International Refugee Law Research Articles

Invisibilization of the unwanted Others? Feminist, queer, and postcolonial perspectives on the 1951 Refugee Convention’s drafting

The 1951 Refugee Convention represents the legal cornerstone of today’s global refugee protection, which is supposed to apply to all refugees regardless of their origin, gender identity, or sexual orientation. But did the Convention’s drafters have such a complex approach in mind? This paper analyzes the Convention’s drafting at the United Nations and the final conference in the late 1940s and early 1950s from feminist, queer, and postcolonial perspectives. By drawing on subalternity and absence, and using interpretive analysis of historical sources, the paper focuses on politics—who was (not) involved in debates—and policy—who was (not) considered under the refugee definition. The analysis reveals pervasive asymmetries, with western androcentrism inherently shaping the drafting. The western, white, heterosexual man was the standard filter for the powerful decision-maker and the protection subject, whereas women, LGBTQ+ and colonized people were neglected in politics and policy. Their exclusion was not merely a side effect of the political landscape at the time but reflects the reproduction of western androcentric power, which ultimately invisibilized the subaltern Others in the creation of international refugee law.

Balancing The Principles of Non-Refoulment and National Security in The Protection of Refugee Rights: A Legal and Policy Analysis of Refugee Handling in Australia

This study examines the delicate balance between the principle of non-refoulement and national security in protecting refugee rights, focusing on Australia’s approach to handling refugees. Non-refoulement, a fundamental principle of international refugee law, prohibits the forced return of individuals to countries where they may face persecution. However, ensuring national security while upholding refugee rights poses challenges, particularly in the face of global migration crises and security concerns. Through a case study of Australia’s refugee policies and practices, this research explores the complexities of navigating between these principles, considering legal frameworks, policy implications, humanitarian considerations, and the impact on refugee lives. The findings contribute to understanding the intricate dynamics of balancing humanitarian obligations with national security imperatives in refugee protection efforts. The findings of this research suggest that no balancing act can be justified by international law. Turn-back measures cannot be used to balance Australia’s international obligations to protect refugees. This will lead to violations of the human rights of asylum seekers who will be returned. The act of turning back is hazardous and has the potential to bring threats and persecution to asylum seekers who are returned to their country of arrival, country of origin, or third countries.

Persistent Gaps in Protection: Stateless and Forcibly Displaced in Ukraine and Abroad

Since the Russian invasion of Ukraine, beginning in February 2022, millions of Ukrainians have fled their homes. Among the forcibly displaced are stateless persons who lived in Ukraine prior to the war, who are particularly vulnerable because they do not possess any nationality. Unable to prove their identity, stateless internally displaced persons and refugees experience numerous challenges along their flight routes. The measures adopted by European countries to support Ukrainian refugees have been successful in many ways, but insufficiently consider the situation of stateless persons. This article explores the protection gaps in the laws of Ukraine and neighbouring countries, as well as at the European level, and critically evaluates those gaps in light of the relevant international protection regimes, ie, international statelessness law, international refugee law, international and European human rights law and international humanitarian law. From the analysis, it can be concluded that possession of identity documentation and legal status remain crucial conditions for crossing borders and accessing protection.

Internally Displaced Persons and International Refugee Law

Internally Displaced Persons and International Refugee Law

Ius Post Bellum obligations on protection of displaced persons: making a case for the responsibility of States intervening in armed conflicts

International Law’s responses on protection of internationally displaced persons fleeing conflicts are traditionally grounded on International Refugee Law. However, this branch of Law presents several gaps in this context: namely, apart from special arrangements, it does not assign a specific responsibility on protection of displaced civilians to any State in particular. On the other hand, traditional theories on State’s responsibility on displacement mainly focus on the responsibility of the State of origin. In this paper, I argue that ius post bellum may be used to assign specific responsibilities on protection to the States that intervened in such conflicts. The paper discusses the concept of “intervening State” and then elaborates on which States may be deemed as “responsible”. Finally, several possible ways of protection will be put forward, departing from the current International Law’s responses in this regard.

Cosmopolitan Pariahs: The Moral Rationale for Exclusion under Article 1F

Abstract This article reconstructs the moral rationale for exclusion under article 1F of the 1951 Convention relating to the Status of Refugees. The idea that certain refugees may be ‘undeserving’ of refugee protection because of past criminality is incompatible with a reading of the international refugee law regime as a human rights regime. Instead, the best reconstruction of exclusion’s moral rationale is to construe it as a non-punitive form of blame, under which the international community withdraws the beneficence and goodwill necessary to enter into thicker relations of shared residence and potential citizenship. Some troubling implications of this construal of exclusion are briefly explored.

