Authored By: Valerie Iqlima Raihaana
Universitas Indonesia
Introduction
Under international legal frameworks, forced emigration is driven by climate collapse, economic destruction, severe poverty, and systemic human rights violations that exposes a profound normative gap: millions are compelled to flee across borders, yet most fall outside the narrow, status-based protection of the 1951 Refugee Convention. While classical refugee law protects those fleeing targeted political persecution, it routinely fails individuals driven abroad by structural hardship, leaving them vulnerable to irregular migration risks, summary pushbacks, and statelessness. Recent developments, such as the UN Human Rights Committee’s landmark decision in Teitiota v. New Zealand and evolving jurisprudence around customary international law, increasingly challenge this rigid dichotomy by suggesting that severe environmental and economic degradation can violate the fundamental right to life under Article 6 of the International Covenant on Civil and Political Rights (ICCPR).[1] This article argues that international law must expand its interpretation of non-refoulement and complementary protection mechanisms to recognize severe structural hardship as a trigger for non-derogable human rights obligations, thereby ensuring that individuals fleeing forced emigration receive binding protection against forcible return. To establish this claim, the article first examines the traditional limitations of the 1951 Convention, analyzes the emerging expansion of non-refoulement through regional instruments like the Cartagena Declaration and international human rights bodies, and concludes by proposing a treaty-compliant framework for human-rights-based admission.
Main Body
The governance of international protection rests on a foundational divide between convention-defined refugees and vulnerable migrants fleeing general severe hardship. Article 1(A)(2) of the 1951 Convention Relating to the Status of Refugees defines a refugee strictly through a “well-founded fear of being persecuted” grounded in five enumerated categories: race, religion, nationality, membership in a particular social group, or political opinion.[2] This traditional paradigm treats economic collapse, state decay, severe corruption, and structural human rights violations not as primary drivers of asylum, but as secondary background conditions. Consequently, international refugee law operates on an individualized model of state-sponsored targeted harm rather than structural violence.[3] While Article 33(1) of the 1951 Convention codifies the absolute prohibition of refoulement to forbidding states from returning individuals to territories where their life or freedom is threatened. Its protective reach remains tethered to this narrow nexus of targeted persecution. To address this protection gap, international human rights law (IHRL) developed “complementary protection” mechanisms.[4] Under international treaties most notably Article 7 (prohibition of torture, cruel, inhuman, or degrading treatment) and Article 6 (the inherent right to life) of the International Covenant on Civil and Political Rights (ICCPR) the scope of non-refoulement expands beyond convention criteria. Complementary protection holds that a state cannot deport an individual if return creates a real risk of irreparable harm. At the regional level, frameworks like the 1984 Cartagena Declaration in the Americas broaden refugee definitions to include individuals fleeing general violence, internal conflicts, or massive violations of human rights.[5] However, under general customary international law, the economic deprivation caused by kleptocracy, systemic injustice, and failed state institutions remains largely excluded from binding non-refoulement protections.
The rigid boundaries of status-based protection have faced increasing challenges in international tribunals, which have begun examining whether extreme, life-threatening deprivation can trigger non-refoulement obligations. The benchmark decision issued by the United Nations Human Rights Committee (UNHRC) in Teitiota v. New Zealand (2020) illustrates this shift.[6] Although the Committee ultimately ruled against the applicant on the specific facts, it established a key legal precedent: extreme environmental degradation and severe structural disruption can render life intolerable to the point of violating the right to life under Article 6 of the ICCPR, thereby creating a binding obligation of non-refoulement. The UNHRC explicitly recognized that “the conditions of life in a country may become incompatible with the right to life with dignity before the risk is realized”. This reasoning builds upon established jurisprudence from the European Court of Human Rights (ECtHR). In M.S.S. v. Belgium and Greece (2011) and Sufi and Elmi v. United Kingdom (2011), the ECtHR determined that returning an individual to a jurisdiction characterized by extreme poverty, lack of basic infrastructure, and total institutional breakdown can constitute a breach of Article 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment).[7] The Court established that where severe economic hardship reaches a level of extreme material deprivation caused by state inaction or breakdown, non-refoulement applies.[8] However, domestic immigration tribunals routinely apply these legal principles restrictively. In cases involving state kleptocracy and economic breakdown, courts typically characterize the resulting hardship as general distress rather than targeted persecution, maintaining a high burden of proof that leaves most economic refugees without protection.
