The modern state, the citizen, and the perilous refugee

AmeriQuests, 2019

ASEJ Scientific Journal of Bielsko-Biala School of Finance and Law, 2018

In the paper the author attempts to describe the issue of refugees as a very important problem in international law, a problem which generates profits e.g. a rise in human capital, as well as losses e.g. costs, for the countries involved. The balance depends on the policy of a given country, whether this country is able to capitalize on the human capital or whether it is only counting costs. Sometimes obligations resulting from international law are not sufficient to convince societies that accepting refugees is the right decision. The paper will focus on how, with appropriate legislative tools, the united world can help people who are in danger. The author will also pose a question whether enough is being done, or whether the scope and methods currently in use should be amended. The paper discusses the issue of refugees from the perspective of various organizations involved i.e. global institutions like UNHCR, European Union institutions, non-government organizations (NGOs) and con...

Berkeley Journal of International Law, 2012

Many scholars of international refugee law assert that there is no definition of refugee under international law except that given in the Refugee Convention. This assertion, however, overlooks the dynamic way that the Refugee Convention is interpreted and is usually made without a detailed analysis of customary international law. This article attempts to address this shortcoming in the literature by examining conventional and customary international law contributing to the contemporary definition of refugee. Furthermore, it will attempt to do this is an even-handed manner, concluding that the definition has expanded in favor of claimants in some aspects, but, actually, contracted against the favor of claimants in others. First, the article will examine the definition of refugee under the Refugee Convention, especially the evolving technique for interpreting the Convention, to determine whether the definition has outgrown its conventional shell. Second, the article will undertake a comprehensive analysis of state practice and opinio juris on this question, examining the most up-to-date sources. In particular, it will reflect on the role of specially interested or specially affected states in the formation of customary international law and the growth of “subsidiary” protection. Also the article will consider the contribution of the practice and opinio juris of international organizations in the frame of the contemporary international law’s understanding of the contribution international organizations can make. Lastly, the article will look at the opposite side of the coin: the ways in which customary international law may have narrowed the definition beyond the terms of the Refugee Convention. It will conclude by proposing the new definition of a refugee under conventional and customary international law based on the findings.

1982

A refugee leaves the country of his or her national origin because the political community will not or can no longer vouchsafe the refugee\u27s life, liberty, or peace of mind. In many cases, the sovereign of national origin actively and coercively deprives the refugee of those basic components of human dignity. By taking flight, refugees enter a precarious realm between sovereigns. They may no longer rely upon the solicitude of their native sovereign, yet international law gives them no effective replacement for that power. They gain neither a right to asylum in other countries nor one to the assumption of a new nationality. Yet only the tie of nationality furnishes the full protection of international law, since individuals as such have no rights under that body of law. Covenants on the status of refugees and stateless persons and the organization of the United Nations High Commissioner for Refugees (UNHCR) have not changed this aspect of the world order

This paper takes up the questions of (1) how the refugee crisis exhibits the fault lines in what might otherwise seem to be a robust human rights regime and (2) what kinds of ways of seeing and thinking might better attune us to solving these problems. There is surprising agreement internationally on the content of human rights, although there is a huge gulf between international agreements on human rights and the protection of those most vital. The subtitle of the paper, " another stab at universal rights, " has a double entendre: in the midst of a crisis that is stabbing international agreements on human rights to its core, I will take a stab at using the crisis situation to point a way forward toward a cosmopolitan social imaginary that uses human imagination, not just as an ability to represent in one's mind what one has seen elsewhere, but also as an ability to imagine something radically new. This social imaginary points to the necessity of according everyone, refugees included, as having a right to politics and thus a hand in shaping their own world, including their new, host communities.

Routledge, 2020

The book provides an in-depth discussion of democratic theory questions in relation to refugee law. The work introduces readers to the evolution of refugee law and its core issues today, as well as central lines in the debate about democracy and migration. Bringing together these fields, the book links theoretical considerations and legal analysis. Based on its specific understanding of the refugee concept, it offers a reconstruction of refugee law as constantly confronted with the question of how to secure rights to those who have no voice in the democratic process. In this reconstruction, the book highlights, on the one hand, the need to look beyond the legal regulations for understanding the challenges and gaps in refugee protection. It is also the structural lack of political voice, the book argues, which shapes the refugee’s situation. On the other hand, the book opposes a view of law as mere expression of power and points out the dynamics within the law which reflect endeavors towards mitigating exclusion. The book will be essential reading for academics and researchers working in the areas of migration and refugee law, legal theory and political theory. Table of Contents: Introduction I. The refugee Chapter 1 Who is a refugee? Chapter 2 Who decides who is a refugee? II. Democracy’s edges Chapter 3 Citizenship and the claiming of rights Chapter 4 Democracy between the need for institutions and demands of inclusion III. The legal conditions of refugees’ political voice Chapter 5 Institutions of refugees’ political participation Chapter 6 The role of associative rights for refugees’ political voice Chapter 7 Humanitarian government and the political membership of refugees Chapter 8 Representation of refugees in international forums Outlook

