Part VIII Accountability for Displacement and Refugee Rights Violations, Ch.62 Restitution and Other Remedies for Refugees and Internally Displaced Persons

This chapter explores restitution and other remedies for refugees and internally displaced persons (IDPs). Most refugees and IDPs never receive any formal redress for the wrongs they have suffered. Yet over the past 30 years, significant progress has been made in advancing international norms on remedies for refugees and IDPs, and experiences in countries from Bosnia and Kosovo to Rwanda and Iraq have strengthened understanding of the challenges involved in translating these principles into practice. Efforts have focused predominantly on the restitution of housing, land, and property (HLP), with the assumption that this is the most pertinent remedy for forced migrants, particularly because it may help enable return as the ‘preferred’ solution to displacement. The chapter assesses these developments and the state of research on this pivotal challenge. It reviews the approaches taken in major peace treaties, court decisions, and standards. The chapter then reflects on five intertwined challenges: (i) developing appropriate data collection techniques and evidentiary standards; (ii) balancing the rights of ‘secondary occupants’ and people in protracted displacement; (iii) mitigating risks associated with HLP restitution; (iv) developing a better understanding of how gender, race, class, and other intersecting power relations influence redress; and (v) moving beyond a narrow focus on property restitution to consider the wider range of losses associated with displacement.

Part II Sources, Ch.12 International Humanitarian Law and Refugee Protection

The chapter considers the interrelations between international humanitarian law and international refugee law. It seeks to illustrate that, in displacement contexts, interactions between international humanitarian law and (global and regional) refugee protection regimes, which continue to apply during conflict, are rather challenging given that, whereas international humanitarian law shares international refugee law’s concern for vulnerable individuals, its frame of reference (unlike that of international refugee law) is minimization of harm. Given that the regimes have evolved at different times and with their own specific sources, institutions, and ethos, the chapter appraises how ‘regime interaction’ would (or should) work. It then assesses the scope of application of international humanitarian law norms, looking at the significance of international humanitarian law classification, including who classifies conflicts. The chapter concludes by exploring international humanitarian law displacement-related norms and the extent to which international refugee law interpretations affect them.

Part I International Refugee Law— Reflections on the Scholarly Field, Ch.8 The Intersection of International Refugee Law and International Statelessness Law

This chapter focuses on the intersection of international refugee law and international statelessness law. While refugee law, policy, doctrine, and research evolved, it was not until after the turn of the twenty-first century that international statelessness law started to draw much attention and to begin to emerge as a field of its own. As global interest in statelessness grows, the interaction between statelessness and forced displacement has also come back under the spotlight. Thus, the chapter provides an insight into the relationship between statelessness and forced displacement. It starts by unpacking how statelessness can manifest itself as a cause or consequence of displacement, as well as how statelessness can be a complicating factor for refugee protection and durable solutions. The chapter then offers a brief overview of key norms relating to the protection of stateless persons and the prevention and resolution of statelessness, setting out the contours of international statelessness law. It also looks at the implications of the statelessness–displacement nexus by exploring the conceptual and practical questions that arise when a refugee is also stateless, and when a stateless person is also a refugee.

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

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.

Part IV Access to Protection and International Responsibility-Sharing, Ch.28 The Evolution of Safe Third Country Law and Practice

This chapter details how States and regions use safe third country (STC) practices to deny protection to asylum seekers and refugees on the grounds that they have, or may have, protection in another country. The STC notion originated in Switzerland in 1979, spread throughout Europe in the 1980s, and was adopted by the European Union and countries such as Australia and Canada in the 1990s. Since then, developments in STC law and practice globally include new bilateral agreements, reforms to STC provisions in domestic and supranational legislation, and landmark decisions of superior courts. The chapter studies these changes in Europe, Australia, and North and South America, focusing in particular on the period from 2010 to 2020. It argues that there has been a dilution of STC protection standards in these four regions. The thresholds for effective protection have diminished and are lower than the minimum laid down in international treaties. Moreover, in the introduction and evolution of these STC practices, lawmakers and judges have disregarded the legal principle of international solidarity. While STC practices have long been critiqued as burden-shifting rather than -sharing, new STC law and jurisprudence exacerbates inequities between States with respect to responsibility for hosting refugees.

