Bhandari: Human Rights and The Revision of Refugee Law

Romit Bhandari (Univ. of Essex - Law) has published Human Rights and The Revision of Refugee Law (Routledge 2020). Here's the abstract:

This book addresses the relationship between International Refugee Law and International Human Rights Law. Using international refugee law’s analytical turn to human rights as its object of inquiry, it represents a critical intervention into the revisionism that has led to conceptual fragmentation and restrictive practices.

Mainstream literature in refugee law reflects a mood of celebration, a narrative of progress which praises the discipline’s rescue from obsolescence. This is commonly ascribed to its repositioning alongside human rights law, its veritable rediscovery as an arm of this far greater edifice. By using human rights logic to construct the current legal paradigm and inform us of who qualifies as a refugee, this purportedly lent areas of conceptual uncertainty a set of objective, modern criteria and increased enfranchisement to new, non-traditional claimants.

The present work challenges this dominant position by finding the untold limits of its current paradigm. It stands alone in this orientation and hereby represents one of the most comprehensive, heterodox and structurally detailed reviews of this connection. The exploration of the gap between modern approaches and the unsatisfactory realities of seeking asylum forms the substance of this book. It asserts, by contrast, the existence of revolution rather than evolution. Human rights law has erased the founding tenets of the Refugee Convention, enabling powerful states to contain refugees in their region of origin.

Motz: The Refugee Status of Persons with Disabilities

Stephanie Anna Motz has published The Refugee Status of Persons with Disabilities (Brill | Nijhoff 2021). Here's the abstract:

Persons with disabilities often face persecution. How does the 1951 Refugee Convention apply to them? In this first comprehensive study on the refugee definition for persons with disabilities, Stephanie Motz proposes a disability-specific approach to refugee status. The book provides a critical analysis of case law on refugee status determination focusing on four selected jurisdictions. Each chapter examines a different element of the refugee definition in light of the UN Convention on the Rights of Persons with Disabilities as well as international refugee law standards.

Crépin: Persecution, International Refugee Law and Refugees: A Feminist Approach

Mathilde Crépin has published Persecution, International Refugee Law and Refugees: A Feminist Approach (Routledge 2020). Here's the abstract:

This book explores the ambit of the notion of persecution in international law and its relevance in the current geopolitical context, more specifically for refugee women. The work analyses different models for interpreting the notion of persecution in international refugee law through a comparative lens. In particular, a feminist approach to refugee law is adopted to determine to what extent the notion of persecution can apply to gender related forms of violence and what are the challenges in doing so. It proposes an interpretive model that would encourage decision makers to interpret the notion of persecution in a manner that is sufficiently protective and relevant to the profiles of refugees in the 21st century, most particularly to refugee women.

Siegelberg: Statelessness: A Modern History

Mira L. Siegelberg (Univ. of Cambridge - History) has published Statelessness: A Modern History (Harvard Univ. Press 2020). Here's the abstract:

Two world wars left millions stranded in Europe. The collapse of empires and the rise of independent states in the twentieth century produced an unprecedented number of people without national belonging and with nowhere to go. Mira Siegelberg’s innovative history weaves together ideas about law and politics, rights and citizenship, with the intimate plight of stateless persons, to explore how and why the problem of statelessness compelled a new understanding of the international order in the twentieth century and beyond.

In the years following the First World War, the legal category of statelessness generated novel visions of cosmopolitan political and legal organization and challenged efforts to limit the boundaries of national membership and international authority. Yet, as Siegelberg shows, the emergence of mass statelessness ultimately gave rise to the rights regime created after World War II, which empowered the territorial state as the fundamental source of protection and rights, against alternative political configurations.

Today we live with the results: more than twelve million people are stateless and millions more belong to categories of recent invention, including refugees and asylum seekers. By uncovering the ideological origins of the international agreements that define categories of citizenship and non-citizenship, Statelessness better equips us to confront current dilemmas of political organization and authority at the global level.

