Moria Paz
Abstract
This Article discusses the current migratory crisis as one instance of a conceptual mismatch in human rights between formal law and the tools that courts and other quasi-judicial bodies actually utilize in adjudication. While the doctrine centers around individual right-holders, enforcement bodies provide a remedy only when there is a state duty-holder. Human rights scholarship regarding refugees focuses on the right to freedom of movement. However, this right frequently offers little benefit to these individuals adrift at sea or wandering in the desert.
An alternative framing might ultimately be more effective before human rights courts and other quasi-judicial bodies. This framing does not start with the right-holder but instead with the question of who the duty-holder is. Specifically, I differentiate plaintiffs based on whether they can articulate their claim in a way that identifies one discrete state duty-holder.
This revised understanding helps explain why the claims of so many individuals who are between states today do not in fact lend themselves to human rights litigation. Their plight is better served in the political arena, seeking public support for negotiation. At the same time, this approach opens potential pathways for human rights litigation to buttress protections currently afforded under the 1951 Refugee Convention to individuals on the run.