International Refugee Protection Research Articles

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.

Protecting Refugees Against Human Trafficking

When governments are unwilling or unable to protect their citizens, individuals may suffer such serious violations of their personal rights. The hallmark of a refugee is the absence of protection by his own state. Refugees are at particular risk for human trafficking as a consequence of their vulnerable status. There are some instruments to protect refugee from human trafficking. In the frame of trafficking, refugees then have a double protection due to their status, first the Convention on the Status of Refugee; and second by the international instruments related to Human Trafficking. The principle of non-refoulement constitutes an essential component of international refugee protection and also embodied in some regional instruments. Providing temporary protection is a humanitarian and non-political act to react speedily to a crisis or disaster, including to prevent human trafficking on refugee. It is the duty and responsibility of all States to cooperate in all the fields in which international cooperation could be develop in solving international problems especially on refugee.

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.

Obligations of transit countries under refugee law: A Western Balkans case study

AbstractA significant increase in the number of arrivals of refugees and migrants in Europe along the Western Balkans route brought several Balkan countries into the spotlight of international refugee protection in 2015 and 2016. Out of hundreds of thousands of refugees and migrants recorded entering the former Yugoslav Republic of Macedonia and Serbia, only a handful remained to seek asylum from their authorities. Under the circumstances, the applicability of the 1951 Refugee Convention with respect to refugees refraining from seeking asylum was brought into question, as well as the extent of transit countries’ legal obligations under refugee law. Based on the Western Balkans experience, the present article seeks to re-examine the relationship between the concept of asylum and the regime of the 1951 Refugee Convention, the Convention's scope of application in “transit countries”, and minimal standards stemming from positive law regarding the treatment of refugees and migrants in a transit context.

Interview with Filippo Grandi

The tradition of providing refuge to people who are fleeing and in need of protection is a long-standing one, present throughout history and in various contexts, and now embedded in international law. The New York Declaration for Refugees and Migrants, adopted by the UN General Assembly in 2016, reaffirmed international refugee protection standards and provided a model for a more comprehensive response to large-scale refugee movements, based on shared global responsibility for refugees. It represented a critical development at a time when international cooperation aimed at preventing, responding to and resolving conflicts is proving inadequate, and an increasing number of people are being internally displaced, forced across borders or left in protracted exile as a result of conflict, violence and persecution. In this interview, the UN High Commissioner for Refugees shares his thoughts on some of today's most significant forced displacement challenges, and the prospects presented by the New York Declaration.

Seeing Like a Refugee Agency: A Short History of UNHCR Classifications in Central Africa (1961–2015)

This article looks at the evolution of international refugee protection, using the refugee classifications of UNHCR as an entry point. It is argued that, since the creation of the United Nations High Commissioner for Refugees (UNHCR), access to refugee aid has been globalized but has also become more and more stratified. The UNHCR has expanded its activities beyond the frontiers of Europe, but has also tailored aid for specific groups. This is because protection work increasingly articulates different modes of classifying refugees. Three modes of ordering are explored here in the Central African case: the legal approach , the labour (or developmental) approach and the basic needs (or vulnerability) approach. These modes refer to different regimes of action, different actors of protection and eventually different subjectivities. Each mode of classification , it is argued, is the product of a specific period of the UNHCR's history.

Securing Protection for De Facto Refugees: The Case of Central America's Northern Triangle

The United Nations High Commissioner for Refugees (UNHCR) reports that the number of requests for international refugee or asylum protection increased fivefold from 2010 to 2015. In the United States these requests are mainly filed by citizens from El Salvador, Guatemala, and Honduras—the countries collectively referred to as the Northern Triangle of Central America (TNCA). These applicants flee their countries of origin to escape threats to their lives and personal safety from gang violence, organized crime, and even police and military agents. Though the violence cannot be classified as a “war,” the daily life of many Central Americans is currently marked by human tragedies comparable to those experienced during the regional armed conflicts of past decades.

International Cooperation and Responsibility Sharing to Combat Climate Change: Lessons for International Refugee Law

By examining high level statements by states at the past four sessions of the Conferences of the Parties to the United Nations Framework Convention on Climate Change (2013–16) and the UN General Assembly over the past decade, this article seeks to provide insights into the meaning of responsibility sharing, international cooperation, and common but differentiated responsibilities and respective capabilities in international environmental law from the perspective of individual states. Its purpose is to elucidate more fully how these precepts might inform deliberations on responsibility sharing for international refugee protection. This article complements a recent piece by the same authors examining the concepts of ‘international cooperation’ and ‘responsibility sharing’ in international refugee law. Since these principles are at a more advanced stage in international environmental law (most notably through their inclusion in binding international agreements on climate change), the present article compares and contrasts how states understand and apply them in that context. While there are some fundamental differences between responsibility sharing in the two regimes, it is clear that no state alone can respond to the protection needs of the world’s refugees nor address the global impacts of climate change. The need for international cooperation and responsibility sharing in both cases is clear; indeed, it is a humanitarian imperative. Yet, the article shows that, ultimately, national interests tend to prevail when states determine how such global issues should be addressed.

