GUY S. GOODWIN-GILL and JANE McADAM with EMMA DUNLOP
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Preface
International refugee law and organization are now over 100 years old, and the League of Nations first High Commissioner for Refugees, Fridtjof Nansen, had to deal with causes of displacement not so dissimilar to those facing the international community today—war and conflict, social restructuring and State building, famine and epidemic. Inspired by the League’s recognition of the principle, no less than his own humanity, he put into practice the rule of no compulsory return a decade before the word non-refoulement entered the vocabulary of protection.
The 1951 Convention relating to the Status of Refugees, together with the Statute of the United Nations High Commissioner for Refugees (UNHCR), is itself now 70 years old, and together they form the bedrock of today’s international protection regime. Yet all the years of experience since then seems to have bred complexity, with the Convention now the most litigated treaty in the world. The drafters would surely be surprised at the close scrutiny to which its terms are subject, but it is truly an evolving instrument with the capacity to respond to the changing needs of those in search of protection. In addition, international refugee law today is often where other disciplines converge, pause, and then move on, opening up new lines of inquiry or configuring new, muchneeded perspectives.
The reasons for the extended coverage in this fourth edition are self-evident States seem especially keen to keep those in search of refuge away from their borders, and because such measures often take place or have effect in ‘disputed’ areas, the extraterritorial dimension is contested, resulting in litigation. Civil society is also concerned, for the most part, to ensure that the recognized reasons for persecution now include gender, sexuality, and disability, and courts tend to accept that they can be factored into the refugee definition by way of interpretation. At the same time, governments incline to challenge what they consider to be unjustifiable claims to refugee status and key findings of fact, or dispute that they should provide protection at all
Within the UN and its refugee protection agency, UNHCR, there is also an apparent disconnect between the ‘new’ tasks of protection that States want, for example, on statelessness, the internally displaced, and the impacts of climate
change; and the mechanisms, the funding for solutions, and the ever-present question of obligation. Since 2003, UNHCR’s existence has been confirmed ‘until the refuge problem is solved’, but nothing much else has changed. Like the 1951 Convention, the UNHCR Statute and the High Commissioner’s protection mandate move ahead, with precedent building slowly on precedent, even as the numbers of displaced people continue to rise, together with the budgets needed to provide protection and some assistance. States, meanwhile, are still unable to agree on which of them should take responsibility for protection, apart from limited agreements, or to engage in long-term, more equitable approaches to the movement of people. They continue to return asylum seekers to places where they are not safe, to ignore those in distress at sea, to detain people indefinitely, and to deny them any chance of a solution, of employment, or of education.
At the time of the third edition in 2007, we said that we would have to wait and see whether the European Union’s harmonization efforts were indeed producing an overall positive effect. The results are mixed; today, those efforts are under review, and already there are political differences on Europe’s response, and legal divergences between the ideal of universal, international protection under the Convention and the Protocol, and the effects of a ‘European refugee status’. By contrast, in the Americas and in Africa, regional treaty supervisory mechanisms are beginning to have a substantial impact on the development of effective protection principles, although too often State implementation leaves much to be desired. In Asia and the Pacific, progress is less sure, but some positive markers were put down before COVID-19 interrupted.
Needless to say, the pandemic has had a negative impact on all aspects of the refugee experience, from closed borders preventing access, to restrictions on internal movement, health care and vaccination, and to discrimination in general, and the denial of resettlement and other solutions. In many cases, COVID-19 was just an excuse, and many of the limitations on protection allegedly justified by the pandemic will be challenged, using the principles of international refugee law and international human rights law. There is no good reason why those in search of refuge should be targeted, but as we know, ‘no good reason’ is often excuse enough for those anxious to divert attention away from dealing with fundamental issues.
In this fourth edition, we have tried to capture at least some of this complexity, to set out the law at 31 May 2021, and to encourage discussion and debate. We have considerably revised the text, while keeping to our initial thesis and focus
on three general themes, namely, the refugees themselves, asylum for refugees, and protection of refugees. After a short introduction in Chapter 1 situating the issues in today’s international legal and political context, Chapter 2 looks at how refugees have been and are described in the law. Chapter 3 then takes article 1 of the 1951 Convention as the basis for a thorough examination of the meaning of the elements of the refugee definition, while Chapter 4 considers how refugee status can cease, be denied, or be lost.
