26. International Refugee and Migration Law

Author(s):  
Geoff Gilbert ◽  
Anna Magdalena Rüsch

This chapter explores the definition of refugee status in international law, its scope and limitations and consequent protection gaps for those forcibly displaced, including internally displaced persons (IDPs), who have crossed no international border. There is no equivalent definition for migrants, but like refugees, asylum-seekers, and IDPs, international human rights law provides a framework for their protection. The chapter explains the difference between refugee status and asylum, focusing on non-refoulement in international law. It discusses the rights that are guaranteed during displacement, particularly those pertaining to detention and humanitarian relief. Given that refugee status is intended to be temporary, the final section looks at cessation and durable solutions, either following voluntary return, through local integration, or resettlement in some third State.

Author(s):  
Muazu Shehu ◽  
Adamu Abba

AbstractThis study seeks to contribute to the knowledge of linkages between humanitarian actions in conflict situations and sustainable development. We analysed data generated from qualitative interviews and focus group discussions with encamped and self-settled internally displaced victims (IDPs) of the Boko Haram insurgency in the northeastern Nigeria. Our analysis searched for themes that summarise their preferences and desires of durable solutions. Overall, the majority of the IDPs were more inclined to local integration or resettlement than return. More than males, female IDPs were likely to cite personal experience of violence as a reason for rejecting voluntary repatriation. Feelings of vulnerability, experience of violence and hope of economic and social empowerment were major reasons given in support of local integration or resettlement. Self-settled IDPs are more disposed to returning to their places of origin than encamped IDPs. The need to rebuild livelihoods and restore social and community networks were the major factors participants associated with the choice of return. Beliefs in divine destiny, lack of trust and confidence in the government were dominant views expressed by participants who were indifferent about durable solutions. There is a sense that cultural androcentric norms which give men the power to make decisions for the family shape decision-making even in emergency situations. We conclude that, regardless of their preferences about durable solutions, IDPs have long-term needs that can only be provided if humanitarian actions are integrated into the overall development agenda and programmes of governments.


2012 ◽  
Vol 37 (04) ◽  
pp. 933-968 ◽  
Author(s):  
Rebecca Hamlin

International law provides nations with a common definition of a refugee, yet the processes by which countries determine who should be granted refugee status look strikingly different, even across nations with many institutional, cultural, geographical, and political similarities. This article compares the refugee status determination regimes of three popular asylum seeker destinations—the United States, Canada, and Australia. Despite these nations' similar border control policies, asylum seekers crossing their borders access three very different systems. These differences have less to do with political debates over admission and border control policy than with the level of insulation the administrative decision-making agency enjoys from political interference and judicial review. Bureaucratic justice is conceptualized and organized differently in different states, and so states vary in how they draw the line between refugee and nonrefugee.


Author(s):  
Albanese Francesca P ◽  
Takkenberg Lex

The Palestinian refugee question, resulting from the events surrounding the creation of the state of Israel seventy years ago, remains one of the largest and most protracted refugee crises of the post-Second World War era. Numbering over six million in the Middle East alone, Palestinian refugees’ status and treatment varies considerably according to the state or territory ‘hosting’ them, the UN agency assisting them, and political circumstances surrounding the Israeli–Palestinian conflict these refugees are naturally associated with. Despite being foundational to both the experience of the Palestinian refugees and the resolution of their plight, international law has not been a decisive factor in discussions concerning their fate. This compelling new edition offers a clear and comprehensive analysis of various areas of international law (including refugee law, human rights law, humanitarian law, the law relating to stateless persons, principles related to internally displaced persons, as well as notions of international criminal law), and probes the relevance of their interplay to the provision of international protection for Palestinian refugees and their quest for durable solutions.


