"Case notes." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (199), pp. 34–35.

In the aftermath of the “Arab Spring” and of crumbling state structures, an exodus of unknown proportion from the Near East and from Northern Africa has set in and was further exacerbated by civil war and ISIS terror rule over large territories in the Near East. As a consequence, thousands of refugees came to Europe. Many of them fulfilled the conditions for non-refoulement according to Article 33 of the Geneva Convention on the Law of Refugees of 1951 or were at (...) least entitled for temporary protection according to the Common European Asylum System. These instruments did not, however, take into consideration situations of mass influx and neither is there an efficient mechanism for burden sharing within the EU in place. Some countries where overwhelmed by these migration flows. In this contribution, particular attention will be given to the reactions to these developments by the Austrian government. In Austria, as a consequence of mounting pressure by considerable parts of the population demanding a halt to this migration, the government adopted or announced a series of measures that, if implemented, will constitute a blatant violation of international law. This holds true, in particular, for the so-called upper limit for asylum seekers. Legal academia in Austria in part was silent as to these events, in part sustained it after having been engaged for a legal. It is contended here that unilateralism may be effective in a short-time perspective, but the long-term consequences should not be overlooked. It would be better to work on a genuine international burden-sharing mechanism even though this approach is more difficult to sell to national constituencies. (shrink)

In this article, we aim to analyse whether a systematic meth- od for reasoning with evidence in legal cases – the hybrid theory of stories and arguments – can be ap- plied to a novel legal domain, name- ly European asylum law. This analy- sis serves as a case study for testing the applicability of the hybrid theory outside of the context of criminal law. Furthermore, the analysis will provide insights on how the hybrid theory can be used to improve (...) the normative framework for evidence assessment in asylum cases. (shrink)

The way in which international solidarity is conceptualized with respect to Palestinian refugees is different from how it is employed when discussing refugees more broadly and has been ignored in refugee law scholarship. International solidarity is generally understood to mean states sharing responsibility for refugees. However, in the Palestinian context, it refers to individuals’ and organizations’ empathetic support for refugees’ struggles and a political commitment to end displacement. If we adopt the latter definition, there are many examples of international (...) solidarity with respect to Palestinians and other refugee groups. Nevertheless, international solidarity in the Palestinian context is not without controversy. I consider what lessons this divergent understanding of international solidarity may have for the refugee regime’s future directions. I discuss how it informs an unidentified tension in the Global Compact on Refugees as well as how it could foster a less elitist and more inclusive approach to international solidarity. (shrink)

Taking the contemporary definition for ‘refugee’ by the UN High Commission for Refugees as a starting point, this article examines the law on refugee asylum in Deut. 23:16-17 for parallel points and concerns, in order to gain insight into the ethics that have driven its composition. This law is commonly included in discussions on slavery due to the use of עֶ֫בֶד, but the identification of this ‘slave’ as a foreign refugee seeking asylum in Israel has not been (...) adequately noted. Examining the law under this identification sheds light on refugee experience and Deuteronomy’s ethical stance on refugee asylum. (shrink)

The Roman imperial Stoics were familiar with exile. This paper argues that the Stoics’ view of being a refugee differed sharply from their view of what is owed to refugees. A Stoic adopts the perspective of a cosmopolitēs, a “citizen of the world,” a rational being everywhere at home in the universe. Virtue can be cultivated and practiced in any locale, so being a refugee is an “indifferent” that poses no obstacle to happiness. Other people are our fellow (...) cosmic citizens, however, regardless of their language, race, ethnicity, customs, or country of origin. Our natural affinity and shared sociability with all people require us to help refugees and embrace them as welcome neighbors. Failure to do so violates our common reason, justice, and the gods’ cosmic law. (shrink)

It is estimated that there could be 200 million‘environmental refugees’ by the middle of this century. One major environmental cause of population displacement is likely to be global climate change. As the situation is likely to become more pressing, it is vital to consider now the rights of environmental refugees and the duties of the rest of the world. However, this is not an issue that has been addressed in mainstream theories of global justice. This paper considers the potential of (...) two leading liberal theories of international justice to address the particular issues raised by the plight of potential and actual environmental refugees. I argue that neither John Rawls’s ‘Law of Peoples’ approach nor Charles Beitz’s `cosmopolitanism' is capable of providing an adequate account of justice in this context. Beitz’s theory does have some advantages over Rawls’s approach but it fails to take proper account of the attachment that some people have to their own ‘home’. (shrink)