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.

UNHCR and Courts

There being no International Refugee Court, one way that the international protection of refugees develops is through domestic courts interpreting the Refugee Convention, and through cases brought before international and regional human rights treaty bodies. UNHCR’s supervisory role, set out in article 35 of the Refugee Convention and paragraphs 1 and 8(a) of the UNHCR Statute, authorizes its engagement in such court cases through amicus curiae briefs. Nevertheless, such engagement presents risks for the organization. If a court ignores or rejects UNHCR’s arguments, does that undermine UNHCR’s authority to speak on that particular issue? Or can the finding simply be dismissed as an aberrant decision by a court in one particular State party to the Refugee Convention? By contrast, the international or regional human rights bodies are addressing a different set of rights, so there is less risk. However, this stance cannot be maintained with respect to the Court of Justice of the European Union when receiving a reference from one of the 28 Member States under the European Union Qualification Directive that incorporates the Refugee Convention. Nevertheless, the development of the international law protecting refugees does not take place just through the courts. UNHCR is, in a very real sense, the treaty body of the Refugee Convention. Its statutory protection mandate for refugees invests its Guidelines, the Executive Committee’s Conclusions, and the annual Notes on International Protection with an authority that all courts and decision makers, as well as governments, should recognize and acknowledge.

Smuggling networks to Europe: A spectrum from organised to disorganised crime

As Europe struggles to find a coherent approach to its burgeoning refugee and migrant crisis, one set of actors has been universally vilified: the migrant smugglers. While they are not the cause of the current crisis, they have certainly amplified it, and are often responsible for the greatest violations against human rights and protection. Turning attention and public outcry toward the smugglers arguably allows the EU member states to detract – and distract – from their own derogations of their obligations to international law and refugee protection.

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 Dawn of International Refugee Protection: States, Tacit Cooperation and Non-Extradition

There is a long history of state efforts to provide refugee protection prior to the twentieth century—one that can be traced from the flight of the Huguenots in 1685 through the French Revolution and political refugee flows in the nineteenth century. It is during this period that many of the normative understandings we now accept as the foundation of the modern refugee regime were first created: that refugees were distinct from other migrants, that they required protection because of this status and that this status should be based in law. These norms were tacit or informal—states acted on an ad hoc basis and undertook a responsibility only towards the refugees who crossed their borders. Even so, shared understandings around refugee protection were first created as domestic state legislation and practice, and then transmitted across the European state system through the mechanism of extradition treaties. This system worked for a time because the numbers were small and because policies of open migration allowed the vast majority of religious refugees to avoid this system entirely.

The 1951 Refugee Convention is Janus-Faced: It Asserts as Well as Undermines State Sovereignty.

As per UNHRC’s data, the number of refugees till mid-2015 reached an estimated 15.1 million refugees, the highest level in 20 years.The concept and idea of protection to Refugees originally hail from Article 14 of the Universal Declaration of Human Rights, 1948 (“UDHR” for short) which deal with the persons seeking asylum in other countries in a situation specified therein; while United Nations Convention relating to the Status of Refugees, 1951, which has been entered into force in 1954, is an ornamental object on the subject matter of Refugees and Asylum Seekers. The Convention on Refugees was amended in the year of 1967 and its scope was then extended to the whole world which was earlier limited to persons who have become refugees as a result of events occurring before 1 January 1951. But it is important to note that this Convention do not spell out a right of a person to be accepted as a Refugee. If we go more in past then it is believed that Baby Jesus was the first Refugee on this World. While discussing this subject matter, it may be looked that at present total 142 Nations are party to both – Convention and Protocol. Apart from the Refugee Convention, 1951, there are certain other Regional and International Conventions and Treaties which protects the rights of the Refugees to name a few those are – Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, OAU Convention Governing the Specific Aspects of the Refugee Problem in Africa, Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. The present academic work is majorly divided as – background of the Refugee Convention 1951, Salient Features of the Convention explaining various rights available to Refugees under the Convention, Liabilities and Obligation of the Contracting State under the Convention, how state’s sovereign power is exercising when provisions of the Refugee Conventions are to be interpreted and the same discussion reach to the conclusion that same is undermining as well as asserting Sovereignty of the State.

