examines these rights in detail.

Refugees’ Rights

The 1951 Refugee Convention outlines the rights of refugees. These include civil and political rights, such as freedom of religion (Article 3), property rights (Articles 13-14), freedom of association (Article 15), and access to courts (Article 16), as well as socio-economic rights, such as employment rights (Articles 17 to 19) and welfare, social security, and educational rights (Articles 20 to 24). However, the Convention does not treat all rights the same way but provides protection in layers.

Protection is granted based on a refugee’s level of attachment to the receiving state, following an incremental rights model. Under this model, certain rights are guaranteed immediately, while others depend on the length of stay in the host territory. The 1951 Refugee Convention provides some rights on a provisional basis as soon as a refugee comes under a state’s jurisdiction, in the sense of being under its control or its authority. These rights include non-discrimination (Article 3) and the duty of non-refoulement (Article 33). Some rights apply on the basis of the physical presence of refugees within the host country. These rights include freedom of religion (Article 4), access to courts (Article 16), primary education (Article 22), the right to identity papers (Article 27), and protection against penalisation (Article 31). These rights are “absolute” entitlements and thus also apply to asylum seekers.

Another tranche of rights is granted when the refugee is deemed to be “lawfully or habitually present” in the territory of the receiving country, that is, when the refugee is subject to status determination procedures or has obtained temporary legal recognition. This set of rights includes the right to self-employment (Article 18), freedom of movement (Article 26), and protection against expulsion (Article 32). A further set of rights is granted to those who are “lawfully staying” in the receiving country via a permanent or long-term permit, such as the right of association (Article 15) and the right to wage-earning employment (Article 17). A small number of rights are reserved for refugees who can demonstrate “habitual residence” in the asylum states, including artistic rights and industrial property (Article 14). While these rights apply to refugees, it is arguable that those requiring a lighter level of attachment may also apply to asylum seekers, given that refugee status is declaratory rather than determinative and the time lag between an asylum application and the final decision. These tiered protections reflect pragmatic compromises. They aim to respect both state sovereignty and refugee rights by offering immediate protection while allowing for long-term integration where appropriate.

Additionally, the Convention mandates that countries treat refugees in accordance with how they treat other people under their jurisdiction. The standard for compliance normally varies as a function of the relevant treatment afforded to another group under the laws and practices of the receiving country. With the exception of a core group of rights that are guaranteed in “absolute” terms upon “state’s jurisdiction” or “simple presence”, most refugee rights are framed as contingent standards. These rights are to be enjoyed on an equal basis to “citizens of the asylum country”, “to nationals of a most-favoured State” (i.e. the standards applicable to the most favoured foreigners, such as permanent residents or particular nationalities benefitting from preferential treatment under specific agreements), or “aliens generally” (i.e. other non-nationals) in the asylum State. In any case, refugees cannot be held to standards they cannot meet, such as requiring documentation they do not possess (Article 6), and must not be subjected to any exceptional measures applied against the citizens of their state of origin (Article 8). Consequently, the 1951 Refugee Convention represents a complex array of rights, each of which must be carefully examined in its context.

The end of Refugee Status

While the 1951 Refugee Convention and its 1967 Protocol aim to protect refugees, the IRL regime never intended for refugee status to be lifelong. The protection accorded by the 1951 Refugee Convention was foreseen as a temporary replacement for the national protection of which refugees have been deprived, with the recognition that, after a certain period, the refugee would no longer be in need of international protection. In view of this, the 1951 Refugee Convention sets out the conditions for the cessation of refugee status. There are two main situations in which cessation may apply.

Article 1C(1)–(4) outlines the circumstances under which individual voluntary actions trigger the cessation of a status. For example, if the refugee returns home willingly and safely and regains their old citizenship, it may mean they no longer need refugee protection. These changes must be genuinely voluntary and not forced by external pressures. In contrast, pursuant to Article 1C(5)-(6), refugee status ceases when fundamental and durable changes in the country of origin or habitual residence indicate that protection is no longer needed (known as the “ceased circumstances” clause). If the circumstances that caused someone to fear persecution have been removed, cessation may apply. This includes political reforms that improve the level of democracy in the country and adherence to international human rights law, declarations of amnesties, repeal of repressive legislation, and annulment of judgements against political opponents. These changes must last for a reasonable period before cessation can be considered. Usually, a minimum period of 12 to 18 months (always depending on the circumstances) is required to elapse before a judgement on ceased circumstances.

