2.1. Failure of International Human Rights Law to Protect HRDs

HRDs are subjected to serious human rights violations such as torture, murder, enforced disappearance and intimidation.Footnote ¹² However, most of the abuses against HRDs remain unpunished,Footnote ¹³ exacerbating the circle of violence against defenders and constituting a major obstacle to their human rights activities and thereby to the realisation of human rights. Impunity is the most obvious example of the failure of human rights law to offer effective protection for HRDs, giving the false perception that human rights violations against HRDs are tolerated, which in turn encourages further abuse.

The violators of defenders’ rights can be state authorities as well as non-state actors (NSAs). However, in most cases state authorities are those directly responsible for abuses committed against HRDs. States are, at the same time, the primary duty bearers of human rights obligations and the main perpetrators of rights abuses. The concept of due diligence in international human rights law is different from that in other areas of international law; it focuses on the internal affairs of states and concerns the obligation of the state to refrain from interfering with the exercise of a right as well as the obligation to take all necessary measures to ensure full enjoyment of human rights.Footnote ¹⁴ On this basis, if state authorities fail to comply with the obligation to refrain from violating human rights or the duty to create the necessary conditions for enjoyment of such rights, then the state must provide an adequate and effective remedy. Failure to restore the full exercise of human rights means failure to comply with human rights obligations, which in turn means that a state may incur responsibility for violations of treaty provisions.

The responsibility of NSAs for human rights violations is a major area of international human rights law,Footnote ¹⁵ which is still evolving and clearly goes beyond the scope of this article. It is sufficient to say at this point that states should focus on their international human rights obligations and particularly on their duty to protect individuals against human rights violations by NSAs within their territory.Footnote ¹⁶ Failure to do so might entail responsibility for international human rights.

With regard to HRDs, most of the abuses against them are left unpunished and leave victims without effective remedy, which encourages further violations. In essence, the failure of states to protect defenders in the first place and provide them with an effective remedy for crimes committed against them emphasises the inefficiency of international human rights in addressing impunity. One may find further examples of the inefficiency of human rights law – such as abuse of law as a means of criminalising the activities of HRDs – but, as stated above, impunity is the most indicative example.

2.2. The Intersection of Refugees and Refugee Human Rights DefendersFootnote ¹⁷

Because of the nature of their work, HRDs are targeted through extralegal and legal actions, such as attacks and enforced disappearances, as well as the adoption of criminal justice policy and the abuse of administrative power. Therefore, many defenders either may choose or are forced to leave their country of origin and seek asylum in another state to escape the violations committed against them. On this basis, and given the inefficiency of international human rights law in protecting HRDs, a possible alternative option is international refugee law, which is a distinct area of law. Their status as refugees would entail a series of human rights to which they would not be entitled otherwise, and keep them safe in the asylum states, as the prohibition of forced removal applies. In order to benefit from refugee status, HRDs should first be characterised as refugees.

Refugees have existed for as long as history, but the Convention relating to the Status of Refugees (known as the 1951 Convention, the Geneva Convention, or the Refugee Convention), adopted on 28 July 1951,Footnote ¹⁸ and its 1967 ProtocolFootnote ¹⁹ provide the most comprehensive codification of refugees’ rights, constituting the cornerstone of the international refugee regime.Footnote ²⁰ The definition in Article 1(A)(2) is the passport to refugee status, which entails formal immigration, the expectation of naturalisation and entitlement to a series of civil, political, economic, social and cultural rights.Footnote ²¹

Martin Jones, a leading expert on HRDs, argues that particularly HRDs at riskFootnote ²² may fall within the definition of ‘refugees’ if they decide to flee from their country of origin; this means that a defender under the title of ‘refugee’ may be entitled to various human rights.Footnote ²³

Pursuant to Article 1(A)(2), a refugee must meet four requirements; in particular, they must (i) be outside the country of their nationality; (ii) have a well-founded fear of persecution; (iii) be at risk of persecution on grounds of race, religion, nationality, membership of a particular social group or political opinion; and (iv) must be unwilling to avail themselves of the protection of their country of origin.Footnote ²⁴ The 1951 Convention allows certain individuals at risk to be excluded from the protection of the refugee regime if they have committed serious crimes against humanity and the purposes and principles of United Nations,Footnote ²⁵ or if they already benefit from other international or national forms of protection.Footnote ²⁶

According to Martin Jones, HRDs would meet the requirements of the 1951 Convention in most circumstances. More specifically, the first condition is fulfilled once a defender leaves his or her country of origin.Footnote ²⁷ Despite the fact that many HRDs face difficulties in leaving their country of origin, as seen elsewhere, neither the method of departure nor the illegal entry or presence plays a role in characterising an individual as a refugee.Footnote ²⁸

As far as the element of the well-founded fear of persecution is concerned, the notion of ‘persecution’ is rather broad, but it is widely accepted that the concepts of ‘persecution’ and ‘fear of persecution’ were intentionally left undefined to make them sufficiently flexible to encompass all forms of mistreatment.Footnote ²⁹ As highlighted from the beginning, defenders are subjected to enforced disappearance, torture, arbitrary arrest, unfair trial and other serious human rights violations. Consequently, these abuses fall within the notion of persecution and enable defenders to satisfy the second element.