The Roman imperial Stoics were familiar with exile. I argue that the Stoics’ view of being a refugee differed sharply from their view of what is owed to refugees. A Stoic adopts the perspective of a cosmopolitēs, a ‘citizen of the world’, a rational being everywhere at home in the universe. Virtue can be cultivated and practiced in any locale, so being a refugee is an ‘indifferent’ that poses no obstacle to happiness. But other people are our fellow (...) cosmic citizens regardless of their language, race, ethnicity, customs, or country of origin. Our natural affinity and shared sociability with all people require us to help refugees and embrace them as welcome neighbors. Failure to do so violates our common reason, justice, and the gods’ cosmic law. (shrink)

This article provides an introduction to what the Old Testament has to say regarding displacement and displaced people – refugees, migrants and the marginalized members of society. It surveys the instructions regarding the correct attitude and protective actions owed to ‘the stranger’ found in the Old Testament Law and it points to the divine preference to side with the suffering and the vulnerable evident in the Old Testament Prophets. Although not an exhaustive treatment of Old Testament passages tackling this topic, (...) the discussion helps make clear the fact that God is particularly concerned with justice and care for the disadvantaged members of the society, including aliens, refugees and migrants. The conclusion of the article calls the readers to consider some of the missiological-ethical implications of such concern in our contexts today. (shrink)

This article—a tribute to philosopher Bat-Ami Bar On—argues that states have obligations to not only resettle refugees, but also to put into place laws, policies, and procedures that are likely to ameliorate exclusionary attitudes and socio-political stances of existing members toward refugees and other forcibly displaced persons. The article begins with a recollection of Bar On, who encouraged the author to pursue the well-being of refugees as a worthy philosophical topic. The article then argues that refugee camps do not (...) serve the purpose of justice; therefore, resettlement must be sought. Resettlement, in turn, raises several questions that egalitarians must take more seriously. In the end, equitable resettlement of refugees requires a broad based ethics of inclusivity and equality that bolsters community willingness to share spaces and “live and let live” in the face of cultural differences. (shrink)

Often, a more or less universal quality is attributed to certain legal concepts. For refugee scholars working between 1933 and 1945, the universal quality of these concepts was challenged on two fronts: first, the breaking down of the Weimar Constitution and the German Rechtsstaat under Nazi rule demonstrated the fragility of a constitutional and legal order. Moreover, the breakdown of the German Rechtsstaat was felt on a deeper conceptual level. ‘Immutable’ legal concepts turned out to be easily mutated to (...) conform to Nazi ideology. The second major challenge to the universality of concepts thus pertains to the universal characteristics of the ‘concept of a concept’ itself. In brief, what German refugee legal scholars attempted to create in the course of the 1930s and 1940s was a ‘universal’ Rechtsstaat centred around concepts and legal scholarship that would avoid the breakdown by placing it into a feasible and balanced system of legal enforcement on an international level. Thus, in their new academic context, rather than dismissing the Rechtsstaatliche function of legal concepts and the role of legal scholars, refugee scholarship ventured to enhance it. This contribution argues that the development of Hersch Lauterpacht’s concept of human rights constitutes such an enhancement. (shrink)

Under the UNHCR definition of a refugee, set out in the 1967 Protocol Relating to the Status of Refugees, people fleeing their homes because of natural disasters or other environmental problems do not qualify for refugee status and the protection that come from such status. In a recent paper, "Who Are Refugees?", I defended the essentials of the UNHCR definition on the grounds that refugee status and protection is best reserved for people who can only be helped (...) by granting them refuge in a safe state for an indefinite period of time, and argued that this does not include most people fleeing from natural disasters. This claim is most strongly challenged by possibility of displacement from climate change. In this paper I will explore to what degree the logic of the refugee convention, as set out in my earlier paper, can and should be extended to those fleeing the results of climate change, and will argue that the logic of the refugee convention tells in favor of extending refugee protection to a portion of those who must flee their homes because of climate-change related environmental problems. (shrink)

Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all (...) who are unable to meet their basic needs on their own as ‘refugees’, and to extend to them the sorts of protections established under the United Nations Refugee Convention. Such an approach would expand the traditional refugee definition significantly. Unlike most academic commentators discussing this issue, I reject calls for an expanded refugee definition, and instead defend the core elements of the definition set out in the 1967 Protocol to the United Nations Refugee Convention. Using the tools of moral and political philosophy, I explain in this article how the group picked out by this definition has particular characteristics that make refugee protection distinctly appropriate for it. While many people in need of assistance can be helped ‘in place’, in their home countries, or by providing a form of temporary protected status to them, this is not so, I show, of convention refugees. The group picked out by the UN refugee definition is a normatively distinct group to whom we owe particular duties, duties we can only meet by granting them refuge in a safe country. Additionally, there are further practical reasons why a broader refugee definition may lead to problems. Finally, I argue that rejecting the call for a broader definition of refugees will better help us meet our duties to those in need than would an expanded definition. (shrink)

