International Refugee Law Research Articles

War in Ukraine and Observance of International Refugee Law throughout the Europe: A Critical Scrutiny

War in Ukraine and Observance of International Refugee Law throughout the Europe: A Critical Scrutiny

The Oxford Handbook of International Refugee Law

International refugee law has evolved over the last 20 years into a sprawling, overlapping conglomeration of international and regional conventions, national constitutions and laws, court decisions, jurisprudence, and scholarship. I speak from experience when I say that a practising lawyer or early-stage scholar might well be overwhelmed by the challenge of getting to grips with contemporary thinking on different issues and developing areas of study. A map by which to navigate these uncharted territories is much needed. And, happily, one is now available, in the form of TheOxford Handbook of International Refugee Law, edited by Cathryn Costello, Michelle Foster, and Jane McAdam and published in June 2021. It offers an invaluable guide to some of the best and latest academic work. Five years in the making, the book runs to 1,258 pages. It is, quite literally, a weighty tome. There are 65 chapters, by different authors. The list of contributors reads like a who’s who of major scholars on refugee law, including not just pioneers such as Guy Goodwin-Gill, James Hathaway, and Walter Kälin, but also major contributors of recent years like Marina Sharpe and Tamara Wood. The three editors and a majority of the contributors are women. The editors have clearly worked hard to make the book a global one but, also reflective of the field, scholars from the global North are nevertheless predominant.

‘Protection’ in European Union Asylum Law: International and European Law Requirements for Assessing Available Protection as a Criterion for Refugee and Subsidiary Status

Is European Union (EU) asylum law congruent with international refugee law standards? What meaning is to be given to the term ‘protection’ in article 1A(2) of the Refugee Convention and in the EU Qualification Directive (QD) recast? When is protection strong enough so as to reject an application for asylum? These questions are among those raised most often in contemporary refugee law. Lehmann’s study is an insightful and methodical exploration of each of them. The title of Lehmann’s book is apt. It traverses both international law and EU law, but makes clear that it is the latter which determines its focus. In his words, ‘the starting point in the analysis will always be the respective legal norms(s) of EU secondary law’ (p 24). At the same time, readers looking for detailed analysis of the meaning of the ‘protection clause’ in article 1A(2) of the Refugee Convention and of the corresponding body of international human rights law (IHRL) will not be disappointed.

The Human Rights Approach to the Refugee Definition: Rising Sun or Falling Star?

Abstract Until recently, the human rights approach to the refugee definition appeared destined to become a permanent feature of international refugee law. Now, however, doubts have set in. The object of this article is to address the main criticisms that have been levelled and to seek to put them in a wider perspective, reflecting briefly on where the law on refugee status is heading now that the 1951 Refugee Convention has entered its eighth decade. To this end, this article commences with a description of the human rights approach and a brief summary of how and why it came to become the ‘dominant’ approach and its underlying justifications. It then turns to consider the major criticisms raised, breaking these down into three clusters. The first cluster seeks to argue that such an approach is not warranted by proper application of the rules of treaty interpretation enjoined by the 1969 Vienna Convention on the Law of Treaties. The second cluster identifies a number of other conceptual concerns: that such an approach depends on extraneous standards that lack refugee specificity; that it substitutes one set of indeterminate terms for another (for example, torture as one form of persecution); that it is unduly complex and unwieldy; that it wrongly assumes an equivalency between international refugee law and international human rights norms; and that it promotes a ‘principle of surrogacy’ that lacks any clear foundation. A third cluster dwells on the deficiencies of the human rights approach as a paradigm when examined from an empirical and comparative perspective: its failure to have become entrenched at a global level; its ‘sheer variety’ and lack of any clear contents; and its failure to help with difficult questions of refugee law. The article seeks to rebut these criticisms one by one and, in the course of doing so, to highlight the ways in which, far from being in decline, the human rights approach is a rising sun rather than a falling star.

A Comparative Analysis on International Refugee Law and Temporary Protection in the Context of Turkey

The Syrian civil war prompted a large number of people to flee their country and seek asylum in other countries, making Turkey a leading host country with around 3.6 million of asylum seekers. Syrian asylum seekers in Turkey are under temporary protection regime. This article examines Turkish temporary protection regime in comparison with international protection standards and human rights law, especially with the UNHCR Guideline and European Union legislation on temporary protection and European Court on Human Rights judgements. In this respect, this article argues that Turkish legislation has met the fundamental requirements of international protection law and standards, however, still needs to be improved in some crucial areas. In this regard, the international protection law and the difference between the status of refugee and temporary protection is explored. Subsequently, declaration of temporary protection in case of a mass-influx, the rights and freedoms covered under temporary protection, non-refoulement principle and termination of temporary protection regime under Turkish Temporary Protection Regulation are discussed and compared with the international standards. Finally, some conclusions and recommendations for the improvement are deduced from this discussion.