Governments, with guidance from the UNHCR, are responsible for making cessation decisions but must always ensure fairness, evidence-based judgment, and respect for individual rights. In this context, they must find durable solutions for refugees whose refugee status has ceased to provide them with a stable and dignified resolution to their displacement. There are three traditional durable solutions: local integration, voluntary repatriation, and resettlement. Of the three, pursuant to Article 34, the 1951 Refugee Convention is oriented toward local integration via “assimilation and naturalisation” in the country of asylum. In 2024, the UNHCR reported that only 26 countries granted permanent residence or citizenship to refugees, while several others enacted restrictive naturalisation laws and policies. Voluntary repatriation, involving refugees returning to their countries when conditions are safe and conducive to their return, is considered the preferred solution as it allows refugees to reintegrate into their communities and rebuild their lives in their homeland. 2024 registered the highest number of refugee returns in more than two decades, 92% of which were from Afghanistan, Syria, South Sudan, and Ukraine.

Resettlement to third countries (i.e. not the country of origin), usually considered the last resort when local integration and voluntary repatriation are not viable options, has become a modern response offered by some countries. In 2024, the highest number of refugees were resettled for more than 40 years, as more than 188,800 refugees were able to start the process of rebuilding their lives safely in a third country. However, according to the UNHCR, achieving similar levels of resettlement in 2025 will be challenging as commitments by governments towards resettlement reduce. In fact, the success of durable solutions lies in collaborative and political efforts between countries of origin, host countries, and international organisations. According to a recent research, the three solutions have become increasingly inaccessible for most refugees due to increasing state control, discretionary policies driven by security concerns, a shift towards temporary or conditional measures, coupled with reduced refugee agency and a preference for policies that merely manage movement rather than restoring rights or guaranteeing long-term solutions. Meanwhile, the international community has moved towards the development of “complementary pathways” through the adoption of the Global Compact on Refugees and the Global Compact on Migration which suggests the creation of safe, regular, orderly migration options, including for work and study purposes. While these instruments offer more comprehensive and holistic solutions to migration, they are non-legally binding and prioritise the mitigation of the drivers and structural factors that hinder people from staying in their countries of origin over reinforcing the three traditional durable solutions.

Refugee Law and Human Rights Law

Refugee and human rights laws share fundamental interconnections that have deepened significantly over time. Born in the aftermath of World War II, these two regimes were conceived to respond to different, albeit related, problems. The purpose of refugee law was to find solutions to the displacement of people whose rights were violated during the war, while human rights law was intended to prevent such events from happening again by creating a global regime of fundamental rights. Since then, refugee rights have been recognised as human rights and not simply a sui generis body of law that is divorced from human rights law. Thus, these bodies of law, while distinct regimes, are mutually complementary.

The 1951 Refugee Convention and its 1967 Protocol build upon Article 14 of the UDHR, establishing that “everyone has the right to seek and to enjoy in other countries asylum from persecution”. Thus, the human right to asylum is the premise of the 1951 Refugee Convention. However, the latter is a human rights instrument of a particular scope, as it provides rights-based protection to a specific category of people, refugees. However, such targeted protection is not exhaustive. The 1951 Refugee Convention explicitly recognises that refugee protection is the floor, but not the ceiling, of refugee rights. In particular, Article 5 states that “nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention”, thereby allowing states to offer greater protections.

Main international human rights treaties post-date the 1951 Refugee Convention, and unlike refugee law, their provisions apply universally to all persons facing serious human rights violations, including those who qualify as refugees. Therefore, developments in this field are relevant. Interestingly, at the regional level, the right to asylum has been located squarely within human rights instruments, such as the American Convention on Human Rights (Article 22(7)), the African Charter on Human Rights and People’s Rights (Article 12(3)), the European Charter of Fundamental Rights, and is also explicit in the OAU Refugee Convention (Article 2). The UNHCR’s protection guidelines have consistently drawn upon the standards of protection of the general international human rights law. Human rights treaty bodies have also dealt with refugee issues, significantly influencing the interpretation and application of refugee protection beyond the scope of the 1951 Refugee Convention.

Human rights law has played a critical role in expanding our understanding of what constitutes persecution. Although the term covers serious human rights violations, as illustrated above, not every human rights violation is a form of persecution. By drawing from the evolutive interpretation of human rights law, gender-based violence, trafficking, sexual orientation, and gender identity have been recognised as a basis for refugee status under “the particular social group” ground. Other human rights non-discrimination considerations have also become increasingly relevant to ensure equal treatment of refugees and asylum seekers beyond the incremental and contingent rights-based model of the 1951 Refugee Convention. For example, the UN Committee for the Rights of the Child prohibits discrimination against unaccompanied and separated children in a foreign country, regardless of their status, and requires states to provide them with full access to education, healthcare, and care necessary for their well-being.