It seems that more often than not, refugees and asylum seekers are associated with the notion of ‘limbo’. This terminology is used to illustrate situations in which people are unable to access systems that would alleviate their ‘standstill’ lives. In other words, when it is said that people are in limbo, it is understood they have a sense of hopelessness. Specifically, in the media, at least three examples of ‘limbo’ are often used: limbo as a physical space, limbo as a (...) type of legal conflict or legal irreconcilability and metaphysical limbo or the type of limbo that exists in one’s mind. Unfortunately, the refugee experience is so commonly associated with the idea of limbo that it appears to be the central space that refugees ‘belong’—presumably, due to the inaccessible or unpreventable nature of their predicament, they are unable to escape their life in limbo. However, it is important to understand that limbo does not simply ‘exist’. It is something that is created. In the case of Australia, refugee limbos appear as certain types due to the restrictive nature of the Government’s laws and policies. This article explores the usage of the term ‘limbo’ in the media in order to draw attention to its overwhelming presence and map specific types of discourse and ideologies. Further, it is shown that limbo should not be considered something which is out of our control or something inherent in the refugee experience but instead, is a tool used by governments to restrict refugee access to the border and systems of protection. (shrink)

As the war in Syria and the destruction of the Calais camp in France in 2016 bitterly demonstrate, declarations of human rights and asylum devolve into empty promises without a common sense of solidarity and an implicit understanding that we share responsibility for the world and one another. Today’s refugee crisis demonstrates that many of the problems that Hannah Arendt identified during the first half of the twentieth century are still with us. National security and the state of exception (...) increasingly place refugees and migrants at the borders of international law. This article argues that Immanuel Kant’s Perpetual Peace and Arendt’s postwar reflections on the stateless as modern pariahs continue to frame current debates on hospitality, human rights, and responsibility. Without a recognition of our common humanity and shared world, sovereign states will continue to find exceptions to the legal status of refugees and migrants, thus enabling their exclusion from political life and the very laws that should protect them. Falling outside human rights law and the rights of refugees leads to the uncertainty of the pariah. (shrink)

ABSTRACTOn 4 September 2015 asylum seekers who got stranded in Budapest’s Keleti train station began a march to cross the Austrian border. Their aim was to reach Germany and Sweden where they believed their asylum claims would be better received. In this article, I argue that the march should be characterized as an act of civil disobedience. This claim may seem to contradict common convictions regarding acts of civil disobedience as well as asylum seekers. The most common justifications are given (...) with reference to moral rights of citizens and concerns for enhancing justice or democracy within states. Asylum seekers are not members of the European public. How can they be entitled to break the law? I first show that the march displays features of a paradigm case of civil disobedience. Then, I identify moral reasons for asylum seekers to carry out the march acceptable from both strong and weak cosmopolitan perspectives. After that, I point out its corrective, stabilizing and democracy-enhancing roles in the European political landscape. I conclude by emphasizing that conceptualizing the march as an act of civil disobedience is significant in recognizing asylum seekers as political agents making claims within an evolving framework of refugee protection. (shrink)

This expanded new edition of Law in Perspective focuses on a range of powerful critical thinking tools drawn from logic, science, ethics, and political and social theory. Information on terrorism and refugee law has been fully updated, climate change is discussed throughout, and new chapters have been added on law and Indigenous people, lawyers' ethics and corporate power. The book considers the relationship between legal theory, social theory and empirical research methods, as a guide for students taking on higher (...) degrees in legal research. It also analyzes key theories of the nature and social role of law. (shrink)

In this chapter I focus on two problems facing immigration systems around the world, and Australia in particular. The topics addressed are chosen because each one involves important fundamental rights and because significant improvement in these areas is possible even if each state acts alone, without significant coordination with others. First, I examine refugee programmes, focussing specifically on the ‘two- tier’ refugee programmes pioneered by Australia with the introduction of Temporary Protection Visas by the Howard Government in 1999. (...) Next, I look at recent declines in refugee resettlement schemes from already stingy levels and, in relation to Australia in particular, I show how the tying of resettlement numbers to the number of affirmative asylum claims granted is both wrong- headed and counterproductive. The second area of immigration policy explored is family migration, another area where immigration systems around the world have been moving in the wrong direction, often via less than transparent administrative processes. Australia is no exception. While Australia’s family migration system is reasonably good on its face, in practice there are several factors which make the programme significantly less than satisfactory from the perspective of protecting the basic rights of migrants and, arguably more importantly, citizens. These problems can and should be fixed in straightforward ways, and since doing so would be more just, would have few— if any— significant negative consequences, and in fact would have a number of clear benefits, those changes should be made. (shrink)