Sea Level Rise and Climate Statelessness: From 'Too Little, Too Late' to Context-Based Relevance

Several low-lying island states currently risk the loss of their entire territory before the end of the century. Combined with the inadequacy of the existing framework of international refugee law to address the challenges faced by those displaced, this situation has made the law on statelessness an interesting candidate for securing an alternative path to obtaining a legal status in a post-relocation context. However, while several authors have examined this possibility, the majority conclude that it fails in its putative task by providing too little, and by coming into play too late to be of any significant relevance to the situation of environmentally displaced persons in low-lying island states. This article challenges this narrative by re-examining the relevance of the law on statelessness along with the context within which it might have to play a role.

COVID-19 Border Closures: A Violation of Non-Refoulement Obligations in International Refugee and Human Rights Law?

Abstract COVID-19 has presented a number of challenges for the international refugee protection regime. An issue that has received little attention is the relationship between states tightening their borders in an effort to reduce the spread of COVID-19 and their non-refoulement obligations. This raises the question of how international law responds when non-refoulement obligations may conflict with other international human rights such as the rights to life and health. Further, the legal analysis of whether a particular COVID-19 border policy is in violation of non-refoulement obligations must take into account how the travel restriction will be implemented. This article provides an overarching analysis of non-refoulement provisions in international refugee and human rights law and which COVID-19 international travel restrictions may be in breach of these obligations. We examine different types of COVID-19 travel restrictions and argue that many are undoubtedly violations of non-refoulement, but others raise unsettled questions of international law. Nevertheless, there is jurisprudence and scholarship to support the proposition that a state’s non-refoulement obligations can be triggered even in these more contested scenarios.

International Refugee Law in Crisis: Islands, Incarceration and Neo-Refoulement during COVID-19

Abstract Attempts by states to deter refugee movement have evolved to a point that routine and systematic breach of non-refoulement and associated human rights frequently constitutes a central pillar in their asylum architectures. The expansion of state policies and practices under which people seeking asylum are prevented from reaching safe places and lodging asylum claims has accelerated during the Covid-19 pandemic. Drawing on examples from Australia and Europe, this article uses neo-refoulement—a concept introduced by geographers Jennifer Hyndman and Alison Mountz—to signal not only the rise in pushbacks at land and sea borders, but also practices that occur well within the boundaries of sovereign territory. These include the use of island incarceration, fast-track border procedures, and denial of legal presence on sovereign territory, even where physical presence is achieved. Such measures have often been introduced under the pretext of responding to situations of ‘mass influx’. And yet, far from providing an adequate response to a so-called ‘refugee crisis’, they serve only to facilitate a greater humanitarian crisis.

The 1951 Refugee Convention and Non-Signatory States: Charting a Research Agenda

Abstract At the end of 2020, 149 States were party to the 1951 Convention, its 1967 Protocol, or both. Forty-four members of the United Nations, however, were not party to either of these core instruments. What is the influence of the 1951 Refugee Convention in non-signatory States? How do non-signatory States engage with, and help to create, the international refugee regime? Taking these questions as its starting point, this article aims to chart a new research agenda focusing on the relationship between non-signatory States and the 1951 Convention. It argues that a closer examination of this relationship is necessary to make an informed opinion about the relevance of the 1951 Convention more broadly. By bringing this dimension to the study of international refugee law, it thus seeks to disrupt the emphasis on signatory States in contemporary discussions of the relevance and importance of the 1951 Convention. More concretely, the article argues that the Convention continues to structure States’ responses to refugees, and plays a central role not only in States that are party to the Convention, but also in key non-signatory States. The article details the many ways in which international refugee law norms are spread and used in non-signatory States, and how, by being present and active in global fora such as the UNHCR Executive Committee, and in negotiating soft law instruments drawing on the Convention, these States also participate in the evolution and interpretation of international refugee law.