2016 ◽  
Vol 25 (1) ◽  
pp. 227-250
Author(s):  
Francesca Capone

Terrorism constitutes one of the most serious threats to international peace and security. The newest challenge posed by this threat is represented by the phenomenon of “foreign terrorist fighters”. Current estimates place the number of foreigners who have joined the ongoing armed conflicts in the Middle East between 20,000 and 30,000. How many of these foreign fighters also fall within the definition of foreign terrorist fighters (i.e. those travelling abroad with a “terrorist” intent) provided by UN Security Council Resolution 2178 (2014) is very difficult to assess. In primis because the resolution refers to “terrorists”, “terrorist acts”, and “terrorist training” without actually defining “terrorism” and thus leaving to each Member State the task to determine the breadth and the contours of this concept. Secondly because the text lacks legal certainty with regard to many other crucial aspects, e.g., the relationship between counter-terrorism and international humanitarian law, the interpretation of the term “State of residence”, and the risk of abuse of refugee status. These shortcomings not only jeopardize the ability to implement a uniform approach, but they also increase the likelihood of fostering abusive responses. This article argues that Resolution 2178 has not been adopted in a legal vacuum, on the contrary it extensively builds on the anti-terrorism framework established by previous Security Council resolutions and thus it inherits and exacerbates many old and unresolved issues. Ultimately, the present article seeks to determine to what degree the new set of binding obligations placed upon Member States to thwart the phenomenon of foreign terrorist fighters is effective and it discusses the extent to which it could enhance or hinder counter-terrorism’s compliance with international human rights law, international humanitarian law and international refugee law.


1979 ◽  
Vol 48 (1-4) ◽  
pp. 139-141

AbstractThe main subject of the debate was whether or not it is advisable to extend the concept of refugee beyond the present strict legal definitions and include more humanitarian concerns as suggested by Poul Hartling. On the one hand it was maintained in alia that — an extension of the international concept would create a discrepancy between the national concepts and the international concept — the concept of refugee applicable at the time of passing legislation concerning refugees still pertains — the quota-systems require strict adherence to legal definitions — the unsuccessful conference on territorial asylum proved the difficulty of adopting common norms of a broad humanitarian nature wrich is at the same time acceptable to governments - it was easier for the UNHCR in his pragmatic international work of a humanitarian administrative and social nature to adopt a wide concept, whereas the national refugee agencies whose problems is primarily that of issuing residence permits have to apply a more precise and narrow definition. Others took the view that — even in international law the concept of refugee is not totally static; in this respect it was mentioned that in spite of unmerous laws on refugees in Sweden, a precise definition has never been found - a liberal interpretation of existing written norms was called for rather than attempts to establish totally new definitions in a legally binding form - humanitarian concerns are not opposed to legal concepts; on the contrary, the legal concepts emerge from humanitarian and other political concerns — the definition in international law is to be considered a minimum norm. It was suggested that the refugee concept could be much wider in the field of assistance rather than in the field of protection. The dichotomy of having two refugee concepts, an international and a national come out as a practical problem when it comes to recognizing the refugee status. Theoretically, the dichotomy does not create serious problems, because the recognition is declaratory, not constitutive. In practical terms, there is a problem, however, because there is only one (effective) recognition of refugee status, the national recognition. It was noted that the High Commissioner often responded spontaneously to emergency situations involving wholely or in part groups of people falling beyond or on the verge of his mandate. The UN General Assembly, however, never failed to welcome such action thereby accepting a wider definition of UNCHR's mandate. The problems of de facto refugees were discussed. Reluctance was expressed towards extending the number of categories of refugees, e.g. by adding C and D categories to the A and B categories existing in the Nordic countries. It was preferable to extend the general definition of refugee in the manner of e.g. the Netherlands, Switzerland, or Sweden. A consequence of recognizing de facto refugees explicitly one way or the other was that the concept of de facto refugee would disappear. A common international definition which includes de facto refugees was called for. On the other hand, a warning was issued against adopting a very precise definition thereby creating new limits and new categories of people needing humanitarian assistance or protection but falling outside accepted categories. The problem of lacking international sanctions against countries which do not apply the international minimum standards was mentioned. It was pointed out, however, that the good offices and diplomatic initiatives of the High Commissioner often proved highly effective. Finally, a number of participants invited the High Commissioner to engage deeper into regional arrangements and to open a regional office in the Nordic countries.