Frontier Justice is a gripping, eye-opening exploration of the world-wide refugee crisis. Combining reporting, history and political philosophy, Andy Lamey sets out to explain the story behind the radical increase in the global number of asylum-seekers, and the effects of North America and Europe’s increasing unwillingness to admit them. He follows the extraordinary efforts of a set of Yale law students who sued the U.S. government on behalf of a group of refugees imprisoned at Guantánamo Bay; he recounts one (...) refugee family’s harrowing journey from Saddam Hussein’s Iraq to contemporary Australia via the world’s most dangerous ocean crossing; and he explores the fascinating case of Ahmed Ressam, the so-called Millennium bomber who filed a refugee claim in Canada before attempting to blow up the Los Angeles airport. Lamey casts new light on a host of broader subjects, from the reasons why terrorists who pose as refugees have an overwhelming failure rate to the hidden benefits of multiculturalism. Throughout Lamey’s account, he focuses on the rights of people in search of asylum, and how those rights are routinely violated. But Frontier Justice does not merely point out problems. This book offers a bold case for an original solution to the international asylum crisis, one which draws upon Canada’s unique approach to asylum-seekers. At the centre of the book is a new blueprint for how the rights of refugees might be enforced, and a vision of human rights that is ultimately optimistic and deeply affirmative. (shrink)

This paper is the first of two in a series. In this paper, we identify mental health needs and challenges in the age of COVID-19 among Nepali-speaking, Bhutanese resettled refugees in the USA. We argue for a public health justice framework that looks critically at social determinants impacting mental health (SDIMH) barriers, which negatively impact our Bhutanese population, and serves as a theoretical foundation toward public policy and law that will inform healthcare decisions and fair treatment of resettled refugees at (...) the clinical bedside and in the community. We first describe our Bhutanese refugee population and the critical mental health issues that, for many, originated during political persecution and violent ethnic cleansing initiatives, or while living in refugee camps prior to resettlement to the USA. We present a social justice framework emerging from an extensive literature review and incorporating core social determinants specific to mental health in the age of COVID-19, which are guided by the social determinants of economic stability; neighborhoods and physical environment; education; nutrition and exercise; community and social context; healthcare system; and legal system. We illustrate specific SDIMH of our resettled Bhutanese refugees during the pandemic, followed by a second paper that details recommendations for applying the SDIMH in a collective effort to address specific barriers to mental healthcare and support. (shrink)

Despite the proliferation of specialised agencies designed to reduce the prevalence of refugees worldwide, the number of individuals fleeing persecution is increasing year on year as endemic violence in countries such as Iraq, Somalia and the Syrian Arab Republic continues. As a result, media broadcasts and political dialogues are saturated with discussions about these “persons of concern”. Fundamental questions nonetheless remain unanswered about what meaning these actors attribute to the label ‘refugee’ and what intent, other than paucity of knowledge, (...) might be driving the term’s use or manipulation. Though this is evidently important in the public arena, where incorrect conflations fuel mistrust and misunderstandings, the ramifications of these divergent understandings at the level of multi-lateral politics have yet to be critically explored. This article applies Barthes’ theory of the multiple orders of the sign to address this. Using the case study of the negotiations preceding the invocation of the Cessation Clause for Rwandan refugees, it illustrates how the word refugee is susceptible to numerous, simultaneous understandings, and discusses the implications of these manifold interpretations for how durable solutions are envisaged and negotiated in the refugee regime. In the case of Rwandan refugees in Uganda, this has meant that over a decade of stalemated discussions between the Governments of Uganda and Rwanda and the United Nations High Commissioner for Refugees over their future have been broken by a series of bilateral concessions that, whilst diminishing the political significance attached to this protracted caseload, have failed to address the continuing precarity of their situation. By conceptualising the word refugee as a sign according to the Saussurean model of semiotics, this paper therefore argues that despite the term’s established legal-normative definition, its inherent malleability makes it susceptible to processes of political instrumentalisation. This elevates the refugee as a rhetorical figure above the refugee as a physical-legal body entitled to certain forms of assistance. (shrink)

This paper is the second of two in a series. In our first paper, we presented a social justice framework emerging from an extensive literature review and incorporating core social determinants specific to mental health in the age of COVID-19 and illustrated specific social determinants impacting mental health (SDIMH) of our resettled Bhutanese refugee population during the pandemic. This second paper details specific barriers to the SDIMH detrimental to the basic human rights and social justice of this population during (...) this pandemic. The SDIMH, as described, further informs the need for social justice measures and cultural humility in mental healthcare, public health, law, and community engagement. This work concludes with a proposed call to action toward mental health improvement and fair treatment for refugee populations in three core areas: communication and education, social stigma and discrimination, and accessibility and availability of resources. (shrink)

