International Refugee Law Research Articles

Saving Brown Women from Brown Men? “Refugee Women”, Gender and the Racialised Politics of Protection

Abstract White feminist scholarship in the Global North has drawn attention to the challenges facing women seeking protection under international refugee law (IRL). Whilst these efforts have improved outcomes for some women, they have largely failed to reconfigure the ways in which gendered experiences of persecution are conceptualised and represented. Drawing on postcolonial feminist scholarship, this article suggests that white feminist scholars have been largely complicit in a script that essentialises the experiences of women originating from the Global South. Where gender is taken into account, women from the Global South are typically understood and represented through a neo-imperial frame as disempowered, helpless “victims”, or as “Exotic Others” who need to be rescued from their “backward” cultures. The framing of “Refugee Women” as a homogenous and undifferentiated category ignores the complex intersections of race and gender shaping both women’s experiences and the racialised politics of protection. Moreover, because white feminist approaches have a colonial “blind spot”, they ignore the ways in which the international refugee regime is deeply entangled with the history of colonialism. In so doing, they replicate and reinforce racialised representations of Black and Muslim men as perpetrators of violence against women.

Implications and opportunities of the international refugee protection regime for national human rights institutions in Africa

The upsurge in the global numbers of refugees and asylum seekers since 2015 and the resultant protection failures witnessed particularly in Europe led to renewed debates on the need to reform the refugee protection regime to identify pathways that would enhance protection. Key in these debates was the need to identify actors that could enhance the refugee protection regime, including accountability for failures to protect. Among such actors identified are national human rights institutions. This article situates NHRIs within the nexus between international human rights law and international refugee law to frame an understanding of their role in the refugee protection regime. It then considers the evolution of the international refugee protection regime in light of the emergence of NHRIs and critically reviews their positioning with reference to the mandate of the United Nations High Commissioner for Refugees and the Global Compacts on Refugees and Migration. Specific opportunities at the African regional level are subsequently discussed to support the assertion that NHRIs can perform a specific role in promoting the effective implementation of refugee rights, including as avenues for state accountability.

The Concept of “Persecution” in Refugee Law: Indeterminacy, Context-sensitivity, and the Quest for a Principled Approach

Introduction In explaining to us the object and purpose of this workshop, Jean-Pierre Cavaille has posited that the notion of persecution suffers from a “woeful lack of definition”. If this were unconditionally true, then international refugee law would be in jeopardy. It would be in jeopardy, because the concept of “persecution” is central to the universal refugee definition laid down by the 1951 Geneva Convention (GC). Indeed, Article 1A GC defines the refugee as someone who has a well-foun...

Ethnographic Approaches and International Refugee Law

AbstractInternational refugee law permeates a plethora of international, national and local arenas and is developed, interpreted and applied by a wide range of very different actors. In this diversity of contexts, how do we best study the role and place of this body of law? This article advocates for the application of ethnographic approaches in the study of international refugee law, where the positivist legal approach heavily dominates the field. It argues that ethnography’s contribution to knowledge on international refugee law lies not only in its methods, but also in its perspectives on questions of power, knowledge, reflexivity and subjectivity. The article illustrates the value of the ethnographic approach through three vignettes focusing on (i) the concept of ‘refugee’; (ii) refugee rights-claiming and rights-mobilization; and (iii) actors and processes in the creation and spread of international refugee law norms.

Verso una protezione internazionale gender sensitive delle donne vittime di violenza di genere. Riflessioni a partire dall’esperienza afghana

Recently, international refugee law has undergone important gender-sensitive developments that have made it possible to overcome the only apparent neutrality of the 1951 International Convention on the Status of Refugees. Nonetheless, States maintain a standoffish position that does not guarantee certainty in protecting women’s rights. This situation is linked to the fact that international refugee law was created to respond to the needs of a particular context, that of displaced persons of the Second World War. Its original version did not include a gender or sex perspective. In this paper, taking as a starting point the situation of Afghan women after the return of the Taliban to power last August, we will first analyze the gender-sensitive developments in international refugee law. First of all, the possibility of interpreting the elements necessary for granting refugee status in light of the gender perspective will be emphasized. Furthermore, the gaps that still exist, especially regarding the possibility of considering the so-called domestic or private violence as a form of gender-based violence justifying the granting of international protection under the 1951 Convention will be considered. In addition, the paper will propose a test that judges or competent authorities in each country should apply to consider whether the granting of international protection to women victims of gender-based violence would be justified. This test will be constructed in the light of the criteria developed by national and international case law, regarding gender-based violence.