However, according to the ‘Handbook on the Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees’ produced in 1979 to guide the asylum determination process, individuals who leave their country to escape from prosecution or punishment for a statutory or common law offence or crime cannot be considered refugees.Footnote ³⁰ The logic behind this exclusion is that a refugee is a victim – or a potential victim – of injustice or other violations and not a fugitive of justice.Footnote ³¹ This proposition relies on Grotius, De Jure Belli ac Pacis, who argued that asylum is to be enjoyed by people ‘who suffer from undeserved enmity, not those who have done something that is injurious to human society or to other men’.Footnote ³² Nevertheless, it is worth noting that this argument has been heavily criticised by the European Court of Human Rights (ECtHR) on the basis that it may expose individuals at risk to torture and other forms of inhuman or degrading treatment.Footnote ³³ The approach of the ECtHR has paralleled that of the Human Rights Committee in relation to the interpretation of Article 7 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits torture, cruel or inhuman or degrading treatment or punishment.Footnote ³⁴ More specifically, in General Comment 20, the Human Rights Committee stated that ‘[i]n the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement’.Footnote ³⁵

In relation to HRDs this proposition is of great interest as it may result in excluding HRDs from the term ‘refugees’ because states use legislation against defenders to criminalise their activities.Footnote ³⁶ For this reason it should be necessary for the state of asylum to consider carefully the nature of the offence and the crime presumed to have been committed. The state should establish whether the prosecution is merely a pretext for persecution and, as a result, the applicant is not in reality a fugitive from justice or whether the prosecution is consistent with the standards of international human rights law, and the criminal behaviour does not outweigh the defender's character as a bona fide refugee.Footnote ³⁷

On this basis, defenders subjected to prosecution based on the criminalisation of their activities can also meet the second condition. The second requirement includes the well-grounded fear of persecution, which is a combination of objective and subjective factors.Footnote ³⁸ Actual or anticipated measures against the defender may establish a well-founded fear, while violations and persecution against similarly situated defenders could also be an indicator.Footnote ³⁹

With regard to the third criterion, a link should be established between the individual's risk of persecution and one of the five reasons for persecution provided by Article 1(A)(2). The element of membership of a particular social group and political opinion seems to apply to defenders in the first place. In particular, with regard to social groups, defenders who fight for particular human rights form and run a group, or preferably organisations committed to the promotion of those rights. The Supreme Court of Canada in Ward established an alternative approach to the meaning of ‘membership of a particular social group’.Footnote ⁴⁰ In particular, the Court held that ‘the meaning assigned to “particular social group” should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative’.Footnote ⁴¹ The Court articulated that it is not possible for every single group of persons to fall within the 1951 Convention refugee definition, as there are some groups in which membership thereof is not fundamental to the defence of human rights and the human dignity of the individuals.Footnote ⁴² In essence, it is argued that it is the membership of the groups that must be the cause of the risk of persecution and not the individual activities of the claimant.Footnote ⁴³ In the exceptional case of a group that promotes religious rights, membership of the group is not necessary as it is sufficient that the individuals have been found to be at risk of persecution based on activities related to religion, as stated in Article 1(A)(2)(iii).

When it comes to the political opinion of the individual, although some HRDs may not identify their activities as ‘political’, in practice they act as human rights watchdogs speaking out against human rights abuses and thus play a major role in monitoring the conduct of government officials and other state authorities. In addition, defenders are part of, or they themselves run, organisations fighting for the rights of a particular group, thus satisfying the element of membership of a particular group. Notably, the vast majority of those defenders who took part in the empirical research have been members of NGOs promoting, for example, the rights of LGBTQ people, abandoned children and freedom of expression. In other words, it is argued that by the nature of their work, defenders may express political ideas and as a result meet the requirement of Article 1(A)(2)(iii). This position has also been affirmed by the High Commissioner for Refugees (UNHCR) who accepted that defenders ‘may be in need of refugee protection on the ground of their [imputed] political opinion and/or their membership of a particular social group’.Footnote ⁴⁴

As is discussed later in this article, much of the academic scholarship has heavily criticised the 1951 Convention for several reasons. One such criticism is that the definition does not include all persons at risk of persecution but accommodates only those at risk of being persecuted because of who they are and what they believe. In fact, the capacity of western states to grant asylum was so inadequate that it forced the drafters to confine the class of refugees on the ground of the five most fundamental principles of non-discrimination in international law.Footnote ⁴⁵ On this basis, the delimitation of the clause was considered a ‘least bad option’.Footnote ⁴⁶ However, the definition does not encompass those individuals fleeing from conditions of serious danger and general harm, such as armed conflict or climate change.Footnote ⁴⁷ In addition, domestic jurisdictions may adopt a different interpretation; this means that the same requirements may be applied differently across the globe, which may also affect the perception of HRDs as refugees from state to state. In this sense it is argued that the definition of ‘refugee’ is in need of considerable reform so that it includes individuals at serious risk of persecution who are not currently within the definition. In any case, with regard to HRDs, even the current narrow definition accommodates defenders who wish to apply for asylum in the sense that they are usually persecuted because of their activities as members of groups or for their beliefs.