The core conflict in contemporary international migration law lies in the outdated distinction between “economic migrants” choosing to leave for better opportunities and “refugees” forced to flee targeted violence.[9] This framework fails to account for forced emigration caused by sovereign injustice: systemic corruption, kleptocratic governance, severe institutional failure, and deliberate economic disqualification from voting. When state elites siphon off public resources, corrupt the judiciary, and destroy basic economic infrastructure, the resulting poverty is not an unfortunate economic cycle, it is a structural violation of human rights. Structural state abuse including kleptocracy, systemic corruption, judicial collapse, and institutional failure can inflict severe material deprivation by denying access to healthcare, food, basic security, and the minimum conditions necessary for human survival. Yet international refugee and human rights law continues to classify many individuals escaping these conditions as “economic migrants,” leaving them outside the protection of the principle of non-refoulement. This exposes a fundamental protection gap: while international law responds to direct physical violence, it often fails to recognize structural exploitation and state neglect that make a dignified life impossible.[10] To address this deficit, international jurisprudence should adopt a broader interpretation of complementary protection under the ICCPR, particularly Articles 6 and 7, by recognizing that structural violence may constitute serious harm where systemic corruption and institutional collapse threaten life and human dignity. Non-refoulement should extend beyond conventional categories of armed conflict or individualized political persecution to encompass situations in which state failure compels emigration by destroying the basic conditions of existence. Such an approach would better align international protection standards with the realities of contemporary forced displacement.
III. Conclusion
Ultimately, forced emigration driven by structural hardship exposes a crucial shortcoming in classical international law: the rigid separation of state-inflicted violence from state-engineered economic and institutional decay. Viewing victims of kleptocracy, systemic corruption, and sovereign breakdown as mere “economic migrants” disregards the existential compulsion behind their flight and leaves millions unprotected. To bridge this protection gap, international human rights jurisprudence must continue expanding complementary protection frameworks. By recognizing that state abuse, extreme impoverishment, and systemic injustice can threaten the right to life with dignity under Article 6 of the ICCPR, international law can evolve from a narrow, refugee definition into an inclusive, and human-centered system. Treating structural compulsion as a valid trigger for non-refoulement is not merely an incremental legal adaptation; it is a necessary legal step to guarantee that no individual is returned to a place where dignified human survival is impossible. Expanding this protective standard fulfills the core promise of international law to safeguard fundamental human dignity whenever and wherever state power fails to protect it.
Bibliography
Primary Sources
1) Treaties and International Instruments
Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama (22 November 1984).
Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137.
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.
2) Case Law and International Human Rights Rulings
M.S.S. v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011).
Sufi and Elmi v United Kingdom App nos 8319/07 and 11449/07 (ECtHR, 28 June 2011).
UN Human Rights Committee, Ioane Teitiota v New Zealand, Communication No 2728/2016, UN Doc CCPR/C/127/D/2728/2016 (24 October 2019).
Secondary Sources
1) Books
Goodwin-Gill GS and McAdam J, The Refugee in International Law (4th edn, Oxford University Press 2021).
Hathaway JC, The Rights of Refugees under International Law (2nd edn, Cambridge University Press 2021).
2) Journal Articles and Academic Contributions
Afriansyah A, Purnama HR and Putra AK, ‘Asylum Seekers and Refugee Management: Balance Burden Sharing Case between Indonesia and Australia’ (2022) 6(1) Sriwijaya Law Review 110.
Riyanto S, ‘The Refoulement Principle and Its Relevance in the International Law System’ (2010) 7(4) Indonesian Journal of International Law.
Susetyo H, ‘Lost in Transit: Refugees Stranded in a Legal Vacuum in Indonesia’ (Faculty of Law Universitas Indonesia, 2021) https://law.ui.ac.id/lost-in-transit-refugees-stranded-in-a-legal-vacuum-in-indonesia-by-heru-susetyo-sh-ll-m-m-si-ph-d-2/ accessed 6 August 2026.
[1]International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 6.
[2]Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (1951 Refugee Convention) art 1(A)(2).
[3]Heru Susetyo, ‘Lost in Transit: Refugees Stranded in a Legal Vacuum in Indonesia’ (Faculty of Law Universitas Indonesia, 2021) https://law.ui.ac.id/lost-in-transit-refugees-stranded-in-a-legal-vacuum-in-indonesia-by-heru-susetyo-sh-ll-m-m-si-ph-d-2/ accessed 6 August 2026.
[4]Sigit Riyanto, ‘The Refoulement Principle and Its Relevance in the International Law System’ (2010) 7(4) Indonesian Journal of International Law 695, 698.
[5]Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama (22 November 1984) s III(3).
[6]UN Human Rights Committee (UNHRC), Ioane Teitiota v New Zealand, Communication No 2728/2016, UN Doc CCPR/C/127/D/2728/2016 (24 October 2019) para 9.4.
[7]M.S.S. v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011) paras 253–264.
[8]Sufi and Elmi v United Kingdom App nos 8319/07 and 11449/07 (ECtHR, 28 June 2011) paras 281–283.
[9]A Afriansyah, H R Purnama and A K Putra, ‘Asylum Seekers and Refugee Management: Balance Burden Sharing Case between Indonesia and Australia’ (2022) 6(1) Sriwijaya Law Review 110, 114.
[10]James C Hathaway, The Rights of Refugees under International Law (2nd edn, Cambridge University Press 2021) 182.
