Defining Refugees in the Asylum Qualification Directive by the Interplay of International Refugee Law and International Human Rights Law

Abstract

In recent decades, human rights law has assumed increasing relevance to international refugee law, including defining the eligibility for refugees. Although refugee law and human rights law developed separately to establish different protection frameworks, these two laws apparently overlap in that human rights violations can lead to becoming a refugee, and refugees have human rights. While widely acknowledged as a necessity of the human rights-based approach to refugees, there has been a long debate on how to use and incorporate human rights law into international refugee law. The EU has endorsed the approach of incorporating human rights law into international refugee law in the Asylum Qualification Directive （QD）, by introducing two forms of international protection: refugee status under the 1951 Convention relating to the Status Refugees and its 1967 Protocol （Refugee Convention） and subsidiary protection status under mainly the European Convention of Human Rights （ECHR） and the EU Charter of Fundamental Rights. This article examines how human rights law interplays with international refugee law in the QD （Directive 2011/95/EU）, referring to the commentaries of the QD and the Refugee Convention, and the relevant cases from the Court of ECHR and the Court of Justice of the European Union. Firstly it explains the QD relationship to the Refugee Convention and human rights treaties. Secondly, it takes up Article 9 of the QD as a substantive example of how these two laws interplay in the refugee qualification, since the element of acts of persecution is the core qualification of refugees, which is not stipulated in the Refugee Convention but in Article 9 where details of acts of well-founded fear of persecution using the human rights are indexed. This article concludes by pointing out what the implications in effect or meaning of defining refugees by human rights law are in the EU asylum law, and how the possibility of enhancing the concept of ‘right of asylum’ could be derived, depending on how far human rights law could be incorporated in the qualification of refugees: the success of which would support the current theory of international refugee law perceived as reconstructing refugee law as a part of human rights law.