Climate-induced displacement in the Sahel: A question of classification

AbstractThis article examines legal aspects of climate-induced forced displacement in the Sahel region of North Africa. The Sahel region is being adversely affected by climate change, leading to the displacement of thousands of people, both cross-border migrants and internally displaced persons (IDPs). The conventional stance is that refugee status does not extend to individuals displaced as a result of natural or environmental catastrophes and that consequently a normative gap exists in international refugee law. However, the position in international law may not be as clear-cut as this conventional view assumes, in light of recent trends which are moving towards the recognition of the rights of such displaced people. It seems clear that under the terms of the 1951 Refugee Convention, such people are excluded from refugee status, and while the situation is less obvious under the Organisation of African Unity Convention on Refugees in Africa, it appears that the end result is the same, although there seems to be an increasing desire for recognition of refugee status under that treaty. Other regional treaties are also taking tentative steps in this direction; the Kampala Convention on IDPs is especially noteworthy because it makes express references to circumstances such as natural disasters. A human rights approach may offer hope to displaced people, since climate change can impact on a number of rights – particularly significant is the decision of the UN Human Rights Committee in Teitiota v. New Zealand which acknowledged the harmful impact of climate change. The response, legislative and otherwise, of five Sahel States towards forcibly displaced persons is examined in this article.

Bringing externalization home: the International Civil Aviation Organization and ‘entry screening’ in Australia

ABSTRACT This paper examines the previously unexplored question of the role of the International Civil Aviation Organization (‘ICAO’) as a forum for the development and implementation of practices of externalization in the civil aviation space. Since 1947, ICAO has played a key role in the legal development of international air travel, including through formulating Standards and Recommended Practices (‘SARPs’). SARPs have principally focussed on the safety, regularity and efficiency of civil air travel while leaving state obligations under international refugee law largely outside of that structure. The Australian policy of ‘entry screening’ international travellers at Australian airports, whereby people with protection claims may be removed from the country without full consideration of the claim, serves as a case study. Entry screening reveals how (1) States have used the reframing afforded by ICAO’s SARPs on passenger facilitation to chip away at observance of the obligations of non-refoulement and non-penalization; and that (2) the interaction between civil air law and international refugee law implicates important questions of treaty interpretation.

Does the French law restricting the religious practice of the Islamic full-face veil amount to persecution within the remit of International Refugee Law, or is it a legitimate distinction under International Human Rights Law?

This article intends to prove that the general blanket ban restricting the public wearing of a full-face veil in France is a law that illegitimately discriminates against Muslim women who choose to cover their face with a Niqab and Burqa. The Niqab and Burqa are both full Islamic veils, which cover the whole body including the face, leaving just a narrow slit for the eyes (Niqab) or covering the eyes too (Burqa).[1] Muslim women who wear an Islamic veil, do so as a badge of honour—one that is liberating, empowering, and brings solace because it is worn solely as a religious act of compliance to God. Such face coverings are a valid form of manifestation of freedom of religion; a freedom enshrined as a non-derogable right under International Human Rights Law.[2] Yet, Muslim women have been severely deprived of such a right since the enforcement of Loi 2010-1192 du 11 Octobre 2010 interdisant la dissimulation du visage dans l'espace public - Law 2010-1192 of 11 October 2010 on the Prohibition of Concealing the Face in Public Space.[3] This law has allowed for the nationwide marginalisation of a group of women simply trying to live in the comfort of their faith. I will contend that such a profane law is not only a clear form of indirect discrimination under International Human Rights Law through the State’s illegitimate justifications; but also, that the law amounts to persecution on cumulative grounds under the Refugee Convention 1951.

Nationality, Protection, and ‘the Country of His Nationality’ as the Country of Reference for the Purposes of Article 1A(2) of the 1951 Convention relating to the Status of Refugees

Abstract The 1951 Convention relating to the Status of Refugees assumes States to be dominant actors in the international system, important in the refugee law context as potential sources of risk and/or of protection. In the refugee definition at article 1A(2), the nationality (or absence of nationality) of the individual is a central consideration. Entitlement to protection turns in significant part upon whether an individual is ‘outside the country of his nationality’ and ‘unable or … unwilling to avail himself of the protection of that country’ for relevant reason. The phrase ‘the country of his nationality’ is clarified later, in the second paragraph of that article 1A(2), as meaning each country of nationality, where an individual possesses more than one nationality. In contrast, an individual ‘not having a nationality’ is assessed by reference to inability or unwillingness, for qualifying reason, ‘to return to’ a country defined by past residence, not nationality – ‘the country of his former habitual residence’. This article examines the underlying significance of States to international refugee law as potential sources both of threat and of protection, and considers the article 1A(2) definition in the case of persons with a nationality, resting on the individual’s position as regards ‘the country of his nationality’. In doing so, it identifies particular national approaches that have treated the concept either as including countries of which an individual is not a national, but to which there is some presumed or real relationship, or as inapplicable to a State of nationality that does not provide a particular level of protection. It then considers the interpretation of the article 1A(2) definition in the case of individuals possessing multiple nationality and, in particular, whether the definition requires that a well-founded fear of persecution for relevant reason must relate directly to every country of nationality before a right to international protection arises.

