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Refugees and International Law: The Challenge of Protection

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A special issue of Laws (ISSN 2075-471X).

Deadline for manuscript submissions: closed (1 January 2021) | Viewed by 75867

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Dr. James C. Simeon

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McLaughlin College, Faculty of Liberal Arts & Professional Studies, York University, Toronto, ON M3J 1P3, Canada
Interests: international refugee law; international human rights law; international criminal law; international humanitarian law; administrative law
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Special Issue Information

Dear Colleagues,

The current global “refugee crisis” is unprecedented. According to the UNHCR, in 2017, the number of persons forcibly displaced from their homes averaged, incredibly, 44,400 per day, 16.2 million people were newly displaced, 52 percent of the world’s refugees were children, under 18 years, there were 3.1 million asylum-seekers worldwide, and, there were 68.5 million people forcibly displaced. The 2016 New York Declaration on Refugees and Migrants and the 2017 Global Compact on Safe, Orderly and Regular Migration are prime examples of how the United Nations and the international community have attempted to respond to the global “refugee crisis.” Ineluctably, the significance of international law is becoming ever more relevant and important to the protection of refugees and other forced migrants’ fundamental human rights and dignity. This Special Issue will complement the existing ever growing academic literature on refugees by focussing specifically on how international law, in general, can strengthen the protection of the world’s most vulnerable people, refugees. The Special Issue will be focussed primarily on international refugee law, but, it will also encompass how international human rights law, international humanitarian law, and, international criminal law can enhance refugee protection globally.

The unprecedented number of persons forcibly displaced in the world today, according to the UNHCR, has now exceeded 68.5 million. Astonishingly, more than two-thirds of the refugees worldwide came from five countries: the Syrian Arab Republic (6.3 million); Afghanistan (2.6 million); South Sudan (2.4 million); Myanmar (1.2 million); and, Somalia (986,400). All of these countries have been embroiled in protracted armed conflict for years. Most states, particularly in the Global North, are doing what they can to close their borders and restrict access to international protection, contrary to their obligations under international law. International refugee law is at the very core of our most fundamental human right to seek protection from persecution and the peremptory norm of non-refoulement. Other branches of international law are vitally important in the protection of refugees, including: international human rights law, international humanitarian law, and international criminal law.

This Special Issue provides a forum for addressing some of the critical legal issues involving refugees and international law. Possible legal issues include, but are not limited to the following: When and how can international humanitarian law and international criminal law advance the protection of refugees? What other branches of public international law can support and inform the application and interpretation of international refugee law while enhancing the protection of those seeking asylum? How can international human rights law best be applied to strengthen the protection of refugees at all stages of the refugee cycle? Given the fractured nature of international criminal law jurisprudence, how can it best be applied and interpreted to ensure that refugee protection is not compromised, the impunity gap is not widened, and, justice is done? What is required to ensure that international refugee law is uniformly and consistently applied across states and the UNHCR?

Contributions to this Special Issue of Laws on these and other related questions that deal with the central theme of “Refugees and International Law: The Challenge of Protection” are most welcomed.

Prof. James C. Simeon
Guest Editor

Manuscript Submission Information

Manuscripts should be submitted online at www.mdpi.com by registering and logging in to this website. Once you are registered, click here to go to the submission form. Manuscripts can be submitted until the deadline. All submissions that pass pre-check are peer-reviewed. Accepted papers will be published continuously in the journal (as soon as accepted) and will be listed together on the special issue website. Research articles, review articles as well as short communications are invited. For planned papers, a title and short abstract (about 100 words) can be sent to the Editorial Office for announcement on this website.

Submitted manuscripts should not have been published previously, nor be under consideration for publication elsewhere (except conference proceedings papers). All manuscripts are thoroughly refereed through a double-blind peer-review process. A guide for authors and other relevant information for submission of manuscripts is available on the Instructions for Authors page. Laws is an international peer-reviewed open access semimonthly journal published by MDPI.

Please visit the Instructions for Authors page before submitting a manuscript. The Article Processing Charge (APC) for publication in this open access journal is 1400 CHF (Swiss Francs). Submitted papers should be well formatted and use good English. Authors may use MDPI's English editing service prior to publication or during author revisions.

