Refugee Regime Research Articles

A proteção dos deslocados ambientais no regime internacional dos refugiados

O deslocamento de pessoas por causas ambientais gera discussões pela ausência de reconhecimento legal e proteção jurídica específica para essa categoria de pessoas. Assim, este artigo examina o Regime Internacional dos Refugiados (RIR), conceitua deslocados ambientais (DA) e reflete sobre a ausência de proteção pelo RIR. Em seguida, examina as causas e as consequências dos deslocamentos e as formas de proteção aos DA, concluindo que os regimes vigentes não lhes oferecem proteção efetiva. Uma solução, segundo Betts (2009), seria cooperação para proteção por persuasão via cruzamento de assuntos de interesse estatal, persuadindo Estados a cooperarem em seus interesses, como saída eficaz para a ausência de proteção efetiva aos DA.

“Running for Their Lives?” The Problematic Remaking of Refugees

Asylum should be based on fundamental human rights deprivation in origin countries and not on persecution, argues Alexander Betts in his latest book, Survival Migration: Failed Governance and the Crisis of Displacement. This claim is embedded within Betts' concept of “survival migration” (p. 5), which is defined as fleeing one's country of origin because of an existential threat for which one has no access to a domestic solution. In defending survival migration, Betts assumes a normative and rights-based perspective to argue that the severe consequences of weak governance or persecution are more justifiable grounds for asylum than the particular causes of either phenomenon. He argues that in privileging the protection of refugees fleeing persecution, the international community overlooks “people whose own countries are unable or unwilling to ensure their most fundamental human rights and yet who fall outside the framework of the refugee regime” (p. 5). In addition to making a case for survival migration, the book explains the variation among host governments in “stretching” their asylum policies beyond the 1951 Refugee Convention to protect “survival migrants.” Betts (p. 7) argues that by understanding the mechanisms that shape international institutions to national contexts, international public policymakers may better address protection gaps without substantial institutional reform.

Chinese Residents of Burma as Refugees, Evacuees, and Returnees: The shared racial logic of territorialization in the regulation of wartime migration

AbstractThis article analyses how, at the time of the Japanese military expansion across Asia in the 1930s and 1940s, the category of ‘Burma Chinese’ and notions of ‘Chineseness’ acquired meaning through the movement across Chinese and Indian borders of residents of Burma identified as Chinese. Focusing on the terminology utilized by various reporting organizations to refer to evacuees, refugees or returnees, this article asks what we can learn from bureaucratic exchanges and practices of documentation about the wartime migration of Burma Chinese. I argue that a shared racial logic of territorialization operates across divergent sets of correspondence concerned with the repatriation of Burma Chinese to Burma. Multiple acts of iteration and practical implementation of categories naturalized this racial logic with respect to Burma Chinese in the latter half of the 1940s. Understanding how the work of repatriating Burma Chinese rested upon a shared racial logic is important because the regulation of Asian wartime migration was foundational to the emerging international refugee regime and post-Second World War world order.

Sovereignty, International Law, and the Uneven Development of the International Refugee Regime

AbstractWhen we think about the history of the international refugee regime, why is it that—with a few carefully delineated exceptions—there were no non-European ‘refugees’ until the 1950s? This article offers a critical examination of existing scholarship on the history of the international refugee regime and suggests some alternative pathways for future research. The article has three broad objectives. The first is to propose an outline for an alternative history of the international refugee regime, one in which the non-European and colonial worlds are not invisible or peripheral but rather central to the main narrative. The second is to ask what place Chinese migrants might occupy in such an alternative history of human displacement, stretching over the course of the twentieth century. Finally, this article tries to show that the period from 1945 to the early 1960s was an especially critical one in the history of the international refugee regime, one in which refugee movements bothout ofandintothe People's Republic of China were critical in generating the kinds of tensions and contradictions that emerged when the international refugee regime was transposed from Europe onto colonial and post-colonial Asia.

Introduction: Understanding Global Refugee Policy

Researchers visiting the Headquarters of the UN High Commissioner for Refugees (UNHCR) in Geneva will frequently encounter discussions about efforts to develop ‘global refugee policy’. These efforts may relate to changes to existing UNHCR programmes, such as its approach to refugees in urban areas, or to new areas of activity, such as the organization’s response to displacement resulting from natural disasters. These efforts become ‘refugee policy’ when they result in a formal statement of a problem relating to protection, solutions or assistance for refugees or other populations of concern to the global refugee regime and a proposed course of action to respond to that problem. According to Soroos (1990: 318), this policy is ‘global’ when it takes the form of ‘either regulations that define the limits of permissible behavior for national governments and those under their jurisdiction or, alternatively, as programs administered by international agencies,’ such as UNHCR.

