Refugee camps: in pursuit of a legal definition and the delimitation of States' obligations
| Autor | Thaís de Andrade Penalber |
| Cargo | LL.M. Humanitarian Law and Human Rights (cum laude) at Geneva Academy of International Humanitarian Law and Human Rights (Switzerland) |
| Páginas | 5-34 |
Revista Direitos Fundamentais e Alteridade, Salvador, v. 4, n. 1, p. 05-34, jan-jun, 2020 | ISSN 2595-0614
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REFUGEE CAMPS: IN PURSUIT OF A LEGAL DEFINITION AND THE
DELIMITATION OF STATES’ OBLIGATIONS
Thaís de Andrade Penalber1
ABSTRACT: In the absence of a specific universal regulation on refugee camps, this paper makes
reference to existing international human rights rules, which are applicable to every individual
subject to the jurisdiction of a State regardless of their place of residence or legal status, including
asylum-seekers and refugees. The proposals made here also find support in the “normative
interaction” among refugee law, human rights and humanitarian law. In particular, several
arguments presented in this paper will be based on the recognized interplay between refugee law
and human rights, especially considering that “human rights law fulfills the central function of
filling the gaps in protection left by humanitarian and refugee law”.
KEYWORDS: Human Rights; Refugee Law; Humanitarian Law.
SUMMARY: INTRODUCTION 2 EXISTING ATTEM PTS TO DEFINE REFUGEE
CAMPS 3 ELEMENTS OF THE PROPOSED DEFINITION OF ‘REFUGEE CAMPS 3.1
THE OBJECTIVE OF REFUGEE CAMPS 3.2 ELIGIBILITY AS CAMP RESIDENTS 3.3
APPLICABLE RULES IN THE DEFICIENCY OF STATE PRESENCE 3.4 THE CAMPS’ SIZE
AND LOCATION 3.5 EXCEPTIONAL AND TEMPORARY NATURE 3.6 CIVILIAN AND
HUMANITARIAN CHARACTER 4 DELIMITATION OF STATES’ OBLIGATIONS 4.1
LIMITATIONS ON HUMAN RIGHTS MUST NONETHELESS RESPECT CORE
OBLIGATIONS 4.2 THE RIGHT TO LIFE AND THE PROHIBITION AGAINST TORTURE
AND ILL-TREATMENT 4.3 RIGHT TO SECURITY OF THE PERSON 4.4 FREEDOM OF
MOVEMENT 4.5 RESPECT FOR BASIC ECONOMIC AND SOCIAL RIGHTS 4.6 A RIGHT
TO RECEIVE HUMANITARIAN ASSISTANCE? 4.7 THE RIGHT TO SEEK ASYLUM, THE
RIGHT TO LEAVE ANY COUNTRY AND NON-REFOULEMENT 5 CONCLUSION
BIBLIOGRAPHY
1 INTRODUCTION
1 LL.M. Humanitarian Law and Human Rights (cum laude) at Geneva Academy of I nternational Humanitarian Law
and Human Rights (Switzerland); LL.B. at Universidade Federal da Bahia (Brazil); Associate Support Officer -
Intergovernmental Consultations on Migration, Asylum and Refugees (IGC) at IOM - UN Migration.
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Revista Direitos Fundamentais e Alteridade, Salvador, v. 4, n. 1, p. 05-34, jan-jun, 2020 | ISSN 2595-0614
Recebido em: 16/10/2019. Aprovado em: 25/01/2021.
In its Policy on Alternatives to Camps, the United Nations High Commissioner for
Refugees (hereinafter UNHCR) estimated that about 40% of all refugees lived in camps in at the
time that document was issued.2 Although millions of other refugees have settled in formal and
informal arrangements in both urban and rural areas, encampment remains a reality especially when
other alternatives are not feasible.3 In the absence of a specific universal regulation on re fugee
camps, this paper makes reference to existing international human rights rules, which are applicable
to every individual subject to the jurisdiction of a State regardless of their place of residence or
legal status, including asylum-seekers and refugees.4 The proposals made here also find support in
the “normative interaction”5 among refugee law, human rights and humanitarian law. In particular,
several arguments presented in this paper will be based on the recognized interplay between refugee
law and human rights,6 especially considering that “human rights law fulfills the central function
of filling the gaps in protection left by humanitarian and refugee law”.7
In the second chapter, I will analyze previous formulations concerning the notion of
‘refugee camps’. Considering, however, that such attempts do not provide for a uniform and
binding legal basis with regards to these forms of settlements, in the third chapter I elaborate further
on elements that would be relevant for establishing an international definition of refugee camps,
and in the fourth chapter I delineate obligations that would have to be fulfilled by all host States as
well as third countries under this universal definition in order to ensure the protection of camp
residents. It is important to point out that the application of the proposals made in this paper could
only be envisaged with regards to the establishment of future refugee camps, as it would not be