Moreover, one of the most critical elements is the unwillingness of the state of origin to offer protection to individuals at risk. In relation to HRDs, they may find it harder to meet this criterion, as are those who have spoken out against the state's human rights record and challenged government policy. In essence, the activities of HRDs may be the cause of persecution or risk. On this basis, it would be a paradox if a state that is behind abuses against defenders, or threatens HRDs to stop their activities, were to offer them protection.

Individuals at risk who have committed serious political crimes or crimes against humanity and the principles of the UN cannot benefit from refugee status and, as a result, are excluded from the definition. However, individuals who commit violent crimes cannot by definition be defenders, as violent activities are inconsistent with the requirement of peaceful activities, which is one of the three requirements to be considered a defender, according to the predominant definition of HRDs.Footnote ⁴⁸ In this sense HRDs easily meet this criterion. Consequently, a defender can be referred to as a ‘refugee’ and make use of the international refugee regime.

Engagement with the international refugee regime entails a number of guarantees of economic, social and cultural rights, and administrative assistance. In particular, Articles 3 to 43 offer various guarantees and rights such as the prohibition of expulsion,Footnote ⁴⁹ the right to engage in different forms of work,Footnote ⁵⁰ the right to exercise the person's religion,Footnote ⁵¹ and freedom of movement.Footnote ⁵² In addition, a refugee defender enjoys international recognition and personality and has the right to obtain travel documents;Footnote ⁵³ the principle of comity requires all states to recognise each other's executive and judicial acts,Footnote ⁵⁴ such as the decision to accept refugee status and the granting of travel documents issued by the asylum state authorities. The point here is that the regime provides more favourable treatment for individuals who apply for asylum and are classified as refugees. As a result, refugee HRDs are entitled to all rights provided by the 1951 Convention.

It is arguable that the status of EHRDs (exiled human rights defenders) could be a more preferred option than refugee status in the sense that these defenders have managed to flee from their country and have been granted visa status, such as work and spousal visas. Indeed, in some states visa status may entail more rights than refugee status.Footnote ⁵⁵ Visa requirements and the rights that visa status entails are within the scope of immigration laws of states and thus will vary from state to state, while for state parties to the 1951 Convention the requirements for an individual to be classified as a ‘refugee’ are the same. Also, defenders at risk who need to escape as soon as possible may not have time to apply for a visa and provide the necessary documentation. For these reasons Jones is correct in believing that through the refugee regime HRDs are entitled to privileges to which otherwise they would not be entitled.Footnote ⁵⁶ However, he acknowledges that ‘the protection of the refuge regime is not without difficulty’, as states avoid their legal responsibilities towards refugees, impose restrictive domestic legislation, and are not willing to extend protection under the Convention to other individuals at risk.Footnote ⁵⁷ However, despite his concerns, Jones is of the opinion that ‘the refugee regime can offer a meaningful remedy to human rights defenders at risk’.Footnote ⁵⁸

Taking into account the interviews with HRDs, the following sections analyse the validity of this position and conclude that the international refugee regime cannot be seen as an alternative way of protecting HRDs for normative and practical reasons: first, because it is highly flawed and needs improvement in order to accommodate refugees adequately; second, because it does not suit the needs and desire of HRDs to continue their work in their home countries.

2.3. The International Refugee Regime as a Measure of Last Resort

HRDs champion and fight for human rights, challenge injustice and government activities, work to raise awareness of abuse against individuals, and hold authorities accountable for their human rights obligations in their country of origin. In other words, the nature of their work is very much connected with the countries in which they live, so leaving that country would have a disastrous impact on the realisation of human rights and the rule of law. Despite the fact that only two defenders said they would apply for asylum if they were at risk, the vast majority perceive that they would be abandoning the persons for whom they fight if they decided to leave their country to seek asylum.

Another participant emphasised that her activity is not illegal in the sense that it would force her to leave her country with a sense of shame; this shows that for some defenders their work is so important that there is no reason to stop doing it, provided that it is not illegal.

It is worth noting, though, that only one defender categorically excludes the possibility of asylum, stating that ‘I prefer dying doing what I love’, while the majority said they would flee if the situation became very critical. In essence, they want to exhaust all possible means available to them before leaving the country, such as changing strategy or moving to a safer place.

Taking into account that three participants have been granted refugee status, and the vast majority would flee in a critical situation and consider applying for asylum, it can be safely said that the international refugee regime is an alternative. However, it seems from the empirical research that refugee status should be a measure of last resort for this group of people because defenders wish to remain in their country and continue with their work. On this basis, contrary to Jones’ opinion that the international refugee regime can provide a meaningful remedy, this option is not suitable for HRDs, and despite the failure of international human rights law to provide efficient protection for HRDs, an alternative form of protection within their countries of origin must be considered.

3.1. The International Refugee System and States’ Refusal to Accept Refugees

The refugee regime does indeed sound like a promising alternative way to protect those defenders who wish to flee from their country to escape from human rights abuses, even as a measure of last resort, given the failure of international human rights law to protect them. However, this section argues that the protection of HRDs through the international refugee regime cannot be a reliable and suitable solution for a further major reason: it relies on a flawed and weak surrogate system, which, as will be seen, is in crisis.