Crises of forced migration are, unfortunately, nothing new. At the time of the writing of this paper, at least two such crises were in full swing – mass movements from the Middle East and parts of Africa to the E.U., and major movements from Central America to the Southern U.S. border, including movements by large numbers of families and unaccompanied minors. These movements are complex, with multiple causes, and it is always risky to attempt to craft either general policy or (...) philosophical positions in response to salient crises. However, both of these instances do bring to the foreground important questions about the proper purpose and extent of refugee protection as a means of dealing with crises of forced migration. In particular, both of these instances force us to consider what role persecution on the basis of a protected ground – race, religion, nationality, membership in a particular social group, or political opinion – ought to play in granting refugee protection, and whether our response to those in danger should change if the agents of persecution are non-state actors. This paper is not primarily about the problems arising from Syria or Central America. In a way similar to how hard cases make bad law, I contend that a too central focus on salient crises tends to lead to bad theory and often to bad general policy. However, if I am successful in my goal of clarifying the place of persecution and non-state action in refugee protection, then we may in turn be better able to think clearly about our current crisis situations. -/- In this paper I will first draw on my previous work on the normative logic of the refugee convention to argue that, while persecution should play an important, and even central, role in our thinking about refugees, this importance is shallow and pragmatic rather than deep and fundamental. Next, I will show how this conclusion supports the claim that harms amounting to persecution by non-state actors may ground an asylum claim, at least in some cases, both when the state is unwilling and when it is unable to protect its members. I consider two cases: first, instances where the authority and power of the state has been usurped by another power, and second, when the state has (implicitly or explicitly) delegated its power or authority to non-state actors. I will show how this leads to extending asylum to a broader range of people than traditional accounts would. -/- (To download this paper, please use the link from SSRN below.). (shrink)

‘Framing the Refugee’ looks at the power of representation of liberal political theory with regard to refugees. In the author’s view, legal and political arbitrariness lies in the representing of refugees as lacking agency. His key point is that liberalism fails to conceive of refugees as politically capable actors, and he is thus complicit in the arbitrary neutralisation of their emancipatory potential and participatory powers. This paper emphasises the moral justifiability of that state of affairs by seeking some answers (...) to the question of why liberal political theory construes a concept of the refugee that does not contain any element of political agency. Most obviously, the author acknowledges that refugees perform a significant social role in contemporary societies and are hence active members in them. Nonetheless, they remain neglected in their political role by most political theory. What does it mean to have political agency for the author? It means to have the power of self-representation, that is, of being allowed and even enabled by a given legal system to bring about change in the political order, or at least to participate in that change. But the author also calls attention to the role of ‘theory’ in addressing this downside of the contemporary liberal democratic order. Theory becomes even more crucial at times of urgency, that is, when theorists have a moral responsibility to deepen their philosophical imagination, as Hannah Arendt so forcefully noted. The theoretical task of ‘re-framing’ the refugee entails reconfiguring political philosophy and its traditional categories of sovereignty, citizenship and nationality. The liberal inability to accommodate the political agency of many members of the political community – especially of non-nationals – is a sign of the historical contingency of the current rules of political membership. This inability makes evident the imperative of rethinking politics in ways that avoid the arbitrariness of treatment and aim instead at equality and justice. If political leaders can re-write the rules of membership to suit their own ideological agendas, the same demand should be addressed by – indeed demanded from – political and legal theorists. However, this is not as easy as it seems, according to the author. In his view, political theory is confronted with fundamental challenges, the most obvious one being that ‘theory’ is usually unequipped to defeat its own ‘topology’. Note that in saying this the author is raising a more pressing concern about arbitrary law-making: it may be that arbitrariness – especially the arbitrary treatment of aliens by the sovereign state and by liberal democracies in particular – is inscribed in the very DNA of liberalism. No matter how odd this may seem, the author advances the view that ideas, however creative of a new order, or transformative of a given status quo, never appear in "free form", and are instead deeply rooted in a structure that constrains our imagination. The challenge is thus to develop a meta-theory that reconceptualises the very way liberal political theory frames marginalised sectors of society – such as the "poor" – as a product of an international economic order that robs those sectors of their agency as the very condition of its internal functioning. We must therefore question how the very idea of the refugee is produced, because it symbolises the construction of an inside and an outside that is complicit with the arbitrary play of legal statuses involved in migration policy. The author’s main point regarding this is that certain groups are sidelined by economic, political and social systems because they are already excluded from theoretical systems to start with. Keywords: refugees, agency, political theory, migration. (shrink)

This article examines two cases that present ethical challenges encountered by social workers in making decisions either to maintain professional boundaries or fulfil moral obligations while working with service users in vulnerable situations. In the first case, a Lebanese social worker narrates how she was motivated to step out of her official responsibilities to assist a refugee mother of three who showed suicidal ideation. In the second case, a Ugandan social worker recounts her experience while working with a family (...) whose 12-year-old daughter was raped and became pregnant, but whose parents refused to accept abortion when medical diagnosis showed that the girl’s life was in danger. A commentary from the authors is provided after each case. Both social workers were arguably motivated to act based on their concern to care for people, protect human rights, and save lives in the two case scenarios. This underscores the relevance of the ethics of care and virtue ethics in describing the associated ethical challenges in both cases. Furthermore, the dynamic nature of the ethical challenges encountered by the social workers demands open minds and flexibility in decision-making. (shrink)

