The Oxford Handbook of International Refugee Law PDF
Preview The Oxford Handbook of International Refugee Law
Foreword Rêz Gardî From: The Oxford Handbook of International Refugee Law Edited By: Cathryn Costello, Michelle Foster, Jane McAdam Content type:Book content Product:Oxford Scholarly Authorities on International Law [OSAIL] Series:Oxford Handbooks Published in print:03 June 2021 ISBN:9780198848639 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 history 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 justice inspired me to pursue a career in law. I wanted to understand the power of law to create 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. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: National Law University Orissa; date: 01 June 2021 As a refugee, going through the legal processes of refugee status determination, identification, 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 refugees 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. (p. vi) 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 navigating these systems does not always result in any guarantees. Access to education, employment, 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 annually, 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 happen 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 decision-making 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 necessitates new and innovative methods for protection, assistance, and solutions. While the status quo continues to work for some issues, large-scale refugee movements and protracted 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 targeted genocidal campaign carried out by ISIS against the Yezidis, including mass executions, 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 evidence-based research and a commitment 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 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: National Law University Orissa; date: 01 June 2021 effective measures for redressing the imbalance in legal scholarship to include refugee voices. We must do better. (p. 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 current and future challenges associated with forced displacement. To achieve these goals, this requires a prioritization and orientation towards capacity-building and co-designing, 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 methodological 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 ‘nothing 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, perspectives, 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(p. viii) From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: National Law University Orissa; date: 01 June 2021 Acknowledgements Edited By: Cathryn Costello, Michelle Foster, Jane McAdam From: The Oxford Handbook of International Refugee Law Edited By: Cathryn Costello, Michelle Foster, Jane McAdam Content type:Book content Product:Oxford Scholarly Authorities on International Law [OSAIL] Series:Oxford Handbooks Published in print:03 June 2021 ISBN:9780198848639 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 organizations 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 editorial assistants who undertook meticulous copyediting and proofing: Hannah Gordon at Melbourne Law School, Dr Sean Lau at Harvard Law School, and Dr Yulia Ioffe, formerly 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 frequently 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 Goodwin-Gill. 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 meticulous 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 co-authoring chapters From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: National Law University Orissa; date: 01 June 2021 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 long-standing 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 (p. x) Affairs. We thank the Andrew & Renata Kaldor Centre for International Refugee Law at the University of New South Wales and the Peter McMullin Centre on Statelessness at the University of Melbourne for financial support towards workshop travel. Cathryn Costello’s research was supported by her ERC RefMig grant under the European Union’s Horizon 2020 research and innovation programme (Grant Agreement ERC STG 2016 REF-MIG (716968)). We each owe a deep debt to our families. Much of the final editorial work was undertaken at a time of COVID-19-related restrictions, so we relied more than ever on our partners and others to take on additional caring responsibilities. Finally, and most importantly, we thank all the contributors for their commitment, expertise, openness, and collegiality. It was a privilege and a pleasure to work with you. In particular, we acknowledge Rêz Gardî for her insightful, important, and moving Foreword. Cathryn Costello, Michelle Foster, and Jane McAdam Berlin, Melbourne, and Sydney, October 2020 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: National Law University Orissa; date: 01 June 2021 Contents Edited By: Cathryn Costello, Michelle Foster, Jane McAdam From: The Oxford Handbook of International Refugee Law Edited By: Cathryn Costello, Michelle Foster, Jane McAdam Content type:Book content Product:Oxford Scholarly Authorities on International Law [OSAIL] Series:Oxford Handbooks Published in print:03 June 2021 ISBN:9780198848639 List of Abbreviations xvii Table of Cases xix Table of Instruments xliii Contributors lxxiii Introducing International Refugee Law as a Scholarly Field 1 Cathryn Costello, Michelle Foster, and Jane McAdam Part I International Refugee Law— Reflections on the Scholarly Field 1. International Refugee Law in the Early Years 23 Guy S Goodwin-Gill 2. Race, Refugees, and International Law 43 E Tendayi Achiume 3. A Feminist Appraisal of International Refugee Law 60 Adrienne Anderson and Michelle Foster 4. Queering International Refugee Law 78 Nuno Ferreira and Carmelo Danisi 5. The Politics of International Refugee Law and Protection 97 Rebecca Hamlin 6. The Ethics of International Refugee Protection 114 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: National Law University Orissa; date: 01 June 2021 Seyla Benhabib and Nishin Nathwani 7. Refugees as Migrants 134 Idil Atak and François Crépeau (p. xii) 8. The Intersection of International Refugee Law and International Statelessness Law 152 Laura van Waas Part II Sources 9. The Architecture of the UN Refugee Convention and Protocol 171 James C Hathaway 10. The Office of the United Nations High Commissioner for Refugees 186 James Milner and Jay Ramasubramanyam 11. Moving Towards an Integrated Approach of Refugee Law and Human Rights Law 202 Vincent Chetail 12. International Humanitarian Law and Refugee Protection 221 Reuven (Ruvi) Ziegler 13. Customary Refugee Law 240 Hélène Lambert 14. National Constitutions and Refugee Protection 258 Eve Lester Part III Regional Regimes 15. Regional Refugee Regimes: Africa 279 Marina Sharpe 16. Regional Refugee Regimes: North America 296 Deborah Anker 17. Regional Refugee Regimes: Latin America 315 José H Fischel de Andrade 18. Regional Refugee Regimes: Middle East 334 Maja Janmyr and Dallal Stevens 19. Regional Refugee Regimes: Europe 352 Evangelia (Lilian) Tsourdi (p. xiii) 20. Regional Refugee Regimes: Central Asia 370 Khalida Azhigulova 21. Regional Refugee Regimes: East Asia 389 Osamu Arakaki and Lili Song 22. Regional Refugee Regimes: South Asia 407 Jay Ramasubramanyam From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: National Law University Orissa; date: 01 June 2021 23. Regional Refugee Regimes: Southeast Asia 423 Vitit Muntarbhorn 24. Regional Refugee Regimes: Oceania 441 Michelle Foster and Anna Hood Part IV Access to Protection and International Responsibility-sharing 25. The Sharing of Responsibilities for the International Protection of Refugees 463 Madeline Garlick 26. Protection at Sea and the Denial of Asylum 483 Violeta Moreno-Lax 27. Extraterritorial Migration Control and Deterrence 502 Thomas Gammeltoft-Hansen and Nikolas Feith Tan 28. The Evolution of Safe Third Country Law and Practice 518 Luisa Feline Freier, Eleni Karageorgiou, and Kate Ogg 29. Smuggling of Migrants and Refugees 535 Andreas Schloenhardt 30. Human Trafficking and Refugees 553 Catherine Briddick and Vladislava Stoyanova 31. Refugee Status Determination 569 Bruce Burson 32. Asylum Procedure 588 Álvaro Botero and Jens Vedsted-Hansen (p. xiv) 33. Credibility, Reliability, and Evidential Assessment 607 Gregor Noll Part V The Scope of Refugee Protection 34. The International and Regional Refugee Definitions Compared 625 Tamara Wood 35. UNRWA and Palestine Refugees 643 Susan M Akram 36. Complementary Protection 661 Jane McAdam 37. Temporary Protection and Temporary Refuge 678 Jean-François Durieux 38. The Internal Protection Alternative 695 Bríd Ní Ghráinne 39. Exclusion 711 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: National Law University Orissa; date: 01 June 2021 Geoff Gilbert and Anna Magdalena Bentajou 40. Women in Refugee Jurisprudence 728 Catherine Dauvergne 41. Refugee Children 745 Jason Pobjoy 42. Sexual Orientation and Gender Identity in Refugee Claims 761 Jenni Millbank 43. Protecting Refugees with Disabilities 778 Mary Crock 44. Stateless Refugees 797 Hélène Lambert 45. Conflict Refugees 815 Cornelis (Kees) Wouters 46. Displacement in the Context of Climate Change and Disasters 832 Jane McAdam (p. xv) 47. Internal Displacement 848 Walter Kälin Part VI Refugee Rights and Realities 48. The Right to Asylum 867 María-Teresa Gil-Bazo and Elspeth Guild 49. National Constitutions and the Right to Asylum 883 Stephen Meili 50. Non-refoulement 899 Penelope Mathew 51. Non-penalization and Non-criminalization 917 Cathryn Costello and Yulia Ioffe 52. The Right to Liberty 933 Eve Lester 53. The Right to Work 952 Cathryn Costello and Colm Ó Cinnéide 54. The Right to Education 971 Sarah Dryden-Peterson and Hania Mariën 55. The Right to Family Reunification 988 Frances Nicholson 56. The Digital Transformation of Refugee Governance 1007 Kristin Bergtora Sandvik From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: National Law University Orissa; date: 01 June 2021 Part VII The End of Refugeehood—Cessation and Durable Solutions 57. Cessation 1029 Georgia Cole 58. Refugee Naturalization and Integration 1046 Fatima Khan and Reuven (Ruvi) Ziegler (p. xvi) 59. Reimagining Voluntary Repatriation 1064 Marjoleine Zieck 60. Resettlement 1080 Susan Kneebone and Audrey Macklin 61. Onward Migration 1099 Katy Long Part VIII Accountability for Displacement and Refugee Rights Violations 62. Restitution and Other Remedies for Refugees and Internally Displaced Persons 1119 Megan Bradley 63. The Responsibility of Armed Groups Concerning Displacement 1138 Ben Saul 64. The Accountability of International Organizations in Refugee and Migration Law 1157 Jan Klabbers 65. Border Crimes as Crimes against Humanity 1174 Itamar Mann Index 1191 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: National Law University Orissa; date: 01 June 2021
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