How safe is the zone, and how voluntarily are the returnees? Turkey’s project for a ‘safe and dignified’ voluntary repatriation of Syrian refugees and the potential implementation of R2P on behalf of returnees

ABSTRACT The millions of refugees in Turkey are left in political limbo. Anti-refugee sentiment in society has also become an issue. However, in contradiction to the earlier Muslim solidarity rhetoric of ‘Muhajir and Ansar’, the Turkish government has been implementing its repatriation project that requires a ‘safe and dignified’ voluntary return of a million Syrian refugees to Turkey's safe zone in Northeast Syria. The article argues that the country's current political, economic and social conjuncture overshadows the voluntary character of the government's repatriation project and claims that Turkey's voluntary repatriation project does not meet the requirements of the international refugee protection regime. Building on the policy-oriented approach to international law, the article examines the potential implementation of the preventive dimension of Responsibility to Protect (R2P) on behalf of Syrian ‘returnees’. The article concludes that the ‘two-phase’ responsibility strategy that imposes responsibilities on the host country and the international community, which would be implemented simultaneously in Turkey's repatriation project, can protect returnees from possible danger in Syria. However, it can also set a precedent for future cases by filling a gap in International Refugee Law that does not address voluntary repatriation.

Rewriting Internal Relocation from a Refugee Perspective - The Lived Experience of Refugees in Afghanistan

ABSTRACT This article is part of a broader project aimed at rewriting refugee law jurisprudence from a lived refugee perspective. The co-authors, one of whom is a refugee from Afghanistan, have chosen internal relocation as the subject of this project as it is a problematic and controversial principle of international refugee law which we believe is frequently applied without due consideration of the practical experience of refugees. Internal relocation provides that a refugee may be returned to their country of origin if they can relocate to a “safe” part of that state where they would not have a well-founded fear of persecution. This principle is somewhat tempered by the application of a “reasonableness” test in most jurisdictions. That test aims to reflect that, in some cases, it may not be possible to require a refugee to relocate to another part of their country of origin to avoid persecution. However, a “reasonableness” factor is not always considered as part of relocation. Moreover, it aims to bring an “objective” standard of reasonableness, which can be critiqued on a number of bases. In this article, the authors rewrite an Australian Refugee Review Tribunal decision dealing with an applicant from Afghanistan to reflect the lived experience of refugees better and to encourage readers to think about whether some of the assumptions made in internal relocation jurisprudence have been fully interrogated. Much of internal relocation scholarship focuses on conceptual legal issues, for instance, whether relocation is grounded in the text, context or object of the 1951 Convention relating to the Status of Refugees and whether relocation fits within the “well-founded fear” or “state protection” limb of the refugee definition. While these are important conceptual debates about the treaty basis for internal relocation, we believe these have been well-analysed in the existing literature. Our article seeks to add to these core debates by reconceptualising the application of relocation to authentic refugee experiences and, through this, to highlight some of the weaknesses in the current approach to this complex question.

THE RIGHT OF PALESTINIAN REFUGEES TO RETURN TO THEIR HOMELAND UNDER UNITED NATIONS RESOLUTION 194

The United Nations has been concerned with the problem of Palestine refugees since its inception in 1948, especially after the resolution n°. 194. However, to what extent has this resolution been implemented, and what is the global stance regarding the Palestine refugee issue? The key issue that drives our research on this subject. It should be highlighted, however, that due to the particularities of the Palestinian refugee, the term "refugee" as used in international law did not apply to them. The definition of a "Palestinian refugee" as defined by UNRWA was developed with the intention of assessing eligibility for recipients of UNRWA aid, rather than being fixed on a single definition. Rather of focusing on the theoretical side, the many definitions of "Palestinian refugee" were intended to address a specific conflict. UNRWA's definition did not align with the definition often employed in international refugee law, nor did it encompass all refugees who were permitted to return to their homes as per General Assembly resolution 194. The 1948 and 1967 wars caused the Palestine refugees listed in resolution No. 194 to be uprooted from their homes and lands. The Israeli occupation authorities' refusal to acknowledge it as the source of the problem's emergence, however, is a contentious aspect of the problem itself. It also distinguishes between the 1967 war refugees, often known as displaced individuals, and the 1948 war refugees. Palestine refugees are still scattered throughout the globe even after the UN overwhelmingly decided to acknowledge their right of return. As long as the Palestinian refugee issue is still a topic for study, it will get worse and make it more difficult for many Palestinian people to flee their homes as a result of the direct conflict between Israel and Hamas that broke out on October 7, 2023. The Palestinian refugee issue remains a problem that is being studied.