Environmental displacement is a global phenomenon affecting millions of people. Due to climate change and the corresponding sea-level rise, it is estimated that about eight million of indigenous people of Pacific Islands will be forced to settle elsewhere by 2050. This is one of many examples confirming the need to ascertain the legal status of environmental refugee in international law. The term ‘environmental refugee’ is controversially discussed and internationally not recognised. First, this article discusses the reasons for reluctance (...) of international organisations to accept this term. Second, noting the cold reception of this term at the regional and state levels, a discussion on whether fears associated with this term are based on solid arguments becomes pertinent. Third, this article outlines the possibility of granting refugee status under international law, especially under human rights and environmental law. Fourth, academic discourses will be examined as they play a crucial role in the conceptual development of ‘environmental refugee’ and, to some academics, the existing refugee definition already encompasses ‘environmental refugees’. Taking into account the developments of the environmental and human rights regime, this article concludes that time is ripe for international law to provide refugee status to environmentally displaced people. (shrink)

Owing to its grappling with a motley of intricate socioeconomic, as well as medico-legal, crises, Haiti has found itself bereft of some of its people, many of whom have had to leave the Caribbean country in search of improved lives elsewhere. Receiving some of the Haitian refugees fleeing abject poverty, unemployment, and other harms and barriers has been the United States, one of Haiti's northern neighbors and a country that has played an outcome-determinative, if not outsized, role in steering the (...) country toward its presently hobbled state. Drawing on the U.S.’s recent treatment of Haitian refugees, this paper argues that U.S. reception of Haitian immigrants rubs salt in the wound of a long history of dehumanizing and oppressive abuses endured by Haitians. Furthermore, and more importantly, this paper posits that U.S. failure to wholly embrace its legal obligation to accept Haitian refugees under international law needs to be understood in the light of the specific horrors inflicted by science, in pre-independence Haiti, on non-consenting, Afro-Haitian experimental subjects. And by extension, such a contextually-nuanced understanding is crucial in shaping the delivery of healthcare services to Haitian refugees fortunate enough to remain in the U.S. —as an awareness and appreciation of the socio-historical context of patients' lived experiences, i.e., their complete social history, can furnish important clues vis-à-vis the presence and etiologies of disease, influence the foci of physical exams, and generally pave the way for the provision of cost-efficient and evidence-based care. (shrink)

The way that the questions of our symposium are framed causes me some concern. At a general level this is for three reasons. First there is a principle of statutory interpretation – Expressio unius...

The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees embody fundamental provisions of refugee law. However, since the adoption of these documents the world has changed dramatically and the laws are not developing fast enough in order to catch up with dynamically changing contemporary situations. The application and interpretation of definition of a refugee was developed through traditional practice of Western states, which was influenced by two world wars (...) and the Cold War, when refugees from Africa or Asia were uncommon. The Qualification Directive specifically aims at ensuring that the member states apply common qualification criteria for persons who need international protection in line with the 1951 Convention Relating to the Status of Refugees. The author supports the statement that the Qualification Directive in principle aims at bringing back under the definition of refugee those, who have been left outside of its scope during the last decades as a result of the restrictive interpretation and application of the definition of refugee. (shrink)

The 1951 Refugee Convention and its 1967 Protocol are the main legal documents governing the movement of refugee and asylum seekers across international borders. As the number of displaced persons seeking refuge has reached unprecedented numbers, states have resorted to measures to circumvent their obligations under the Convention. These range from bilateral agreements condemning refugees to their vessels at sea to the excision of certain territories from national jurisdiction. While socio-economic developments and the rise of the worldwide web (...) have led to deterritorialization of vast domains of the economy and the media which enable them to escape from state control, territorial presence, whether on terra firma or on vessels at sea which are functional surrogates for territorial sovereignty, continues to be the basis for the entitlement to human and citizens’ rights. We are facing a dual movement of deterritorialization and territorialization at once, both of which threaten the end of the 1951 Convention. This article is an exercise in non-ideal theory which, nonetheless, has implications for a seminal question in ideal democratic theory as to how to define and justify the boundaries of the demos. If the demos refers to the constitutional subject of a self-determining entity in whose name sovereignty is exercised, regimes of sovereignty, including those which govern the movement of peoples across borders, define the prerogatives as well as obligations of such sovereign entities under international law. The period ushered in by the 1951 Convention was such a sovereignty regime which today may be nearing its end. (shrink)

