Can the international human rights law framework provide robust protection to refugees and asylum seekers from xenophobic discrimination? In this paper, I use the example of South Africa to argue that currently it cannot. UNHCR has identified xenophobia as a significant global barrier to refugee protection.1 In South Africa, which is the current recipient of 20% of the world asylum seeking population, this is definitely the case. In May 2008, for example, xenophobic attacks against non-nationals-many of who were documented refugees and asylum seekers-left 62 people dead, over 600 injured, and at least 100,000 displaced. And these violent attacks are best understood as an expression of broader, structural xenophobic discrimination. On the one hand, South Africa's impressive human rights based refugee protection laws clearly extend the right to health care, basic education, and certain social services to refugees and asylum seekers. Yet these groups are regularly denied these rights in practice; singled out for police harassment and brutality; largely excluded from the formal employment sector; and regularly persecuted for their participation in the informal sector on the basis that they are "foreign".

In keeping with an international trend, refugee protection advocates have turned to international human rights law, norms and institutions for normative and strategic guidance for confronting xenophobia. However, xenophobia and the use of the human rights framework to eradicate it remain under-theorized in both refugee rights and international human rights policy and academic literature. In this paper I demonstrate that the current international human rights law framework for fighting xenophobia is rooted in a fundamentally flawed understanding of what xenophobia is and thus the solutions it advocates, and in some cases mandates, are doomed to fail. This framework conceptualizes xenophobia as fundamentally a psychological pathology-an irrational fear or hatred of foreigners that deviant individual members of a society hold, usually on the basis of negative stereotypes and myths. I will argue that this reductivist conception of xenophobia produces an anemic normative and policy framework for eliminating xenophobia. It also misdirects valuable resources by advocating anti-xenophobia policies and strategies that cannot effectively combat xenophobia. For the purposes of a human rights based anti-xenophobia framework, I will argue that xenophobia is more appropriately understood as a norm of exclusion that is rooted in structural material conditions, and legitimated by historically and politically informed ideologies of exclusion. This conception of xenophobia allows us to pay closer attention to the factors that determine how the category "foreign" is socially constructed, and better positions the international human rights framework to challenge the asymmetrical power relations and structural conditions that sustain xenophobia. I conclude by offering concrete recommendations for reform in this regard.