Legal Analysis of the Deportation Process for Final Rejected Persons: Dialectics of International Refugee Law and Indonesian Immigration Law

Legal Analysis of the Deportation Process for Final Rejected Persons: Dialectics of International Refugee Law and Indonesian Immigration Law

Utilizing Eurocentric Temporary Protection Directive as a Global Approach of Refugee Protection

The temporary protection directive is one of the noblest mechanisms of the European refugee protection regime. The European Union has designed it following the principle of temporary protection and non-refoulement of international refugee law. The United Nations Refugee Convention is the institutional root of these principles. In 2001, the EU has adopted the directive to improve its refugee protection mechanism. But they have never activated the directive until the current Ukrainian refugee crisis. This has remained as a piece of paper or unnecessary tool for the European countries. Their reluctance towards activating the directive seems to be hegemonic and political to some extent. Though they had all the grounds for activating the directive during the Syrian, Afghan or Tunisian refugee crisis, they did not choose to activate it. The paper doesn’t oppose the activation of TPD for Ukrainian refugees. It only explores and discusses the dualist role of the EU in activating TPD. The paper is also asking for its universal application for any refugees irrespective of their origin and the EU’s geopolitical interest. Lastly, it solicits for the utilization of the ‘doctrine of temporary refuge’ across the countries in the best possible manner considering the example of EU’s TPD.

Three approaches to the 1951 convention: The case for a dialectical approach

Abstract This article explores three different methodological approaches to the UN 1951 Convention on the Status of Refugees—and international refugee law (IRL) more broadly. These are termed the internal, external and dialectical approaches. It is argued that the dialectical approach, which combines elements of the internal and external approaches using a materialist postcolonial perspective helps make out in the light of changing conditions a more persuasive case for liberal interpretation and reform of the 1951 Convention. Put differently, the article is about the limitations and failings of mainstream IRL scholarship, which essentially pursues an internal approach to the 1951 Convention. It is equally about the need to decolonize and transform the pedagogy and research of IRL. This article concludes with some suggestions to advance refugee rights that would allow the 1951 Convention to respond more effectively to the protection needs of refugees around the world.

TWAIL, archives, and refugee law

Abstract Critical scholars of refugee law and refugee studies have demonstrated the entrenched Eurocentricity and the ingrained hegemony that dominate the fields of study. Therefore, this article embarks on a methodological inquiry that intersperses Third-World Approaches to International Law (TWAIL) and archival research to the study of international refugee law, with specific focus on India. I base this article on the preconceived notion that TWAIL cannot be divorced from the inquiry into understanding alternate non-European notions of refugee protection. This article emphasizes TWAIL’s significance as a methodological tool, and explores India’s refugee hosting practices and resistance to Eurocentric international refugee law through archives. The article also contends that TWAIL and archival research in this context, are not just methodological innovations, but constitute deliberate disruptions in the field.

Pushed to Breaking Point? The Prohibition of ‘Constructive’ or ‘Disguised’ Refoulement under International Law

Abstract The cornerstone of international refugee law is the principle of non-refoulement, which protects refugees, asylum seekers, and other persons with protection needs from being returned against their will to a place where they risk facing persecution or other fundamental rights violations. A person who is protected against refoulement may, however, return voluntarily. Determining when such returns are truly voluntary is an issue increasingly at the heart of discussions about the lawfulness of returns, including recently in the Lake Chad Basin, East Africa, the Middle East, Southeast Asia, Europe, and Australia. Today, there does not appear to be a generally agreed legal standard to determine when a return is truly voluntary. Likewise, international law does not define a clear line at which State action to ‘incentivize’ or ‘induce’ returns amounts to refoulement or an unlawful expulsion. However, recent publications by international law expert bodies and ensuing debate among States have provided some indications as to where international law stands on the issue and the direction in which it might develop. Thus, this article first examines the interplay between voluntary returns and the principle of non-refoulement. Secondly, it analyses recent positions taken by the International Law Commission and the United Nations Committee against Torture concerning legal limits on the measures that States may take to incentivize or induce returns. Thirdly, the article considers certain measures taken by States to incentivize or induce the ‘voluntary’ return of a person and indicates when such measures may amount to acts of coercion or force in violation of international law.