Although refugee protection is a human rights issue of great importance, ironically its objective is not to meet the needs of individuals at risk and provide protection. On the contrary, the purpose of the establishment of the international refugee regime was to ensure the interests of powerful states and, particularly, to enable them to address issues of a transnational character and to control enforced migration between states.Footnote ⁵⁹

During the 1960s and 1970s the international refugee system appeared to be more generous in receiving refugees, as many refugees were the products of anti-colonial movements and wars of national independence.Footnote ⁶⁰ They were also seen as valuable resources who could contribute to development and boost the economy, and were therefore welcomed by powerful states.Footnote ⁶¹ The number of refugees grew dramatically over the following years for several reasons.Footnote ⁶² Asylum states were becoming extremely worried about receiving massive refugee flows, particularly from the less developed world.Footnote ⁶³ The perception that national sovereignty must be preserved, as well as the idea of protecting prosperity and social coherence, led states to focus on promoting the general well-being of their own populations.

Nowadays, this belief has not changed at all; several states are still tightening their refugee policies or closing their borders to refugees.Footnote ⁶⁴ Despite international initiatives and agreements to the contrary,Footnote ⁶⁵ states do their utmost to defend their sovereignty and control the waves of migrants and refugees. In essence, in the context of international refugee law, the intention of protecting the rights of those fleeing from their countries of origin produces a negative tension between the protection of human rights and the preservation of national sovereignty. As the international refugee regime concerns relations between states and how they manage refugee inflows, it is highly unlikely that states will adopt policies that would simplify the asylum process and ensure the rights of refugees, including the rights of refugee HRDs.

3.2. The Convention relating to the Status of Refugees

The 1951 Convention is the only binding instrument that addresses the protection of refugees at the international level.Footnote ⁶⁶ Even though it can be perceived as a ‘Bill of Rights’ for refugees,Footnote ⁶⁷ it differs significantly from the traditional human rights treaties as it is more about interstate obligations than individual rights.Footnote ⁶⁸ In particular, the wording of the majority of its provisions – starting with ‘the Contracting States shall accord to refugees’, as well as the fact that the term ‘rights’ referring to refugees is rarely mentioned – leaves no room for doubt that the scheme of the Convention concerns obligations between states. Such normative digression can be justified considering that it was adopted in 1951, several years before the ICCPR, when individuals were not entitled to binding human rights by international convention.Footnote ⁶⁹

The fact that the 1951 Convention is a duty-based instrument rather than a human rights-based treaty is decisive, as it allows states to keep a distance from their responsibilities. In essence, all duties imposed on states address, in particular, the question of the status of refugees, which means that the state assumes a number of obligations once an individual has been recognised and labelled as a refugee.Footnote ⁷⁰ In fact, it is at the discretion of the state to grant asylum to an individual as there is no right of an individual to asylum enshrined in the 1951 Convention.

The 1951 Convention imposes on states the prohibition of non-refoulement, which is the most fundamental principle of international refugee law.Footnote ⁷¹ In particular, according to Article 33:

In essence, this principle prohibits any act of forcible removal or rejection that can put the individual in danger again. Emphasis should be placed on the consequences of the acts: namely, whether the person's life will be threatened as a result of the state's failure to comply with this prohibition, rather than the nature of the act.Footnote ⁷² It must be highlighted that the principle of non-refoulement applies to both recognised refugees and asylum seekers as long as they are within the jurisdiction of a state party. The importance of this provision is further endorsed by Article 42, which does not allow states to place any reservation on this principle. It is now widely agreed that the principle against refoulement is a norm emerging from customary international law.Footnote ⁷³

From a conceptual perspective, the prohibition of non-refoulement entails a negative obligation: namely, the obligation to refrain from any act of forcible refusal or rejection. However, the 1951 Convention does not impose the positive aspect of the non-refoulement obligation, which would be the duty to grant asylum. This indicates that the right to grant asylum is a right held by the state. Indeed, the silence on this issue is not accidental as, in order to preserve national sovereignty, states should retain control over who is entitled to be admitted to their territory.

It could be argued that even though there is no de jure right to ‘be granted’ asylum, there may be an implied right to asylum.Footnote ⁷⁴ More specifically, Vincent Chetail argues that ‘the distinctive nature of non-refoulement and asylum appears highly artificial in practice. Although non-refoulement is primarily an obligation of result, asylum is generally the only practical means to respect and ensure respect for Article 33’.Footnote ⁷⁵ In other words, in order to comply with the obligation of non-refoulement, states have the following options: (i) granting asylum and allowing the individual at risk to enjoy those rights enshrined in the 1951 Convention; (ii) granting temporary asylum until the state has examined whether the individual meets the criteria to be considered a refugee under the 1951 Convention; or (iii) sending the individual to another state where there is no risk of persecution.Footnote ⁷⁶

Article 14 of the Universal Declaration of Human Rights (UDHR) provides for the right of an individual to seek asylum;Footnote ⁷⁷ therefore this right has implicitly been put into practice and reinforced by the inclusion of the prohibition of non-refoulement, including non-admission at the border.Footnote ⁷⁸ On this basis, once the Declaration was drafted, the French Ambassador concluded that ‘the right to asylum was implicit in the Convention, even if it was not explicitly proclaimed therein, for the very existence of refugees depended on it’.Footnote ⁷⁹

In the absence of a clear positive obligation to grant asylum, the 1951 Convention gives states a considerable margin of appreciation in deciding how to comply with their obligations. In practice, states have introduced restrictive domestic legislation, such as restrictive interpretation of the definition of refugee, limitations on the right to work, extended visa requirements, and long procedures for identification to discourage people from seeking asylum.Footnote ⁸⁰ As a consequence, a defender who became involved in the asylum system of a state would live in a perpetual state of uncertainty. Even if the defender is eventually labelled as a refugee, it is questionable whether refugee protection may be considered a human rights remedy.Footnote ⁸¹ This, however, exceeds the limits of this article.

