Politics of the International Refugee Regime (Final author summary)

What?        Who? When?        Why? (Context)        Criticisms/Notes

Refugees as state failure

Betts and Loescher (2011)

• Refugee as prima facie evidence of HR violations
• State-citizen-territory relationship has broken down
• State building = citizen versus foreign other
• Refugees reinforcing state system “outside” before “inside”

• Assumes that refugees are inherently vulnerable
• Refugee power and

autonomy

Rightlessness as absence of group membership

Arendt (1948)

• Can rights exist without a society or government to give them authority?
• Human rights no longer fundamental; a fallback
• “No law exists for them, let alone equality before it”
• Human rights versus citizen rights is political

• Assumes no agency on the part of refugees; passive actors
• Refugee power and

autonomy

• Refugees as passive challenged by Moulin (2012) on refugee protests

State of refugee legal regimes

Goodwin-Gill (2014)

• Historical development: IRO (Soviets opposed political)

> UNHCR (temp) > UNHCR (perm)

• Convention standard: non-refoulement, travel docs, national treatment
• Protection gap: what rights apply? 1966 ICCPR?

- Addresses the political aspect of Palestinian refugees/UNRWA

Persecution complex in asylum law

Price (2006)

• Asylum as a scarce political resource
• Persecution criterion in 1951 Convention; two-tiered

system?

• Asylum as a political good = class membership = rights
• Political orientation is norm oriented (looks at cause)

• Opposes expansion of def to include gangs
• Favours narrow defs so

states support > not static/contested concept

Fracturing of the refugee label

Zetter (2007)

• Post-WWII labels at best nuance interpretation, at worst deny rights
• Haitian TPS, Turkish guests, IDPs, stowaways, aliens
• Refugee label a prized status and commodity
• States avoid refugee terminology to avoid obligations

• Problematic nature of grounds: race defined?
• Borders (Sudan/South)?
• Cultural and historical?
• Patriarchal 1961 def

Who is (not) a refugee

Haddad (2008)

• Refugees leave domestic political community > gaps between states
• Not hope for a better life but rebuilding a life lost
• Victim-like definition necessary for survival of concept
• Creates institutionalised dependency > loyalty to labeller
• No distinction between refugees and IDPs

• Acknowledge contested concept
• Current definitions

homogenise refugees

• Too broad (economic)?
• Price, Mooney challenge

“no difference” assertion

• Contrast with

Krähenbühl (2014) on UNRWA

• Contrast with Hyndman

(2011) on state-centric

- Enduring challenge: refugee labels in Syria, Palestinian refugees in Syria, Turkey has not signed Protocol, UNHCR registration as power

IDPs as a Category of Concern

Mooney (2005)

• IDP as a descriptive but not legal definition
• Categorisation of IDPs because displacement connected to violation of certain rights
• E.g., means of survival, social/cultural support, symbolic

goods (culture, friendship)

• Urgent material needs (e.g., food)

• Underplays importance of agency like UNHCR
• Only solutions are return

or settlement within country; not viable?

• Sovereignty as

responsibility + R2P?

What?        Who? When?        Why? (Context)        Criticisms/Notes

Statelessness and the problem of resolving nationality status

Batchelor (1998)

• Nationality as a right and also precursor to other rights
• Link between state and person: jus soli, jus sanguinis, naturalisation
• De jure and de facto statelessness; nationality within local

laws so UNHCR cannot pronounce

• States may believe national elsewhere and refuse to extend de jure statelessness

• Gap in nationality laws: proscriptive but not prescriptive
• 1954/1961 Convention

relatively weak, few obligations, few sigs

• Nationalism in Dominican Republic, Haitian-born residents stripped of citizenship, Haiti agree to recognise on return but human rights?
• Rohingya as de facto stateless: no documents

Right to flee

Orchard (2014)

• 1685 Huguenots fleeing France: norm governed world
• Right to seek asylum as modified two-level games (norms

diffuse at I, situated within domestic interests at II)

• Constructivist: states pursue self interest unless it

conflicts with norm prescribing different behaviour

Development of right to leave as personal liberty

McAdam (2011)

• Emigration restriction poses a problem for right to immigrate/claim asylum; “incomplete right”
• Evolution: laissez-faire/domestic law > restrictive/

bilateral > multilateral/UNHCR > non-entrée/absence of Cold War pressure

• Abuse of rights by Nazis (forced relocations and

restrictions on movement) a trigger, not a cause

• Other rights connected to mobility
• “must permit movement

on a temporary basis” to allow fulfilment of other rights; short term?

• Problems w Puchala and Hopkins’ broad definition of a regime
• Krasner’s definition: bundle related norms, regularise state practice and identities

Non- refoulement as an open concept

Pirjola (2008)

• Non-refoulement not explicitly stated in international law
• False sense of capability of international law to protect
• Inhuman treatment, persecution, religion, violence?
• Limitation of legal language: majestic/false promise
• E.g., fluid definition of interrogation as inhumane/torture

• Ignores power of norms even if definition is indeterminate
• International society

approach

• 2016 EU-Turkey Deal: migrants returned to Turkey if claim denied or not filed
• Returning to Turkey a deterrent to migration
• 100+ asylum seekers returned to Syria per day by Turkey
• Wet foot/dry foot policy for Cuban rafts, Haitians w HIV

Cooperation and burden sharing in the refugee regime

Betts (2011)

• Suasion Game to understand role of power relations beyond PD (refugee protection as public good)
• Substantive issue linkage (security, migration, trade)
• UNHCR as broker of substantive linkages
• Burden-sharing as weak legal/normative framework
• CIREFCA/CPA: EU/US contributions & regional security
• ICARA: no state interdependence, no UNHCR broker

• Overstates the role of issue linkages
• Sees burden sharing as

the solution (normative), see IOM Ashutosh and Mountz (2009)

• CIREFCA projects often

failed, did not address land claims, no reforms

Democratisation

, Judicialisation, and Evolution

Gibney (2003)

• Tension in the democratic state (HR so restrictionism to limit state obligations)
• Democratisation made refugees a political policy instead

of bureaucratic

• Consolidation of due process/judicial RSD (int’l

convergence)

• Norm of group membership after time, reluctant to deport
• Protections against refoulement, regional agreements

(CAT), threaten golden thread of Convention?

• Expansion of judicial oversight & law beyond borders