Argues that it is not only a point of literal construction, but also inherent in the object and purpose of the 1951 Refugee Convention, that displaced stateless persons unable to return to their countries of former habitual residence may be eligible for refugee status even if unpersecuted. 'Unable to return' as it occurs in the clause following the semi-colon of 1(A)2 of the 1951 Refugee Convention must be understood as a term of art subject to appropriate canons (...) of construction in its own right. Its construal must therefore be more restrictive than many commentators have suggested, though not so strict as to preclude all but persecuted persons. Then argues that, as a case study, those who are displaced from their island nations because those nations have submerged beneath the sea will count as 'unable to return' in the relevant sense, and so will qualify for Convention refugee status, if they count as lacking a nationality, i.e. as stateless. (shrink)

Despite its long history of refugee crises, Asia lacks effective refugee protection mechanisms. Most Asian states resist ratification of the international refugee laws, and many international organizations are ineffective and lack concrete legal and political approaches to protecting refugees. Asian civil society, particularly Asia Pacific Refugee Rights Network, collaborates to protect refugees by employing alternative frameworks. This paper argues that Asian civil society aims to challenge the nature of refugee protection in Asia. Instead of encouraging (...) states to ratify the 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees, APRRN stimulates national-level implementation of refugee protection principles and practices from below. It engages its members in global decision-making by mobilizing and sharing resources with them. APRRN frames refugee protection as international human rights issue instead of as a national security concern. (shrink)

The paper starts out from a debate that occurred in Germany in 2015, where interpreters claimed to be able to divine Immanuel Kant’s views of the contemporary refugee crisis. It does not attempt to give a substantive answer to the title question, i.e. it does not try to specify the conclusive extension of cosmopolitan right. In contrast, it outlines the systematic work that would have to be done in order to be able to answer the title question. I start (...) from cosmopolitan right as natural right and ask what kinds of transformations cosmopolitan right would have to undergo to form a legitimate part of public international law, in parallel to Kant’s move from provisional private law to peremptory public law in his Doctrine of Right. For that purpose, I introduce distinctions between trivial and non-trivial transformation, between strong and weak transformation, and between transformation based on historically blameworthy and historically blameless action. (shrink)

This volume offers a systematic philosophical analysis of the normative challenges facing European refugee policy, focusing on whether the response to it can be based on European values. By considering the refugee policy through the lens of European values, cosmopolitan norms and universal human rights, the contributions expose the weaknesses and limitations of existing regulations and make proposals on how to improve them. The EU is often seen as a cosmopolitan project. Europe is supposed to be a community (...) of states that aspires to be guided by cosmopolitan norms. However, the idea of a cosmopolitan Europe has never been unanimously shared, and in recent years, it has come under increasing scrutiny, particularly with regard to the EU’s refugee policy. The guiding idea of this book is that a deeper philosophical understanding of the normative issues at stake can foster greater conceptual clarity and enrich political debates on the future of European refugee policy. The first part of the book revolves around the question of whether the rise in refugee numbers over the past decade has led to a crisis in the EU and, if so, how this crisis relates to or impacts European values. The second part traces the history of the discourse on “European values” and examines from a philosophical perspective how we can plausibly understand these values in terms of their moral grammar, their normative content and their implications for the behaviour of the EU and its member states. Finally, the third part puts forth recommendations for a feasible and normatively more compelling European refugee policy based on human rights, human dignity, justice and democratic self-determination as the decisive normative requirements. Cosmopolitan Norms and European Values: Ethical Perspectives on Europe’s Refugee Policy will be of interest to researchers and advanced students working in ethics, political philosophy, political science, social sciences and law. The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license. (shrink)

For over last 70 years, the concept of "return" attained primary focus for the national narrative of Palestinian struggle against devastating conditions, categorized as eviction from ancestral homeland, diffusion in all aspects and reconstitution of national unity. However, the very idea create fears among Israelis regarding their authority of whole Zionist enterprise, as well as demographic stability of Arab-Jewish ventures, with regards to the return of large number of Palestinians to their own places or any other part in Palestine. Discrimination (...) in opposition to Palestinians is no longer perpetrated fully by Israeli state, but common to its society, as well. Our article is an answer to the complicated question: Can refugees along with other displaced victims ever claim their right in entering Israel and Palestine, since this State includes Gaza and West Bank territories? Various articles have made an attempt to clarify the matter through some internal laws and have also interpreted the rights mentioned in ‘International Covenants on Civil and Political Rights’, particularly while clarifying the idea evolved from the typical term: 'his own country’. The article focuses on the viable first point, specifically on the claim as a right of the Diasporas return to the formerly called ‘Palestine’. Various resources are utilised for the purpose of the research. This includes books, scholarly researched articles and newspapers etc. The study is analytical in nature and based on qualitative research method. Most of the literature used for the article is Secondary. The conclusion drawn in precise manner is that the intentions are blended in repeated violations of human rights, along with ethnic and religious refining and various innumerable deficiencies, and try to become regularly involved in sensitive issues. This turned out to be disheartening for the people living there as no efforts are made for a truthful resolution. (shrink)

