The Protection of Refugees and Customary International Law D. W. Greig Professor of Law, Australian National University Many of the difficulties of providing for the protection of refugees arise because of our perceptions of international law. Since the decline in influence of writers of a Naturalist persuasion we are left with a philosophy of inter- national law which revolves around the State as the beneficiary of rights, bestower of rights and arbiter of rights. It is true that in the second of those roles States have created international organisations with a developing status and power of independent action, but such organisations are nevertheless in essence a conglomeration of state powers vested in corporate entities. Whereas many international organisations can now be regarded as beneficiaries, bestowers and arbiters of rights, individuals can make no such claims. No one seriously contends that we are all subject to some universal law (unless spiritual or moral) which permeates all human society and operates on individuals and States alike. The most that Positivist doctrine is willing to acknowledge in accord with State practice is that certain individuals have had bestowed upon them the protection of international law. In order to qualify for such protection the individual must belong to a group recognised by international law as being the recipient of rights. The most obvious illustration is that nationals of a State have a right (privilege) to seek the protection of their own State in respect of injury suffered at the hands of a foreign State while on its territory. The bond of nationality is the normal connecting factor between the individual and the protection of international law. It is of course an imperfect right because, under international law, there is no duty upon the State of nationality to exercise its right of diplomatic protection. In considering the position of refugees the starting point must be to examine whether they constitute an identifiable group upon which States have bestowed the protection of international law. Then, assuming that the answer is in the affirmative, some comment will be made on the scope of the protection thus accorded. It is necessary to examine this issue from two aspects, the rights bestowed upon individual refugees and the mechanisms available for ensuring that those rights are effective. The discussion will be brief because the purpose of this paper is not to define the rights in detail, but to examine how far they may be regarded as part of customary international law. In this context it will require a con- sideration of the processes whereby rules of customary international law are formulated and also at least some comment on the role of general principles of law in the development of international law. Sources and evidences of international law It is the inevitable starting point of any discussion of this aspect of inter- national law to cite Article 38.1 of the Statute of the International Court which requires that body, in any dispute that is submitted to it, to apply: The Protection of Refugees and Customary International Law 109 "a. international conventions, whether general or particular, establish- ing rules expressly recognised by the contesting States; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognised by civilised nations . ." It goes without saying that this direction to the Court is equally valuable as a guide to the foreign office legal adviser or the academic seeking to discover the appropriate rules of international law. Their purposes and objectives may differ, but they are still obliged to start with the same raw material. Treaties What is important in the case of our search for legal principles and their range of application is to be wary of traditional wisdom. Article 38.1 does not state that the sources of international law are treaties, customs and general principles (they may well be - up to a point - but that is too facile an assumption for the purpose of our analysis). The provision is quite clear in avoiding such an approach. It does not commence by suggesting that if State A and State B are parties to a treaty which covers the substance of a dispute, then all that a court of law can do is to apply the terms of that treaty as best it can. This rule of law exists by virtue of a customary rule, or even of a general principle, but is not laid down in general terms2 by any international convention. What Article 38.1.a postulates is that the Court is to apply, in disputes submitted to it, conventions, whether general or particular, which establish rules expressly recognised by the contesting States. It is worth noting that it is the conventions which are general or particular - not the rules. In other words particular conventions (whether particular by virtue of the number of parties or by the subject matter is not at all clear) can give rise to rules which by express recognition (not because the States are actually parties to the convention) are applicable to the dispute. The proposition that paragraph 1.a relates to rules of international law, and is not simply a direction to apply a treaty if that treaty creates the rights 1. AS the Court said in the North Sea ContinentalShelf cases. ICJ ReD 1969. D 3 at 24: .'The first question to be considered is whether the 1958 ~enevaconvention on the Continental Shelf is binding for all the Parties in this case- that is to say whether. as contended by Denmark and the Netherlands. the use of this method is rendered obligatory for the present delimitations by virtue of the delimitations provision (Article 6)of that instrument. according to the conditions laid down in it. Clearly. if this is so. then the provisionsof the Convention will prevail in the relations between the Parties, and would take precedence of any rules having a more general character. or derived from another source. On that basis the Court's reply to the question put to it in the Special Agreements would necessarily be to the effect that as between the Parties the relevant provisions of the Convention represented the applicable rules of law - that is to say constituted the law for the Parties -and its sole remaining task would be to interpret those provisions. in so far as their meaning was disputed or appeared to be uncertain. and to apply them to the particular circumstances involved." There are terms in treaties which purport togive that term. or certain others. a primacy over other rules whether those contained in a treaty or existing under customary international law. 110 Australian Year Book of International Law and obligations which constitute the substance of the dispute between the parties, is borne out by a reference to Art. 36.2 of the Statute of the Court which enables States parties to the Statute to make a declaration accepting the jurisdiction of the Court "in all legal disputes concerning" inter alia "the interpretation of a treaty" or "any question of international law". The Statute of the Permanent Court contained an identical Article 38.1 and an Article 36(2) which was the same as the present provision except that it read "in all or any legal disputes". It was open to a State to accept the Court's jurisdiction with respect only to "the interpretation of a treaty". Article 38.1 .a would have been meaningless in such a situation should it be taken as stating no more than that, in a dispute concerning a treaty, the Court should apply the provisions of that treaty! We shall be examining shortly the provisions of, amongst other instru- ments, the 1951 Status of Refugees Convention. Between parties to the Convention its application to a particular situation is a matter first of interpretation (according to rules deduced from the various sources3);and, then, if it is not applicable on that basis, it is a matter of whether it has been extended by "express recognition" or "State practice" to the situation in issue. For example, following the 1956 Hungarian uprising, a number of govern- ments were prepared to regard the exodus from that country as being covered by the 1951 Convention despite the fact that the definition of refugees required that a fugitive's presence outside his country of residence or former habitual residence be "as a result of events occurring before 1 January 1951".4 Only by an extremely elastic interpretation could it be said that the uprising was the "result" of the Communist control of that country which had occurred at the end of the Second World War. However, an "agreed interpretation" which distorts the normal interpretation of an instrument is not necessarily "invalid" or "ineffective"; it can amend the treaty between the parties to the understanding. It would certainly seem to qualify as a rule "expressly recognised" if the States concerned are involved in a dispute to which the understanding is relevant. Custom When it comes to Article 38.1 .b, the directive to apply "international custom, as evidence of a general practice accepted as law", has been regarded with some puzzlement. It is usually suggested that the paragraph was misdrafted: it is surely the practice which is evidence of international custom accepted as law. Be that as it may, it is the custom which has to be applied, and a custom which is evidenced by, as much as evidence of, the practice of States. Whatever doubts might be raised about the choice of wording for paragraph l.b, it does seem to emphasise the need for two elements in the function of customary international law: (a) the factual element of State practice; and (b) the psychological element of acceptance of the practice as law.