Non-State Actors of Protection and the Sliding Scale of Protection for Refugee Women

Abstract The article argues that although the gradual recognition of non-State actors as agents of persecution was hailed as a success in ensuring better protection for refugee women at risk of harm from their community or family, the associated development of non-state actors as agents of protection has had a detrimental impact on the protection of refugee women in Europe and more globally. More specifically, the article identifies various everyday practices of reliance on male family members and undefined social networks as actors of protection. These co-constructing practices are exercised by different entities involved in refugee status determination processes, including governments, national and regional courts, and regional and international asylum agencies. Although the trend has gone largely unnoticed, it has resulted in a sliding scale of protection for refugee women. The article argues that endorsing non-State actors of protection, such as male family members and undefined social networks, amounts to a requirement that women seeking asylum take action to avoid being persecuted by placing themselves under the protection of those private actors. This is contrary to international refugee law doctrine, fails to consider the possibility of new forms of harm and is, in itself, a breach of women’s human rights.

Protecting Trafficked Persons through Refugee Protection

This paper critically engages with the long-term protection of trafficked persons. In particular, it assesses whether, and the conditions under which, trafficked persons can be considered as refugees under Article 1A of the Geneva Refugee Convention. The importance of international refugee law in this context is highlighted both by the number of trafficked persons seeking international protection and by its suitability to overcome the shortcomings of existing protection provisions in anti-trafficking instruments, which remain discretionary, conditional, and limited in scope. The paper begins by discussing the relevance of refugee protection for trafficked persons. It then applies the various components of the refugee definition to trafficked persons, focusing on the concepts of persecution and membership of a particular social group. Within these, it focuses on aspects of the debate that are currently missing from the broader literature. This includes the question of whether trafficking qua trafficking meets the threshold of persecution and the value of developments in international law in that regard, the merit of using race as a convention ground in cases of trafficked persons, and the contribution of legislative developments recognizing former victims of trafficked persons as members of a particular social group. It then concludes by highlighting the benefits of refugee protection for trafficked persons and indicating the challenges on the road to that protection.

Open the Doors: Towards Complete Freedom of Movement for Human Rights Defenders in Exile in Uganda

AbstractUganda attracts the highest number of migrants, refugees, and asylum-seekers in the East and Horn of Africa sub-region. Factors including an ‘open door’ policy, relative political stability, and a central geographical location have contributed to Uganda becoming an attractive hub for human rights defenders. The right to freedom of movement is enshrined in all significant human rights treaties and many regional and sub-regional economic treaties, including the one establishing the East African Community. However, in practice many exiled human rights defenders and refugees face various obstacles to move freely.This article explores the scope and meaning of freedom of movement into, within, and out of Uganda. Uganda remains one of, if not the most open country in the region for asylum-seekers, where everyone, including refugees and exiled human rights defenders, may move and settle wherever they choose. However, the majority of human rights defenders struggle to leave Uganda as they usually do not possess a national passport. While Convention Travel Documents, or refugee passports, are provided for under Ugandan and international refugee law, they are elusive in the refugee community and the majority of those interviewed face overwhelming challenges in obtaining one. This leaves many feeling hopeless and not in control of their own future or opportunities, as they are unable to travel within the East African Community, or beyond, for any reason. In particular, women human rights defenders and those who identified as, or advocated for the LGBTIQ (lesbian, gay, bisexual, transgender, intersex and queer) community, face compounded difficulties when moving within and out of Uganda, including arbitrary restrictions by authorities, violations by private actors, and protection concerns when moving.

Protection of the Rights of Climate Refugees and Pathways to Redress

Among the many issues brought about by climate change, the issue of climate refugee rights protection is one of the most important focal points. Nevertheless, climate refugees are not included in the definition under international refugee law whose legal status is unclear and whose rights protection faces many challenges. For example, the lack of international legal framework, the lack of clarity on the responsibilities of States, and the limitations of the current protection mechanism of United Nations High Commissioner for Refugee. Therefore, the protection of the rights of climate refugees should be based on existing international law. This should also combine with the protection of international human rights law, establishment of an international convention for the protection of climate refugees, relief fund for climate refugees, and improvement the judicial relief system for climate refugees. Meanwhile, China should also be proactive, actively promote relevant domestic and international legislation, strengthen relevant international special cooperation, and contribute to the protection of the rights of climate refugees.