References:

Betts, Alexander and Collier, Paul. Refuge: Rethinking Refugee Policy in a Changing World. Oxford: Oxford University Press, 2017.

Betts, Alexander and Collier, Paul. Refuge: Transforming a Broken Refugee System. London: Penguin Random House, 2017.

Chimni, B. S. ed., International Refugee Law: A Reader. New Delhi, Thousand Oaks, California: Sage Publications, 2000.

Clark, Tom. The Global Refugee Regime: Charity, Management and Human Rights. 2^nd Edition, Victoria, B.C.: Trafford Publishing, 2008.

Clark, Tom. Singh to Suresh: Non-Citizens, the Canadian Courts and Human Rights Obligations, Victoria, B.C.: Trafford Publishing, 2006.

Dauvergne, Catherine. Making People Illegal: What Globalization Means for Migration and Law. Cambridge: Cambridge University Press, 2008.

Dauvergne, Catherine. The New Politics of Immigration and the End of Settler Societies. Cambridge: Cambridge University Press, 2016.

Edwards, Alice, Violence against Women and International Human Rights Law. Cambridge: Cambridge University Press, 2011.

Feller, Erika; Turk, Volker; Nicholson, Frances, (eds.) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection. Cambridge: Cambridge University Press, 2003.

Fiddian-Qasmiyeh, Elena; Loescher, Gil; Long, Katy; Sigona, Nando, eds. The Oxford Handbook on Refugee and Forced Migration Studies. Oxford: Oxford University Press, 2014.

Hathaway, James C. The Rights of Refugees in International Law. Cambridge: Cambridge University Press, 2005.

Hathaway, James C. and Foster, Michelle. The Law of Refugee Status. Second Edition, Cambridge: Cambridge University Press, 2014.

Goodwin-Gill, Guy S. and Lambert Helene (eds.) The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Community. Cambridge: Cambridge University Press, 2010.

Goodwin-Gill, Guy S. and McAdam, Jane. The Refugee in International Law. Third Edition, Oxford: Oxford University Press, 2007.

Jones, Martin and Baglay, Sasha, Refugee Law. Toronto, Irwin Law, 2007.

Kneebone, Susan. (ed.) Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives. Cambridge: Cambridge University Press, 2009.

Li, Yao. Exclusion from Protection as a Refugee: An Approach to Harmonizing Interpretation. Leiden: Brill Nijhoff, 2017.

Loescher, Gil, Betts, Alexander, Milner, James. United Nations Higher Commissioner for Refugees (UNHCR): The Politics and Practice of Refugee Protection into the Twenty-First Century. London and New York: Routledge, 2008.

Price, Matthew E. Rethinking Asylum: History, Purpose, Limits. Cambridge: Cambridge University Press, 2009.

Simeon, James C. (ed.), Critical Issues in International Refugee Law: Strategies Towards Interpretative Harmony. Cambridge: Cambridge University Press, 2010.

Simeon, James C. (ed.), The UNHCR and the Supervision of International Refugee Law. Cambridge: Cambridge University Press, 2013.

UNHCR, Global Trends: Forced Displacement in 2017, Geneva, Switzerland, 2018, http://www.unhcr.org/5b27be547.pdf (accessed on 26 August 2018)

United Nations General Assembly, Resolution Adopted by the Assembly 19 September 2016, A/RES/71/1, New York Declaration for Refugees and Migrants, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/71/1 (accessed on 26 August 2018)

United Nations, Refugees and Migrants, “Compact for migration,” https://refugeesmigrants.un.org/migration-compact (accessed August 27, 2018)

van Sliedregt, Elies. The Criminal Responsibility of Individuals for Violations of International Humanitarian Law. The Hague: TMC Asser Press, 2003,

van Sliedregt, Elies and Vasiliev, Sergey. (eds.) Pluralism in International Criminal Law. Oxford: Oxford University Press, 2014.

Whittaker, David, Asylum Seekers and Refugees in the Contemporary World. London: Routledge, 2006.

Zambelli, Pia, Annotated Refugee Convention 2009. Toronto: Thomas Caswell, 2009.

