The Refugee Convention has been described as the definitive articulation of refugee law and the foundation of the international refugee regime; in its absence it seems law has a lesser role in the protection of refugees. Yet the Refugee Convention does not apply in jurisdictions where a majority of refugees live including most states in the Middle East and Asia. Traditional accounts foreground these regions’ hesitant relationship with this regime and the international community has thus taken the lead. This approach results from a legal orientalism that both mischaracterises these regions’ law and legal institutions and compares them to an idealised account of these entities elsewhere. The resulting zone of exception from the international refugee regime is fundamentally unsustainable and privileges international interests. Resistance to this approach, by local practitioners, within these regions has a record worthy of both caution and further examination.
In response to a 2013 Court of Final Appeal ruling, Hong Kong established a “Unified Screening Mechanism” (USM) to assess claims by refugees and other migrants seeking protection in Hong Kong. The mechanism considers non-refoulement claims based on (1) risk of persecution; (2) torture; or (3) cruel, inhuman or degrading treatment or punishment. During the first two years, the acceptance rate was only .56 percent. By contrast, the global average is approximately 43 percent. These statistics, however, do not tell the full story since each territory receives a different population of individuals claiming protection. This paper provides preliminary reflections on possible reasons for Hong Kong’s particularly low rate through qualitative analysis of first-instance decisions, tracking and analyzing the reasons for denial. Through this analysis, the paper also hopes to push discussion and research forward on the broader topic of asylum and refugee acceptance success rates.
Some have questioned the continuing relevance of the 1951 Refugee Convention. International human rights law has expanded rapidly since 1951 and UN human rights treaties and relevant interpretive materials have clarified states’ obligations to protect refugees and other migrants beyond the confines of the Refugee Convention. As a result, some argue that the broader remit of international human rights law could supersede, or supplement, the Convention’s more conditional provisions. Others maintain that the Refugee Convention is of particular relevance to the refugee experience and provides a workable framework for balancing the needs of refugees with the rights of states to control their borders. This paper aims to contribute by examining the application of CEDAW, to refugee protection in Asian states not party to the Refugee Convention. It will examine the extent to which states have legal obligations to protect refugees based on other sources of international human rights law.