Can market mechanisms solve the refugee crisis?

The unequal distribution of refugees across countries could unravel the international refugee protection system or, in the case of the EU, hinder a common policy response to refugee crises. A way to distribute refugees efficiently, while respecting their rights, is to combine two market mechanisms. First, a market for tradable refugee admission quotas that allows refugees to be established wherever it is less costly to do so. Second, a matching system that links refugees to their preferred destinations, and host countries to their preferred types of refugees. The proposal is efficient but has yet to be tested in practice.

Japan and international refugee protection norms: Explaining non-compliance

Despite being a wealthy democracy and strong supporter of the international system, Japan has consistently recognized very few refugees. This article explores this conundrum. Specifically, it asks whether Japan’s low recognition rate signifies a lack of compliance with norms of international refugee protection and, after concluding in the affirmative, why this might be the case. The latter question is addressed systematically, using rationalist, normative and domestic institutional theories of international compliance. After proposing several potential factors, this article concludes by discussing how these factors can be addressed so as to promote a higher rate of Japanese refugee recognition.

Refugees and State Responsibility

A casual glance around the world today reveals a staggering and heartbreaking level of human displacement. Each week there are headlines about the thousands of migrants drowning in the Mediterranean Sea, tens of thousands of Central American children at the US–Mexico border, hundreds of thousands of people displaced in the Central African Republic, and millions of refugees fleeing civil war in Syria. Just as there seems to be no end to the cycles of people seeking refuge from conflict, violence, and economic despair, there is no consensus about who should take responsibility for their protection. Phil Orchard's recent book, A Right to Flee, is therefore a timely and much-needed attempt to trace the development of the concept of international refugee protection from its very early origins in the seventeenth century to the present. The book is ambitious in scope, and its efforts to document and explain shifts in world affairs across long time horizons represent a major contribution. A Right to Flee will be of great interest to refugee and forced migration scholars, scholars of international organizations, and more generally to anyone interested in the birth and endurance of the modern state.

Shepherd v. Germany

In Shepherd v. Germany, the Court of Justice of the European Union (ECJ) issued a preliminary ruling requested by a German administrative court in an asylum case brought by a United States Army service member. Applying the relevant asylum law of the European Union (EU), the ECJ held that, under certain circumstances, a conscientious objector who has deserted from his military unit may claim international refugee protection. It also clarified the conditions under which the basically legitimate prosecution of military deserters must be qualified as illegitimate persecution under international refugee law.

Recent Jurisprudence of the United Nations Committee against Torture and the International Protection of Refugees

Over more than 25 years, the United Nations Committee against Torture, established under the 1984 United Nations Convention against Torture, has adopted a series of decisions on individual claims which may be considered relevant for the development and deepening of certain aspects of international and domestic law on the protection of refugees. There is an interesting cross-fertilisation between the application and interpretation of refugee law principles and norms and those related to the absolute prohibition of torture and ill treatment. Therefore, the precision and nuance developed by the Committee on concepts such as torture, ill treatment, non-refoulement, investigation of torture, or “substantive” risk of torture shed light and promote best practices by state authorities on questions such as the existence and proof of “well founded fear of persecution”, the limits of extradition, and the usefulness of diplomatic assurances in the field of refugee law. This article analyses some of the latest decisions and recommendations of the Committee and identifies their relevance to note its contribution to the protection objectives of refugee law.

Desafío Normativo: Protección Internacional de Refugiados y Apátridas en Ecuador

Este artículo pretende identificar los principales desafíos que enfrenta el Ecuador en relación a la protección internacional de personas refugiadas y apátridas. Inicialmente se establece el contexto normativo ecuatoriano, en el que se elimina la clasificación tradicional de derechos para enfatizar la igual jerarquía de derechos constitucionales. A continuación se hace referencia a varias directrices para fortalecer la protección de refugiados. Entre ellas se considera garantizar derechos fundamentales de solicitantes de estatus de refugiados y refugiados reconocidos, a través de integración local y de mecanismos procedimentales más eficientes. Asimismo, se enfatiza la necesidad de designar una autoridad pertinente para definir un procedimiento de determinación del estatuto de apátrida en Ecuador. Finalmente, se realiza un comentario sobre la determinación de un estatuto humanitario como una forma de protección complementaria para personas en necesidad de protección internacional.