Access to Work for Those Seeking Asylum: Concerns Arising from British and Swedish Legal Strategies

Abstract This article seeks to probe the controversial relationship between seeking asylum and the permission (or obligation) to work. In doing so, we recognise the concurrent claims that can be made for asylum and access to the labour market, problematising the concept of ‘work’ and its relationship to freedom and dignity from the perspective of international refugee law and European human rights norms alongside European Union (EU) law. We examine how British and Swedish legal systems have reflected two starkly opposed policy stances. The UK has long denied asylum seekers the financial and psychological benefits that come with work usually until refugee status is formally granted, but the Swedish system has facilitated a complementary pathway for asylum seekers whose labour can make (what is determined politically to be) a sufficient contribution to the economy. We identify the perceived benefits and failings of each strategy. In this context, we observe that the status quo in both countries is changing and even arguably converging around an illiberal consensus regarding the relationship between asylum and work, which will demand further attention and potentially legal challenges in the years to come.

Epistemic Violence and Colonial Legacies in the Representation of Refugee Women: Contesting Narratives of Vulnerability and Victimhood

AbstractThe traditional drafting and subsequent implementation of international refugee law have been criticised for relying on a male-centric understanding of persecution. Whilst this framework has recently shifted to include a more gender-sensitive interpretation, I argue that this introduction of gender within refugee status determination has traditionally relied on narratives infused with gendered and racialised stereotypes. In particular, it relies on a ‘white saviour’ colonial narrative that perceives refugee women as vulnerable victims in need of saving. Drawing on a decolonial and critical epistemological analysis that includes both a race and gender dimension, I unpack the epistemic violence and hidden colonial legacies in the representation of refugee women in case-law. Ultimately, this article concludes with a call for reframing the legal narrative around refugee women by approaching them as political actors rather than oppressed and vulnerable subjects.

The risks to refugee law of humanitarian responses to flight from Ukraine

Abstract This article argues that the humanitarian outpouring of support that has greeted those fleeing the war in Ukraine exposes fragility in international refugee law. Over and over again, humanitarianism has proven insufficient to address the protection needs of refugees. The politics of humanitarianism present many advantages to states and are potentially highly motivating to publics, but they are an insufficient substitute for legally-grounded human rights protections. The current humanitarian moment is raising a number of questions about refugee law, and is fostering considerable confusion about the role of law in responding to those fleeing Ukraine. Despite refugee law's imperfections and biases, in a world that is increasingly hostile to migrants, international refugee law is the strongest tool available. In the face of the humanitarian surge of the moment, it is important to defend the core protection commitments of refugee law, even as we work to improve the law's shortcomings. While it is tempting to shy away from anything that could be perceived as a critique of the compassion and generosity we are witnessing, as scholars and advocates we should use this moment to draw important lessons about how to strengthen refugee law.

Ukrainian Racial Contracting and the Geopolitics of Welcome in International Refugee Law

Ukrainian Racial Contracting and the Geopolitics of Welcome in International Refugee Law

Exclusion and Refoulement: Criminality in International and Domestic Refugee Law

Exclusion and Refoulement: Criminality in International and Domestic Refugee Law

The Cartagena ‘Spirit’ as a third world human rights alternative to refugee protection: lessons to learn from Brazil’s approach to Venezuelan socio-economic refugee

ABSTRACT Even though inter-state forced displacement is heavily concentrated in the Third World and predominantly constituted of massive migration flows linked to objective and structural socio-economic factors, the protection provided by International Refugee Law remains based on a liberal Euro- and state-centric definition of refugees, culminating in a de facto exclusion of the great majority of the world’s refugees. This article advocates the need to conceptually challenge the 1951 Convention refugee definition, proposing the Cartagena Declaration as a Third World human rights alternative to it. The delegitimization of the socio-economic refugee sustains and is sustained by the Western liberal and state-centric logic under which International Refugee Law functions. The recognition of socio-economic rights per se as a basis for refugee status under the Cartagena Declaration constitutes a rupture with that dysfunctional logic. Consequently, the Cartagena ‘Spirit’ provides, in theory, a comprehensive and up-to-date human rights refugee protection regime capable of encompassing all types of refugees. To materialise the discussion, the article critically analyses the Brazilian application of the Cartagena refugee definition to Venezuelan socio-economic refugees. It concludes that the Brazilian approach does not fully materialise the Cartagena ‘Spirit’ radical potential, putting into question the ‘Spirit’ practical feasibility.