The International Migration Review at 50: Reflecting on Half a Century of International Migration Research and Looking Ahead

When the International Migration Review was established half a century ago, international migration was a peripheral area of research, and migration issues were far less prominent on policy agendas than they are today. This essay introduces the 50th Anniversary Issue of the International Migration Review and begins by identifying seven main areas of change in migration research and migration trends during the journal's lifetime. Subsequently, we examine changes in the geographical distribution of authorship of IMR articles. We also explore the IMR's current positioning in the scientific landscape by analyzing citation relationships with other journals. The ten articles that make up the body of the special issue seek to advance the research frontier on international migration, covering diverse areas of the IMR's thematic scope. We account for how the papers were selected and present each one. In the final section of the article, we look ahead and suggest new frontiers in international migration research. Among the research themes that we foresee as increasingly important are connections between migration and inequality, and the growth of migration flows that are driven by humanitarian crises, but not accommodated by the international refugee regime.

Separating the Persecutors from the Persecuted: A Feminist and Comparative Examination of Exclusion from the Refugee Regime

In the 1951 Convention relating to the Status of Refugees (Convention), article 1F (the exclusion clause) provides that those who have committed certain crimes are excluded from refugee status. Since the 1990s the exclusion clause has been increasingly applied and often to those who played minor roles in the commission of offences and were not in positions of authority. This widening net of exclusion has prompted UNHCR and many refugee law scholars to reconsider which legal safeguards might avoid over-extending the net of exclusion. One suggested reform is the use of international criminal law (ICL). This article will critically examine the use of ICL in exclusion assessments from a feminist perspective. It will do this by conducting a comparative analysis of cases in which women have been excluded from the Convention’s protection in the USA, which does not refer to ICL, and the UK, which draws heavily on this body of law. The women in these cases committed their crimes under highly coercive circumstances in which they were victims of torture, deprivation of liberty, and sexual violence. However, it will be demonstrated that both the legal approaches to exclusion in the USA and the UK masked the impact of these coercions and provided a fragmented understanding of the circumstances that led to the offence. This fragmentation is inconsistent with UNHCR guidance, calling on decision makers to assess the full circumstances of the case, and recent exclusion jurisprudence, requiring an assessment of all the circumstances to determine whether the asylum seeker lacked a ‘moral choice’. Yet this guidance and jurisprudence has never been applied because there is no established legal framework in which to examine how broader circumstances impact on ‘moral choice’. Therefore, the second part of this article undertakes a purposive interpretation of the exclusion clause to explore the meaning of ‘moral choice’ in refugee law.

Temporary Measures: Canadian Refugee Policy and Environmental Migration


 
 
 In 2010, 42 million people worldwide were displaced from their homes as the result of environmental factors. These “environmental migrants” lack international recognition and have no recourse to the protections of the international refugee regime. Given Canada’s history of international refugee resettlement, this paper examines Canada’s past and potential response to environmental migrants. Evidence reveals that the Canadian government relies on ad hoc, temporary measures, and that clear, long-term policy measures for issues surrounding forced migration due to environmental events are unlikely. The implications of this outcome are discussed, providing observations and lessons for researchers and advocates of migration rights. 
 
 

Who is a refugee? Reflections on social classifications and individual consequences

“Refugee” is not a set category expressing a universal and timeless definition. Instead, it is a relational one reflecting the outcome of social negotiations. The methodical reflections on social classifications and individual consequences emphasize the logic of institutional categories of immigration policies and the international refugee regime. To develop a deeper understanding of forced migration, we have to ask who is a “refugee” and who not and by what classification process. National policy has its own procedures for refusing or granting asylum. These procedures try to verify whether a migrant fits the official definition of a person considered a refugee. The article uses Germany to exemplify these measures. Qualitative research is employed to show that these procedures have a strong influence on refugees’ experiences.