In Part 2, the principle of non-refoulement is considered across two chapters (Chapters 5 and 6), and two further chapters then look at protection under human rights and general international law, and at the concept of asylum (Chapters 7 and 8, respectively). Part 3 takes up ‘Protection’ in more detail, with Chapter 9 focusing on the relevant international institutions. Chapter 10 looks at the particular challenges raised by the principle of cooperation and solutions, while Chapter 11 examines the implementation of international standards in national law, with particular reference to the determination of refugee status. Finally, we end with two completely new chapters: Chapter 12 considers the legal implications of displacement related to the impacts of disasters and climate change, and Chapter 13 considers the developing law on nationality and statelessness.
For reasons of space, regrettably we have had to forego the annexes, although a limited number can still be found in the online version. We have included a ‘List of States’, indicating which are party to the relevant international instruments, and which are members of UNHCR’s Executive Committee (107, at the time of writing …) or Member States of the European Union (back to 27 …).
We hope once again to have provided a timely reminder of the inherent dignity of everyone in search of refuge, and of the fact that it is not criminal for anyone to seek asylum from persecution or other serious harm. We have tried, once again, to stress the importance of the international protection regime and its resilience and capacity to evolve. We have aimed to provide an authoritative statement of the refugee in international law, offering pointers to present and upcoming debates, and, indeed, looking towards a future in which the necessity for flight may be reduced.
Guy S. Goodwin-Gill
All Souls College Oxford
Kaldor Centre for International Refugee Law
Faculty of Law & Justice
University of New South Wales
Sydney
Jane McAdam
Kaldor Centre for International Refugee Law Faculty of Law & Justice
University of New South Wales
Sydney
Emma Dunlop Faculty of Law & Justice
University of New South Wales
Sydney
Acknowledgements
Many are those who have contributed over the years to this fourth edition, whether in commenting on particular initiatives, supporting related projects reflected in the text, or in the almost daily discussion that accompanies involvement in the issues of displacement.
Guy Goodwin-Gill is particularly grateful to the Warden and Fellows of All Souls College, Oxford, for providing the space and the opportunity to develop many of the ideas that figure below, and for contributing an environment that encouraged thinking and cogent criticism. He is also very pleased to acknowledge friends and colleagues in Blackstone Chambers, London, as well as Raza Husain and Christopher Jacobs, who kept the questions coming.
We are especially appreciative of the continued efforts of Andrew and Renata Kaldor, who had the wisdom to establish the Kaldor Centre for International Refugee Law at a crucial time in Australia’s history; and to the Faculty of Law & Justice at the University of New South Wales (UNSW) which, under successive Deans, David Dixon, George Williams, and Andrew Lynch, provided the support that allowed the coming together of such an imaginative and productive team; thanks to Joyce Chia, Madeline Gleeson, Claire Higgins, Lauren Martin, Kelly Newell, Frances Nolan, Sangeetha Pillai, and Frances Voon, in particular. We are also pleased to recognize the Kaldor Centre’s affiliates, including the members of its advisory and steering committees, as well as the many doctoral students (at UNSW and Oxford) with whom we have worked. Emma Dunlop gratefully acknowledges the Australian Government Research Training Program Scholarship, while Jane McAdam acknowledges the Australian Research Council which has supported a number of projects whose findings are reflected in this volume. In particular, we would like to thank the research associates who have worked on aspects of the book over the years: Fiona Chong, Sophie Duxson, Naomi Hart, and Regina Jefferies.
The study of international refugee law necessarily involves coming together and exchanging views and papers with colleagues around the world (now more often virtually, than in person). The Refugee Studies Centre in Oxford, the Refugee Law Initiative in London, and the Center for Gender and Refugee Studies at the University of California Hastings College of the Law in San
Francisco, have all been ready and willing collaborators. In addition, the following friends and colleagues responded to queries for the book or otherwise provided assistance and support through collaborative research projects with the authors: Bruce Burson, David Cantor, Cathryn Costello, Ben Doherty, Michelle Foster, Matthew Gibney, María-Teresa Gil-Bazo, Geoff Gilbert, Agnès Hurwitz, Kate Jastram, Walter Kälin, Hélène Lambert, Audrey Macklin, Violeta MorenoLax, Stephen Sedley, Matthew Scott, and Tamara Wood.
UNHCR is and has long been a valued partner. The Regional Office in Canberra, and representatives Thomas Albrecht and Louise Aubin, in particular, have proven to be notable and inspiring interlocutors, seeking regularly to represent the international aspects of refugee rights and State obligations to governments in a frequently difficult environment. UNHCR in Geneva, through Madeline Garlick, Volker Türk, and Kees Wouters, has likewise continued to provide encouragement and challenge our thinking.
The list could and should go on. Over the past 14 years, there have many collaborators, colleagues, friends, and doctoral students, all of whom, in one way or another, have become part of this book we thank you for your support, robust discussion, and inspiration. We look forward to continuing the dialogue with you and with an emerging generation of scholars who, we are sure, will energize and enrich the field.
We are grateful once again to have worked with Oxford University Press, especially with Merel Alstein, Jack McNichol, and John Louth, and we extend our warm thanks as well to Arokia Anthuvan Rani and the production team at Newgen Knowledge Works.
Finally, we could not have finished this fourth edition without the lasting support of our families, near and far to them we owe a very special debt.
List of States
Tables of Cases
Table of Treaties and Other International and Regional Instruments
Selected Abbreviations
Note to the Reader
The Refugee in International Law
PART 1: REFUGEES
Refugees Defined and Described
Determination of Refugee Status: Analysis and Application
Loss and Denial of Refugee Status and Its Benefits
PART 2: ASYLUM
The Principle of Non-refoulement– Part 1
The Principle of Non-refoulement– Part 2
Protection under Human Rights and General International Law
The Concept of Asylum
PART 3: PROTECTION
Protection, and Solutions
Treaty
and their Implementation in National Law
Nationality, Statelessness, and Protection
Select Bibliography Index
List of States
Tables of Cases
Table of Treaties and Other International and Regional Instruments
Selected Abbreviations
Note to the Reader
The Refugee in International Law
Introduction
The refugee in the law and practice of the United Nations Security Council
The refugee in national and international law
Protection
A future circumscribed, or free?
PART 1: REFUGEES
Refugees Defined and Described
Refugees
Refugees defined in international instruments 1922–46
Refugees for the purposes of the United Nations
Statute of the United Nations High Commissioner for Refugees (UNHCR)
Development of the statutory definition and extension of the mandate
Internally displaced persons
The problem in context
UN and UNHCR responsibilities
Refugees in the sense of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees
Regional approaches to refugee definition
Refugees in municipal law: some examples
Institutional responsibilities and international obligations
‘Refugees’for the purposes of general international law
Determination of Refugee Status: Analysis and Application
Respective competence of UNHCR and of States parties to the Convention and Protocol
Determination of refugee status by UNHCR
Determination of refugee status by States
The European Union Qualification Directive
Persecution: issues of interpretation
Protected interests
The ways and means of persecution
Persecution as a crime in international law
Agents of persecution
Agents of persecution and State responsibility
Fear, intent, motive, and the rationale for persecution
The refugee definition and the reasons for persecution
General matters
‘Good faith’and activities in the country of refuge
Nationality and statelessness
Deprivation of citizenship, persecution, and the country of one’s nationality
Reasons for persecution
Race
Religion
Nationality
Membership of a particular social group
5.2.4.1
The concept develops
5.2.4.2
The categories of association
5.2.4.3
Common victimization
5.2.4.4
Gender-based claims
5.2.4.5
Sexual orientation and gender identity claims
5.2.4.6 5.2.5
A social view of ‘social group’
Political opinion
Persecution: issues of application
Persecution and laws of general application
Conscientious objectors
6.1.1.1
The right of conscientious objection
6.1.1.2
The right to object to participation in conflict ‘condemned by the international community’
6.1.1.3
The nature of the dispute between the individual and the State
6.1.1.4
Establishing a well-founded fear of being persecuted
Political and non-political offenders
Persecution and situations of risk
Internal protection/flight/relocation alternative
Flight from armed conflict and violence
The individual and the group
Children as asylum seekers
Persecution and lack of protection
Loss and Denial of Refugee Status and Its Benefits
‘Revocation’, cessation, and exclusion
Cessation: voluntary acts of the individual
Cessation: change of circumstances
Personal circumstances
Change of circumstances in the country of origin
The cessation inquiry
Continuing status in exceptional circumstances
Protection or assistance by other States or United Nations agencies
4.1
4.2
The country of first asylum principle
Refugees receiving United Nations protection and assistance
4.2.1 4.2.2 4.2.3 4.2.4 4.2.5
4.3
Historical background
The UNHCR Statute and the 1951 Convention
Protection under the 1951 Convention
Subsequent developments
Looking ahead
Other refugees not considered to require international protection
Exclusion from refugee status
5.1
5.2
‘[S]erious reasons for considering’
Crimes against peace, war crimes, and crimes against humanity
5.2.1
5.2.2
5.2.2.1
5.2.2.2
5.2.2.3
5.3
5.3.1.1
5.3.1.2
5.4
The drafting history of article 1F(a)
The scope of article 1F(a)
Crimes against peace
War crimes
Crimes against humanity
5.2.3
Individual responsibility
Serious non-political crimes
5.3.1
The drafting history of article 1F(b)
The relation to extradition
‘Serious’and ‘non-political’
5.3.2
Context, proportionality, and security
Acts contrary to the purposes and principles of the United Nations
5.4.1 5.4.2 5.4.3 5.4.4 5.4.5
The drafting history of article 1F(c)
The ‘purposes and principles of the United Nations’
Individual responsibility
Refugee status, security, and terrorism
Terrorism, armed conflict, and the United Nations
PART 2: ASYLUM
The Principle of Non-refoulement– Part 1
Evolution of the principle
The principle of non-refoulement in general international law
Conventions and agreements
Declarations and resolutions
The UNHCR Executive Committee Conclusions on International Protection
State views and State practice
State views
State practice: some aspects
The scope of the principle of non-refoulement in the 1951 Convention
Personal scope
The question of risk
Exceptions to the principle of non-refoulement in the 1951 Convention
Relationship of the principle of non-refoulement to other contexts
Non-refoulement and ‘illegal entry’
Non-refoulement and extradition
Non-refoulement and expulsion
Non-refoulement in cases of mass influx
Some aspects of State practice
Temporary protection
The norm of temporary refuge
Non-refoulement through time
Non-refoulement as a principle of customary international law
The Principle of Non-refoulement– Part 2
Time and place, ways and means
Extraterritorial application
Establishing responsibility
Example: interception on the high seas
‘International zones’
‘Frontiers of territories’and diplomatic asylum
Joint and several State responsibility
Non-refoulement and flight by sea
Stowaways
Asylum seekers at sea
High seas
The contiguous zone
Internal waters and the territorial sea
Rescue-at-sea
International cooperation and the case of the Mediterranean
Protection under Human Rights and General International Law
Introduction
The evolution of complementary forms of protection
The scope of protection under human rights law
Absolute nature of non-refoulement in human rights law
Torture
Lawful sanctions
Intent
Cruel, inhuman, or degrading treatment or punishment
General risk
Standard of proof
Right to life
Death penalty
Right to an effective remedy
Other rights
Best interests of the child
The European Union Qualification Directive
Rights and legal status for beneficiaries of complementary protection
Exclusion from complementary protection
The Concept of Asylum
Introduction
Asylum in international conventions, other instruments, and acts
Asylum in regional agreements
Obstructing asylum: trends in State practice
Access
Interception
Other non-arrival policies
Visa regimes
Pre-entry clearance and carrier sanctions
International law responses
The right to leave any country
Article 31 of the 1951 Convention
Good faith
Non-admission policies: the ‘safe’country and the concept of ‘effective protection’
