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International Law's Objects$

Jessie Hohmann and Daniel Joyce

Print publication date: 2018

Print ISBN-13: 9780198798200

Published to Oxford Scholarship Online: February 2019

DOI: 10.1093/oso/9780198798200.001.0001

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Refugee Chains

Refugee Chains

Chapter:
(p.399) 28 Refugee Chains
Source:
International Law's Objects
Author(s):

Alison Kesby

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198798200.003.0034

Abstract and Keywords

This chapter uses the object and concept of a chain to examine international refugee law which is shown to be a chain of shifting hue and state of repair. At certain points along its length its interwoven links of gold retain the echo of their humanitarian ideal, and at others its gaps and corrosion come into view, jar, and unsettle. Seen in one light, we see international refugee law as a prized area of international law: the means by which some of the world’s most vulnerable may obtain a recognized legal status and associated rights. In another, its weaknesses become all too apparent, whether the discrepancy between states’ international obligations and their implementation thereof (eg non-refoulement) or the constraints and limits of the Refugee Convention. Issues discussed include the stasis and dynamism of the law, gaps in protection, and ‘burden sharing’ among states.

Keywords:   chain, international refugee law, Refugee Convention, non-refoulement, burden sharing, status, humanitarian ideal, rights, implementation

Chains are evocative but complex objects. They bring to mind connections, linkages, and, when wrought in precious metals, exquisite craftsmanship—an object to be valued and prized. However, even these chains are liable to tarnish or corrode. Gaps may begin to appear in the linkages and points of weakness surface. What was once treasured may now be considered ripe for discarding, or at least recasting. Questions may arise as to whether the links are works of craftsmanship or of constraint; is the chain to adorn or to restrain, to embellish or to confine? Does the chain call to be broken—as a shackle—or strengthened in view of its value? In the following discussion, it is the chain of international refugee law with which we are primarily concerned. What might the object and concept of the chain reveal about this area of law, and about international law more broadly? And what sort of chain is it, after all? In what ways is it akin to the treasured cross and gold chain of the Iraqi Christian woman in the photo, a prized possession snatched before fleeing from the so-called ‘Islamic State’ group?

Refugee Chains

Fig 28.1 For the Iraqi Christian woman pictured, as the so-called ‘Islamic State’ group advanced on her home this chain was the one material possession she would not leave behind

Source: Matt Cardy/Getty Images.

The Chain of the International System: International Refugee Law as a Valuable Link Back into the International System

When considering international refugee law, it is first the nature of the international system which is thrown into relief—a system in which concepts of state sovereignty and sovereignty over territory endure. Before focusing on the ‘chain of international refugee law’, refugee law needs to be seen in relation to the broader chain of international law and the international legal system. Viewed from one angle, this latter chain is striking for the interconnection of its links. One link connects with another giving rise to a unity—a sense of completeness. With few exceptions, there are no neutral spaces in the world, no gaps in the chain as it is currently configured. The territory of the world is ‘governed’, ‘appropriated’, with the prevailing unit of governance remaining the sovereign state. In such a system, it is imperative for an individual to remain within the ‘links’—to be a ‘national’ of a state or have a recognized (p.400) legal status within one.1 To be a refugee or stateless and ‘out of place’ is a perilous position in the extreme. It is to be alienated from all states and territories.2 For the refugee—a person who is outside their state of nationality or habitual residence and is unable or unwilling to avail themselves of the protection of that state owing to a well-founded fear of persecution3—it is international refugee law which may serve as the open link back into the international system: the means of obtaining a recognized legal status and protection.

(p.401) With the development of international human rights law, such a legal status may be thought redundant: the chain, so it is claimed, remains unbroken. On one formulation, one’s ‘humanity’ alone is a sufficient basis for recognition as a rights-holder: the individual has become a subject of international law who holds fundamental rights directly under the law.4 Notwithstanding the development and importance of international human rights law, the bare human denuded of a legal status remains in a precarious position.5 Too often humanity alone has proved insufficient for the protection of the rights of the world’s most vulnerable. From this perspective, international refugee law, while standing in a complex relationship to international human rights law (discussed further later), also points to the limits of that law. It is a precious link back into the international system and the potential meaningful protection of human rights.

The Chain of International Refugee Law

A chain of adorning gold and/or constraint?

International refugee law may, on one view, be the primary link for the refugee back into the international system, but on what terms? Let us examine this link in closer detail. When magnifying it for the purposes of our analysis, the link itself can be seen to take the form of a chain: the chain of international refugee law. On one view, in seeking to provide protection to those fleeing persecution it is a chain of adornment and gold glistening with the best of the humanitarian impulse that all ‘human beings shall enjoy fundamental rights and freedoms without discrimination’.6 On another, discussed below, it is a chain of artifice and constraint.

The core international refugee law instrument, the Refugee Convention,7 is concerned with refugee status—defining who is a refugee, and the rights and responsibilities attaching to that status. Article 1A(2) defines a refugee as a person who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality8 and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’.9 As is often repeated, the Convention is premised on an individualized assessment of whether a person is a refugee. Refugee (p.402) status is declaratory in that a person is a Convention refugee from the moment they fulfil the criteria in the Convention definition; that is, prior to the formal determination of refugee status,10 although clearly formal recognition of the status is still important in practice. Reflecting this individualized assessment of refugee status, the chain may evoke a necklace worn by a particular refugee—perhaps displaying a symbol of the religion which formed the grounds of persecution,11 such as the cross on the gold chain of the Iraqi Christian woman in the picture. The chain may bear the marks of that individual’s history in the form of scratches on particular links or an engraving. For other refugees, a chain may evoke the violence to which they were subjected before their flight: a chain used during torture or the shackles of imprisonment or slavery. As complex as the lives of those who wear them, chains often of course evoke all of these connotations at once.

The Convention refugee definition has been aptly referred to as a ‘term of art’.12 It is a legal and technical definition. Each element of the definition (‘well-founded fear’, ‘persecution’ …) has generated a wealth of jurisprudence and interpretation. To become a ‘Convention refugee’ is to take the complexity of human relations, experience, and suffering and funnel it into the constraints of the legal idiom—to subject oneself to the discipline of the law and the legal process and shape a narrative intelligible to the law and to the decision maker. It is a question of whether one’s narrative conforms to the prevailing paradigm. The unwieldy metal is to be crafted and honed to form the link. A refugee’s ‘case’ has to be extracted and separated from their ‘story’ with all its complexity and particularity so as to ‘conform to a prescribed identity which is normalised and granted materialist meaning through its institutionalisation’.13 In the status determination procedure, decision makers may apply false assumptions as to human behaviour14 or to how memory works15 in assessing an applicant’s ‘credibility’. Whether a particular account is deemed credible may turn on its conformity to accepted norms—for example gender.16 To become the legal subject of refugee law is to be shaped by the law, forged, or produced by it,17 raising the question of whether refugees themselves are ultimately its ‘object’. Refugeehood, after all, is a construct of the law: the refugee emerges as the messy complexity of a (p.403) human life and history is translated into and submitted to the strictures of the law. The law may be deaf to the voice of some, and only hear others in part.

Old and new links: stasis and dynamism

When examining the chain, further striking features are the recurrence of the links and the potential of adding new ones. Even a circular chain is expandable. First, and briefly, the recurrence of the links. Like international law more broadly, ‘old’ problems and questions arising in international refugee law remain of contemporary relevance whether the tension between assertions of state sovereignty and constraints on that sovereignty, the scope of state jurisdiction, or the implementation of international obligations at the national level (discussed further later).18 The old is ever new or takes on new forms. If this suggests a certain stasis, then dynamism is another aspect of international refugee law.19 New links may be added to the chain or current links bent in new directions. Refugee advocates at the national level are key to this dynamism as they bring novel cases demonstrating the applicability of the Refugee Convention definition to contemporary forms of persecution.20 The Convention is interpreted as a ‘living instrument’ able to be applied to new persecution situations and challenges. The ‘social group’ element of the definition (persecution for reasons of membership of ‘a particular social group’) has proven to be a particularly malleable concept, open to progressive development and coming to embrace, for example—although by no means perfectly—gender-related persecution.21 International human rights law has been integral to this progressive development as human rights norms have come to inform and shape the interpretation of the Convention definition. This is an example of the complex interconnections of these two areas of law: they may not only point to the other’s limits, but may be mutually reinforcing so as to enhance human rights protection.22

Beyond the refugee definition itself, the question arises as to the dynamism of international refugee law more broadly. The development of ‘complementary protection’ for those falling outside of the Convention definition, but who are victims of serious human rights violations and in need of protection, is one example of broader dynamism,23 and a further instance of the contribution of international (p.404) human rights law to international refugee law.24 What however are the scope and contours of international refugee law? How many new links can be added before the law ceases to be refugee law? Is international refugee law to be set within the context of, and coupled with, broader issues of ‘forced migration’ studies or kept distinct?25 These questions manifest themselves at the institutional level with concerns over the expanding mandate of the Office of the United Nations High Commissioner for Refugees (UNHCR)—the organization charged with the international protection of refugees. As UNHCR increasingly responds to humanitarian crises, does its protection mandate become compromised and diluted?26 The issue of the scope of the field is also raised by contemporary displacement challenges: for example, it has been argued that it is inappropriate to frame the complex issue of climate change-related displacement as a refugee protection issue, and those affected as ‘climate change refugees’.27

Gaps in the chain

Notwithstanding this dynamism in the law, and the addition of new links, when the chain is closely inspected can gaps be perceived between the links? Notoriously, international refugee law (and the broader international protection regime) is a partial and incomplete system of protection for those seeking refuge. While taking into account several grounds of persecution, the Convention refugee definition is a circumscribed definition. It does not equate to the meaning of ‘refugee’ in common parlance or capture the full gamut of the manifold causes of flight.28 Nor will those seeking refuge necessarily come within expanded regional definitions29 or the ‘complementary protection’ offered by international human rights law. Moreover, a Convention premised on individual determinations of refugee status is ill-equipped to address the mass people flows of the last decades. One writer suggests that this ‘dissonance’ between an individualized definition and the ‘paradigm of mass movement’ reveals that ‘refugee law reflects first and foremost the interests of powerful Western states … [I]ndividualizing this mass renders the arrivals manageable, and limits state responsibility’.30 Whether or not you agree with this assertion, dissonance (p.405) and disjunctures are an inescapable aspect of the refugee regime and are by no means a new development. Note, for example the ‘disjuncture’ between the responsibility of UNHCR for an expanding range of people forced to flee their countries and the more circumscribed international obligations of states under the Refugee Convention.31 Then there is too often a discrepancy between states’ international obligations and their implementation thereof at the national level—whether in law or in practice—which as noted above, is an issue in international law more generally. Given the humanitarian nature of the Convention, the unevenness of the protection afforded refugees across states is particularly disturbing. Disparity exists in terms of the juridical interpretation of the Convention refugee definition32 and the rights accorded to refugees during refugee status determination proceedings and beyond. The Convention does not specify refugee status determination procedures, according states discretion as to how they implement the definition at the national level. Similar factual circumstances may culminate in divergent outcomes for individuals in different states33 and even within the same state across decision makers.34 These disparities raise the question of whether we are left with one coherent chain or a collection of separate and distinct links: a multiplicity of refugee ‘laws’—many individuated but not necessarily unified links as opposed to one chain.

Are these gaps between the links also a sign of a discipline under attack—of states retreating from their international obligations and seeking to unlink or break the finely wrought links of the chain? The failure of some states to carry out their international obligations in good faith belies their stated commitment to the Refugee Convention and to the protection of refugees in international human rights law. Examples include the arbitrary and indefinite detention of refugee applicants including children, with all the concomitant detrimental effects on mental health this entails; the protracted containment of refugees in camps with little hope of resettlement; and of course the conflation of migration control and refugee protection, and increasingly, of refugees with terrorist suspects such that seeking asylum has become a national security issue. Here the chain of refugee law may take on its most material form, transforming into the chain link fence of the detention centre.

Preventing access to a state’s territory has become a preoccupation for a number of states thereby severely impeding the right to seek and enjoy asylum.35 This raises (p.406) the paradox that the link which should connect the refugee with the international system and meaningful protection of their human rights remains blocked, turned in on itself—a closed circle. Interception and tow back policies for those arriving by sea are one aspect of this phenomenon, placing in jeopardy core human rights and the key plank of refugee protection—namely, the principle of non-refoulement (as understood in international refugee law and international human rights law)—that a person may not be returned to a state where they may face torture, persecution, or other serious violations of human rights.36 A notorious example of a state’s violation of its non-refoulement obligations is the United States’ Haitian interdiction programme in the early 1990s which came before the United States Supreme Court in the case of Sale, Acting Commissioner, INS v Haitian Centers Council.37 At the time, the US President had directed the US Coast Guard to intercept and repatriate Haitians on the high seas (that is, extraterritorially) without first determining whether they qualified as refugees. While the Supreme Court held that neither the relevant US immigration law provisions nor the non-refoulement obligation in the Refugee Convention (Article 33) applied to the acts of the Coast Guard on the high seas, the practice has been widely recognized as a breach of the US’s international obligations,38 not least of Article 33 of the Convention.39

A recent case before the European Court of Human Rights40 is a further example of this ‘unlinking’ phenomenon and of the arguments put forward by states to justify their interception policies.41 It concerned the interception by Italian authorities on the high seas of vessels bound for the Italian coast which had departed from Libya containing Eritrean and Somali nationals. Those nationals were then transferred to Italian military ships and ultimately returned to Libya. Unlike in Sale, however, the Court held the intercepting state to be in violation of its international obligations. It found that Italy had violated several obligations under the European Convention on Human Rights42 including Article 3 (the prohibition of torture and inhuman or degrading treatment or punishment)43 given the applicants’ risk of exposure to torture or inhuman or degrading treatment in Libya and in their countries of origin due to the real risk of their being returned there by the Libyan (p.407) authorities. In so doing, the Court rejected arguments frequently put forward by states to circumvent their international obligations towards asylum seekers at sea. For example, that those seeking asylum are not within the state’s jurisdiction such as to attract the state’s (here Italy’s) international obligations.44 It is also argued by states that such transfers are in accordance with cooperation agreements between the states concerned—in this instance agreements between Italy and Libya entered into in ‘response to increasing migratory flows between Africa and Europe’ with the purpose of combatting ‘clandestine immigration’.45 As observed by the Court, however, such agreements cannot obviate states’ human rights obligations under the European Convention.46 While acknowledging that states on the external borders of the European Union were struggling to cope with the mass influx of people, the right to protection from torture and inhuman or degrading treatment remained absolute.47 On the one hand the case is a further example of the application of human rights norms for the protection of those seeking asylum; on the other, the factual scenario points to the challenges faced by coastal states experiencing mass influxes and their conflation of ‘illegal migrants’ and asylum seekers. With states retreating from their commitment to refugee protection, the refugee system has been said to be in ‘crisis’.48 Against this background, calls are intensifying for increased ‘international cooperation’ and ‘burden sharing’. But by whom and for whom?

A load-bearing chain?

Is the chain of international refugee law then a load- and burden-bearing chain? If so, is the burden of the load acute at certain points in the chain or is it distributed equally throughout? The preamble to the Refugee Convention recognizes that ‘the grant of asylum may place unduly heavy burdens on certain countries’ such that a solution cannot be achieved without ‘international cooperation’.49 This principle of ‘international cooperation’ undergirds the international refugee regime and at times is expressed through calls for ‘burden sharing’ and ‘responsibility sharing’. Given the international nature of refugee and people flows, their ‘burden’ is to be borne equitably among states.50 How this is to be achieved however, was not addressed in the Refugee Convention and to date an international agreement has not been secured.51 (p.408) International cooperation and burden sharing are increasingly the mots du jour,52 and while constructive efforts in this area are to be encouraged, their invocation needs to be interrogated. Disproportionately it is developing states and those least able to cope who are affected by mass influxes and protracted refugee situations.53 Burden sharing may slip into burden shifting, and international cooperation into ‘regional solutions’ designed to ‘contain’ refugees within their region of origin—most notably in the ‘South’—securely away from ‘Northern’ host states.54 In the words of one writer:

governments of the developed world are now appropriating the language of burden-sharing in order to further an only mildly attenuated global apartheid regime under which most refugees not only remain in the less developed world, but remain there under conditions which are generally rights-abusive and often literally life-threatening.55

The above state of affairs has led to some commentators calling for a ‘reinvigoration’ of the international refugee regime; for refugee advocates to let go of ‘absolutist’ claims for refugees to be given permanent immigration status in host states;56 and for ‘international cooperation’ to be approached from the perspective of a ‘common but differentiated responsibility’.57 Such proposals are contested and controversial,58 but point to the need to prevent individual links in the chain being so burdened that the chain breaks, or the chain corrodes and is no longer fit for purpose as states increasingly obfuscate their international refugee law obligations. Finally, we cannot leave the arena of international cooperation and burden sharing before addressing a final uneasiness. While the ‘burden’ which needs to be shared may often (p.409) be financial or resource related, the impression which is left is of the ‘refugee-as-burden’,59 a ‘cost without benefit’60—a ‘waste product’61 to be shifted or contained out of sight or a physical burden to be avoided or ‘shared’ at all costs: refugees as the objects and commodities of the system.62

We are left with a chain of shifting hue and state of repair—at times its interwoven links of gold catch and please the eye retaining the echo of their humanitarian ideal, and at others its gaps, ‘burdens’, and even corrosion come into view and jar and unsettle. In one light, we see international refugee law as a prized area of international law—the means by which some of the world’s most vulnerable may obtain a recognized legal status and associated rights. In another, its weaknesses strike the eye, whether the discrepancy between states’ international obligations and their implementation thereof or the constraints and limits of the refugee determination process. Our examination of the object of the chain, however, has been haunted by a figure standing to the side, often out of focus; the refugee whose voice is all but absent in the above discussion, who is the intended subject of the law, yet increasingly its product and ‘object’. Perhaps here, sadly, is the true ‘object’ of international refugee law—the woman in the image.

Notes:

(1) With thanks to Dr Azadeh Dastyari for insightful comments on an earlier draft of this chapter. See further, Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (OUP 2012) Ch 1.

(2) For a discussion of the implications of the prior appropriation of territory for refugee law, see Patricia Tuitt, ‘Transitions: Refugees and Natives’ (2013) 20(2) International Journal on Minority and Group Rights 179, esp 180–4 where Tuitt argues that the ‘essence of refugeehood’ is ‘estrangement from territory’ (182).

(3) To adopt the definition in the Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (hereafter Refugee Convention) (as amended by the Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267) Art 1A(2) (discussed further below). For definitions of refugees in international law, see Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd ed, OUP 2007) Ch 2. See further Guy S Goodwin-Gill, ‘The International Law of Refugee Protection’ in Elena Fiddian-Qasmiyeh et al (eds), The Oxford Handbook of Refugee & Forced Migration Studies (OUP 2014) 36.

(4) See further, Colin Harvey, ‘Is Humanity enough? Refugees, Asylum Seekers and the Rights Regime’ in Satvinder Singh Juss and Colin Harvey (eds), Contemporary Issues in Refugee Law (Edward Elgar 2013) 68 in relation to the challenge international human rights law (based on personhood) and international refugee law (based on status) pose to one another.

(5) See further, Kesby (n 1) Ch 4.

(6) Refugee Convention, preambular paras 1 and 2.

(7) See n 3.

(8) Or having no nationality is ‘outside the country of his former habitual residence’: Refugee Convention, Art 1A(2).

(9) Broader definitions are however used in regional instruments (see, for example, OAU Convention relating to the Specific Aspects of Refugee Problems in Africa (opened for signature 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45, Art I(2)) by UNHCR, and in general international law (see Goodwin-Gill and McAdam (n 3) 23–32, 49–50).

(10) See UNHCR ‘Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’ (3rd ed) (reissued December 2011) HCR/1P/4/ENG/REV. 3, para 28.

(11) With thanks to Jessie Hohmann for this idea.

(12) Goodwin-Gill and McAdam (n 3) 15.

(13) Roger Zetter, ‘Creating Identities, Diminishing Protection and the Securitisation of Asylum in Europe’ in Susan Kneebone, Dallal Stevens, and Loretta Baldassar (eds), Refugee Protection and the Role of Law: Conflicting Identities (Routledge 2014) 22, 25.

(14) See Jane Herlihy, Kate Gleeson, and Stuart Turner, ‘What Assumptions about Human Behaviour Underlie Asylum Judgments?’ (2010) 22(3) International Journal of Refugee Law 351.

(15) See Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) 22(4) International Journal of Refugee Law 469.

(16) Herlihy, Gleeson, and Turner (n 14) 354.

(17) See Simon Behrman, ‘Legal Subjectivity and the Refugee’ (2014) 26(1) International Journal of Refugee Law 1 and Patricia Tuitt, False Images: The Law’s Construction of the Refugee (Pluto Press 1996) 14–16, 24–6.

(18) See Guy S Goodwin-Gill, ‘The Dynamic of International Refugee Law’ (2014) 25(4) International Journal of Refugee Law 651, 652.

(19) ibid.

(20) See, for example, ibid 656–7.

(21) See Michelle Foster, ‘Why We Are Not There Yet: The Particular Challenge of “Particular Social Group” ’ in Efrat Arbel, Catherine Dauvergne, and Jenni Millbank (eds), Gender Equality in Refugee Law: From the Margins to the Centre (Routledge 2014) 17.

(22) Of course, international refugee law is also often characterized as being part of the ‘broader framework of human rights instruments’. (See, for example, UNHCR EXCOM ‘Note on International Protection’ (13 September 2001) UN Doc A/AC.96/951, [4].) At the same time, international human rights law and international refugee law are not to be merged into one such that international refugee law is no longer a distinct regime. As argued by Catherine Dauvergne, ‘[t]his would be a significant loss indeed, as international human rights law has been much less successful as law than international refugee law.’ (Emphasis in original.) Catherine Dauvergne, ‘Refugee Law as Perpetual Crisis’ in Juss and Harvey (eds), Contemporary Issues (n 4) 13, 30.

(23) See Jane McAdam, Complementary Protection in International Refugee Law (OUP 2007).

(24) Looking beyond international human rights law, other connections between international refugee law and specialized areas of international law can be drawn: the law of the sea is clearly pertinent to the rescue of refugees at sea, while, for example, international criminal law informs exclusions from refugee protection.

(25) See, for example, James C Hathaway, ‘Forced Migration Studies: Could We Agree Just to “Date”?’ (2007) 20(3) Journal of Refugee Studies 349.

(26) See, for example, Geoff Gilbert, ‘Interesting Times: 2002-12’ (2013) 25(2) International Journal of Refugee Law 195, 202.

(27) See Jane McAdam, Climate Change, Forced Migration, and International Law (OUP 2012) 39–51.

(28) This is not to deny that states may choose to grant asylum and protection to those who do not fall within the Convention definition but who are recognized as needing asylum on humanitarian grounds. See Goodwin-Gill and McAdam (n 3) 36 and n 110.

(29) See n 9.

(30) Dauvergne (n 22) 14–15. Of course in cases of mass influx, individual determination may be impossible leading states to resort to granting ‘temporary protection’. See ‘UNHCR Roundtable on Temporary Protection International Institute of Humanitarian Law: San Remo, Italy, 19-20 July 2012’ (2013) 25(1) International Journal of Refugee Law 178.

(31) Goodwin-Gill and McAdam (n 3) 47, 50. UNHCR’s protection mandate is understood to extend beyond those determined to be refugees on the basis of an individualized assessment of a well-founded fear of persecution to include large groups of people who are taken to be without the protection of their state of origin, for example, due to conflict. ibid 29–32, 49–50.

(32) While there is no international treaty monitoring body which provides a binding interpretation of the Refugee Convention, the Executive Committee of the High Commissioner’s Programme (EXCOM) and UNHCR provide authoritative guidance (see, for example, EXCOM Conclusions on International Protection and UNHCR’s ‘Handbook’ (n 10).

(33) See Rebecca Hamlin, Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia (OUP 2014).

(34) Jaya Ramji-Nogales, Andrew I Schoenholtz, and Philip G Schrag, Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform (New York UP 2009).

(35) See Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (CUP 2011).

(36) See, for example, Refugee Convention, Art 33; International Covenant on Civil and Political Rights (adopted 16 December 1966, opened for signature 19 December 1966, entered into force 23 March 1976) 999 UNTS 171, Arts 6 and 7; Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (opened for signature 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85, Art 3.

(37) 509 US 155 (1993).

(38) See, for example, Haitian Center for Human Rights v United States, Case 10.675, Report No 51/96 Inter-Am CHR Doc OEA/Ser.L/V/II.95 Doc 7 rev (13 March 1997), paras 156–8 and Goodwin-Gill and McAdam (n 3) 248.

(39) A more recent example is the Australian government’s policy of ‘turning back the boats’; see Jane McAdam, ‘Australia and Asylum seekers’ (2014) 25(3) International Journal of Refugee Law 435, 441–2.