The 1951 Convention has also been criticised on the ground that it has no international supervision procedure. The absence of any independent supervisory mechanism is a reflection of the human rights reality of that time. The 1951 Convention was designed to strengthen the protection of individuals fleeing from Nazi, communist and other fascist regimes, and built upon the standards of the time, namely the League of Nations.Footnote ⁸² On this basis, the General Assembly opted for a subsidiary mechanism that would have responsibility to coordinate international action to protect refugees and resolve refugee problems worldwide. It therefore established the UNHCR.Footnote ⁸³ With the adoption of the human rights covenants and the establishment of treaty bodies monitoring the implementation of the conventions, states familiarised themselves with the idea of interstate supervision of human rights.Footnote ⁸⁴

Despite the non-binding authority of the UNHCR, the High Commissioner seeks to safeguard the rights of refugees, provide guidance on the interpretation of the 1951 Convention and ensure that refugee law develops consistently with established principles and new challenges.Footnote ⁸⁵ However, it seems that the role of the UNHCR has changed significantly over the past decades, losing the character of the trustee of refugee rights. More specifically, the agency has now been transformed into a mechanism that is committed primarily to directing a ‘refugee protection service delivery’, because states have become even more reluctant to resolve refugee crises and call on the agency to avert such crises on their behalf.Footnote ⁸⁶

What is really absent from the international refugee regime is state accountability within the context of a monitoring body. In particular, the supervisory body seeks to ensure that all state parties comply with their obligations, while all states can hold a fellow state accountable for not complying with its treaty obligations. In essence, the dynamics of ‘naming and shaming’ and blandishing are those that ensure the protection of human rights within a human rights treaty system.Footnote ⁸⁷ Consequently, the absence of a normal supervisory institution allows states to keep a distance from their obligations and take little, if any, responsibility for ensuring the rights of refugees.

Although the UNHCR has provided guidance on the interpretation of the 1951 Convention, national authorities and courts have emphasised that its views are of great importance, although not legally binding.Footnote ⁸⁸ One may argue that the decisions of treaty bodies are not binding either, so an additional monitoring body for the 1951 Convention with non-binding authority would be superfluous. However, it is worth noting that state parties, for instance, to the ICCPR tend to comply with the decisions of the Human Rights Committee, even though they are not legally binding in the sense that they constitute authoritative interpretations of the provisions of the treaty.Footnote ⁸⁹

Moreover, there is no provision of individual petition to a judicial body similar to those existing under regional treaties, so cases to challenge decisions on applications for asylum and refugee status are heard and decided by national courts. In addition, as there is no relevant provision enshrined in regional treaties, regional courts, such as the ECtHR, may address cases involving asylum seekers and refugees on the basis of violation of human rights contained in the treaties concerned. Notably, regional as well as national courts have produced a large body of case law relating to refugee rights, but these are only disparate decisions and, more importantly, there is no uniformity of approach and reasoning.Footnote ⁹⁰ In short, the continuing failure to establish a supervisory mechanism on the monitoring treaty bodies model encourages states to avoid taking responsibility for ensuring refugee rights, while also failing to create a common approach to, and case law on, the protection of refugees. It can be said that a supervisory body is unwelcome in the eyes of states, as it would challenge the parameters of their refugee policy and have a say in matters relating to state sovereignty.

The UNHCR would also be able to contribute to the protection of those defenders who would be classified as refugees. Besides ‘naming and shaming’ states that are significantly more hostile towards HRDs seeking asylum, it could provide specific guidance on refugee defenders, emphasising their special needs and dangers. State authorities as well as national and regional courts would be able to handle defenders more effectively, making a real difference in the work and life of HRDs.

3.3. Europe's Failure in Addressing the Refugee Crisis

Europe faced its biggest refugee crisis in 2015, when more than 1.3 million people – mainly from Syria, Afghanistan and Iraq – sought asylum in the EU;Footnote ⁹¹ this is the largest inflow since the Second World War. Individuals will continue to arrive in Europe seeking asylum for as long as the civil war in Syria and with ISIS is raging, increasing the number of applications for asylum. The EU asylum policy – which is made up of a set of EU laws such as the Dublin RegulationFootnote ⁹² and the Asylum Procedure Directive – is known as the EU Common European Asylum System (CEAS). The CEAS was established in 2000 with the Eurodac Regulation, which introduced a central registry of fingerprints for all asylum seekers and was further developed in the following year.Footnote ⁹³ Since then it has aimed to ensure that all EU member states protect the rights of those seeking protection under the 1951 Convention and sets out minimum standards and procedures for processing and deciding asylum applications. However, this massive inflow uncovered the inability of European mechanisms to address the unprecedented refugee crisis and the gap in states’ asylum policies, despite the uniform EU system.Footnote ⁹⁴ The purpose of this section is to show how the inability of such a well-developed system as the EU to handle a huge refugee crisis raises questions over the efficiency and reliability of the entire refugee regime as an alternative.

