Scared, shivering, and disheveled, thousands of people float across the Indian Ocean from Asia to reach Australia (1) in search of freedom from the persecution that they face in their homes. (2) After these "boat people" land on Australian shores, they are housed in camps, waiting for a better life. However, the same hopeful sentiment is not reflected by the receiving country. For example, between 2009 and 2010 there was a thirty-one percent increase in asylum seekers in Australia. (3) As a result, Australian politics have been in turmoil, trying to create a comprehensive policy to address the thousands of asylum seekers that land on its shores. (4)
At the end of 2009, there were 43.3 million forcibly displaced people worldwide. (5) Of these, 15.2 million were refugees and, of that number, 983,000 were asylum seekers. (6) More than 922,000 individual claims for asylum or refugee status were registered in 2009, with South Africa receiving the world's largest number of individual applications, followed by the United States and France. (7) These refugees have escaped political and cultural persecution for their political views, sexual preference, or gender. However, when they arrive at their destination country, they face confusion and uncertainty.
Asylum seekers encounter several challenges in the current refugee system. They endure protracted refugee situations, (8) secondary refugee flows, (9) the extra-territorialization of migration controls, (10) new forms of displacement and asylum, (11) wide discrepancies in the recognition of asylum status, contraction of asylum policies and practices by states, (12) and inconsistencies in refugee status determination (RSD) mechanisms. (13)
The main issue underlying all of these challenges is the problem of, and confusion surrounding, the determination of state obligations to asylum seekers. Human rights are indivisible and inalienable, (14) but states have discretion in granting and providing some of these rights to asylum seekers because no international covenant obligates them to do so. There is no uniform system to determine the obligations that states have to asylum seekers other than the base requirements outlined in the 1951 Convention Relating to the Status of Refugees, the main international document on refugees. In fact, states, international organizations, and publicists (15) differ on the methodology that should be used to determine these obligations.
A consensus-based approach is the appropriate method of determining and expanding state obligations within the 1951 Convention. But recent attempts to expand the rights of asylum seekers through the new method of evolutionary interpretation of treaties could result in an unpredictable and unwanted application of the 1951 Convention, leaving asylum seekers unsure of their rights and options. The application of the classical tenets of customary international law to these obligations offers a better chance of creating stability in the asylum system for both asylum seekers and states. While such an approach appears to provide less immediate relief to asylum seekers, the consistency and stability that results from customary international law yields benefits that outweigh the loss in immediate relief.
This Note examines how states and asylum advocates should determine state obligations to asylum seekers, asserting that states should expand their obligations to asylum seekers based on new norms of customary international law. In doing so, Part I introduces some basic refugee law concepts and discusses in detail the aforementioned challenges for states and asylum seekers. Part II outlines three different modalities that the international community may use to determine these obligations and asserts that applying the theory of evolutionary interpretation of treaties to the 1951 Convention Relating to Refugees is an unpredictable method of expanding state obligations to asylum seekers that fails to adequately address the problem. Part III posits that expansion of state obligations should occur, but under the classical international legal principle of customary international law rather than through evolutionary interpretation of the 1951 Convention. (16) This Note concludes with the assertion that evolutionary interpretation is not an appropriate solution to the asylum seeker problem and is undeserving of the support some scholars have given it. The application of customary international law, on the other hand, is a more stable method through which expansion of these obligations should occur. The stability and consistency provided by customary international law is the current chaotic asylum system requires rather than the cosmetic changes evolutionary interpretation might provide.
BASIC REFUGEE LAW CONCEPTS
Refugee law consists of international, multilateral, and regional treaties that are reflected in, and incorporated into, domestic policy and law. Article 14 of the 1949 Universal Declaration of Human Rights (UDHR) declares that "[e]veryone has the right to seek and to enjoy in other countries asylum from persecution." (17) The International Convention on Civil and Political Rights (ICCPR) (18) as well as the International Convention on Economic, Social, and Cultural Rights (ICESCR) (19) provide the overarching principles of refugee protection. The 1951 UN Convention Relating to the Status of Refugees and the 1967 UN Protocol Relating to the Status of Refugees channeled these principles and created a framework for states to determine refugee status and implement asylum laws and procedures. (20)
Who Is a Refugee?
Before World War II and the creation of the modern international system of states, a refugee was a person who was outside her country of origin and without the protection of that state's government. (21) Post-1945, after the persecution of racial and religious minorities in Europe, this protection expanded to "all persons, wherever they may be, who, as a result of events in Europe, [...] had to leave ... because of the danger to their lives or liberties on account of their race, religion, or political beliefs." (22) The travaux preparatoires (23) placed geographical and temporal limitations on those classified as "refugees." (24)
The 1951 UN Convention Relating to the Status of Refugees defines a "refugee" as any person who,
owing to [the] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. (25) At the time, however, there was no universal agreement on this definition. For example, the Soviet Bloc wanted to extend the protection to people facing economic persecution. In the 1950s, individual states began granting some protection to people fleeing from the "economic South" (a term used to describe the poorest nations of the world), which required material and financial assistance. (26) Since the 1970s, there has been a movement to help and protect Internal and External Displaced Persons (IDPs and EDPs) who are displaced due to internal political violence and man-made disasters. (27) Currently, some states grant protection to victims of gender-based persecution, such as victims of homophobic persecution, female genital mutilation (FGM), and domestic violence. (28)
Multilateral and regional organizations have adopted their own treaties, some of which expand the scope of "refugees" beyond the 1951 Convention. (29) The Cartagena Declaration, for example, extended the definition of refugee to include "persons who have fled their country, because their lives, safety, or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances seriously disturbing public order." (30)
Individual states also expand and restrict their definitions of refugees. (31) When they restrict the definition of refugee to less than that prescribed by the 1951 Convention, they violate their international legal obligations. (32) Although the United Nations Human Rights Committee (UNHRC) offers help in interpreting Article 1 of the Convention, the "refugee definition has been extensively interpreted by domestic courts." (33) Due to the 1951 Convention's open-ended nature, states vary widely in the scope of protection they offer. This Note asserts that this problem can be addressed by adopting the method of customary international law to determine both who will receive protection and what kinds of protection these asylum seekers will receive.
Who Is an Asylum Seeker and How Does One Become a Refugee?
The United Nations High Commissioner on Refugees (UNHCR) defines an asylum seeker as a person who claims that he or she is a refugee but whose status has not yet been determined by the national refugee determination system (RDS). (34) Each state creates its own RDS to process asylum claims. (35) Regional organizations, such as the European Union, are trying to create a uniform RDS. (36) Generally, an asylum seeker who migrates illegally is first detained. Then he must establish that he falls within the recognized refugee categories of the 1951 Convention--a person that may claim refugee status and can "demonstrate that his [...] fear of persecution in his [...] home country is well-founded." (37) If the asylum seeker satisfies the national RDS requirements, he will be granted asylum and become a refugee. The rights granted to the refugee, such as "legal protection and material assistance," (38) depend on domestic law. (39) The 1951 Convention grants states the discretion to determine refugee status. However, the RDS...