Towards a more effective guarantee of socioeconomic rights for refugees in Southern Africa

Abstract

This thesis explores the sufficiency and effectiveness of legal guarantees for the socioeconomic rights of refugees in Southern Africa. In order to achieve effective protection of these rights for refugees, the thesis argues that legal and policy responses to refugeehood should distinguish between political and humanitarian refugees. This distinction is necessary for principled as well as pragmatic reasons. Political refugees are forced to flee from their own countries by reason of wrongful rights-violating conduct by the State; or similar conduct by non-state actors but with the acquiescence of State authorities; and they seek substitute State protection and political community membership in other countries. The thesis argues that political refugees ought to be accorded preferential treatment over other foreign nationals who are not members of the host State’s political community. These include humanitarian refugees who, by contrast, are compelled to flee their country of origin due to various factors that threaten to seriously harm their lives; but which are neither directly nor indirectly attributable to wrongful State conduct. Based on this distinction, the thesis critiques international and domestic legal instruments, exploring the extent to which socioeconomic rights are guaranteed for refugees in the region. On the international plane, the thesis observes that international human rights law proceeds from the premise that nationals and foreign nationals ought to receive equal human rights guarantees, including in the sphere of socioeconomic rights, but that limitations on these rights, premised on nationality, are permissible based on reasonable and objective criteria. A problem with this position is that it makes no special case for the necessary preferential treatment that political refugees ought to receive in comparison with other foreign nationals. On the domestic front, the general position in the region is that the socioeconomic rights of foreign nationals, including refugees, are only narrowly guaranteed. This is in contrast with the general principle of international law that nationals and foreign nationals should receive equal treatment with only limited exceptions permitted. Further, this domestic position does not comport with the principled case for the preferential treatment of political refugees over other foreign nationals that the ix thesis advocates. In order to achieve a more effective guarantee of socioeconomic rights for refugees in the region, the thesis recommends that States in the region should comprehensively entrench these rights in applicable Bills of Rights. It also argues that courts in the region should be more progressive in their interpretation and application of the Bills of Rights. These measures should be blended with legal provisions that provide for a split between political refugees and humanitarian refugees in terms of the standards of treatment. There is also need for the harmonisation of domestic refugee law regimes, as well as a well-defined scheme of refugee burden-sharing, in the region.