Keywords

Refugees and International Law
International Refugee Law
International Human Rights Law
International Criminal Law
International Humanitarian Law

Published Papers (9 papers)

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Research

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39 pages, 489 KiB

Open AccessArticle

The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination

by Sara Palacios-Arapiles

Laws 2021, 10(2), 28; https://doi.org/10.3390/laws10020028 - 13 Apr 2021

Cited by 3 | Viewed by 7832

Abstract

Despite the overwhelming evidence of human rights violations within the Eritrean Military/National Service Programme (“MNSP”), adjudication of asylum applications made by Eritreans remains a challenge. Narrow interpretations of slavery have created obstacles for protection under the 1951 Convention Relating to the Status of Refugees (“1951 Refugee Convention”). This article discusses MST and Others, the latest Country Guidance case on Eritrea issued by the UK Upper Tribunal Immigration and Asylum Chamber (“UTIAC”), and also the lead case E-5022/2017 of the Swiss Federal Administrative Court (“FAC”), which to a large extent replicated the UTIAC’s approach. The article focuses on how slavery, servitude and forced labour under article 4 of the European Convention on Human Rights (“ECHR”) have been interpreted in the British and Swiss case-law. While both, the British and the Swiss Courts, had recourse to the European Court of Human Rights’ (“ECtHR”) interpretation of article 4(1) ECHR (the right not to be subjected to slavery or servitude), they refused the applicability of international criminal law notions to this provision, and thus to the concept of “persecution” in article 1A(2) of the 1951 Refugee Convention. In doing so, the UTIAC and the FAC set unreasonable requirements to satisfy article 4(1) ECHR. Due to the very limited case-law pertaining to slavery by the ECtHR, the ECHR does not offer an appropriate framework for examining asylum applications of victims of slavery. It is therefore suggested that slavery cases are considered against a wider legal framework, which involves the examination of concepts developed by international criminal law (“ICL”). ICL has indeed developed a significant body of jurisprudence on the interpretation of the international law concept of slavery and its application to contemporary situations. The article contrasts the British and Swiss Courts’ position to develop an interpretative approach that connects different areas of international law, including not only international refugee law and international human rights law (“IHRL”), but also ICL. If applied in line with the principle of systemic integration and according to the overall purposes of the 1951 Refugee Convention, this approach would yield consistent results. Ultimately, this article seeks to assist asylum decision-makers and practitioners in the interpretation and application of the refugee definition to asylum applications of persons from Eritrea. Full article

(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)

26 pages, 508 KiB

Open AccessArticle

Complementary Protection in Japan: To What Extent Does Japan Offer Effective International Protection for Those Who Fall Outside the 1951 Refugee Convention?

by Brian Aycock and Naoko Hashimoto

Laws 2021, 10(1), 16; https://doi.org/10.3390/laws10010016 - 14 Mar 2021

Cited by 1 | Viewed by 6348

Abstract

This study focuses on what Japan’s Immigration Control and Refugee Recognition Act (ICRRA) calls ‘Special Permission to Stay’ (zairyū tokubetsu kyoka) on humanitarian grounds (SPS), and evaluates the extent to which SPS provides effective international protection for those who are not recognized as refugees in Japan. The evaluation uses the European Union’s Qualification Directive (QD) as a yardstick. This paper explains the legal framework through which Japan offers complementary protection and explores the application of the law in practice. By investigating cases of SPS granted in Japan over a five-year period, the authors infer the prevailing legal interpretations on critical elements of complementary protection policy not clearly defined in the ICRRA. Case law is not widely available in Japan, but the authors have analysed all of the available case summaries provided by the Ministry of Justice only in Japanese. This work represents the first research conducted in English into these summaries. Further, several elite interviews were conducted with key senior immigration officials to gain insight into the inner workings of the Japanese system of SPS. Based upon the empirical evidence collected, the research demonstrates that the ICRRA often lacks clarity and is too discretionary, but that it also provides flexibility that allows a more inclusive application of the law. Full article

(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)

