Cosmopolitanism and Nationalism: A Critique of the Effectiveness of the International Refugee Regime

Ivan Ng Yan Chao

doi:10.18523/kmlpj220747.2020-6.159-176

Abstract

The past few years have seen the issue of refugees rise in prominence, particularly in Europe but also in other parts of the world. It has been almost seven decades since the United Nations High Commissioner for Refugees was set up and the first international treaty regulating the issue of refugees signed. This article examines the international legal framework governing the issue of refugees and argues that it is ineffectual because refugees are inherently a matter of high politics – refugees are fundamentally a political issue subject to the vicissitudes of politics. The moral and economic justifications for the international refugee regime are also highly contested, and this contestation plays out in the political realm. The international refugee regime and legal regulation of the issue is unlikely to be effective for as long as the nation-state continues to be the primary actor in the international world order. This is because the international refugee regime requires enforcement by states to be effective – however, political, moral and economic vicissitudes across the states involved impede its ability to function in its ideal conception.

Highlights

The past few years have seen the issue of refugees rise in prominence, in Europe and in other parts of the world
This article examines the international legal framework governing the issue of refugees and argues that it is ineffectual because refugees are inherently a matter of high politics—refugees are fundamentally a political issue subject to the vicissitudes of politics
This is because the international refugee regime requires enforcement by states to be effective—political, moral and economic vicissitudes across the states involved impede its ability to function in its ideal conception

Summary

Section I: The International Refugee Framework

As a branch of international law, refugee law is primarily grounded in two treaties—the 1951 Refugee Convention 2 and the 1967 Protocol.[3]. She criticizes Peter Singer’s universalist views as unrealistic because they conflict with “widely-held intuitions.” Extrapolating this view to the state level, states are seen as having “special responsibility” to their citizens, morally speaking — states have a duty to provide for their own members.[61] Christopher Wellman takes the argument even further and concludes that “every legitimate state has the right to close its doors to all potential immigrants, even refugees desperately seeking asylum.”. He reaches that conclusion by reasoning from the principle of freedom of association — the belief that “each of us enjoys a morally privileged position of dominion over our self-regarding affairs.”.

Section III: Novel Forms of Legal Regulation

Conclusion