One could argue that the European case study is not indicative because most HRDs would not seek sanctuary in Europe. In fact, given the high rate of violations against HRDs in the Middle East, North Africa and countries in Asia,Footnote ⁹⁵ it would be highly unlikely they would travel to Europe to seek asylum. However, there are states in Europe that skim the edges of democracy, such as Russia and Turkey, so Europe is still an option for those defenders who wish to flee from Russia or Erdogan's Turkey. In any event, the point of this case study is to highlight Europe's inability to accommodate refugees despite its advanced human rights mechanisms, and by analogy to question the readiness and efficiency of other state parties to comply with the 1951 Convention.

In addition, of the 19 states in the Middle East and North Africa, only six are parties to the 1951 Convention or its 1967 Protocol, while 20 states out of 45 have signed and ratified the Convention in Asia.Footnote ⁹⁶ This means that those other states are not bound by the 1951 Convention and have their own ‘law of asylum’ based on a wide variety of sources, such as international human rights law, domestic constitution, local legislation and any other local norms and customs.Footnote ⁹⁷ In this sense the ability and willingness of those states to accept refugees and, more specifically, refugee defenders is highly questionable.

In 2015 several European countries – including Austria, Sweden and France – refused to accept refugees in the name of national sovereignty and imposed tighter internal border controls in order to avoid becoming a magnet for refugees.Footnote ⁹⁸ At the same time, EU border states – namely Greece, Italy and Spain – bore the refugee crisis burden in parallel with their financial crises. Given that the Dublin Regulation prevents asylum seekers from choosing the country in which to apply for asylum,Footnote ⁹⁹ asylum seekers become trapped in the poorest frontline states, which are less developed and equipped to manage such huge numbers of applicants.Footnote ¹⁰⁰

Conceiving that it would be impossible for member states to arrive at a wider EU refugee agreement, the EU decided to assist ‘frontline’ states by offering financial and operational support.Footnote ¹⁰¹ The European Commission established and developed the ‘hotspot approach’ in order to manage exceptional refugee flows.Footnote ¹⁰²

The support given to the hotspot areas operates in certain ways: establishing functional hotspot/refugee camps; registration, identification, fingerprinting and debriefing of asylum seekers; as well as return operations.Footnote ¹⁰³ The EU agencies Frontex, European Asylum Support Office (EASO), Europol and Eurojust contribute significantly to fulfilling these tasks and providing further assistance in cooperation with local authorities.Footnote ¹⁰⁴ Despite the dysfunctionalities of the system, the hotspot approach has improved the rates of registration and fingerprinting of incoming asylum seekers, which is crucial in determining which follow-up procedures to apply.Footnote ¹⁰⁵ However, the hotspot approach has received much criticism with regard to the lack of a legal framework to regulate the rights of asylum seekers and the horrific living conditions and poor services in terms of food, water and medication.Footnote ¹⁰⁶ Despite the functionality of the hotspot system from an operational perspective, it has fundamental human rights issues.Footnote ¹⁰⁷

Asylum seekers are not allowed to leave refugee camps until they have been identified and fingerprinted. This process takes approximately two weeks; therefore, the prohibition on leaving hotspots during this period amounts to de facto detention and is in breach of the right to liberty.Footnote ¹⁰⁸

Despite the efforts of the EU, member states have turned their backs on those individuals seeking protection in the first place, thus violating their rights. Images capturing the devastation of the refugee crisis are seen all over the world, casting serious doubts on the leading role of the EU member states as global promoters of human rights.

In times of crisis, minor inconsistencies with human rights obligations may be tolerated on the basis of limited resources against large inflows. Unfortunately, however, it tends to be accepted that the refugee regime entails a number of serious implications for the human rights of refugees.Footnote ¹⁰⁹ It should be noted that individuals seeking protection in Europe face two legal regimes that overlap: one created by the EU; the other one by the Council of Europe.Footnote ¹¹⁰ In this sense the approach of the ECtHR to migration and refugees is rather interesting. In particular, in the case of MSS v Greece and Belgium the ECtHR placed limits on tolerating the predicament of irregular migrants. In particular, the Court examined the legality of the Greek practices regarding registration and identification of irregular migrants and concluded that they constituted a violation of Article 3 of the European Convention on Human Rights (ECHR). It also found that Belgium had failed to comply with the 1951 Convention in that state authorities requested the applicant's return to Greece, despite the fact that they were aware of the terrible conditions in the Greek sites and the applicant's unwillingness to return to Greece.Footnote ¹¹¹ This approach is of particular interest as it could be extended to refugees.

A point of particular concern is a shift in the Court's jurisprudence with regard to the protection of irregular migrants and refugees. The cases of Khlaifia and Others v Italy and JR and Others v Greece are the most recent illustrations of the current jurisprudence of the ECtHR. In particular, in Khlaifia the Court was called upon to address several issues, such as the violation of the right to freedom of liberty (Article 5) and the conditions of detention in the refugee camps in Lampedusa and Palermo (Article 3).