Achiume: Race, Refugees and International Law

Tendayi Achiume (Univ. of California, Los Angeles - Law) has posted Race, Refugees and International Law (in The Oxford Handbook of International Refugee Law, Cathryn Costello, Jane McAdam, & Michelle Foster eds., forthcoming). Here's the abstract:

The experiences of refugees are heavily mediated by race and ethnicity, and international law plays a significant role in this mediation—in some cases offering important protections, and in others entrenching discrimination and exclusion. This Chapter makes four contributions. First, it articulates a structural and intersectional account of race, racial discrimination and xenophobic discrimination as essential starting points for international legal analysis of race and refugees. This analysis includes the overlap and distinctions between racial and xenophobic discrimination, as well as the role of religion, class and gender in shaping racial discrimination against refugees. Secondly, it reviews the doctrine on race and refugees in international refugee law and international human rights law, and maps the attendant academic literature analyzing this law. Thirdly, the Chapter canvasses legal scholarship that has examined the structure, history and development of the international refugee regime in relation to race. Finally, it concludes with reflections on a research agenda on race and refugees.

Mann: Border Crimes as Crimes against Humanity

Itamar Mann (Univ. of Haifa - Law) has posted Border Crimes as Crimes against Humanity (in The Oxford Handbook for International Refugee Law, Cathryn Costello, Michelle Foster & Jane McAdam eds., forthcoming). Here's the abstract:

What does it mean to cast border violence as a crime against migrants, specifically as an international crime? Some instances of border violence satisfy the legal definition of crimes against humanity. However, so far, almost no investigations or prosecutions have been brought forth to hold the perpetrators of such crimes accountable. The Chapter therefore elucidates the moral and political assumptions required for international criminal law to do just that. These are divided into three groups: (1) interpretations focused on the way that border policies employ violence against migrants to send a message to other would-be migrants; (2) interpretations revealing that prosecuting border crimes allows criminal law to address ‘structural violence’; (3) interpretations stressing the social desirability of porous borders and the harms of hermetic separations between national groups. The Chapter concludes by a call to make explicit the moral and political commitments undergirding advocacy through international criminal law.

Palmer: International Criminal Law and Border Control: The Expressive Role of the Deportation and Extradition of Genocide Suspects to Rwanda

Nicola Palmer (King's College London - Law) has posted International Criminal Law and Border Control: The Expressive Role of the Deportation and Extradition of Genocide Suspects to Rwanda. Here's the abstract:

The use of criminal law in border control has gained increasing and warranted scholarly attention. International criminal law is no exception, although the orientation of the debates in international law is different from that at the national level. While scholarship on domestic border control is characterised by a deep scepticism of the use of criminal sanction, the focus in international criminal law has been on the exclusion of individuals suspected of involvement in an international crime from the protective sphere of refugee law. The divergence of this scholarship does not fully account for how responses to allegations of involvement in an international crime are often embedded within domestic immigration laws, making concerns regarding domestic border control relevant for discussions in international criminal law. To examine these domestic entanglements, this paper analyses an independently generated dataset of 122 cases in 20 countries concerning 102 individuals alleged to have participated in the 1994 genocide in Rwanda. This dataset enables an empirical analysis of the role that international criminal law is playing in their extradition, deportation or domestic prosecution. It argues that these cases are underpinned by plural types of expressive work. They communicate not only an on-going commitment to recognising the universal wrong of genocide, but also more ambiguous messaging about what constitutes a fair trial in Rwanda, who constitutes a ‘criminal migrant’ and, to a Rwandan audience, the transnational penal reach of the Rwandan state.

Scott: Climate Change, Disasters, and the Refugee Convention

Matthew Scott (Raoul Wallenberg Institute of Human Rights and Humanitarian Law) has published Climate Change, Disasters, and the Refugee Convention (Cambridge Univ. Press 2020). Here's the abstract:

Climate Change, Disasters and the Refugee Convention is concerned with refugee status determination (RSD) in the context of disasters and climate change. It demonstrates that the legal predicament of people who seek refugee status in this connection has been inconsistently addressed by judicial bodies in leading refugee law jurisdictions, and identifies epistemological as well as doctrinal impediments to a clear and principled application of international refugee law. Arguing that RSD cannot safely be performed without a clear understanding of the relationship between natural hazards and human agency, the book draws insights from disaster anthropology and political ecology that see discrimination as a contributory cause of people's differential exposure and vulnerability to disaster-related harm. This theoretical framework, combined with insights derived from the review of existing doctrinal and judicial approaches, prompts a critical revision of the dominant human rights-based approach to the refugee definition.

Call for Papers: Understanding solidarity under international and EU refugee law: between a rock and a hard place?

The European Society of International Law Interest Group on Migration and Refugee Law, in co-operation with the Academy of Law and Migration of the University of Tuscia, is organizing a side event on April 23, 2020, in the framework of this year’s ESIL Research Forum. The topic is: “Understanding solidarity under international and EU refugee law: between a rock and a hard place?” The call is here.

Ramji-Nogales: Non-Refoulement under the Trump Administration

Jaya Ramji-Nogales (Temple Univ. - Law) has posted an ASIL Insight on Non-Refoulement under the Trump Administration.

Aleinikoff & Zamore: The Arc of Protection: Reforming the International Refugee Regime

T. Alexander Aleinikoff (The New School - Zolberg Institute on Migration and Mobility) & Leah Zamore (New York Univ. - Center on International Cooperation) have published The Arc of Protection: Reforming the International Refugee Regime (Stanford Univ. Press 2019). Here's the abstract:

The international refugee regime is fundamentally broken. Designed in the wake of World War II to provide protection and assistance, the system is unable to address the record numbers of persons displaced by conflict and violence today. States have put up fences and adopted policies to deny, deter, and detain asylum seekers. People recognized as refugees are routinely denied rights guaranteed by international law. The results are dismal for the millions of refugees around the world who are left with slender prospects to rebuild their lives or contribute to host communities. T. Alexander Aleinikoff and Leah Zamore lay bare the underlying global crisis of responsibility.

The Arc of Protection adopts a revisionist and critical perspective that examines the original premises of the international refugee regime. Aleinikoff and Zamore identify compromises at the founding of the system that attempted to balance humanitarian ideals and sovereign control of their borders by states. This book offers a way out of the current international morass through refocusing on responsibility-sharing, seeing the humanitarian-development divide in a new light, and putting refugee rights front and center.

Juss: Research Handbook on International Refugee Law

Satvinder Singh Juss (King's College London - Law) has published Research Handbook on International Refugee Law (Edward Elgar Publishing 2019). The table of contents is here. Here's the abstract:

In recent years the UNHCR has expressed increasing concern at how war, violence and persecution have resulted in an age of unprecedented mass displacement. The global financial crisis, the rise of populist leaders, and the growth of anti-EU parties, raises the need to interrogate the ‘refugee’, ‘migrant’, ‘citizen’, ‘stateless’, ‘legal’, and ‘illegal’ as concepts. This Research Handbook maintains that refugees need to be seen as core indicators of the failure of national, international, economic, and political governance, and provides critical analyses of the legal ordering of refugees, giving a glimpse at what the future of refugee law could – and should – look like.

Bringing together experts in the field, the innovative and groundbreaking chapters provide a critical perspective on the legal landscape for refugees at a time when the politics and legitimacy of transnational regulatory governance are in question as never before. In an age of growing ethnic nationalism and anti-immigrant rhetoric, the contributing authors examine key issues surrounding refugees and migration, and build a new outlook on social justice, as the post-war international order ends.

Foster & Lambert: International Refugee Law and the Protection of Stateless Persons

Michelle Foster (Univ. of Melbourne - Law) & Hélène Lambert (Univ. of Technology Sydney - Law; Univ. of Westminster - Law) have published International Refugee Law and the Protection of Stateless Persons (Oxford Univ. Press 2019). here's the abstract:

International Refugee Law and the Protection of Stateless Persons examines the extent to which the 1951 Convention relating to the Status of Refugees protectsde jure stateless persons. While de jure stateless persons are clearly protected by the 1954 Convention relating to the Status of Stateless Persons, this book seeks to explore the extent to which such persons are also entitled to refugee status. The questions addressed include the following: When is a person 'without a nationality' for the purpose of the 1951 Refugee Convention? What constitutes one's country of former habitual residence as a proxy to one's country of nationality? When does being stateless give rise to a well-founded fear of persecution for reasons specified in the 1951 Refugee Convention and/or UNHCR mandate? What are the circumstances under which statelessness constitutes persecution or inhuman or degrading treatment? How are courts assessing individual risk or threat to stateless persons?