Author(s):  
Hathaway James C

The architecture of the Refugee Convention and Protocol is unique in the world of international human rights law. Rather than being framed in absolutist terms, these treaties embody a principled compromise between attention to the needs of refugees, on the one hand, and recognition of the legitimate interests of host countries, on the other. Refugees are advantaged not only by the attribution of rights on the basis of a non-reservable and flexible definition of refugee status, but also by a commitment to declaratory rather than constitutive status assessment, non-exclusivity of rights accrual, and the existence of no more than constrained exceptions and derogation authority. The legitimate concerns of host countries are catered for by the structure of incremental rights acquisition through attachment and the conceptualization of most rights on a contingent basis. Sadly, the workability of the compromise embedded in the architecture of the Refugee Convention and Protocol is today threatened by critical failures at the level of implementation: specifically, that these treaties continue to rely on ad hoc, State-by-State efforts rather than coordinated action, and that States have failed to allocate protection responsibilities and burdens on the basis of relative capacities and resources. The challenge is thus not to renegotiate the foundational refugee treaties, but rather to change the way in which protection is operationalized.


Author(s):  
Alice Edwards

This chapter first explains the purpose and scope of international refugee law. It then identifies the five fundamental elements of the Refugee Convention, and discusses other important parameters of international refugee law more broadly. The chapter explores the relationship between international refugee law and human rights law at the macro-level. It analyses specific aspects of refugee law—namely, the definition of a refugee, the prohibition of refoulement, refugee rights, and the ending of refugee status and solutions—and analyses how international human rights law informs them.


No Refuge ◽  
2020 ◽  
pp. 27-49
Author(s):  
Serena Parekh

“Refugee” is a term that is used in many different and sometimes inconsistent ways. This chapter provides an overview of the complexities involved in defining who a refugee is. It argues that because there is no universally agreed-on definition of a refugee, one that is consistent with international law, our moral intuitions, and on-the-ground practice, we cannot be confident that we are categorizing the right people as refugees and others as not deserving of any help. The line between refugees and other kinds of forced migrants is blurry at best, and a rigid distinction is perhaps impossible. The seemingly arbitrary way that refugee status is given is a feature of the global refugee regime that contributes to the second crisis and the inability of refugees to find refuge.


Author(s):  
Zieck Marjoleine

The Statute of UNHCR charges the High Commissioner for Refugees with the task of pursuing durable solutions to the problem of refugees: voluntary repatriation, local integration, and resettlement. Voluntary repatriation is generally considered to be the preferred one. UNHCR takes it, in accordance with this assignment, to mean the return of refugees rather than former refugees, that is, those who lost their refugee status because the circumstances in connection with which they had been recognized as refugees have ceased to exist. In short, UNHCR’s point of departure is promoting and encouraging the return of those who are by definition unrepatriable with the argument that this timing allows it to extend protection and assistance to the refugees before they formally cease to be refugees. In practice – both that of UNHCR and States – this point of departure appears prone to compromising the rights of refugees. It is therefore questioned by means of taking recourse to the repatriation practice of UNHCR’s immediate predecessors. On the basis of past practice, an alternative understanding of voluntary repatriation is offered that does not involve the return of those who are entitled to protection in exile, safeguards their rights, and is nonetheless in accordance with the Statute of UNHCR and the obligations of States under the relevant instruments.


2012 ◽  
Vol 14 (1) ◽  
pp. 3-18 ◽  
Author(s):  
Ulf Linderfalk

Abstract What, exactly, is it about jus cogens that distinguishes it from ordinary international law? In answering this question, international lawyers usually resort to the “the Legal-Consequences-as-Criterion Theory”: while ordinary international law can be rebutted or modified in accordance with the duly expressed will of states, jus cogens norms permit no derogation and allow modification only by the creation of a new norm having the same character. In the present essay, this theory is subjected to analysis and assessment. Section 2 inquires into the relationship between the Legal-Consequences-as-Criterion Theory and the general definition of jus cogens reflected in Article 53 of the 1969 Vienna Convention. As argued, Article 53 is entirely reliant upon the validity of the Legal-Consequences-as-Criterion Theory. Sections 3 and 4 inquire into the assumptions underlying this same Theory. As argued, the Theory does not provide good reasons for the distinction between jus cogens and ordinary international law.


Sign in / Sign up

Export Citation Format

Share Document