TRAPPED BY SOVEREIGNTY

This article examines the legal contours of the international law regime as it relates to internally displaced people (IDPs) and assesses it critically. It analyzes the structural legal and humanitarian injustices from which IDPs suffer as a result of often arbitrary distinctions between them and refugees in international refugee law, international human rights law, and international humanitarian law. It explores how IDPs do not have the same explicit, dedicated legal protections in international law as refugees who have fled their countries of origin and crossed an international border. It argues that precisely because IDPs lack international legal protections, their rights and needs are often overlooked and met with indifference and lack of sufficient humanitarian response from the United Nations, its agencies and member states, and global humanitarian NGOs. It discusses efforts to recognize a specific set of international legal rights for IDPs, why they have been stymied for several decades, and the practical consequences in terms of human rights deferred and denied and human welfare undermined for IDPs and their increasing vulnerability and disadvantage. Finally, it presents ways of improving respect for and fulfillment of the human rights of IDPs.

Implementation of Non-Refoulement & Economic Burden Sharing in New World Order Under International Refugee Laws

The increasing number of refugees is becoming a financial burden for the host countries. It impacts their economic prosperity and creates extra pressure to meet international regulations. This study describes how the doctrine of non-refoulment and burden sharing works in international refugee law to ensure the protection of all refugees. It discusses the rights of accommodation, education, food, protection, and all other economic rights within host countries. It also highlights the presence of proportionate refugee placement in various states and assesses the economic and social consequences of relocating refugees to host countries under international law. The recommendations of the study help to defend refugees from various other human rights violations and improve the burden-sharing process through the operationalization of international refugee laws.

Refugee Law After 9/11: Sanctuary and Security in Canada and the United States by Obiora Chinedu Okafor

Reviewed by: Refugee Law After 9/11: Sanctuary and Security in Canada and the United States by Obiora Chinedu Okafor Dr. James C. Simeon (bio) Obiora Chinedu Okafor, Refugee Law After 9/11: Sanctuary and Security in Canada and the United States (UBC Press, 2020), ISBN 9780774861465, 349 pages. Professor Okafor’s Refugee Law After 9/11 should be essential reading for all those who are working in the field of refugee law in Canada and the United States. It is extremely well conceptualized, researched, legally analyzed, and written. As the title suggests, what this book sets out to do is “to determine more precisely the extent to which the heightened sense of security vulnerability that was produced by the 9/11 attacks did in fact trigger significant alterations in the refugee law regimes of Canada and the United States.”1 Using the marker of 9/11, the worst terrorist attack in modern history, the book examines in detail what changed in refugee law after 9/11 in these two closely related—economically, socially, culturally, and, so it appears, legally—countries. Interestingly, Canada was seriously impacted by 9/11, but obviously not to the same degree or in the same ways as the United States. This primary concern for what changed in refugee law in these two countries following 9/11 allows for the examination of two other “conceptual preoccupations:” to what extent has a “security relativism” mentality helped to shape the law’s (mis) treatment of refugees in either Canada or the United States; and what does this tell us of the cogency, coherence, and integrity of the dominant national self-image of the people in these closely related States. These last two concerns are considered to be less crucial than the first. The four substantive chapters in this volume deal, unquestionably, with four of the most salient issues in the field of national and international refugee law: (1) the deportation to torture of refugees and other non-citizens; (2) the detention of refugees; (3) the application of terrorism-related inadmissibility; and (4) the Canada-United States Safe Third Country Agreement. Okafor argues that the pre-9/11 refugee regime looks very much like the post-9/11 refugee regime, “only more so.”2 This is followed by the notable assertion that “the underlying point that the book seeks to make is that in both countries, things were already so bad with refugee law before 9/11 that there was significantly less room than [End Page 445] many have supposed for them to get all that much worse.”3 Further, Okafor notes for the most part, that the refugee law regimes in the two countries “reacted in strikingly similar ways to the heightened security vigil triggered by the 9/11 attacks.”4 This is not to say that Okafor does not acknowledge the significant impact that 9/11 had some two decades ago on the world, such as the security protocols instituted at international airports, increased electronic surveillance of citizens, the US led “War on Terrorism,” and the military interventions in Afghanistan, Iraq, and elsewhere. Rather his focus is on refugee law and practice in Canada and the US before and after 9/11. Given the international peremptory norm that no one can be deported to torture, it is surprising to find that in the US the grant rates for relief from deportation to torture is the exception and not the rule.5 Okafor notes that the US Supreme Court judgement of Zadvydas v. Davis, which laid down the principle of the illegality of indefinite detention of deportable non-citizens, and similar case law in Canada, does not present a problem for these states when addressing national security considerations.6 It is argued that it is neither legally nor ethically appropriate to erode the absolute bar in the US against deportation to torture or the less than absolute bar to torture in Canada. Nevertheless, it is argued that this is precisely what has taken place.7 When analyzing detention in the United States, Okafor makes the point that even though more persons were rounded up and new legislation was passed in the aftermath of 9/11 there were no...