Southeast Asia and the 1951 Convention relating to the Status of Refugees: Substance without Form?

Abstract The 1951 Convention relating to the Status of Refugees, supplemented by its 1967 Protocol, is the most comprehensive and universal instrument adopted to date to safeguard the fundamental rights of refugees and to regulate their status in countries of asylum. Yet, 70 years after its adoption, many countries – most of them in Asia – are unwilling to accede to it. Focusing on the ASEAN States, this article explores the reasons behind Southeast Asia’s resistance to the Refugee Convention, thereby highlighting some of its limitations. Contrary to the so-called ‘rejection’ of the international refugee law approach that currently prevails in the region, this article argues that Southeast Asian States have long recognized that refugees, as defined in the Refugee Convention, need protection. This is evidenced by their de facto different treatment of refugees compared to other irregular migrants, especially when it comes to arrest, detention, and deportation. The fact that non-signatory States act in conformity with the provisions of a treaty by which they are not bound reinforces the relevance of the Convention, if not as a formal source of obligation, at least as a model to delineate the contours of refugee protection. Somewhat ironically, their practice also contributes to the strengthening of international refugee law.

Rohingya Boat Refugees at Bay of Bengal and Obligations of the South East Asian States Under Soft Law.

The 1951 Refugee Convention and the 1967 Protocol are the only binding international instruments under which the parties of the instruments agree to protect refugees. However, there are gaps in the existing protection mechanisms for refugees at sea. Moreover, the South East Asian States are non-parties to the 1951 Refugee Convention; the States argue that they have no treaty obligation to accept Rohingya boat refugees. In this context, this article revisits the traditional view of ‘soft laws’, suggesting a fresh look at ‘soft laws’ regarding boat refugees. This article argues that even though the States are non-parties to international refugee law, the South East Asian States are members of the UN General Assembly, IMO, and ExCom. These international bodies have adopted numerous resolutions, guidelines and conclusions on refugee protection at sea; therefore, the States have international obligations to boat refugees according to Article 38(1)(C) of the Statute of the International Court of Justice 1945, the general principle of international law.

Canadian Exclusion Jurisprudence post-Febles

Abstract This article examines the state of Canadian refugee law since the decision of the Supreme Court in Febles v Canada (Citizenship and Immigration) [2014] 3 SCR 431. Drawing upon an analysis of a set of decisions of the Immigration and Refugee Board, the administrative tribunal tasked with refugee status determination in Canada, the article seeks to determine whether administrative decision makers are heeding the guidance of Febles when excluding asylum seekers from refugee protection on the basis of serious criminality pursuant to article 1F(b) of the 1951 Convention relating to the Status of Refugees. In doing so, it examines the controversy around article 1F(b) since its inception across various jurisdictions and amongst academic commentators, situating Febles within that controversy in order to demonstrate that the Supreme Court’s reluctance to clearly set out the purpose underlying article 1F(b) is in step with a longstanding tendency to understand the provision as serving a gatekeeping function, that prevents criminalized non-citizens from obtaining membership in our society. It argues that by omitting to set out a clear and principled standard by which asylum seekers can be excluded from refugee protection pursuant to article 1F(b), the Supreme Court failed to live up to a thick understanding of the rule of law. It concludes by calling for a reassertion of the rule of law into exclusion decision making, both nationally and internationally, in order to ensure that the legitimacy of the international refugee law regime is maintained.

The right and role of critiquing the contemporary patchwork of protection

The right and role of critiquing the contemporary patchwork of protection

Problematika Penanganan Pengungsi di Indonesia Dari Perspektif Hukum Pengungsi Internasional