2 UNHCR ‘Policy on Alternatives to Camps’ (22 July 2014) UN Doc UNHCR/HCP/2014/9, p. 4.
3 Id.
4 Human Rights Committee, ‘General Comment 31: Nature of the General Legal Obligation on States Parties to th e
Covenant’ (2004) UN Doc CCPR/C/21/Rev.1/Add.13 (hereinafter Human Rights Committee GC31), §10.
5 CHETAIL, V., ‘Armed Conflict and Forced Migration: A Systemic Approach to I nternational Humanitarian Law,
Refugee Law and Human Rights Law’ in CLAPHAM, A. & GAETA, P. (eds.), The Oxford Handbook of International
Law in Armed Conflict, Oxford University Press, Oxford, 2013, p. 702.
6 “Although refugee law and human rights law were initially conceived as two distinct branches of international law,
their multifaceted interaction is now well acknowledged in both state practice and academic writing.” CHETAIL, V.,
‘Are Refugee Rights Human Rights? An Unorthodox Questioning on the Relations between International Refugee
Law and International Human Rights Law’ in RUBIO-MARIN, R. (ed.), Human Rights and Immigration, Collected
Courses of the Academy of European Law (Oxford University Press, Oxford 2014), p. 19.
7 CHETAIL, V., ‘Armed Conflict …’, at p. 703.
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Revista Direitos Fundamentais e Alteridade, Salvador, v. 4, n. 1, p. 05-34, jan-jun, 2020 | ISSN 2595-0614
Recebido em: 16/10/2019. Aprovado em: 25/01/2021.
practically feasible to expect the several distinct types of existing settlements to adapt their
framework to a new uniform definition.
2 EXISTING ATTEMPTS TO DEFINE REFUGEE CAMPS
Before assessing the definition of refugee camps proposed in this paper, it is important
to bear in mind that States are bound to their international human rights obligations towards camp
residents even in the absence of a legal definition for the term ‘refugee camp’. Those obligations
also remain applicable despite the fact that at the treaty level there is no delimitation of States’
obligations in the specific context of refugee camps. The reason is that camps are located within
the geographical boundaries of host countries, and the presence of an individual in the territory of
a State is widely accepted as the primary link to assert jurisdiction regarding international human
rights obligations.8 One of the first references to refugee camps at the international level was made
through Conclusion No. 48 by the UNHCR Executive Committee (ExCom):
Refugees in camps and settlements have, together with the basic rights they enjoy […],
protection granted or afforded to them by the country of refuge. […] It is essential that
States of refuge do all within their capacity to ensure that the civilian and humanitarian
character of such camps and settlements is maintained.9
The ExCom reiterated the “exclusively civilian and humanitarian character” of refugee
camps in its Conclusion No. 94 and added that all actors are obliged to cooperate to ensure that,
including the refugees themselves.10 The 2016 New York Declaration for Refugees and Migrants
(hereinafter New York Declaration) also makes reference to the responsibility of host States in
ensuring the humanitarian character of refugee camps.11 This instrument and the referred ExCom
Conclusions are relevant in highlighting the humanitarian and civilian nature of camps but they fail
to provide for a legal definition of refugee camps or a delimitation of host States’ obligations in
8 Hirsi Jamma and Others v. Italy, Appl. No. 27765/09, European Court of Human Rights (hereinafter E CtHR) (23
February 2012), §71.
9 UNHCR ExCom Conclusion No. 48 (XXXVIII) ‘ Military or Armed Attacks on Refugee Camps and Settlements’
(1987), §4.
10 UNHCR ExCom Conclusion No. 94 (LIII) ‘Conclusion on the Civilian and Humanitarian Character of Asylum’
(2002), preamble.
11 New York Declaration for Refugees and Migrants, UNGA Res 71/1 (hereinafter New York Declaration) (03 October
2016) UN Doc A/RES/71/1, §73.
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