Brain Circulation and the Role of the Diaspora in the Balkans - Albania, Kosova and Macedonia

Countries of the Western Balkans constitute an important part of the contemporary system of migration. Three important factors shape the current migration flows in the region: the socialist legacy, existing migrant networks, and migration policies, mainly of the receiving countries. This study focuses on three countries of the Western Balkans: Albania, Macedonia, and Kosovo. Unlike nationals of Albania, whence exit was near impossible, citizens of Macedonia and Kosovo, being constituent parts of the former Yugoslavia, enjoyed relative freedom of movement across Europe and they have traditionally been source countries of labor migration. The collapse of the socio-economic and political order that attended upon the breakup of the former Yugoslavia was accompanied by ethnic conflicts of the 1990s, high unemployment, and general impoverishment of large sections of the population. These factors, coupled with the onset of transition to a market economy, further strengthened the networks of labor migration throughout Europe that were created by nationals of the Western Balkan. The refugee regimes and immigration policies of major destination countries of the OECD played a significant role in this process. Today, many of these countries contain the bulk of the diaspora from the Western Balkans, including the three countries under study.1. 2 Objectives and Scope of the Study The overall objective of this research is to offer interested readers and policymakers an insight into the dynamics of skill migration and brain circulation within the Western Balkans-OCED corridor. The study focuses on three countries of the Western Balkans: Albania, Macedonia, and Kosovo. To achieve the overall objective, we begin by offering a synopsis of the size, nature, and characteristics of the skilled diaspora from the three countries drawing upon all available information. The study then focuses upon two important subsets of the skilled population of each country: students and skilled returnees. Specifically, we target pre-final and final year students at the tertiary level as they are expected to be highly outwardly mobile and thus ideally suited to study the phenomenon of skill migration, and, a fortiori, as the number of students studying outside the countries of their origin has been increasing rapidly over the last quarter of a century -- from less than half a million in the mid-1980s to almost three million by 2011 (Rizvi, 2011). Consequently, international student mobility is increasingly recognized to be the most important vehicle of brain circulation between the developing south and the developed north. Similarly, given the interest of policy-makers in brain gain, the study targets the skilled subset of return migrants. Thus, the study seeks to answer two important research questions: 1. What motivates tertiary level students to migrate from the country of origin and what is the potential of migration from the selected countries of the Western Balkans? 2. Why do some highly skilled members of the Diasporas return home, and what obstacles and opportunities await them upon return? The study tackles the above questions utilizing all available information, and, more importantly, by collecting primary data using both quantitative and qualitative methods. The study further seeks to contribute to our cumulative knowledge in the field of brain drain/gain/circulation by identifying common patterns among the Albanian, the Macedonian, and the Kosovar skilled returnees and would-be student migrants. Finally, the study aims to discuss the policy implications of the observed patterns of emigration and return migration for leveraging the skilled diaspora for development.

Migration Management and Humanitarian Protection: The UNHCR's ‘Resettlement Expansionism’ and Its Impact on Policy-making in the EU and Australia

Since the late 1990s, the Office of the United Nations High Commissioner for Refugees (UNHCR) has been a key actor in the resurgence of refugee resettlement in global debates on asylum and refugee policies. This article investigates the dynamics of the international organisation's ‘resettlement expansionism’ within the UNHCR as well as its impact on policy-making. Firstly, it analyses how the UNHCR has increased its expertise production and dissemination as well as its operational focus on resettlement. Secondly, it assesses the policy-making impact of the UNCR's ‘resettlement expansionism’ in two distinct contexts: the elaboration of the EU's new joint resettlement scheme and the recent increase of resettlement places by 40% in Australia, a traditional country of resettlement. Lastly, it discusses potential implications of this research in regards to the evolution of the global refugee regime and, more conceptually, to the study of knowledge production and expertise in migration and refugee policy.

Post-Return Transnationalism and the Iraqi Displacement in Syria and Jordan

The article explores the relationship between return and transnationalism in the case of the post-2003 Iraqis' protracted displacement in Syria and Jordan. Based on field observations and interviews with Iraqi returnees, the article argues that transnational mobility and livelihoods constitute a precondition for their sustainable return. In this refugee context, return is rarely a one-way physical movement followed by permanent integration back home. It is a complex process that takes time and entails various degrees and modalities of transnational mobility, social networks and livelihoods connecting host and home societies. The international refugee regime in contrast is predicated on the assumption that refugees will not re-migrate after return. Stopping returnees' mobility may hamper the independent transnational livelihoods and development opportunities that the Iraqi people have pursued in the absence of permanent solutions to their predicament. Policy Implications International donors and regional states should harmonize their asylum and migration policy agendas and develop an integrated framework for durable solutions to the Iraqi protracted displacement. Relevant agencies should consider ways to incorporate legal transnational mobility opportunities into policy frameworks for the protection of refugee populations in the Middle East. Existing voluntary assisted return policies need to be revised to reflect the often non-sedentary and non-permanent nature of refugee returns to conflict-affected societies. More research on returning refugees' transnational livelihoods is required to inform policy interventions facilitating the safe and sustainable return of refugees.

Australia–Indonesia cooperation on asylum-seekers: a case of ‘incentivised policy transfer’

Australia and Indonesia have engaged in cooperation on asylum policy since the late 1990s, bilaterally on immigration detention and people-smuggling agreements, and multilaterally through the Bali Process. Seen from a global perspective, this form of cooperation is one of many such bilateral and multilateral agreements that stymie the ability of asylum-seekers to gain effective and durable protection. This article argues that policy transfer theory can explain how these agreements are achieved, their political implications, and their outcome for the refugee regime and the asylum-seekers reliant on the regime for protection. In the case study of Australia and Indonesia, the authors argue that the cooperation is best understood as a form of ‘incentivised policy transfer’, whereby Australia has provided substantial financial and diplomatic incentives to Indonesia to adopt policies consistent with Australia's own. The implications for asylum-seekers in the Asia-Pacific region are substantial, and include an increase in the use of immigration detention in Indonesia and the introduction of border security measures that restrict the ability of asylum-seekers to reach territory where they may claim protection under the Convention Relating to the Status of Refugees.

Settlement, protracted displacement, and repatriation at Mayukwayukwa in western Zambia

In 1967, the Government of the Republic of Zambia (GRZ) began resettling Angolan refugees into independent Zambia’s first official refugee camp, Mayukwayukwa in Kaoma District, Western Province, Zambia. After nearly 40 years living as refugees, Angolans began a process of repatriation – or return – to Angola. By 2010, the prospects of full repatriation from Mayukwayukwa to Angola were limited, forcing the community, the governments, and the international refugee regime to address long-standing appeals for alternative settlement options. This article begins by providing a historical understanding of refugee-hosting in Western Province, Zambia and proceeds to trace the ever-evolving contours of protracted refugee-hosting at Mayukwayukwa Refugee Settlement. I utilize in-depth interviews to assess the Zambian and Angolan perceptions of refugee-hosting, settlement, repatriation, citizenship and identity. Ultimately, the protracted displacement of Angolans in Zambia challenges the discourse that privileges repatriation as the ideal durable solution. Additionally, the case of Mayukwayukwa Refugee Settlement not only illustrates the utility of geographic approaches to refugee research, but also contributes to broader discussions regarding geographies of mobility, transnational identities, development, and displacement.

Critical Challenges to Protecting Unaccompanied and Separated Foreign Children in the Western Cape: Lessons Learned at the University of Cape Town Refugee Rights Unit

Despite South Africa having a relatively well developed legal and policy framework for securing the rights of children, there are a number of critical protection gaps that exist in terms of the implementation of these frameworks for unaccompanied or separated foreign children by magistrates, social workers and Department of Home Affairs’ officials in particular. This report focuses on the key challenges that the UCT Refugee Rights Unit has experienced in the protection of unaccompanied foreign children in the Western Cape province. In addition to setting out the legal and policy frameworks for dealing with foreign children in South Africa, the paper reviews some of the Unit’s cases and highlights various challenges in the course of undertakingthis work. The key protection gaps that are highlighted include difficulties with or lack of suitable entry by foreign unaccompanied or separated children into South Africa’s child care and protection system, the unclear interface between the refugee regime and the child protection regime, inability to access legal documentation, and the poor level of knowledge of the legal and protection frameworks by government and frontline service providers.

Shifting Borders and the Boundaries of Rights: Examining the Safe Third Country Agreement between Canada and the United States

This article analyzes the Canadian Federal Court and Federal Court of Appeal decisions assessing the Safe Third Country Agreement between Canada and the United States (STCA). It examines how each court’s treatment of the location and operation of the Canada–US border influences the results obtained. The article suggests that both in its treatment of the STCA and in its constitutional analysis, the Federal Court decision conceives of the border as a moving barrier capable of shifting outside Canada’s formal territorial boundaries. The effect of this decision is to bring refugee claimants outside state soil within the fold of Canadian constitutional protection. In contrast, the Federal Court of Appeal decision conceives of the border as both static and shifting. In its treatment of the STCA, the Court conceives of the border as a moving barrier that shifts outside Canada’s formal territorial boundaries to extend state power outwards. Yet, in its constitutional analysis, the Court conceives of the border as a static barrier that remains fixed at the state’s geographic perimeter to limit access to refugee rights. By simultaneously conceiving of the border in these opposing ways, the Court of Appeal decision places refugee claimants in an impossible legal bind: it requires them to present at the (static) border to claim legal protection, but at the same time shifts the border in ways that preclude them from doing so. The decision thus suspends refugee claimants between two opposing directives, deprives them of otherwise actionable rights, and denies them recourse to meaningful legal action under Canadian law. The article argues that, in this key way, the Federal Court of Appeal decision does much more than clarify the executive discretion of the Governor-in-Council, as it purports. Rather, it redefines the Canadian refugee regime as fundamentally exclusionary towards STCA claimants, and calls into question the central principles by which this regime is distinguished and defined.