Furthermore, the 1951 Refugee Convention does not explicitly prohibit torture against refugees. However, it would be against the spirit of IRL to allow for such ill-treatment. In contrast, the prohibition of torture has been explicitly established under multiple human rights treaties. The interpretation of these provisions by relevant human rights bodies have influenced the refugee-protection regime. In Chahal v. United Kingdom, a case relating to a Sikh separatist leader who claimed asylum to avoid deportation to India where he feared torture and persecution, the European Court of Human Rights (ECtHR) established that the prohibition of torture or other ill-treatment (Article 3 of the European Convention on Human Rights (ECHR)) is absolute in nature and applies even against national security considerations. The 1951 Refugee Convention provides for exclusion from refugee status on the basis of national security-related grounds (see also the next section). Human rights law prevents such denial through the absolute prohibition of torture or other ill-treatment. Similarly, in M.S.S. v Belgium and Greece, a case relating to an Afghan asylum seeker, the ECtHR found Greece in violation of the same provision for failing to provide adequate reception conditions and effective asylum procedures, in particular, degrading detention conditions and denial of access to basic socio-economic services, such as food, sanitation, and shelter.

Human rights law has also bolstered procedural fairness in refugee status determination. Cases such as I.M. v. France or M.A. and Others v. Lithuania before the ECtHR, and General Comment No. 32 of the Human Rights Committee (HRC) on the right to a fair hearing and to an effective remedy have reinforced the principle that due process is not a mere administrative formality but a fundamental right of asylum seekers. Hence, human rights law provides broader standards of protection that can usefully fill the procedural and substantive gaps in the refugee protection architecture. In this regard, Chetail argued that human rights law has broadly eclipsed the protection offered by refugee law, thus claiming that the former should be the primary source of refugee rights, rather than the 1951 Refugee Convention and its 1967 Protocol. Nevertheless, human rights law has its own shortcomings that cannot be ignored. For instance, the International Covenant on Economic, Social and Cultural Rights allows limitations on economic rights for non-nationals which would not be permitted under the 1951 Refugee Convention. Moreover, the latter recognises rights that are not expressed in human rights instruments. In particular, while human rights law can apply to people who do not qualify for refugee protection, thus extending protection to additional categories of migrants that would otherwise remain excluded, it does not provide any legal status and related rights apart from a generic prohibition of removal to the country of origin.

Non-refoulement in Refugee and IHRL

The principle of non-refoulement constitutes not only the “cornerstone of international refugee law” but also a cardinal concept of international human rights law. Its evolution plastically illustrates the mutual complementarity of the two regimes. The principle of non-refoulement encapsulates the obligation whereby a state cannot remove a person to a place where there is a risk that he/she may face a qualifying type of harm. While Article 33 of the 1951 Refugee Convention is the primary source of this principle, it is also echoed in numerous human rights treaties. The Convention Against Torture and the Charter of Fundamental Rights of the European Union contain express non-refoulement provisions. An implicit prohibition from removal is also acknowledged by the main human rights bodies through the interpretation of their respective human rights treaties. As such, non-refoulement is widely recognised as a principle of customary international law and may be “ripe for recognition” as jus cogens. In both cases, it is an exception to the general discretion of states regarding immigration control.

While both encompass the right not to be repelled or returned to a country where the person could be exposed to a serious risk of harm, the refugee and the human rights non-refoulement differ on the basis of two main reasons. First, they offer different scopes of protection. Article 33(1) states:

Therefore, it operates within the personal and territorial scoping restrictions of the 1951 Refugee Convention. Accordingly, refugee non-refoulement protects only those who qualify as refugees from returning to their countries of origin. In contrast, the human rights based principle of non-refoulement, by being a reflection of international human rights law principles, protects all individuals from removal, regardless of their specific status. It could be applied in virtually any case in which a person can substantiate a real risk of any qualifying type of harm set forth under international human rights law. In practice, human rights bodies have mostly contributed to expanding the scope of the prohibition of refoulement under the prohibition of torture, cruel, inhuman, and degrading treatment or punishment, and the right to life.

Second, refugee non-refoulement is subject to exceptions, while the human rights principle is absolute, with certain risks. Article 33(2) allows for lawful refoulement when the person can constitute a danger to security or has been convicted of serious crimes.

Under international human rights law, there is no permission to refoul someone to a state where there is a real risk of torture, inhuman, or degrading treatment. This principle was established by the ECtHR in Chahal v. United Kingdom and echoed by other human rights bodies, such as the HRC. Confined within the refugee definition, refugee non-refoulement has thus been overridden by human rights non-refoulement. In addition, to establish an absolute ban on removal under the prohibition of torture and other ill-treatment, human rights law has also helped to strengthen the prohibition of removal by broadening the scope of non-refoulement duties to cases of extraterritoriality and to cases that fall outside the application of refugee law, thus providing protection to additional categories of migrants.