This paper was written while I was a Marie Curie Fellow at the Migration Research Center Mirekoc and the Department of International Relations at Koc University, Istanbul, Turkey. I am grateful to the Director of the Center, Ahmed Icduygu, and the colleagues from the Center for their support. The research leading to these results has received funding from the European Union's Seventh Framework Programme (FP7/2007-2013) under grant agreement n° 316796 The recent Syrian refugee crisis opened a debate on the under-theorized issue of migration law regarding the status and the rights of refugees and asylum seekers. According to UNHCR estimates, Turkey has, since the conflict in Syria begun, accommodated within its jurisdictional boundaries the most conspicuous number of refugees (around two million), but none of them have been recognized legally as refugees. Turkey, one of the signatory states of the 1951 Geneva Convention, still applies “geographical limitations”; that is, it does not grant refugee status to non-European to- be refugees, but rather extends to the latter a status of ‘temporary protection’. The paradox is that Turkey grants legal refugee status to European applicants (consider the very trivial number of applicants in need of refuge from Europe after 1951), whereas millions of non-European ‘proper’ refugees, including those currently in the country will not be granted refugee status. What can we learn philosophically from this law and practice? Most philosophers concur with granting refugees a fundamental human right, in line with the Kantian hospitality principle, to sojourn in other territories temporarily and also more permanently, including a lifetime. The principle is incorporated in the Geneva Convention on the Status of Refugees, as the principle of “non-refoulement” (United Nations, 1951), obliging signatory states not to forcibly return refugees and asylum seekers to their countries of origin, if doing so would endanger their lives. Furthermore, asylum seekers’ and refugees’ claims to admission and more broadly to human rights protection are legally incorporated in the international human rights regime, and subsequently accepted by states (Benhabib, 2004). The fundamental human right to admission regards the admission of the asylee and refugee, and not that of immigrants whose admission remains “a privilege”, in the sense that it is up to the sovereign to grant such a “contract of beneficence” (Benhabib 2004). David Miller argues that when it comes to protecting human rights, states’ actions should reflect primarily the ‘terms’ of states, as they see fit: “your human right to food could at most impose on me an obligation to provide adequate food in the form that is most convenient to me (i.e. it costs me the least labour to produce), not an obligation to provide food in the form that you happen to prefer”; furthermore, states do not have a duty to automatically admit refugees, if for example, other similarly well off states can admit them, and the principle of non-refoulement is fulfilled (Miller, 2013). Miller rules out the theoretical possibility of human rights violations, in claiming that a state can deny entry to refugees, only if they are not returned to the country of origin and third countries where their human rights will be violated, and provided that some other state would take charge of them. Miller’s state-centrist view, assuming the point of view of states primarily, and second, wrongly assuming that the only theoretically salient feature is when refugees do not receive admission, as a result of which their human rights are violated, has pernicious implications. As an alternative, I argue that human rights are possible primarily when we view their defence as a primary moral concern, rather than instrumental and contingent upon what states see fit. I propose instead a philosophical view that genuinely assumes and acts upon the needs of refugees primarily, in both being admitted and rejected to sojourn in new territories. Very little effort has so far been expended by migration theorists to explain the character of a just distribution of refugees between states. Most studies instead have offered ample explanations regarding why refugees and migrants move to some states rather than others (Gibney, 2009). Since an adequate baseline from which to judge the justice of the distribution of refugees between states is still lacking, any new patterns of movement we might advocate creates possibilities for new unjust distribution patterns, a normative scrutiny that takes into consideration justice to refugees (besides justice between states) is of paramount importance. In this paper I analyse few of the main proposals of refugee distribution among states from a perspective of justice and argue in favour of the burden-sharing model that prioritizes justice to refugees. Specifically, I briefly analyse the “Syrian refugee crises” and I conceptualize it as an “engineered regionalism”, according to which the most conspicuous number of refugees end up seeking refuge in the region of their origin. In the second section, I explain why engineered regionalism is problematic from a justice perspective, and therefore explore alternatives we commonly think of in the literature as burden-sharing options. In the third section I argue that the respective alternatives are also morally unsatisfactory. They are all based on the presupposition that a right to free movement is what will entitle the refugee to (re)- settle to the country of one’s choosing, whereas this right is grounded on a philosophically informed principle of non-refoulement (as the ‘fire’ illustration proves). I attempt in the last section to propose a new model that is informed by the latter principle.