More specifically, in the case of MSS the Court reiterated the reasoning of Budina and found that refugees are vulnerable human beings by their nature and, as a result, special attention must be paid to their needs.Footnote ¹¹² On the other hand, it was held in Khlaifia that the applicants were young and in good health; they therefore did not come within the notion of ‘vulnerable group’ and were not in need of special protection.Footnote ¹¹³ In short, the ECtHR changed its reasoning, considerably reducing the notion of vulnerability.Footnote ¹¹⁴ Furthermore, the Court highlighted that the facts in question occurred at the time Italy had already been hit by a major migration crisis, so state authorities were under such pressure that there was no room for better conditions.Footnote ¹¹⁵

In the same vein, in the case of JR and Others v Greece the Court decided that the applicants’ administrative detention, which lasted for a month, was not arbitrary and could not be considered unlawful under Article 5(1) ECHR.Footnote ¹¹⁶ State authorities took drastic measures to prevent the applicants from staying in Greece unlawfully, guaranteed their deportation, and identified and registered them as part of the implementation of the EU–Turkey Action Plan.Footnote ¹¹⁷ The Court reiterated the Grand Chamber's position in Khlaifia that the undeniable difficulties and inconveniences endured by the applicants stemmed from the situation of emergency confronting Greece at the time the EU–Turkey Statement was implemented.Footnote ¹¹⁸

Several cases are currently pending before the ECtHR concerning the legitimacy of hotspots, the asylum policy and violations of asylum seekers’ rights, so the current position of the Court may change in the future. However, this position widens state discretion in taking measures and imposing restrictions on the rights of asylum seekers and refugees,Footnote ¹¹⁹ which could result in small deviations from established human rights obligations. According to Ioanna Pervou, this reasoning ‘relativizes human rights protection during severe crises, exactly at the time when protection is needed the most’.Footnote ¹²⁰ It must also be said that this change in the ECtHR approach shines a spotlight on the need for a supervisory mechanism for the 1951 Convention that would produce a body of case law, establishing a common approach to the interpretation of the Convention and prevent any deviation from its standards.

The crisis in Europe has proved that criticisms of the absence of a supervisory institution, as well as the failure to establish effective transition mechanisms, were well grounded. The failure of the 1951 Convention to establish safe transition routes encourages states to externalise their borders and increase their securitisation.Footnote ¹²¹ In this sense some EU states have set up physical barriers, such as fences, to stop individuals at risk from reaching their territory and seeking asylum. It is worth noting that the building of barriers is not illegal under EU law, as each member state has the right to control who enters its territory.Footnote ¹²² In addition, physical barriers help states to address irregular migration. However, it seems that this measure is inappropriate because it stops not only irregular migrants but also asylum seekers.Footnote ¹²³ Stopping asylum seekers from entering their territory may mean that they end up in non-safe countries or back in their country of origin, which, broadly speaking, would constitute a violation of the principle of non-refoulement.Footnote ¹²⁴

Such practices render refugees more vulnerable to human trafficking, as they are willing to put their lives and the lives of their families at risk in an attempt to avoid returning back to their country of origin. To be more specific, there are human trafficking networks in Turkey, Greece, Libya and other countries in Europe that charge several thousand euros per person to facilitate the journey to Europe by providing documents, information and sea passage.Footnote ¹²⁵ It is no exaggeration to say that states that leave refugees with no other choice feed human trafficking.

This section has proved that the EU and state authorities have been unable and incompetent to deal with the largest inflow of refugees since the Second World War. The fact that such a well-developed system as the EU is unwilling to accept refugees and comply with the obligations of its system and the 1951 Convention in the name of sovereignty gives real cause for concern. As a consequence of EU and state policies, a series of violations of the rights of refugees and asylum seekers have occurred, bringing into question the leading role of the EU in the realisation of human rights. Most worryingly, the ECtHR, which can hold states accountable for the violation of refugees’ rights within the Council of Europe system, seems to adopt a more tolerant approach to the violation of the rights of refugees and asylum seekers, thus widening states’ margin of appreciation. From a moral perspective, the worst aspect of this crisis is that several European states have strongly demonstrated xenophobic attitudes towards refugees,Footnote ¹²⁶ which shows that the society of those states is unwilling to embrace individuals who are trying to escape from serious violations and danger.

In essence, the refugee crisis in Europe uncovered the inadequacy of the refugee regime and the inhuman attitude of states towards individuals at risk, cultivating suspicion towards the efficiency of the entire refugee regime. Practices and polices such as those implemented in Europe may render defenders seeking asylum more vulnerable and with their rights further violated, which will have a negative impact not only on their lives, but also on the realisation of human rights. For these reasons, seeking protection within the refugee regime cannot constitute a reliable form of protection for those HRDs wishing to flee from their country to escape from violations.

