International Refugee Protection Regime Research Articles

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.

“My Life Has Ended”: Exploring the Refugee Protection Process and How it Affects Future Orientation in Refugees

Much of refugee protection focuses on the legal aspects within the international refugee protection regime, which arguably results in less attention being paid to the more practical aspects to the realisation of that protection including the processes the refugees have to undergo as well as its impacts. As a cornerstone of the international refugee protection regime, non-refoulement (the forcible return of people to countries where they face persecution) is also a jus cogens (peremptory norm from which no derogation is permitted) principle. While crucial in and of itself, a meaningful protection regime should ideally result in further non-violation of refugees’ human rights including the prevention of refugees being revictimised, particularly when undergoing processes intended in securing their protection. Through refugee narratives, this article takes us on a journey in exploring some of the ways in which the protection regime may contribute to harming refugees. Further, based on refugee testimonies, this article sheds light on the probable impacts to refugees’ future orientation, an outcome of having undergone the protection processes as they take the perilous journey from flight to resettlement. More critically, this article aims to open the discussion further with a view to improve protection outcomes and prevent revictimisation of the refugees themselves as they navigate these various processes.

Empirical Consequences of Normative Inadequacies: The Principle of Temporary Refuge and Protection Gaps

AbstractThe article aims to propose an alternative analytical framework for examining the currently observable ineffectiveness of the international refugee protection regime. The described framework places the principle of temporary refuge and its inherent ambiguities at the centre of the analysis. To that effect, the scope and content of the principle of temporary refuge is considered with the particular focus on the presumable obligations of third states (i.e. states other than the recipient state) stemming from the principle. The analysis then turns to consideration of some of the examples of contemporary practice of temporary refuge in an attempt at framing it as one of the sources of a poor state of functioning of the international refugee regime. The paper also links the identified phenomenon to the concept of protection gaps as it was already outlined in the literature in order to clearly demonstrate the relationship between the content and contemporary practice of temporary refuge and inadequacies of the international refugee regime visible at the global level.

Is Australia a Model for the UK? A Critical Assessment of Parallels of Cruelty in Refugee Externalization Policies

Abstract For several years, Australia has been regarded by some politicians and observers in Europe as a model for hard-line policies towards refugees. At the same time, Australia’s implementation of refugee externalization measures has been subject to considerable scholarly attention and critique. Although the Australian approach has featured prominently in political debates in several European states, this article analyses the implications of a possible adoption of the Australian offshore detention approach for refugee policy-making in the UK, and the consequences this will have for the integrity of the international refugee protection regime. The article considers how states might influence each other’s policies—both directly and indirectly—by focusing on a case study of offshore detention and processing with regard to Australia’s influence on—and similarity to—the UK, to the extent that we observe policy parallels, as the article brings to light substantial policy convergence of detrimental practice of these two countries.

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.

Ending Exclusion from Refugee Protection and Advancing International Justice

In any utopic vision of the international refugee protection regime at least these two conditions ought to prevail: (1) all those who are genuinely in need of refugee protection will be granted international protection; (2) all those who are responsible for criminality, especially, serious international crimes, shall be held criminally liable. This presumes that the so-called “exclusion clauses” of the 1951 Refugee Convention, Article 1F, and those found in the regional refugee rights instruments (1969 OAU Convention, 1984 Cartagena Declaration, 2011 EU Qualifications Directive) are not required. No one would be excluded from refugee protection who meets the definition of refugee as found in these international refugee rights instruments. By the same token, anyone who is responsible for serious criminality, especially, serious international crimes, (as defined by the 1998 Rome Statute of the International Criminal Court) shall be held criminally liable. This serves the ideal of bringing an end to impunity for serious international criminality and ensuring everyone is held accountable for their contribution for the persecution of others. Accordingly, the first part of this article presents the thesis that serious criminality should be part of the inclusionary portions of the definition of who is a refugee and not its exclusionary portions, Article 1F of the 1951 Refugee Convention. Indeed, Article 1F, it is argued, is antiquated and no longer conforms to contemporary international norms and principles and can result in injustices to refugee applicants. Given the inherent complexity and difficulties with Article 1F and the fact it is no longer required, it can be repealed and Article 1A(2), the definition of who is a refugee, can be amended to not include anyone who is responsible for the commission of serious criminality. Moreover, when there is sufficiently reliable and trustworthy evidence that a refugee applicant is responsible for serious criminality then they can be prosecuted and by doing so both ending impunity for serious international crimes and advancing international justice can be achieved. The second part of the article is a commentary on the first part and raises a word of caution. The thesis of this part is that before adopting any radical solution with respect to the exclusion clause, it would be useful to provide a broader context to the issues raised. The commentary raises some questions regarding the underlying assumptions in the first part, specifically, in its examination of the human rights and international criminal justice framework. These questions are on three levels, namely conceptual, legal, and practical. The commentary concludes with some overarching observations in respect to the criticisms raised and the proposal submitted.

