EXPLORING THE FULL LEGAL PROTECTION OF REFUGEES AND ITS LIMITATIONS WITH REFERENCE TO NATURAL AND POSITIVE LAW

Abstract

This article seeks to explore the limitation of the theory of full legal protection by illustrating with facts that the theory does not lack legal force, but rather that various concepts such as citizenship, national security, sovereignty, affirmative action, legal positivism, and democratic governance severely limit the application of theory. In particular, the limitation of full legal protection is analysed through the lens of legal positivism and the natural law doctrines whereby it is argued that the laws of South Africa are framed in the context of legal positivism which does not take cognisance of the moral values on which the natural law doctrine is based. As a result, the full legal protection of constitutional rights of refugees remains in theory. In order to convert this theory into an effective protection, it is argued that although the state has the power inherent in its sovereignty to design and frame laws as it deems best, South Africa should, with the natural law in mind, develop social transformative or remedial measures in such a way that extends constitutional socio-economic rights to refugees in a more favourable way. The article concludes by suggesting the manner in which the severe limitations imposed on the concept of full legal protection can conceptually and rationally be addressed.