Skip to main content
Unpublished Paper
Refugee Law in Context: Natural Law, Legal Positivism and the Convention
ExpressO (2014)
  • Isaac Kfir, Syracuse University
The contemporary international refugee system was product of a desire to provide protection and assistance to those who have a well-founded fear of persecution, a somewhat sophistic term in the twenty-first century, which may explain why the system has become cumbersome, incoherent and divisive. One explanation for the tension within the refugee regime is that states—mainly western states—seek to reduce refugee applications while adhering and upholding their international obligations. Another explanation is that it is tensions between two legal traditions—natural law and legal positivism—that are shape the international refugee law that have led to the crisis, preventing a clear legal refugeeship taxonomy from emerging. In seeking to make this claim, the paper opens by looking at how natural law and positive law have shaped international refugee law. The second section reviews the evolution of refugeeship from the 1920s to the post-Cold War period. The section highlights how over time, and especially in the post-Cold War era, the regime became so fragmented, as refugeeship and the conditions that led to refugeeship changed as have the nature of conflicts. Simply, in the post-Cold War period, the conflicts are located in fragile regions, they are also internal, ethnocentric, religious or criminal in orientation, making their resolution more difficult. Additionally those seeking refuge are widely different from the Cold War refugees many of whom had skills that host countries were interested in. Thus, what becomes clear is that the refugee system is controlled by nation-states who interpret their obligations toward those seeking and claiming refuge in a manner consistent with their national interests. The third section reviews the Refugee Convention and the role of UNHCR in protecting those seeking refuge, aiming to underline how beholden the Convention and UNHCR are to states, which is why the agency had changed so drastically from what its framers had envisioned becoming a humanitarian actor as opposed to a protection agency for refugees. The paper concludes by calling on refugee law scholars to engage in a phenomenological and epistemological discussion of the refugee regime as a way to challenge the way states’ increasingly narrow their obligations to refugees and asylum seekers.
  • Refugee Law,
  • Natural Law,
  • Legal Positivism,
  • UNHCR,
  • Refugee Convention
Publication Date
October 6, 2014
Citation Information
Isaac Kfir. "Refugee Law in Context: Natural Law, Legal Positivism and the Convention" ExpressO (2014)
Available at: