scholarly journals Resisting Criminal Organizations: Reconceptualizing the “Political” in International Refugee Law

2016 ◽  
Vol 61 (3) ◽  
pp. 461-509 ◽  
Author(s):  
Amar Khoday
Keyword(s):  
Central American ◽  
Refugee Status ◽  
Political Opinion ◽  
Refugee Law ◽  
Criminal Organizations ◽  
The Status ◽  
Drug Cartels ◽  
Political Crime ◽  
International Refugee Law ◽  
Text Context

This article examines and reconstructs the term “political” in the 1951 Convention Relating to the Status of Refugees. Individuals may be eligible for refugee status if they can prove that they have a well-founded fear of persecution for, amongst other reasons, their political opinion. At the same time, individuals are excluded from obtaining refugee status where there are serious reasons for considering that they have committed a serious non-political crime. For those resisting persons or entities wielding oppressive power, the meaning of the term “political” in these provisions has particular importance. Where the targets of resistance are criminal organizations, however, courts and tribunals have been, for the most part, reluctant to recognize such resistance as manifesting a political opinion. Given the demonstrated power of criminal organizations, this article contends that opposition to these entities should be viewed as being “political”. Through an examination of the text, context, and purpose of the Refugee Convention, it argues that a broader understanding of the term “political” is reasonable if not compelling. The article examines the conflicting jurisprudence and discourse surrounding “political opinion” and “political crimes”. Despite some strong voices in support of a more traditional state-centric interpretation, others have advanced more robust articulations that account for the dynamic nature and diversity of power transactions between citizens and powerful non-state actors. Finally, the article examines the substantial power of drug cartels and youth gangs in particular Central American states to illustrate that they exercise de facto control in substantial geographic spaces. As such, resistance to such entities should properly be viewed as “political” within the meaning of the Refugee Convention.

Canadian Exclusion Jurisprudence post-Febles

2021 ◽  
Author(s):  
Molly Joeck
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Asylum Seekers ◽  
Refugee Status ◽  
The Rule Of Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
The Supreme Court ◽  
The Status ◽  
International Refugee Law

Abstract This article examines the state of Canadian refugee law since the decision of the Supreme Court in Febles v Canada (Citizenship and Immigration) [2014] 3 SCR 431. Drawing upon an analysis of a set of decisions of the Immigration and Refugee Board, the administrative tribunal tasked with refugee status determination in Canada, the article seeks to determine whether administrative decision makers are heeding the guidance of Febles when excluding asylum seekers from refugee protection on the basis of serious criminality pursuant to article 1F(b) of the 1951 Convention relating to the Status of Refugees. In doing so, it examines the controversy around article 1F(b) since its inception across various jurisdictions and amongst academic commentators, situating Febles within that controversy in order to demonstrate that the Supreme Court’s reluctance to clearly set out the purpose underlying article 1F(b) is in step with a longstanding tendency to understand the provision as serving a gatekeeping function, that prevents criminalized non-citizens from obtaining membership in our society. It argues that by omitting to set out a clear and principled standard by which asylum seekers can be excluded from refugee protection pursuant to article 1F(b), the Supreme Court failed to live up to a thick understanding of the rule of law. It concludes by calling for a reassertion of the rule of law into exclusion decision making, both nationally and internationally, in order to ensure that the legitimacy of the international refugee law regime is maintained.

The Supervision (or Not) of the 1969 OAU Refugee Convention

2019 ◽  
Vol 31 (2-3) ◽  
pp. 261-289
Author(s):  
Marina Sharpe
Keyword(s):  
United Nations ◽  
African Unity ◽  
Refugee Status ◽  
Refugee Law ◽  
High Commissioner ◽  
The Status ◽  
Organization Of African Unity ◽  
International Refugee Law ◽  
Principal Elements ◽  
African Commission

Abstract This article covers the supervision of the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 Convention). It begins by defining treaty supervision and describing key understandings of it in the international refugee law literature. These are then harnessed to create a model of supervision (the Supervisory Model) to frame the ensuing discussion. How the 1951 Convention relating to the Status of Refugees is supervised is presented within this Supervisory Model, by way of background. The article then moves on to its principal focus, beginning with an overview of the calls for, and claims regarding, supervision of the 1969 Convention. The need for supervision is then established based on two principal elements. First, the 1969 Convention’s incomplete implementation in States parties to the treaty, in both refugee status determination and in relation to rights guaranteed by the instrument. Secondly, existing bodies with quasi-supervisory or supervisory mandates – the African Commission on Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights, and the United Nations High Commissioner for Refugees – are not effectively redressing such implementation deficiencies. With the need for supervision established, a new supervisory mechanism is proposed and the procedural options to create it are outlined.

Part VI Refugee Rights and Realities, Ch.56 The Digital Transformation of Refugee Governance

2021 ◽  
Author(s):  
Sandvik Kristin Bergtora
Keyword(s):  
New Technology ◽  
Digital Transformation ◽  
Legal Rights ◽  
Refugee Status ◽  
Solution Processed ◽  
Protection Policy ◽  
Refugee Protection ◽  
Refugee Law ◽  
International Refugee Law ◽  
Data Subject

This chapter evaluates four selected issues arising from the digital transformation of refugee protection, in order to explore how this transformation shapes and challenges refugee law. It focuses on the following domains: UNHCR’s 2015 Data Protection Policy, a concept (legal identity), a platform (databases), and legal-bureaucratic processes (refugee status determination and resettlement procedures). Digital transformation generates new risks, in part because it is premised on a duty of refugee visibility. The chapter argues that international refugee law, conceptually and in practice, appears to be moving towards an idea of ‘algorithmic protection’. First, digitization and the integration of new technology create risks and harms that can compromise existing legal rights and procedural guarantees but also threaten the integrity of refugee protection in new ways. Secondly, algorithmic protection is a useful concept because the digital transformation of refugee protection means that the duty of visibility and acquiescence to become a data subject has become a requirement for being registered as a refugee, receiving aid (eg biometric banking), and having one’s claim for a durable solution processed.

12. Claims for international protection

2021 ◽  
pp. 435-495
Author(s):  
Gina Clayton ◽  
Georgina Firth ◽  
Caroline Sawyer ◽  
Rowena Moffatt
Keyword(s):  
Case Law ◽  
Causal Link ◽  
Parallel Process ◽  
Refugee Status ◽  
International Protection ◽  
Refugee Law ◽  
Legal Context ◽  
The Status ◽  
Gender Based ◽  
The Uk

This chapter examines the requirements for refugee status, according to Article 1A of the UN Convention Relating to the Status of Refugees 1951 and the Refugee Qualification Directive EC 2004/83, referred to as the Qualification Directive. This includes case law on the main concepts in refugee law: well-founded fear, persecution, Convention reason, causal link, and internal relocation. There is a focus on the particular problems in gender-based claims. The chapter considers protection for victims of trafficking, who may go through a parallel process to the asylum system. The chapter begins with the legal context of refugee claims in the UK, and then follows the structure of Article 1A of the Refugee Convention.

Political Violence and Its Discontents

2019 ◽  
Vol 10 (1) ◽  
pp. 7-40
Author(s):  
Ergun Cakal
Keyword(s):  
Political Violence ◽  
Armed Conflict ◽  
Refugee Camp ◽  
Political Rights ◽  
Humanitarian Law ◽  
Refugee Status ◽  
Refugee Law ◽  
Conflict Zone ◽  
International Refugee Law ◽  
The Right

The line that refugee status is of a purely ‘civilian and humanitarian’ character cannot be strictly maintained. It has become commonplace to point out the dangers posed to the general refugee population due to the presence of combatants in or within the proximity of a refugee camp, where a separation of civilian and non-civilian elements may indeed be deemed necessary. Forgoing the scholarship pertaining to the context of the refugee camp, which has absorbed most of the attention in this area, this paper will focus on the de jure legitimacy of a combatant seeking asylum, particularly away from the conflict zone. In light of this, there is a firm need to redraw the distinctions in this area and to account for the lack of dependence to and deference of international refugee law towards humanitarian law. There remain definitional and interpretative complexities that prevent a clear implementation of rules, particularly in non-international armed conflict. While the concern in not tarnishing asylum regimes is a legitimate one, it must be admitted that losing sight of the individuality and diversity of combatants and their motive, as occurs in the current discourse, is also erosive of protection needs and political rights, primarily the right to self-determination.

The Oxford Handbook of International Refugee Law

2021 ◽  
Keyword(s):  
Academic Research ◽  
International Humanitarian Law ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
Wide Range ◽  
The Status ◽  
State Of Research ◽  
International Refugee Law

The Oxford Handbook of International Refugee Law is a comprehensive, critical work, which analyses the state of research across the refugee law regime as a whole. Drawing together leading and emerging scholars, the Handbook provides both doctrinal and theoretical analyses of international refugee law and practice. It critiques existing law from a variety of normative positions, with several chapters identifying foundational flaws that open up space for radical rethinking. The Handbook aspires to be global, both legally and geographically. Contributions assess a wide range of international legal instruments relevant to refugee protection, including from international human rights law, international humanitarian law, international migration law, the law of the sea, and international and transnational criminal law. Ultimately, the Handbook provides an account, as well as a critique, of the status quo, and in so doing it sets the agenda for future academic research in international refugee law.