The book draws on historical and contemporary interpretation of international law based on the travaux préparatoires to the 1951 Refugee Convention and its antecedents, academic writing, UNHCR policy and legal documents, UN Human Rights Council resolutions, UN Human Rights Committee general comments, UN Secretary General reports, and UN General Assembly resolutions. It is also based on original comparative analysis of existing jurisprudence worldwide relating to claims to refugee status based on or around statelessness. By examining statelessness through the prism of international refugee law, this book fills a critical gap in existing scholarship.

Stoyanova & Karageorgiou: The New Asylum and Transit Countries in Europe during and in the Aftermath of the 2015/2016 Crisis

Vladislava Stoyanova (Lund Univ. - Law) & Eleni Karageorgiou (Lund Univ. - Law) have published The New Asylum and Transit Countries in Europe during and in the Aftermath of the 2015/2016 Crisis (Brill | Nijhoff 2018). Here's the abstract:

Understanding the realities of protection in a Europe that had failed to manage the crisis in asylum that unfolded in 2015 and 2016 requires a comprehension of how law shapes and distorts refugee protection practices in frontline states. In this collection Vladislava Stoyanova and Eleni Karageorgiou provide an essential cartography of the state of asylum during the crisis. The volume captures four dynamics: the absorption of EU norms in Central and South Eastern Europe; the reaction in this region to the massive movement of asylum seekers in 2015 and 2016; the initiation of normative developments in the area of asylum during and beyond the crisis by the countries in this region; and the question of solidarity.

Schultz: The Internal Protection Alternative in Refugee Law

Jessica Schultz (Chr. Michelsen Institute) has published The Internal Protection Alternative in Refugee Law: Treaty Basis and Scope of Application under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol (Brill | Nijhoff 2019) Here's the abstract:

Under what circumstances can a state refuse refugee status to a person whose risk of persecution exists in only part of her country of origin? This book is the first monograph to examine the treaty basis and criteria for the ‘internal protection alternative’ (IPA), an exception to refugee status increasingly invoked by state parties to the 1951 Refugee Convention and its 1967 Protocol. Through a critical analysis of the relationship between refugee law and related fields, Schultz finds that the legal scope for IPA practice is narrower than is commonly claimed. Since persons subject to an IPA analysis have a well-founded fear of persecution within their countries of origin, any limit on their right to refugee status must involve a careful balancing of the impact of continued displacement against the state's interest in preserving its restricted protection resources. She argues that the doctrine of implied limits in human rights law can provide analytic structure to the IPA concept and reduce the risk of overly broad application.

Sharpe: The Regional Law of Refugee Protection in Africa

Marina Sharpe (McGill Univ. - Law) has published The Regional Law of Refugee Protection in Africa (Oxford Univ. Press 2018). Here's the abstract:

This book analyses the legal framework for refugee protection in Africa, including both refugee and human rights law as well as treaty and institutional elements. The regime is addressed in two parts. Part One analyses the relevant treaties: the 1951 Convention relating to the Status of Refugees, the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa and the 1981 African Charter on Human and Peoples Rights. The latter two regional instruments are examined in depth. This includes the first fulsome account of the African Refugee Conventions drafting, an interpretation of its unique refugee definition and original analysis of the relationships between the three treaties. Significant attention is devoted to the systemic relationship between the international and the regional refugee treaties and to the discrete relationships of conflict and complementary relationships between the two refugee instruments, as well as to the relationships between the African Refugee Convention and African Charter. Part Two focuses on the institutional architecture supporting the treaty framework. The Organization of African Unity is addressed in a historical sense, and the contemporary roles of the African Union, the African Commission on Human and Peoples Rights and the current and contemplated African human rights courts are examined. This book is the first devoted to the legal framework for refugee protection in Africa.