Hirsi Jamaa and Others v. Italy, involved 24 migrants intercepted in the Mediterranean sea by Italian authorities while attempting to reach Italy from Libya, who were returned to Libya. The ECtHR ruled that the non-refoulement obligation under Article 3 also applies to “pushback” operations on the high sea, through an extraterritorial interpretation of the concept of jurisdiction. In Judge v Canada, the HRC established that deporting someone to a place where he could be sentenced to death would violate the right to life under Article 6 of the ICCPR. A similar decision was reached by the ECtHR under Article 3 in Soering v United Kingdom. Human rights bodies have also extended non-refoulement obligations to cases of socio-economic deprivation. For instance, in exceptional circumstances the ECtHR has prohibited the removal of seriously ill people who could be exposed to dire humanitarian conditions in their country of origin which would violate Article 3 of the ECHR. (Paposvhili v. Belgium, Sufi and Elmi v United Kingdom).

As displacement becomes increasingly complex, the principle of non-refoulement remains critical. Recently, its application has been extended to climate change (see the section below). Despite its growing reach, human rights non-refoulement has some limitations. Unlike refugee law, it does not provide any legal status. In addition, states retain considerable discretion in determining how to “regularise” the status of individuals they cannot remove under their national refugee legislation, which may lead to inconsistent practices. Its evolution depends on the capacity of human rights bodies to broaden its scope. In this context, some judicial decisions reflect a cautious approach toward new challenges, employing strict and controversial interpretations that create obstacles for applicants, rather than facilitating their claims. By contrast, the broadening of the scope of human rights non-refoulement may trigger states’ counter-productive reactions, in particular, it may induce states to adopt policy of externalization in order to avoid their human rights non-refoulement duties. The UK-Rwanda Asylum Partnerships and Italy-Albania Protocol as well as arrangements promoted by the EU such as the EU-Turkey Statement aiming to transfer or assess asylum claims outside the territory of European states, in addition to raising concerns of colonial-racism, have been criticized for being policies of externalization incompatible with the human rights principle of non-refoulement.

Contemporary Challenges

Since the adoption of the 1951 Refugee Convention and its 1967 Protocol, migration patterns have significantly transformed. In an increasingly changing and interconnected world, individuals are compelled to migrate for new and previously unanticipated reasons. Climate change has emerged as a significant driver of human mobility. Rising sea levels, desertification, flooding, and extreme weather events are forcing people to leave their homes in increasing numbers. However, the current definition of a refugee does not recognise environmental or climate-related factors as legitimate grounds for granting refugee status, thereby leaving those who migrate across borders due to the adverse impacts of climate change in a “legal void”.

In 2011, Erika Feller, who was then the Assistant High Commissioner for Protection at UNHCR, addressed a provocative newspaper headline that questioned the relevance of the 1951 Refugee Convention, stating that the instrument “is not fit for its purpose” anymore, during the celebration of the Convention’s 60th anniversary. More than a decade later, this question continues to stimulate debate. It is in fact clear that global phenomena such as climate mobility pose significant challenges to the existing refugee law framework, highlighting the need for a re-conception of international protection mechanisms. As climate mobility gains increasing attention in international forums, various forms of legal protection have been suggested. Ian Fry, the former UN Special Rapporteur for the promotion of human rights in the context of climate change, has proposed the adoption of an additional protocol to the 1951 Refugee Convention. However, implementing such a solution would necessitate the political will of states to revisit the Convention, a task that currently appears unrealistic.

The UNHCR has recently extended its mandate to include displacement due to climate change. While it does not advocate for the creation of ‘climate refugees’ as a new legal category, it concedes that the protection offered by the 1951 Refugee Convention can be positively triggered on the basis of a nexus-dynamics approach, that is, when the impacts of climate change interact with refugee criteria. At the regional level, the broader refugee definition provided by the OAU Convention and the Cartagena Declaration could encompass those who leave because of climate events. In the African context, the Kampala Convention, albeit applicable to internal displacement, includes provisions that cover climate risks. However, binding legal standards specific to climate mobility are lacking.

Alternative instruments have been developed to bridge this normative gap. Notably, the Nansen Initiative and the related Platform on Disaster Displacement, the Global Compact for Safe, Orderly, and Regular Migration, and the Task Force on Displacement under the United Nations Framework Convention on Climate Change. These initiatives promote effective human-rights-based protection for people displaced in the context of climate change, including temporary protection schemes, humanitarian visas, planned relocation strategies, and integration in national adaptation plans under the 2015 Paris Agreement. While promising, these are soft-law instruments and so do not confer enforceable rights equivalent to refugee status.