Rebuilding peace in exile: bringing together the Women, Peace and Security Agenda and the International Refugee Protection Regime in Turkey

ABSTRACT Refugee women are generally depicted as vulnerable and dependent subjects and excluded from peacebuilding efforts. This article is a response to the need for balancing the protection needs of refugee women and their participation in decision-making processes. It brings two different but complementary frameworks, namely the International Refugee Protection Regime (IRPR) and the United Nations Security Council’s Women, Peace and Security (WPS) Agenda, into conversation through a gender analysis. The article shows that bringing these two frameworks together can overcome each other’s limitations regarding refugee women’s agency. Through analysing legal and policy frameworks together with the existing literature on refugee women and the WPS Agenda, this article focuses on Turkey as a case study. This article argues that implementing the IRPR and the WPS Agenda together in a national action plan in Turkey would strengthen refugee women’s protection and promote their agency as actors of peacebuilding in exile.

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.

Forced Migration and Protection: Turkey’s Domestic Responses to the Syrian Refugees

This article investigates how Turkey implements its responsibilities of an international refugee protection regime at policy level, and it focuses specifically on empirical scholarship about the domestic responses to Syrian refugees. While refugee protection draws on the principles of humanitarianism and non-refoulement in general, how it is understood and delivered is complex and situation-specific. In the exponentially growing literature on Syrian refugees in Turkey, the scholarship often takes for granted the policy responses without highlighting their relations with practices. With situational analysis of the secondary documents, this article introduces refugee protection policies and regulations and makes an analysis of domestic responses in different fields concerning Syrian refugees. This critical appraisal finds that Turkey’s responses mostly include humanitarian social protection and lack rights-based legal protection. This pushes Syrian refugees into exploitative situations.

Natural Law Theories and the Philosophical Roots in International Refugee Protection Regime

The rise in hyper-nationalism has undermined core elements of the refugee protection regime, moving it away from the natural obligation of valuing all human life in favor of assessing one’s worthiness. This essay explores how the ideas of natural law (‘lex naturalis’), which emphasizes the existence of rights independent of the state helped shaped the international refugee protection regime. It recognizes that nowadays states opt to reinterpret the United Nations Convention Relating to the Status of Refugees in a manner consistent with their interests as opposed to their moral obligations and in doing so they weaken their moral standings and undermine fundamental rights.

‘The Makings of a Success’: The Global Compact on Refugees and the Inaugural Global Refugee Forum

The last five years have witnessed a dramatic increase in the number of forcibly displaced people worldwide, and a key part of the international response has been a multilateral and multi-stakeholder effort to develop an architecture to share more equitably and predictably the burden and responsibility for hosting and supporting the world’s refugees. This piece offers a reflective assessment of this regime-strengthening exercise – the key milestones of which have been the New York Declaration, the Global Compact on Refugees, and the first Global Refugee Forum – and assesses what has been achieved and what challenges still lie ahead. The Global Compact on Refugees is presented as the product of a ‘States plus’ approach to multilateralism that brought together a wide range of States, other stakeholders, and – importantly – refugees to fill a crucial gap in the international refugee protection regime. It seeks to do this by bolstering international cooperation with a view to enhancing protection and expanding access to solutions, building on existing and emerging trends, and laying the ground for future cooperation. The first Global Refugee Forum in December 2019 was an important and positive first step in the Compact’s implementation, but much more remains to be done before success can be declared.In postscript, the authors reflect on the emergence of the COVID-19 pandemic, its impact on the international refugee response regime, and the role for the Global Compact on Refugees in the response.