Afghan Mass Displacement: The American Response in Light of International Human Rights and Refugee Law, and the Need for International Cooperation to achieve a Satisfactory Solution

Afghan Mass Displacement: The American Response in Light of International Human Rights and Refugee Law, and the Need for International Cooperation to achieve a Satisfactory Solution

Introduction: Nordic Visions of International Migration and Refugee Law

Introduction: Nordic Visions of International Migration and Refugee Law

PROTECTION OF CHILD REFUGEES UNDER INTERNATIONAL LAW

International law has a vital role in securing more excellent protection for refugee children. There are 82.4 million people fleeing war, violence, persecution, and human rights violations in 2020 globally, 42% of refugees are children under the age of 18. Therefore this study raised the question of what international conventions govern child refugees. This research uses normative research.The results found that the 1951 refugee convention and the 1967 protocol are international arrangements regulating refugee children. Simultaneously, the Convention on the right of Children (CRC) also offers more detailed and comprehensive legal guidelines on child care, including refugee children. Those two conventions have contributed to firm legal protection for child refugees, but there is also a weakness when a country only ratifies one of them. Thus, for legal certainty, a new legal instrument in the form of a convention on the rights of child refugees is needed to fulfill the rights of child refugees properly. Keywords: International protection, International refugee law, Child refugee.

Western hosts and Southern ghosts: the west-as-host construct in refugee law scholarship and its gendered implications for women in polygynous relationships

ABSTRACT Refugee law scholarship is largely focused on the application of refugee law and the refugee status determination processes of Western host countries. This geographical focus in much scholarly work stands in stark contrast to the global distribution of refugees, the majority of whom are hosted by countries of the Global South. Women refugees are particularly underrepresented in Western host states. This paper focuses attention on refugee women in polygynous relationships within the South African asylum system, exposing both the exclusionary impact of Western anti-polygamy measures and the imbalanced knowledge production in refugee law. This work makes clear the way in which an unacknowledged bias in the study of refugee law as applied only in select Western countries, limits and indeed distorts our understanding of international refugee law and serves to erase certain refugees.

International Refugee Law and EU Asylum: Accordance and Influence

International Refugee Law and EU Asylum: Accordance and Influence

Rejection at the Frontier and Human Rights – the UN Treaty Bodies and European Practice

The principle of non-refoulement is often described as the cornerstone of refugee law. It prohibits States from expelling people from their territories to States where their life or freedom would be threatened. The principle of non- refoulement is, however, not only enshrined in refugee law. The United Nations Human Rights Treaty Body System has developed a protection from refoulement that is considerably broader than the protection granted under international refugee law. It is also broader than the human rights protection provided by the ECtHR. This article will show that the UN Treaty Bodies’ approach to the principle of non-refoulement gives a much clearer framework for rejections of migrants at a State’s frontier.

Ukrainians in Flight: Politics, Race, and Regional Solutions

The situation of Ukrainians fleeing the Russian invasion exemplifies, as the organizers of this symposium note, both a shock to the international order and a powerful international response. Europeans, and Global North states more broadly, have welcomed Ukrainians with a generosity that sits in stark contrast to their treatment of the vast majority of contemporary refugees. This exceptional response demonstrates a key gap in the legal architecture, namely the absence of an international agreement on shared responsibility for hosting refugees. It also highlights a substantive shortcoming in international refugee law: its failure to protect most people fleeing armed conflict. In contrast, regional law from Africa and Latin America has for some time extended refugee protection to individuals escaping generalized violence. Beyond the substantive law, in many cases, regional protection is a preferable option for individuals fleeing violent conflict. In addition to these structural and substantive concerns, the exceptionally rapid and generous response to the Ukrainians demonstrates the deep politicization of international refugee policy and highlights the invidious role of race in the international legal order.

Ljudska prava stranaca kojima je odbijen ulazak i koji su pritvoreni u tranzitnoj zoni aerodroma - od sage Novaka Đokovića do arbitrarnog pritvaranja H. G. D.

The right to liberty and security of persons, as well as individual's absolute right not to be ill-treated or sent to the territory of the State where one would face such risk, represent a cornerstone of refugee and migrant protection at all border crossings. However, regardless of the migration status of a foreigner arriving at the border control posts, an entire scope of human rights protects an individual from border police officers who exercise a State's sovereignty in controlling entry, stay and expulsion from its territory. This undisputable right of the State is not an absolute one, and it has to be performed in line with the international human rights law, but also international refugee law. Inspired by the case of Novak Đoković, this paper deals with the legal status of foreigners who have been refused entry and detained at the airport transit zones. The practice at Belgrade airport will serve as a case study. The status of foreigners at the transit zone of the Nikola Tesla airport will be examined from the perspective of the right to liberty and security and the standards which arose from the practice of the European Court of Human Rights.