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19 pages, 313 KiB

Open AccessArticle

Migrants in the Attic: The Case of Migrants with Disabilities and Resettlement Services in Serbia

by Joel John Badali

Laws 2021, 10(1), 10; https://doi.org/10.3390/laws10010010 - 10 Feb 2021

Cited by 2 | Viewed by 3890

Abstract

The global migrant crisis triggered an unprecedented number of asylum seekers in the Balkan region. In this case study, the state of migrants with disabilities—a community notoriously overlooked during global conflict—is explored through field interviews of settlement service providers in Serbia. A human rights framework is espoused in first examining contemporary refugee law discourse and the corresponding gaps in current resettlement practice of migrants with disabilities. The study’s findings illuminate the need for a drastic shift in settlement services for those migrants most vulnerable to persecution in de facto destination countries. The discussion takes aim at “humanitarian silo” funding models and argues for international cooperation and transparency in accommodating migrants with disabilities internationally. Full article

(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)

28 pages, 396 KiB

Open AccessArticle

Are There Moral Duties toward Refugees? Considerations in Legal Ethics

by Paul Tiedemann

Laws 2021, 10(1), 4; https://doi.org/10.3390/laws10010004 - 19 Jan 2021

Cited by 4 | Viewed by 13835

Abstract

In the political and legal debate surrounding international refugee law, moral considerations play a large and important role. It often turns out, however, that the legal ethical reflection is not rooted deep enough. At first, it is necessary to demonstrate and justify the moral principle, on which the argumentation is based. There are different moral theories, among them the utilitarian, the egalitarian, the eudemonistical, and the deontological approach. These different approaches lead or at least can lead to different results concerning the question of what duties states or their citizens have toward refugees. The article is supposed to show that only the deontological approach is sufficient and appropriate in order to deliver a well-founded refugee ethics on the basis of moral duties and moral rights. The ethics of refugee protection is not an ethics of assistance to needy people, but the ethics of the prohibition of torts, namely, in particular, the violation of human rights. This is only inadequately reflected in international refugee law, because here the damage as such is not in the foreground, from which people flee, but the reasons why they are mistreated by persecutors. The damage-oriented approach clarifies the reasons for the different moral and legal status between persons in need of international protection, who have already reached the territory of the country of refuge and those who have not. The former are qualified as the holder of the subjective right not to be exposed to the dangers they have fled from, while the latter can in principle only appeal to the compassion and humanity of possible helpers. However, the boundary between “inside” and “outside” shifts according to the expansion of the de facto sphere of power of the acting person or state. This may also create a legal position for persons who are rescued by a ship at sea or whose living and travel conditions are essentially determined by the power of a state outside its territory. The damage-oriented approach shows furthermore that the refoulement ban has to be considered not only a mere side-aspect of the right to asylum but its core content. However, the right to asylum, cannot be considered a separate right beside the list of human rights. The refoulement ban is rather an integral part of every (“fundamental”) human right. This shows on the one hand that the separate right to asylum is redundant as long as it is supposed to protect against human rights violations. It is relevant only in the context of protection on reasons of solidarity. Finally, it can be shown that the national and international case law concerning the refoulement ban is insufficient because it is focused only on threatening torture and inhuman and degrading treatment, meanwhile, it neglects the threatening violation of other (“fundamental”) human rights. Full article

(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)

40 pages, 605 KiB

Open AccessArticle

Offshore Processing Arrangements: Effect on Treaty Ratifications of Receiving States

by Margarita Fourer, Natalie Dietrich Jones and Yusuf Ciftci

Laws 2020, 9(4), 23; https://doi.org/10.3390/laws9040023 - 26 Oct 2020

Cited by 1 | Viewed by 5482

Abstract

This article examines offshore processing arrangements of four different time-periods and geo-political regions—the Safe Havens of the United States with Jamaica and the Turks and Caicos Islands; the 2001 and 2012 Pacific Solutions of Australia with Nauru and Papua New Guinea; and the EU–Turkey deal. In examining these arrangements, the article attempts to ascertain whether each of these arrangements had an impact on the ratification of refugee and human rights-related treaties by the states receiving the asylum seekers and refugees for processing and/or settlement. It does so by first assessing the contents of the offshore processing agreements for refugee and human rights clauses and obligations. The article then looks at the general patterns of treaty ratification of each receiving state, prior to its entering into offshore processing arrangements. After the general patterns of treaty ratifications of each state are established, the article goes on to investigate whether offshore processing arrangements had any effect on these patterns. This is based on the analysis of the contents of the agreements, together with an examination of the timing of the refugee and human rights treaty ratifications of the receiving state, at the time of the arrangements. The article finds that the effect, although minimal, is quite nuanced. Full article