Goldenziel: Checking Rights at the Border: Detention of Migrants in International and Comparative Law

Jill I. Goldenziel (Marine Corps Univ. - Command and Staff College) has posted Checking Rights at the Border: Detention of Migrants in International and Comparative Law (Virginia Journal of International Law, forthcoming). Here's the abstract:

Human rights laws, both international and domestic, present a challenge to the sovereign rights of states. The right to determine who may enter a state is one of the fundamental attributes of sovereignty. Under international law, however, states cannot return a migrant with a potentially valid asylum claim to a place where his life will be in danger, and cannot return any migrant to a place where he might be tortured. States often detain migrants while processing their asylum claims, and pending deportation if those claims should fail. Yet international law, and many states’ domestic laws, prohibit prolonged detention and restrict detention conditions. As migration flows and detention rates have swelled globally, high courts have increasingly decided cases involving the rights of detained migrants. On February 27, 2018, the U.S. Supreme Court handed down a critical decision on this issue in Jennings v. Rodriguez, allowing thousands of immigrants and asylum seekers to be detained indefinitely, without bail hearings, while remanding the case for consideration of their constitutional claims. This article compares court cases involving detention of migrants in the U.S., Australia, and Europe to determine how states can legally comply with human rights norms while preserving their right to protect their borders. Based on these cases, the article proposes best practices for state compliance with international law on detention. This comparison illuminates how courts strike a delicate balance between human rights and state sovereignty where national security interests are at stake.

Ghezelbash: Refuge Lost: Asylum Law in an Interdependent World

Daniel Ghezelbash (Macquarie Univ. - Law) has published Refuge Lost: Asylum Law in an Interdependent World (Cambridge Univ. Press 2018). Here's the abstract:

As Europe deals with a so-called 'refugee crisis', Australia's harsh border control policies have been suggested as a possible model for Europe to copy. Key measures of this system such as long-term mandatory detention, intercepting and turning boats around at sea, and the extraterritorial processing of asylum claims were actually used in the United States long before they were adopted in Australia. The book examines the process through which these policies spread between the United States and Australia and the way the courts in each jurisdiction have dealt with the measures. Daniel Ghezelbash's innovative interdisciplinary analysis shows how policies and practices that 'work' in one country might not work in another. This timely book is a must-read for those interested in preserving the institution of asylum in a volatile international and domestic political climate.

Singh: More Norms, Less Justice: Refugees, the Republic, and everyone in between

Prabhakar Singh (Jindal Global Law School) has posted More Norms, Less Justice: Refugees, the Republic, and everyone in between (Liverpool Law Review, forthcoming). Here's the abstract:

The paper argues for conflating refugees and internally displaced persons (IDPs) as two sides of a work-in-progress postcolonial state. To be sure, aliens, refugees, IDPs, and stateless persons are separate legal entities. Nevertheless, this fragmented normative regime stands testimony to more laws and less justice. Many Asian states have no domestic refugee law. India, a common law system, takes a case by case approach as refugees are given “temporary shelter on humanitarian considerations”. Ironically, a work-in-progress postcolonial state sustains even de jure citizens as de facto stateless persons; the erstwhile Indo-Bangla enclaves for more than half a century were an apt example. Surely, the raison d’être of international law on refugees is to end human suffering, if needed, by transcending the absence of positive laws. A constitutional and political desire to minimise human suffering alone could cut the rigour of such positivist legal narratives. The Delhi High Court seemingly walked that path in Koul v Estate Officer noting “refugees and IDPs appear to be similarly situated”. Rising terrorism has made states increasingly believe in a security narrative all the same. A simultaneous emergence of a demographic anxiety particularly in India’s North-eastern states increasingly pits aliens and refugees against the domiciled indigenous and tribal people.

Call for Papers: Complicity and Exclusion from Asylum

A call for papers has been issued for a workshop on "Complicity and Exclusion from Asylum," to be held June 29, 2018, in Cambridge. The workshop will be hosted by the Lauterpacht Centre for International Law and is sponsored by the Refugee Law Initiative. The call is here.