Rethinking refugeehood: statelessness, repatriation, and refugee agency

AbstractHannah Arendt's characterisation of the refugee as rightless and stateless has become a touchstone for scholars grappling with the nature of forced migration and exile. While aspects of Arendt's depiction continue to resonate, the notion of refugees as stateless, rightless ‘scum of the earth’ is now in many cases anachronistic, and no longer clearly reflects the challenges now faced by the majority of the world's refugees. This is attributable to structural changes in the refugee regime, particularly the increased focus on repatriation and the reconstitution of the relationship between refugees and their states of origin, a possibility largely unforeseen by Arendt. Drawing on the example of the Guatemalan repatriation movement, this article contends that indiscriminately portraying refugees as stateless represents a potential disservice to the displaced, as it may inadvertently undermine refugees' claims against their states of origin for the redress of their rights as citizens. There is a need to expand theorising on refugees from a narrow focus on the refugee as rightless and stateless to a broader conception of the refugee as a bearer of claims for the renegotiation of her relationship with her state.

EXILED TO THE ANCESTRAL LAND: THE RESETTLEMENT, STRATIFICATION AND ASSIMILATION OF THE REFUGEES FROM VIETNAM IN CHINA

Based on published sources as well as information gathered through observations and interviews, this article intends to provide a general account of the adaptation of the Vietnamese refugees in China since the late 1970s. The description and analysis are focused on three aspects of the social-political life of this community, namely, its initial resettlement, its subsequent division, dispersion and stratification, and the process, problems and prospects of its assimilation. The article argues that whereas Western countries adopted the International Refugee Regime – primarily a European product – in resettling the Vietnamese refugees, China's resettlement policies reflected her experience in handling the returned overseas Chinese from Southeast Asia in the 1950s and 1960s. Although the relocation temporarily reduced all migrants to refugees, the diverse nature of the migrant community, the different local conditions in China, as well as China's official policies contributed to the reemergence of social-economic stratification among the migrants, and this was accompanied by their geographic dispersion. Though assimilation has been going on ever since they entered China, the migrants have managed to maintain their group identity, which, however, is not sustainable.

Direitos humanos e refúgio: uma análise sobre o momento pós-determinação do status de refugiado

A literatura sobre refugiados tem explorado a vinculação entre refúgio e direitos humanos nos países de acolhida - aspecto fundamental do regime internacional dos refugiados - em uma perspectiva predominantemente descritiva. Ressaltando a necessidade de abordagens analíticas sobre a temática, este trabalho analisa como o Alto Comissariado das Nações Unidas para os Refugiados (ACNUR) tem se manifestado no que concerne aos direitos humanos dos refugiados nos países de acolhida, apontando a influência da política internacional nesse contexto. Entende-se que, uma vez compreendido o regime em sua relação com os direitos humanos, estes devem representar o parâmetro para se analisar a forma como ocorre a concretização da proteção internacional.

Three Asylum Paradigms

Why do refugees exist – not as an empirical, but as a normative, category? What special sense of duty connects us to those people whom we call refugees, and how does this duty translate into asylum? What does the practice of asylum tell us about who we are, as individuals as well as members of political communities? How does one morally justify the special concern we feel for, and consequently the privileged treatment we give, refugees as compared with other foreigners in need? Revisiting the main features of the ethical debate over asylum and refugeehood, this article argues that the 1951 Refugee Convention provides a coherent framework to explain the ‘refugee privilege’. This contention is based on three features of the Convention, namely: its focus on admission and assimilation; its affirmation of the refugee as a privileged alien; and its emphasis, through the key concept of persecution, on the prohibition of discrimination and the identifying value of tolerance. However, one must acknowledge that a proper understanding of the moral duty to admit and integrate refugees does not suffice to explain contemporary state practice in dealing with the ‘refugee problem’ as a matter of solidarity. This article suggests that there are two additional asylum paradigms at work in today’s world: one takes disaster as a motivation for action, and rescue as the underpinning moral and legal imperative; and the other rests upon a duty not to return individuals to specific forms of danger, absent affinity or even compassion. The article examines some of the impacts which the co-existence of these three paradigms has on the global refugee regime, and their implications for law- and policy-making on asylum, both within and among states.