(40) Hirsi Jamaa v Italy (2012) 55 EHRR 21 (Grand Chamber).

(41) While the Convention does not contain a right to asylum, the case is a further example of how human rights law can be invoked for the protection of the rights of refugees.

(42) Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, entered into force 3 September 1953, 213, ETS No 5) (hereafter ECHR).

(43) Further violations were of the prohibition of the collective expulsion of aliens (Protocol No 4 to the ECHR, Art 4) and of the right to an effective remedy (ECHR, Art 13).

(44) In this instance, under the ECHR. Italy argued that it had merely conducted a rescue operation and that this did not bring the applicants within its jurisdiction for the purposes of the ECHR. The Court, however, found that the applicants were clearly ‘under the continuous and exclusive de jure and de facto control of the Italian authorities’ (Hirsi Jamaa v Italy (n 40) para 81).

(45) ibid, para 93.

(46) ibid, para 129.

(47) ibid, para 122.

(48) For an analysis of the insights to be gained from applying a ‘crisis’ paradigm to refugee law, see Dauvergne (n 22).

(49) Preambular para 4.

(50) This is often understood in terms of fiscal burden sharing (in particular financial contributions to host states) and secondly, ‘physical’ burden sharing; that is where refugees from states of first asylum are resettled in third states. See Agnès Hurwitz, The Collective Responsibility of States to Protect Refugees (OUP 2009) 147–57.

(51) However, there has been greater success at the regional level and between stakeholders in relation to specific refugee situations (see ibid 157–61; Goodwin-Gill and McAdam (n 3) 502–5). At the international level, the current approach appears to be the potential development of a ‘Common Framework on International Cooperation to Share Burdens and Responsibilities’. See UNHCR, Division of International Protection, ‘International Cooperation to Share Burden [sic] and Responsibilities, Expert Meeting in Amman, Jordan, 27 and 28 June 2011, Discussion Paper’, June 2011 and ‘Expert Meeting on International Cooperation to Share Burdens and Responsibilities Amman, Jordan, 27–28 June 2011, Summary Conclusions’ (2012) 24(2) International Journal of Refugee Law 471. Building on this initiative, UNHCR has sought to promote international cooperation in specific contexts such as rescue at sea involving refugees and asylum seekers.

(52) See, for example, UNHCR EXCOM Conclusion No 100 (LV) ‘International Cooperation and Burden and Responsibility Sharing in Mass Influx Situations’ (2004). While international cooperation is increasingly the preferred term (see, for example, UNHCR, Amman Summary Conclusions (n 51) 472) the language of ‘burden sharing’ persists.

(53) See, for example, UNHCR EXCOM Conclusion (n 52) preamble and paras (b) and (l).

(54) See Matthew J Gibney, ‘Forced Migration, Engineered Regionalism, and Justice between States’ in Susan Kneebone and Felicity Rawlings-Sanaei (eds), New Regionalism and Asylum Seekers: Challenges Ahead (Berghahn Books 2007) 57.

(55) James C Hathaway, ‘Why Refugee Law Still Matters’ (2007) 8 Melbourne Journal of International Law 89, 89 (building on earlier work such as James C Hathaway and R Alexander Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’ (1997) 10 Harvard Human Rights Journal 115).

(56) With certain qualifications, under the proposal refugees would reside only for as long as the cause of flight endures; that is protection would be ‘temporary’. See Hathaway (n 55) 96, 101.

(57) ibid 102.

(58) See, for example, Deborah Anker, Joan Fitzpatrick, and Andrew Shacknove, ‘Crisis and Cure: A Reply to Hathaway/Neve and Schuck’ (1998) 11 Harvard Human Rights Journal 295 and Gregor Noll, ‘Why Refugees Still Matter: A Response to James Hathaway’ (2007) 8 Melbourne Journal of International Law 536.

(59) Behrman (n 17) 9 (although Behrman’s assessment is in the broader context of the effect of the Refugee Convention and other instruments of international refugee law).

(61) ibid and Zygmunt Bauman, ‘Who is seeking Asylum – and from What?’ (2005) 4 Mediactive 90.

(62) See, for example, B S Chimni, ‘The Geopolitics of Refugee Studies: A View from the South’ (1998) 11(4) Journal of Refugee Studies 350, 362–3.