Part I International Refugee Law— Reflections on the Scholarly Field, Ch.2 Race, Refugees, and International Law

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.

Part V The Scope of Refugee Protection, Ch.41 Refugee Children

This chapter focuses on refugee children. International law affords all refugee children special protection, under both the Refugee Convention and, of particular significance, the Convention on the Rights of the Child (CRC). The CRC recognizes children as independent rights-bearers, entitled to a comprehensive set of civil, political, social, economic, and cultural rights that are designed to cater for their specific needs. The rights set out under the CRC apply to all children, wherever they find themselves, without discrimination. Evidently there is a significant protection gap. This chapter traces the development of international law relating to refugees and to children, before addressing six key issues: first, the notion of childhood and the difficulties in proving age; secondly, the application of the refugee definition to children; thirdly, the extent to which the CRC is capable of affording independent and more appropriate forms of protection status for children; fourthly, a refugee child's entitlement to appropriate protection and humanitarian assistance (article 22 of the CRC); fifthly, the availability of durable solutions; and finally, family reunification.

Part I International Refugee Law— Reflections on the Scholarly Field, Ch.7 Refugees as Migrants

This chapter details the long-standing debate on whether refugees should be portrayed as migrants. Several organizations, refugee advocates, and scholars argue for a clear line between ‘migrants’ and ‘refugees’, as a means of protecting the refugee regime. They point to the inherently distinct motivations driving refugee movements compared to other types of migration, as well as to the specific normative and institutional framework for refugee protection. The chapter argues that conceptualizing refugees as migrants does not undermine the specific normative and institutional framework for refugee protection. Rather, it further promotes refugees’ access to asylum and safety. The chapter then examines the literature on the refugee/migrant distinction, highlighting the increasingly overlapping and interconnected motivations and contexts driving forced migration. It looks at the mounting barriers refugees face to reach safety and explores the avenues to safeguarding and promoting access to asylum and refugee rights. The chapter also articulates the role that freedom of movement should play in protecting the rights of all migrants, including refugees.

Part VI Refugee Rights and Realities, Ch.50 Non-refoulement

This chapter highlights the most fundamental of all obligations owed to refugees—that of non-refoulement. The raison d’être of the obligation continues to provoke debate about the validity of the lines drawn between refugees, other beneficiaries of the obligation, and other migrants, and the way the purported provider of surrogate protection—the State—is implicated in the production of forced migration. That background or deep structure of the State system assists in explaining the phenomenon explored in the chapter: the interaction between shrinking and expansive approaches to non-refoulement. The chapter first outlines the sources of the obligation, noting the obligation’s place in the Refugee Convention and other treaties as well as its status as customary international law, and the corresponding beneficiaries of the obligation. It then examines the scope of the obligation, with emphasis on States’ attempts to divest their responsibilities through legal fictions and extraterritorial immigration enforcement. The chapter also discusses the concept of constructive or disguised refoulement—that is, when an asylum seeker spontaneously leaves the country of asylum as a result of their treatment in that country.

Part IV Access to Protection and International Responsibility-Sharing, Ch.29 Smuggling of Migrants and Refugees

This chapter focuses on the smuggling of migrants in the context of refugee movements, and examines the scope and application of international law pertaining to these phenomena. The principal binding global instrument on this topic is the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air which, on the surface, coexists alongside international refugee law in situations where smuggled migrants are seeking asylum. Although the Smuggling of Migrants Protocol expressly recognizes the protection afforded to refugees under international law, its interpretation, operation, and implementation often run into conflict with the Refugee Convention. All too frequently, measures to prevent and combat the smuggling of migrants focus exclusively on law enforcement, criminal justice, and restrictive border measures without recognizing the rights of refugees, asylum seekers, and smuggled migrants, which are the subject of this chapter.