Jurisdictional issues: identifying the State responsible for determining a protection claim
The ‘safe country’mechanism ‘Effective protection’
Safe country practices in the European Union
First country of asylum
Safe country of origin
Safe third country
European safe country
Dublin Regulation
The US–Canada Safe Third Country Agreement
Readmission agreements
Extraterritorial processing
Legal concerns
Standards of treatment for asylum seekers
Detention
Detention and mass influx
Conclusion
PART 3: PROTECTION
International Protection
International institutions
The Office of the United Nations High Commissioner for Refugees (UNHCR)
Relation of UNHCR to the General Assembly and its standing in general international law
The UNHCR Executive Committee
The United Nations Relief and Works Agency for Palestine
Refugees in the Near East (UNRWA)
The Office of the United Nations High Commissioner for Human Rights (OHCHR)
The United Nations Office for the Coordination of Humanitarian Affairs (OCHA)
Strengthening coordination
The complementary role of UN agencies
Other organizations and agencies
International Organization for Migration (IOM)
The International Red Cross and Red Crescent Movement
Regional organizations
Non-governmental organizations (NGOs)
Humanitarian workers
The protection of refugees in international law
General international law
Treaties and municipal law
The principle of good faith
The protection of particular groups of refugees
Women refugees
Child refugees
Refugees with disabilities
International Cooperation, Protection, and Solutions
Refugee rights in camps, in settlements, and at large
Solutions
Local integration
Voluntary repatriation
Facilitating and promoting
Safe return
Resettlement
Complementary pathways to admission
Assistance and development
International cooperation
The New York Declaration and the Global Compacts
Refugee Compact
Migration Compact
Treaty Standards and their Implementation in National Law
The 1951 Convention and the 1967 Protocol relating to the Status of Refugees
1.1 1.1.1
Required standards of treatment
Equality of treatment, employment, and social benefits
Standards applicable to refugees as refugees
Administrative assistance: article 25
Identity documents: article 27
The Convention travel document: article 28
Treatment of refugees entering illegally: article 31
Expulsion of refugees: article 32
Non-refoulement: article 33
The criteria of entitlement to treatment in accordance with the Convention
Simple presence
Lawful presence
Lawful residence
Habitual residence
Territorial scope
Protection in national law: the refugee status determination procedure
General standards for the determination of refugee status
The role of UNHCR in national procedures
Due process and procedural fairness in the determination of refugee status
The 2013 European Union Procedures Directive
Process in refugee status determination: getting to ‘Yes’; getting to ‘No’
The interview, examination, or hearing
Uses and abuses of country and other information
Consistency of decision-making
Assessing credibility and drawing inferences from the evidence
Reasoning around credibility: consistency and inconsistency
Appeal or review
The status of refugees and the termination of refugee status in national law
Refugee status and the ‘opposability’of decisions
The principle of acquired rights
Displacement related to the Impacts of Disasters and Climate Change
Introduction
Terminology and concepts
Internally displaced persons
The application of international refugee law
Human rights law
Protection from arbitrary deprivation of life
Protection from inhuman or degrading treatment
Children
Internal flight alternative
‘Disappearance’of the State
International processes and developments
The Nansen Initiative and the Platform on Disaster Displacement
Other international processes
Preventing displacement and finding durable solutions
Nationality, Statelessness, and Protection
The role of nationality in the relations between States
A right to nationality in international law
Deprivation of citizenship
Deprivation of citizenship and the 1961 Convention on the Reduction of Statelessness
Aspects of subsequent practice
Deprivation of citizenship and its implications in international law
Statelessness in international law and practice
The League of Nations
The United Nations
The 1949 UN Study of Statelessness
The 1954 Convention relating to the Status of Stateless Persons
Eliminating and preventing statelessness
The International Law Commission
The elimination and reduction of statelessness
The 1961 Convention on the Reduction of Statelessness
Protecting the stateless
Protecting stateless refugees through the determination of status
Protecting the stateless through the determination of status