There is a lively debate about how to define refugeehood, for instance about the question whether an individual fleeing hunger is a refugee. This paper argues against the two most prominent characterizations of refugeehood. Both characterize the refugee by reference to a duty - either to the duty to admit (e.g., Lister) or to the less concrete duty to protect (e.g., Shacknove). However, both are inadequate from the perspective of commonsense as well as for moral and political purposes, I argue, since both imply that, when two individuals are fleeing threats of the same kind, only one of them may be a refugee. This result is due to the fact that duties depend partly on the capacities and decisions of duty-bearers, as well as on the needs of third parties. Much more plausibly, a refugee is defined simply as a person whose basic needs and rights are threatened and who migrates with the aim to find protection. Although this definition coheres with commonsense, it has so far been neglected in the philosophical and political debate.

King's Law Journal, 2014

Contemporary Issues in Refugee Law is a collection that attempts to do at least two thingsexpose a number of challenges faced by contemporary refugee law practice and position refugee law's central concepts and institutions in the context of a rapidly changing world. The contributors use a wide range of examples to demonstrate that aspects of the refugee system will need to be rethought, some incrementally and some radically if, as editors Satvinder Juss and Colin Harvey note, it is to remain relevant in contemporary times (1). The book is organised into three main parts ("Of Refugee 'Crisis', Normative 'Soft Laws' and 'Human Rights'", "Of the Advent of New Refugees" and "Of the Securitization, Exclusion and Internal Relocation of Refugees"). This breakdown of the contributions allows for a relatively straightforward thread of critique, beginning with the framing of refugee law in contemporary times, then following on to review the doctrinal and institutional challenges faced by various groups of applicants and closing with a critical assessment of the limits placed on refugee protection. The first of the three main sections frames refugee law as a regime in crisis (13). Catherine Dauvergne in "Refugee law as perpetual crisis" uses the vernacular of crisis to describe the paradigm from within which refugees are viewed, both in terms of how their plights are represented (fleeing from crisis)(14) as well as what she terms 'crisis bias', or the centrality of the crises of the urgent escape or the noteworthy drama of regime change within successful refugee claims (15-16). This contribution provides a timely echo of the work of Hilary Charlesworth, who described international law as a 'discipline in crisis'. While Charlesworth argues the disadvantages of such a crisis model, Dauvergne departs from this sentiment and suggests that the crisis paradigm when applied to refugee law, unlike human rights law more generally, serves the important purpose of maintaining the value of refugee law-and that while the crisis embodied by refugees and the system of international refugee law must be resisted, to 'resolve' the crisis would 'make refugees disappear' and eliminate the critical potential of the constant tension and resistance caused by the ill-fit of refugee law within international law and international human rights law (28-31). Satvinder Juss follows in "The UNHCR Handbook in international refugee law" with a depiction of the Handbook as a set of guidelines that the UNHCR intentionally did not make binding or definitive. In light of this fact, Juss argues that interpreting and applying ideas in the Handbook exemplifies the 'politics of knowledge recognition' and that today's legal practitioners and scholars need to both acknowledge why certain aspects of jurisprudence are not codified into 'hard law' on one hand and look beyond 'hard law' to 'soft law' and extra-legal guidance on the other (39-43). Juss ultimately asks whether the Handbook can be rescued as a legal authority. Colin Harvey, in "Is humanity enough? Refugees, asylum seekers and the rights regime", sets out to articulate the pressures that build on the fault-lines between "statist imperatives of migration management and a legal order rooted in notions of guarantees owed to the person" (85). In this endeavour, Harvey argues that examination of the notion of status highlights tensions between a state-centred managerial approach and broader international human rights principles (72-74). He also critically analyses a number of recent cases to demonstrate the nature of decision-making in refugee law-"skilfully crafted calibrations which have notions of balance absorbed into their very language (even while this is strenuously denied)" (85). Despite discussing the concept of 'humanity' in some detail, as well as nodding to Arendt's early critique of human rights as idealist for failing to reconcile with historical contingencies and state power (74), he does not leave the reader with a clear way to understand or use the concept in the scope of his argument. While this is dissatisfying, it has everything to do with the scope of the material (any two-page explanation of 'humanity' will fall short), and it does not detract from exploring the main tensions between state imperatives and international humanitarian norms. Part II of the collection begins with Jason Pobjoy's "A child rights framework for assessing the status of refugee children". Pobjoy advances an analysis which aims to situate