The Principle of Non-Refoulement in International Law and its Applicability in Protection of Refugees in India

The principle of non refoulement, as codified in the Article 33 of the Convention relating to the Status of Refugees 1951, is a fundamental principle of the international refugee protection regime. This principle imposes an obligation upon states to ensure that no refugee or asylum seeker is forcibly returned to a country where he or she might be subjected to torture, inhumane or degrading treatment. Keeping in view the importance of the principle in refugee protection, the present work, in the first part, provides an overview of the principle of nonrefoulement as fundamental rule of customary international law. The second part of the paper gives a general overview of India's refugee policy so as to delineate the incorporation of the principle of non-refoulement in the Indian legal system via Article 21 and 51 of the Constitution and also to highlight the excellentjudgments awarded by the judiciary pertaining to adherence to international principles on refugee protection including nonrefoulement.

China and the International Refugee Protection Regime: Past, Present, and Potentials

This article considers China’s engagement in the international refugee protection regime. It examines China’s experience with outgoing and incoming refugees, its accession to and implementation of the Refugee Convention and Protocol, and its interaction with the United Nations High Commissioner for Refugees and other key actors in the international refugee protection regime. It finds that, despite China being a long-time source of refugees and an emerging destination and transit for refugees, it has not prioritised refugee protection. And even though it has consistently emphasised addressing root causes as a solution to refugee crisis, it sometimes failed to demonstrate a consistent readiness to honour the provisions and spirit of the Refugee Convention and Protocol. It submits that China’s demonstrated emerging interest in refugee issues in recent years presents an opportunity for the international community to further the engagement and integration of China in the international refugee protection regime and that greater involvement in international cooperation in refugee protection is in China’s interest. It recommends for the international community, especially international and regional organisations that have experience in working with China on refugee matters, to take the opportunity to further involve and integrate China.

Relived Vulnerabilities of Palestinian Refugees

The international refugee protection regime failed in protecting millions of refugees during the current Syrian conflict. However, for more than half a million Palestinian refugees who have resided in Syria since 1948, this failure has been persistent since such time as they were never protected by the international protection regime. These Palestinian refugees are now reliving the trauma of their statelessness through the current Syrian conflict. Their lack of protection reveals a complex layering of the failure of the legal framework of refugee protection. This case demonstrates the limits of an international protection regime that was initially formulated to address a Eurocentric set of concerns. This article links the current protection gaps for Palestinian refugees from Syria with the structural flaws of the international refugee protection regime. The article argues that the particular legal frameworks that were established to govern the statelessness of Palestinian refugees since 1948 have contributed in prolonging this unresolved crisis and pushed stateless Palestinians into a new cycle of displacement and victimization.

The Right to Have Rights as a Right to Enter: Addressing a Lacuna in the International Refugee Protection Regime

This paper draws upon Hannah Arendt's idea of the 'right to have rights' to critique the current protection gap faced by refugees today. While refugees are protected from refoulement once they make it to the jurisdiction or territory of a state, they face an ever-increasing array of non-entree policies designed to stymie access to state territory. Without being able to enter a state capable of securing their claims to safety and dignity, refugees cannot achieve the rights which ought to be afforded to them under international law. Drawing upon both legal theory and political philosophy, this paper argues that refugees today, just as the stateless in Arendt’s time, must be afforded the ‘right to have rights’, understood as a right to enter state territory.

A New Link in the Chain: Could a Framework Convention for Refugee Responsibility Sharing Fulfil the Promise of the 1967 Protocol?

Reflecting upon the 50th anniversary of the conclusion of the 1967 Protocol relating to the Status of Refugees, this article argues that it is time for the first two links in the chain of the international refugee protection regime – the 1951 Convention and the 1967 Protocol – to be joined by a third. This third link, it is argued, should take the form of a mechanism designed to distribute more equitably between States the responsibility to provide protection and durable solutions for refugees and suggests that a tool developed by international environmental lawyers – the framework convention – could form the basis for coordinated, incremental improvement. After exploring the notion of responsibility sharing in international refugee law and examining the manner in which international environmental lawyers have tackled similar collective action problems, the article sets out the key elements of a proposed Framework Convention for Refugee Responsibility Sharing. It argues that such a convention would be: capable of being widely ratified, and thus able to serve as a forum for global efforts; principled; comprehensive; accountable; capable of linking issues so as to better serve the interests of States and refugees; and able to serve as a forum for the discussion and generation of new and innovative ideas. The article argues that there is, therefore, every reason to believe that a framework convention would lead to a more equitable sharing of responsibility for the world’s refugees, as well as an increase in the overall level of protection and the number and quality of durable solutions available.

