The Oxford Handbook of International Refugee Law

1337 Pages·2021·7.722 MB·English

by  Cathryn Costello (editor), Michelle Foster (editor), Jane McAdam (editor)

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The Oxford Handbook of
I N T E R NAT IO NA L
R E F UG E E L AW
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The Oxford Handbook of
INTERNATIONAL
REFUGEE LAW
Edited by
CATHRYN COSTELLO,
MICHELLE FOSTER,
and
JANE McADAM
1
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1
Great Clarendon Street, Oxford, ox2 6dp,
United Kingdom
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It furthers the University’s objective of excellence in research, scholarship,
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© Oxford University Press 2021
Introduction © Cathryn Costello, Michelle Foster, and Jane McAdam 2021
Chapter 9. The Architecture of the UN Refugee Convention and
Protocol © James C. Hathaway 2021
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First Edition published in 2021
Impression: 1
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Foreword
I learnt about the denial of human rights and lack of justice before I knew what those
concepts meant, legally. As refugees, the circumstances we are born into are shaped by
powers beyond our reach. Yet we live the consequences of persecution and displacement
and the laws purportedly used to provide pathways to protection.
The circumstances I was born into—as a Kurd whose family escaped genocide—
shaped my interest in equality, justice, and human rights very early on. My family’s his­
tory of resistance in the face of persecution and oppression instilled in me the
importance of standing up for what is right, even when your life is on the line.
As the daughter of human rights activists, an ingrained passion for equality and just­
ice inspired me to pursue a career in law. I wanted to understand the power of law to cre­
ate positive change. So, I decided to dedicate my career to helping others find their voice
and access justice, as a lawyer.
In Pakistan, I was denied an education because of my refugee status. And in New
Zealand, when I was in high school, a careers adviser told me I ‘should consider other
options’ because law school would be too difficult for someone like me—a refugee with no
history of education in the family. People like me did not finish school, let alone end up at
university. All our lives, we are trained to survive. Being a refugee means that our existence
is based on trying to survive just another day and to reach safety. That’s all we ever dreamed
of. Wanting more than safety and survival seemed ungrateful. And there I was, ‘Rêz the
ungrateful refugee’, dreaming of things that were not for me—going to law school.
To me, it was not just about studying law. It was all the barriers, the stereotypes, and
the assumptions that I wanted to crush. To prove that we, refugees, could dream bigger
than the constraints of our identities and experiences allowed. It was about taking back
control of our own lives and, one day, hopefully, being able to influence the laws that
apply to people who are displaced, as I once was.
As a refugee, going through the legal processes of refugee status determination, iden­
tification, credibility assessments, and asylum proceedings can be disempowering and
frustrating. We are subject to laws and systems that were not created for us or by us.
While it is referred to as ‘refugee protection’, in many ways it epitomizes a system that is
often designed to protect against us. To keep us out.
Theoretically, seeking asylum is recognized, internationally, as a right; however, in
practice, many asylum seekers are treated as criminals. The political discourse on refu­
gees has shifted from seeing us as ‘at risk’, to ‘a risk’. Paradoxically, a system designed to
protect some of the most vulnerable people in the world can make us feel even more
vulnerable and helpless, further exacerbating the pain of fleeing from our homes.
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vi foreword
We find ourselves tasked with navigating the complexities of legal systems—often in
languages foreign to us—to reach some semblance of protection afforded under the
Refugee Convention as recognized refugees. Yet, disappointingly, successfully navigat­
ing these systems does not always result in any guarantees. Access to education, employ­
ment, and living a somewhat dignified life in the host country remain everyday
uncertainties, as does the prospect of being resettled in a third country. With UNHCR
figures indicating that less than one per cent of the world’s refugees are resettled annu­
ally, the chances are slim.
My family was told it would be six months before we were resettled. It ended up being
nine years. Being born as a refugee in a camp, I was at one point one of the statistics
referred to in UNHCR’s annual global trends reports about the number of displaced
people worldwide. But I am also part of another statistic: the one per cent of refugees
who complete higher education. While there are many scholars, like me, who also hap­
pen to have lived experiences of displacement, refugee voices are still largely unheard in
refugee research and scholarship.
While many of the Refugee Convention’s drafters were themselves refugees, and drew
directly on their personal experiences of displacement, today we see a considerable lack
of refugee engagement on issues that impact us. From decision­making outcomes to
research that has the potential to influence law and policy related to the predicament
faced by refugees, it is imperative that refugees play a key role.
Refugee situations have increased in scope, scale, and complexity, and this necessi­
tates new and innovative methods for protection, assistance, and solutions. While the
status quo continues to work for some issues, large­scale refugee movements and pro­
tracted refugee situations persist around the world, indicating that things must change.
My parents fled for my safety and took me to the opposite side of the world, yet I made
my way right back to where they started. I am currently based in the Kurdish region of
Iraq working as part of an international team of lawyers gathering evidence of the tar­
geted genocidal campaign carried out by ISIS against the Yezidis, including mass execu­
tions, kidnappings, torture, sexual violence, and other egregious human rights abuses.
This evidence will be used to build cases in collaboration with relevant European and