In light of the complementarity between refugee and human rights law and the growing recognition of the interrelatedness between human rights law and the environment, human rights bodies have increasingly been tasked with clarifying states positive obligations in the context of climate change, including climate mobility (see the chapter on Human Rights and the Environment). A landmark decision in this domain is Teitiota v New Zealand, concerning an inhabitant of the small island state of Kiribati in the South Pacific, who sought protection in New Zealand on the basis that his life was becoming precarious as a result of insufficient fresh water, inundations, and soil erosion owing to the effects of climate change and sea-level rise. After being denied international protection in New Zealand, he lodged a complaint before the HRC arguing that, by removing him to Kiribati, New Zealand violated his right to life under the Covenant (Article 6). The HRC expressed the view that the effects of climate change may “[trigger] non-refoulement obligations of the sending state” under Articles 6 and 7 of the ICCPR.

Given the absence of legal recognition for this category of migrants at the international level, this decision establishes a significant precedent, opening the doors for protection claims based on climate risks under human rights laws. This has also been recently confirmed by the Inter-American Court on Human Rights (IACtHR) and the International Court of Justice (ICJ) which – called upon to deliver Advisory Opinions (AO) on states obligation in the context of climate change – have expressed the opinion that states should protect people moving because of climate change against refoulment (see IACtHR, AO-32/25 and ICJ, AO-187/25). However, as previously mentioned, the principle of non-refoulement in human rights law has numerous limitations that may hinder access to these protections. In the case of Teitiota v. New Zealand, while the HRC acknowledged the applicability of this principle to climate change cases, it ultimately did not find a violation of Article 6 based on a stringent interpretation of the provision. Furthermore, when a violation is identified, the result is a mere ban on deportation. On the basis of that, in AO-32/25, the IACtHR has articulated that in safeguarding “climate refugees” against refoulement, “states must establish an appropriate regulatory framework that provides” for effective domestic legal and/or administrative mechanisms, “by establishing appropriate migration categories such as humanitarian visas, temporary residence permits, and/or protection under refugee status or other similar status”. These solutions should also be adopted within “a framework of cooperation and the responsible and coordinated management of human mobility at the international level”. While these considerations address the limitations of the human rights principle of non-refoulment, states are still exercising wide discretion in this matter, resulting in varied and inconsistent practices.

 Further Reading

Jamma Sugow, ‘Towards a Legal Framework for Climate Displacement: Expanding the Boundaries of Refugee and Humanitarian Law through a Human Security Lens‘ (2025), Journal of Research in Humanities and Social Science, Volume 13, Issue 6, 2025, pages 105-126.

Jane McAdam, How the ICJ’s Advisory Opinion on Climate Change Addresses Displacement, International Protection and Ongoing Statehood (Researching Internal Displacement, 2025)

Lorcán Hyde, ‘The Principle of Non-Refoulement in International Law’ (2016) 1 Rescriptum 29

Maja Grundler, ‘Treatment Accorded to Aliens Generally’: Article 7(1) of the 1951 Refugee Convention as a Basis for Visa-Free Access to States Parties’ Territory? An Examination of the Prohibition of Nationality Discrimination in the Refugee Convention’, International Journal of Refugee Law, Volume 33, Issue 3, 2021, pages 469–496.

Monica Namanya, ‘The Inter-American Court’s Advisory Opinion on the Climate Emergency and Human Rights: A Win for Climate-Displaced Persons?’ (EJIL:Talk!, 29 July 2025)

ECtHR, Guide on the case-law of the European Convention on Human Rights: Immigration (updated 28 February 2025)

European Union Agency fo Asylum (EUAA), Jurisprudence related to asylum pronounced by the Court of Justice of the EU in 2024 (16 April 2025)

Platform for International Cooperation on Undocumented Migrants (PICUM), Criminalisation of migration and solidarity in the EU: 2024 report (30 April 2025).

Cambridge University Press, The Rights of Refugees under International Law, 2nd edition: a conversation with James C. Hathaway (2021)

Migration Policy Centre: Climate mobilities: Migration, im/mobilities, and climate change (2021)

Oxford University, On the Future of Climate Mobility (with Jane McAdam) (2024)

Suggested Citation – Erika Moranduzzo, ‘Refugee Law’ in Stuart Wallace and Clare James (eds), Open Access International Human Rights Law (University of Leeds, 2026)