4.1. State Reluctance to Take Refugee Human Rights Defenders

As highlighted above, states perceive refugees as threats to economic and social stability, and refuse to take them in order to preserve their sovereignty. Prejudice against refugees arises from several causes, such as lack of knowledge of their background, fear of cultural change and loss of identity, and lack of respect for different religions and cultures.Footnote ¹²⁷ Poland, for instance, is one of the most homogeneous countries in Europe, being strongly Polish and Roman Catholic. The reason behind Poland's antipathy towards refugees is the fear that Muslim refugees from Syria, Iraq and Afghanistan could destroy the homogeneity of Polish society.Footnote ¹²⁸ In Greece, there is also a perception that refugees contribute to the spread of communicable disease, even though epidemiologists have made clear that there is very little risk of spreading life-threatening disease to the native population.Footnote ¹²⁹ In addition, people in the UK believe that refugees have strong links with terrorists, are prone to criminal activities, and reduce property prices.Footnote ¹³⁰

With regard to HRDs, besides xenophobia, states may be more hostile to refugee HRDs. It is accepted in this article that refugee defenders were formerly individuals who fought for human rights in their country of origin and found themselves to be at such a risk that they decided to flee. They may wish to keep a low profile in order to protect themselves and their family members in the asylum states.Footnote ¹³¹ However, it should not be forgotten that these individuals used to play an active role in the struggle against human rights abuses, so they may wish to continue their human rights activities.

In particular, depending on their interests and passions, they may engage with the local community as well as the refugee population, promoting certain human rights or helping local civil society organisations and HRDs. For instance, Dieudonne – a refugee HRD with whom Katie McQuaid talked in the context of several formal interviews and informal conversations between April and October 2012, and who talks about gender issues to the refugee population – stated that:Footnote ¹³²

Moreover, in the context of the empirical research conducted in 2018, several defenders told the author that even if they were granted refugee status in a state, they would not abandon their fight and the people for whom they fought. In other words, refugee HRDs may wish to remain efficient and continue their fight from a safer place.

States may be more hostile to defenders seeking asylum in the sense that they do not want individuals who may challenge their policies and powerful private corporations with strong relationships with the state, and set the local as well as the refugee population against state authorities. For instance, Uganda has been found to be one of those states that has adopted legislation to target refugees who may challenge state authorities. In particular, Uganda's Refugee Act of 2006 provides that no refugee ‘can engage in any kind of political activities within Uganda against any country including his own’.Footnote ¹³³ The UNHCR has condemned states that refuse to accept refugees on the grounds that they could change or conceal the political identity of their citizens, or require asylum seekers to cease any activity in order to be considered for refugee status.Footnote ¹³⁴ The hostility of states towards refugee defenders is not surprising as states tend to be hostile and target defenders who challenge their interests.

Granting asylum to a defender may also harm relations between the asylum state and the state of origin on the basis that the former has harboured an individual who challenged the state's human rights policy and embarrassed his or her state of origin by bringing to the fore human rights abuses and speaking out against its human rights record. For example, Vladimir Lukin, Russian Human Rights Commissioner, argues against Russia granting asylum to Edward Snowden, as ‘there are state interests and Russia–US relations could be harmed if Russia grants asylum to Snowden’.Footnote ¹³⁵ For that reason Snowden should ask an international organisation, rather than Russia, to provide him with a temporary passport and ensure his rights.Footnote ¹³⁶ It can be said that for two powerful states with conflicting interests and tense relations, such as Russia and the United States, these actions are somewhat provocative.Footnote ¹³⁷ However, allied states or small developing countries may be reluctant to take in refugee defenders for fear of damaging relations between them or with a powerful state respectively, constituting a further obstacle to relying on the ‘refugee solution’.

4.2. The Situation of Human Rights Defenders as Refugees

The living and working conditions and the situations of those HRDs who have managed to flee from their country of origin in order to escape from abuses and seek asylum in other countries are so difficult that they provide further evidence that the international refugee regime is not a suitable alternative for defenders.

With the support of civil society organisations, some defenders have managed to remove themselves from immediate danger, seek asylum in another country, be considered refugees and safely relocate to a new place.Footnote ¹³⁸ However, this is not the case for many HRDs who have not been so lucky and had to rely on being smuggled across borders or to obtain visas and other necessary documents.Footnote ¹³⁹ The involvement of organised crime in the transportation of defenders, as well as other irregular migrants and refugees, may render defenders even more vulnerable because they face the risk of exploitation and human trafficking.

In order to earn a livelihood and reconstruct their families, defenders often take on low-skilled and low-paid jobs and are excluded from basic labour and social rights.Footnote ¹⁴⁰ As a consequence, defenders may abandon their human rights activities, which will have a chilling impact on the human rights movement in the sense that their experience, expertise and advocacy will be lost.Footnote ¹⁴¹

Even more worryingly, the UNHCR has not provided international guidance and training on how state authorities should respond to claims and requests for protection under the umbrella of the term ‘human rights defenders’; as a result, UNHCR local branches are unfamiliar with the basis of their claim as defenders.Footnote ¹⁴² This has the consequence that the registration process is delayed for years or indefinitely, perpetuating the circle of vulnerability, uncertainty and insufficiency.

In sum, the situation of HRDs as refugees, along with the hostility of states towards refugees and defenders in particular, leaves no room for doubt that the alternative of the international refugee regime will put defenders at greater risk and affect the realisation of human rights.