scholarly journals NEW TRENDS IN MIGRATORY AND REFUGEE LAW IN BRAZIL: THE EXPANDED REFUGEE DEFINITION

2015 ◽  
Vol 3 (3-4) ◽  
pp. 143-169
Author(s):  
Catherine Tinker ◽  
Laura Madrid Sartoretto
Keyword(s):  
Geneva Convention ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Narrow Scope ◽  
Refugee Law ◽  
The Status ◽  
International Refugee Law ◽  
Legal Frameworks ◽  
Definition Of ◽  
Domestic Level

This paper aims to explore new trends in Brazilian refugee and migratory law in the last 20 years. In doing so it addresses the evolution of the definition of “refugee” in Brazil, expanding the eligibility grounds provided by the 1951 Geneva Convention on the Status of Refugees (1951 Convention). Reviewing international and regional refugee law, the article analyzes the broader understanding of the notion of “refuge” and its complexity expressed in regional and national legal frameworks, taking account of lawyers, scholars and activists who criticize the narrow scope of the classical refugee definition from 1951 which has become distant from current refugee voices and struggles. At the domestic level, although the 1980 Aliens Statute (Act. n. 6815/80) is still in effect, there have been important changes in refugee law in Brazil since the implementation of the 1997 Refugee Statute (Act n. 9.474/97), influenced by the 1984 Cartagena Declaration (a regional soft law instrument) regarding the definition of “refugee”. Exploring the interconnection of the Refugee Statute and complementary forms of human rights protection which fall outside the scope of international refugee law, the article concludes that in the specific case of Haitians in Brazil, the broader protections of Brazilianrefugee law should be available rather than the complementary systemof humanitarian visas.

scholarly journals NEW TRENDS IN MIGRATORY AND REFUGEE LAW IN BRAZIL: THE EXPANDED REFUGEE DEFINITION

2018 ◽  
Vol 3 (3-4) ◽  
pp. 143-169
Author(s):  
Catherine Tinker ◽  
Laura Madrid Sartoretto
Keyword(s):  
Geneva Convention ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Narrow Scope ◽  
Refugee Law ◽  
The Status ◽  
International Refugee Law ◽  
Legal Frameworks ◽  
Definition Of ◽  
Domestic Level

This paper aims to explore new trends in Brazilian refugee and migratory law in the last 20 years. In doing so it addresses the evolution of the definition of “refugee” in Brazil, expanding the eligibility grounds provided by the 1951 Geneva Convention on the Status of Refugees (1951 Convention). Reviewing international and regional refugee law, the article analyzes the broader understanding of the notion of “refuge” and its complexity expressed in regional and national legal frameworks, taking account of lawyers, scholars and activists who criticize the narrow scope of the classical refugee definition from 1951 which has become distant from current refugee voices and struggles. At the domestic level, although the 1980 Aliens Statute (Act. n. 6815/80) is still in effect, there have been important changes in refugee law in Brazil since the implementation of the 1997 Refugee Statute (Act n. 9.474/97), influenced by the 1984 Cartagena Declaration (a regional soft law instrument) regarding the definition of “refugee”. Exploring the interconnection of the Refugee Statute and complementary forms of human rights protection which fall outside the scope of international refugee law, the article concludes that in the specific case of Haitians in Brazil, the broader protections of Brazilianrefugee law should be available rather than the complementary systemof humanitarian visas.

The Refugee in International Law

2021 ◽  
Author(s):  
Goodwin-Gill Guy S ◽  
McAdam Jane
Keyword(s):  
International Law ◽  
Due Process ◽  
Fundamental Principle ◽  
Full Account ◽  
Refugee Law ◽  
The Status ◽  
Heated Debate ◽  
International Refugee Law ◽  
Refugees And Asylum Seekers

The status of the refugee in international law, and of everyone entitled to protection, has always been precarious, not least in times of heightened and heated debate. People have always moved in search of safety, and they always will. This completely revised and updated edition casts new light on the refugee definition, the meaning of persecution, the role of gender and sexual orientation, the types of harm, and the protection due to refugees. The book reviews the fundamental principle of non-refoulement as a restraint on the conduct of States, even as States themselves seek new ways to prevent refugees and asylum seekers arriving. The book analyses related principles of protection—non-discrimination, due process, rescue at sea, and solutions—in light of what States, UNHCR, and treaty-monitoring bodies actually do, rather than merely deductively. It closely examines relevant treaty standards, and the role of UNHCR in providing protection, contributing to the development of international refugee law, and promoting solutions. New chapters bring into focus evolving protection demands in relation to nationality, statelessness, and displacement in the context of disasters and climate change. The book factors in the challenges posed by the movement of people across land and sea in search of refuge, and their interception, reception, and later treatment. The overall aim remains the same as in previous editions: to provide a sound basis for protection in international law, taking full account of State and community interests and recognizing the need to bridge gaps in the regime which now has 100 years of law and practice behind it.

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