Non-Refoulement and Extraterritorial Jurisdiction: State Sovereignty and Migration Controls at Sea in the European Context

AbstractThe principle ofnon-refoulementfound in the UN Convention on the Status of Refugees has been widely regarded as the core element of the international refugee protection regime. However, in the recent era of restrictive external migration controls, its significance and ambit diminished to the extent that states began to regard it as a general moral principle that imposed only narrowly defined legal constraints. In particular, interception or interdiction of refugees on the high seas came to be regarded as activities falling outside the legal ambit of thenon-refoulementobligation. However, in Europe, this has begun to change. Thenon-refoulementobligation found in Article 3 of the European Convention on Human Rights (ECHR) has been recognized as a legal constraint on state sovereignty in relation to migration controls on the high seas. This article scrutinizes how the developing concept of jurisdiction in human rights law, particularly as found in the ECHR, has expanded the scope of application of the principle ofnon-refoulement, and presents some important implications. The concept of state sovereignty has begun to undergo a paradigm shift that places extraterritorial human rights concerns relating to external migration controls squarely within a legal rather than merely a moral framework.

Prospects for Responsibility Sharing in the Refugee Context

The current state of forced displacement today, with record numbers and rising levels of need, poses challenges of a scope and complexity that we have not had to face since the Second World War. Yet, if we make every effort to place refugee protection at the heart of our response, these challenges are not insurmountable. The international refugee regime provides us with tried and tested tools to address them. What is needed now is to put our collective resources and capacities to their most effective use. We are already seeing this in the recent move towards creating a proposed Global Compact on Responsibility Sharing for Refugees, as set out in the UN secretary-general's report, In Safety and Dignity: Addressing Large Movements of Refugees and Migrants. We are also seeing this with innovative directions in protection, assistance, and solutions for refugees that are helping us to operationalize long-standing principles of protection, transforming them into tangible results for refugees. New forms of group determination, combined with community-based protection and other measures, can help to ensure an appropriate legal status while at the same time identifying specific protection needs. Protection strategies can inform frameworks for governing migration and meeting the needs of the most vulnerable migrants. The integration of services to refugees within national systems and the expansion of cash-based programming can meet essential needs for assistance more effectively. Finally, the humanitarian-development nexus, the progressive realization of rights — including the right to work, and the creation of complementary pathways for admission — can provide the building blocks for achieving longer-term solutions, which remain, as ever, the ultimate aspiration of the international refugee protection regime.

THE INTERNALLY DISPLACED IN SOUTH ASIA: LESSONS FROM KAMPALA

Exoduses, chiefly due to uncertain social and political factors, are a recurrent phenomenon in todays’ world and a reality for large numbers of people. Some cross international geo-political borders and avail themselves of the international refugee protection regime. However this is not a luxury enjoyed by all. Most displaced persons, by virtue of remaining within the borders of their own countries or territories are excluded from international protection afforded to refugees. Conflict is one of the most common causes of displacement, especially in South Asia. Conflict effected internal displacement forces the displaced to remain as a minority group within the governance of a regime that was instrumental in the initial displacement and places them in a precarious position. Even though conflict effected internal displacement is rampant in South Asia there is no parallel protection regime for internally displaced persons (IDPs). There is a dearth in comprehensive domestic laws in South Asia to address this issue and a lack of regional and/or international treaties to obligate states to take appropriate measures for the protection of IDPs. This article examines the adequacy of existing legislative and institutional arrangements in the South Asian region catering to IDPs, identifies gaps in the existing protection framework, and proposes the formulation of a new treaty for the region drawing inspiration from the Kampala Convention, addressing all phases of conflict induced displacement, as a measure of bridging this gap in protection.

Deterrence policies and asylum seekers: the case of Australia

The basic tenets of the international refugee protection regime, set out in the UN's 1951 Convention and the 1967 Protocol, grant individuals the right to seek asylum, but do not provide for laws obliging signatory states to grant asylum. This inherent paradox allows signatory states ongoing manoeuvre to prevent would-be asylum seekers from accessing protection in their territories. To this end, countries of the global north have designed and implemented a range of measures aimed at deterring onshore asylum seekers - privileging border control over refugee protection. This paper examines the effectiveness of deterrence measures taken by Australia. It argues that deterrence measures and attendant political rhetoric are not only contrary to international humanitarian obligations, but obscure empirically grounded understandings of forced migration as a complex social phenomenon, and as such are problematic in terms of meeting their publicly stated objectives of stopping on-shore asylum seeking in the long term.