A refugee is a person who, due to a well-founded fear of persecution, for reasons of race, religion, nationality, membership of a particular social group and membership of a particular political party, is outside his country of nationality and does not want protection from that country. The refugees, seeking protection in countries that have ratified the 1951 Refugee Convention and the 1967 Protocol or what is often referred to as a third country. This study describes and examines issues, first, regarding the handling of refugee flows in Indonesia according to the perspective of International Refugee Law. Second, Regarding the legal consequences when Indonesia did not ratify the 1951 Refugee Convention agreement and the 1967 Refugee Protocol regarding the status of Refugees to international Refugee law. This study is a descriptive doctrinal legal research. The source used is primary legal material consisting of legal products such as the 1945 Constitution, Laws, International Treaties and other Regulations relevant to Refugee Handling activities. The results of the research show that first, the action of handling refugees in Indonesia from the perspective of international refugee law has been able to realize some of the most important principles of the 1951 Convention and the 1967 protocol on refugee status that is not refoulment, non-expulsion, no differentiate (non discrimination) and also do not commit criminal offenses for refugees who enter Indonesian territory. Secondly, Indonesia as a transit country for asylum seekers and refugees experiences a buildup of refugee flows due to the process of granting an uncertain status of time from UNHCR and moreover, a third country limits the acceptance of refugees. Indonesia did not ratify the 1951 convention and the 1967 protocol and therefore Indonesia did not have the authority to grant refugee status because the granting of status was in the hands of the UNHCR, this was a legal consequence and consequences carried by Indonesia when it did not ratify the 1951 Convention and the 1967 Protocol.
 Keywords: Conventions; Refugees; Indonesia Law.

The Peril and Potential of Ambiguity: How National Laws and Policies Can Strengthen and Protect the Rights of Rohingya Refugees

Abstract Against a backdrop of toughening governmental stances towards refugees, migrants, and stateless persons in the Asia-Pacific region, there is a renewed urgency to consider possibilities for the expansion of protection and access to rights and services to those who normally face exclusion. Drawing on national case law, policy developments and other practices in six major host countries in the region, this article highlights instances in which, despite not being party to the 1951 Refugee Convention, states have extended rights to non-citizens and thereby signalled acceptance of key refugee rights norms. In examining these precedents, the article demonstrates the possibility of expanding protection outside of the international refugee law framework, and intends to provide inspiration for the progressive realisation of rights for displaced Rohingya communities across the region, as well as for other non-citizen communities facing similar challenges.

حمایة الأطفال اللاجئین بین القانون والواقع الأطفال السوریون اللاجئون فی دول الجوار أنموذجاً

حماية الأطفال اللاجئين بين القانون والواقع الأطفال السوريون اللاجئون في دول الجوار أنموذجا مايـــا حســــن مـلا خاطــــر . قسم القانون الدولي العام ، کلية القانون، جامعة اليمامة ، الرياض ، المملکة العربية السعودية. البريد الإلکتروني : m_khater@yu.edu.sa الملخص: يتناول هذا البحث إحدى القضايا الإنسانية الملحة على صعيد العلاقات الدولية، ألا وهي مدى فعالية آليات الحماية الدولية لحقوق الأطفال اللاجئين وجديتها، لما يرتبط بها من صعوبات وتحديات متعلقة بازدياد أعداد اللاجئين في شتى أنحاء العالم، بالإضافة إلى القدرة على توفير الاحتياجات والمتطلبات الأساسية لهؤلاء الأطفال في ضوء تقاعس المجتمع الدولي عن تقديم المساعدات والدعم المادي للبلدان المستضيفة لهم، في محاولة للبحث عن الحلول الممکنة والملائمة لمشکلة أزمة الأطفال اللاجئين (مع الترکيز على أطفال سوريا اللاجئين في دول الجوار أنموذجا). الکلمات المفتاحية : حماية الأطفال اللاجئين ، القانون الدولي للاجئين ، الأطفال السوريون اللاجئون ، الحماية الدولية ، دراسة تطبيقية لأوضاع الأطفال ، مخيمات دول الجوار. Protecting Refugee Children between Law and Reality Syrian Refugee Children in the Neighboring Countries as a Model Maya Hasan Malla Khater Department of Public International Law ,College of Law, Al Yamamah University, Riyadh, Kingdom of Saudi Arabia. E-mail: m_khater@yu.edu.sa Abstract: This research deals with one of the urgent humanitarian issues in the field of international relations, namely, the extent of the effectiveness and seriousness of international protection mechanisms for the rights of refugee children, due to its difficulties and challenges related to the increasing number of refugees around the world. In addition to the ability to provide the basic needs and requirements of these children, in the light of the failure of international community to provide financial support and aid to the countries hosting them, in an attempt to find possible and appropriate solutions to the problem of refugee children's crisis. With the focusing on the Syrian refugee children in the neighboring countries as a model. Keywords: Protecting Refugee Children, International Refugee Law, Syrian Refugee Children International Protection, An Applied Study Of The Conditions Of Children, Camps In Neighboring Countries.