Iraqi/Kurdish authorities to prosecute the perpetrators.
Finding the best responses and solutions for the complex issues facing the millions of
displaced people across the globe requires strong evidence­based research and a com­
mitment to translating findings into impact. It requires input from those with lived
experiences of displacement for policies to be developed that are closer to the reality on
the ground. Participation begets solutions.
Refugee participation is not only an ‘ethical imperative’; it can also contribute to
changes in policy, the development of law, and durable solutions that are innovative,
sustainable, and more impactful. The importance of reflecting the perspectives of those
with lived experiences of displacement has been highlighted in many fora. However, a
number of obstacles still hinder the participation of refugee scholars. We need to
develop more effective measures for redressing the imbalance in legal scholarship to
include refugee voices. We must do better.
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foreword vii
There are many avenues for better incorporating refugee perspectives into academic
research in a more genuine and systematic way. Refugees are not homogeneous, and
neither are our voices. Refugees belong to many different national, social, religious,
and ethnic groups, and inevitably have varying opinions and beliefs. Therefore, no one
scholar could ever represent a comprehensive ‘refugee voice’. As such, scholarship
should endeavour to seek input from scholars representing diverse views, and include
different nationalities, ethnicities, and backgrounds.
We need to create scholarship identified by people currently displaced to address cur­
rent and future challenges associated with forced displacement. To achieve these goals,
this requires a prioritization and orientation towards capacity­building and co­designing,
to ensure that it can provide a platform for scholars with displacement experiences.
Leading and emerging scholars can facilitate research, training, and scholarship
opportunities which result in specific deliverables, and ensure genuine and effective
participation and involvement of refugees in academic work which has the potential
to impact and respond to challenges and opportunities relating to us.
The Handbook’s approach is pivotal. As the editors note in their introductory chapter,
it reflects a range of approaches—from doctrinal analysis of the law, through to critiques
of foundational practices and underlying assumptions. As the editors explain, the
Handbook does not simply ‘recount the status quo’ but also challenges it, and in so doing,
sets the future research agenda for international refugee law. It is critical that this next
phase incorporates a more balanced consideration of refugee voices. The meth odo logic al
challenges this entails should not prevent the legal community from championing
meaningful refugee participation in scholarship.
With unprecedented numbers of displaced people, we need to work together—now
more than ever—to come up with practical, effective responses to displacement through
multidimensional, multidisciplinary, and intersectional approaches. The call for ‘noth­
ing about us, without us’ is not merely a call to engage with refugees in consultations and
research, then to write about us. It is a call to make space for us to use our skills, perspec­
tives, and experiences to contribute to scholarship directly. After all, we—refugees—are
the experts of our lives and the issues affecting us, and we should be treated as such.
Rêz Gardî, Hewlêr, Kurdistan Region of Iraq, October 2020
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Acknowledgements
The publication of this Handbook would not have been possible without the support
and hard work of many individuals, and the institutional support of several organiza­
tions and funders. In the first place, thanks are due to Oxford University Press and the
editors who commissioned and shepherded this Handbook, in particular, Merel Alstein
and Jack McNichol. We are indebted to Merel for suggesting that we work together as a
trio, which has been both a professional and a personal pleasure.
A volume of this scale requires many pairs of keen eyes. We are grateful to our edi tor­
ial assistants who undertook meticulous copyediting and proofing: Hannah Gordon at
Melbourne Law School, Dr Sean Lau at Harvard Law School, and Dr Yulia Ioffe, for­
merly at the University of Oxford, now at Queen Mary. Yulia took on a multifaceted
role—an Assistant Editor in all but name, as well as a contributor to the Handbook. Her
expertise on general international law, the rights of the child, and refugee law, were fre­
quently called upon, as well as her editorial skills.
Over two days in July 2019, we had the privilege to host a workshop in the beautiful
surroundings of All Souls College, Oxford, with the generous support of Emeritus
Fellow Professor Guy S Goodwin­Gill. The College staff, in particular Irini Hatzimichali,
ensured that the event was both efficiently and elegantly run. Our graduate student
assistants, Natalie Nguyen, Dr Claire Walkey, and Elspeth Windsor, prepared meticu­
lous notes for authors, which enabled us to share ideas with those who could not be
there in person.
The workshop, which was attended by most of the authors, provided an opportunity
to discuss and shape the contributions for the Handbook. We were deeply grateful to our
contributors for the collaborative and generous spirit with which they approached the
workshop, and for their willingness to both give and receive feedback so constructively.
This collegial approach extended well beyond the workshop, as exemplified by authors’
willingness to refine and revise their contributions—in several cases co­authoring chap­
ters in newly established international collaborations—and to engage closely with us as
editors to produce excellent scholarship. We are proud to be part of this community of
scholars.
We gratefully acknowledge the various institutions and funders that supported the
Handbook. Cathryn Costello and Michelle Foster’s long­standing collaboration was
supported by generous funding from the Allan Myers Oxford–Melbourne Law School
fund. At Oxford, the Refugee Studies Centre (RSC) staff supported the organization of
the workshop, in particular, Tamsin Kelk and Susanna Power. The RSC also supported
the work on the Handbook via a grant from the Swiss Federal Department of Foreign