(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)

18 pages, 313 KiB

Open AccessArticle

International Law and European Migration Policy: Where Is the Terrorism Risk?

by Didier Bigo and Elspeth Guild

Laws 2019, 8(4), 30; https://doi.org/10.3390/laws8040030 - 18 Nov 2019

Cited by 3 | Viewed by 5810

Abstract

This article examines how international law in form of treaties deals with the intersection of the three concepts. Our hypothesis is that international law, in the form of treaties, has been reluctant to engage with national security when dealing with migration, leaving this to national law. Instead, the intersection of national security—most commonly in the form of concerns about terrorism and migration—takes place in political discourse, which acts as a passerelle for various types of state violence against people classified or suspected of being migrants. We examine this mechanism that we call an insecurity continuum driven by the politics of fear in a European context. This is a politics that takes place outside of international law but has the effect of limiting access by individuals to international law protections, particularly in the case of people who claim international protection against persecution or torture. Full article

(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)

47 pages, 632 KiB

Open AccessArticle

Protected Groups in Refugee Law and International Law

by Joseph Rikhof and Ashley Geerts

Laws 2019, 8(4), 25; https://doi.org/10.3390/laws8040025 - 22 Oct 2019

Cited by 3 | Viewed by 6507

Abstract

The 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) defines ‘persecution’ based on five enumerated grounds: race, religion, nationality, membership of a particular social group, and political opinion. This list of protected groups has not changed in the nearly 70 years since its inception, although the political and social context that gave rise to the Refugee Convention has changed. This article examines how ‘membership in a particular social group’ (“MPSG”) has been interpreted, then surveys international human rights law, transnational criminal law, international humanitarian law, and international criminal law instruments to determine whether MPSG can encompass the broader protections afforded under other international law regimes. It concludes that the enumerated grounds are largely consistent with other instruments and protects, or at least has the potential to protect, many of the other categories through MPSG. However, as this ground is subject to domestic judicial interpretation and various analytical approaches taken in different countries, protection could be enhanced by amending the Refugee Convention to explicitly include additional protected groups from these other areas of international law, specifically international human rights law and international criminal law. Full article

(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)

22 pages, 274 KiB

Open AccessArticle

The Rights of Refugee Children and the UN Convention on the Rights of the Child

by Jeanette A. Lawrence, Agnes E. Dodds, Ida Kaplan and Maria M. Tucci

Laws 2019, 8(3), 20; https://doi.org/10.3390/laws8030020 - 31 Aug 2019

Cited by 3 | Viewed by 17195

Abstract

Refugee children are identified as rights-bearers by the United Nations Convention on the Rights of the Child (CRC), but their rights are not uniformly honored in the policies and practices of contemporary states. How the CRC’s safeguards for refugee children’s rights are honored depends partly on what it means to be ‘a refugee child’ and partly on how the claims of refugee children’s rights are recognized, respected, and implemented in international and national legal and bureaucratic systems. We examine the CRC’s affirmation of the rights of the child and analyze the CRC’s articles in relation to the rights related to the life circumstances of refugee children and state responsibilities. Following an analysis of resistance to the CRC’s mandates by contemporary states, we relate refugee children’s rights to their refugee and developmental experiences and argue for repositioning refugee children into the center of protection dialogue and practice, internationally and nationally. Full article

(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)

Other

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18 pages, 292 KiB

Open AccessCommentary

Ending Exclusion from Refugee Protection and Advancing International Justice

by James C. Simeon and Joseph Rikhof

Laws 2022, 11(4), 61; https://doi.org/10.3390/laws11040061 - 08 Aug 2022

Cited by 1 | Viewed by 2665

Abstract

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

(This article belongs to the Special Issue Refugees and International Law: The Challenge of Protection)

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