Refugees and asylum seekers may experience challenges related to pre-arrival experiences, structural disadvantage after migration and during resettlement requiring the need for special protection when participating in research. The aim was to review if and how people with refugee and asylum seeker backgrounds have had their need for special protection addressed in national and international research ethics guidelines. A systematic search of grey literature was undertaken. The search yielded 2187 documents of which fourteen met the inclusion criteria. Few guidelines (...) addressed specific ethical considerations for vulnerable groups much less people with refugee and asylum seeker backgrounds. One guideline explicitly addressed vulnerability for refugees and asylums seekers. To ensure members of ethics committees and researchers consider the potential challenges of conducting research with these groups, guidelines may need to be supplemented with a refugee and asylum seeker specific research ethics framework. Such a framework may be necessary to optimally protect people with refugee and asylum seeker backgrounds in research. (shrink)

All efforts undertaken so far to establish peace between Israel and the Palestinians have failed to seriously address the right of return of the Palestinian refugees. This failure stemmed from a conviction that the question of historical justice in general had to be avoided. Since justice is a subjective construct, it was argued, allowing it to become a subject of negotiation would only perpetuate the conflict. However, the experience of these peace efforts has shown that without solving the problem of (...) the Palestinian refugees an agreement cannot be reached. And the problem cannot possibly be solved without addressing the key Palestinian demand on this issue — the right of return. For both sides, the right of return, more than any other issue, touches on the essence of their history since the beginning of the conflict between them, and on their future. The national narrative of each side thus centers on its version of the history of the 1948 Arab-Israeli war, in the course of which the Palestinian refugee problem was created. And each side maintains the fundamental belief that its future national existence hinges on whether, and how, the issue of the right of return is resolved. For the Palestinians, the right of return is an inalienable right that defines their national identity and their struggle for liberation. For Israeli Jews, the right of return is perceived as an existential threat to the Jewish character of their society, if not to its very existence. It is not surprising, therefore, that within each of the two societies a national consensus has been built around this issue and that the position of each society seems to stand in complete opposition to that of the other. However, we argue that a morally and politically sound basis could and should be established for a workable solution and that such a basis can be provided by the notion of "transitional justice." Transitional justice stresses two major steps as necessary for reconciliation between parties involved in an historic conflict: recognition and restitution. Recognition entails revealing the historical truth about the injustices committed and according their victims dignity and respect as rights-bearing human beings. Restitution is meant to alleviate some of the material deprivation suffered by the victims and is also a form of recognition. In the Israeli-Palestinian case, recognition by Israel of the right of return would entail its assumption of responsibility for the uprooting of the majority of Palestinian society in 1948. This would satisfy a demand that has become a fundamental element in Palestinian national identity. Recognition would then enable the two parties to enter negotiations over restitution, in particular the implementation of the right of return. In these negotiations, as many Palestinian political leaders have indicated, the concerns of Israeli Jews with their national identity would be taken into account. Only if the fundamental concerns of the two parties, which center on the issue of the right of return, are met can the road towards reconciliation between them be opened. (shrink)

Refugee protection depends, minimally, on the identification of agents capable of discharging international obligations in this area of international law. Commonly discussed “agents of justice” include states, IOs, and NGOs. This article focuses on a different set of actors: subnational units (cities, states, and provinces in federal States) and the legal mechanisms they may use to discharge international obligations in the area of refugee protection. I advance three distinct theoretical models for understanding subnational units’ responsibilities vis-à-vis international law: (...) (1) derived delegated responsibilities; (2) derived back-up responsibilities; and (3) assumed responsibilities. I conclude by sketching some ways in which subnational units could play an even more salient role in the promotion of international law. (shrink)

This article focuses on the events surrounding a homosexual Romanian man's attempt to be recognized as a refugee in Britain. Numerous themes emerge such as the nature of authenticity, knowledge, identity, pleasure, evidence and the homosexual refugee as being caught in between two legal apparatuses (that is, fleeing from the hostility of one legal regime and then trying to gain refugee status, and thus legal protection, via a British Immigration Tribunal). In this article, the corporeality and sensuality (...) of legal practices are exposed in the form of `practices of truth'. That is, in this case medico-legal `living individuals' were to perceive, hear, speak, touch and penetrate the `secrets' of Mr Vraciu's body in order to authenticate his sexual identity for the purposes of law. This case also demonstrates the existence of a differend between what I describe as the self-knowledge of homosexuality and the `legal' fact-based, or authorized knowledge of homosexual identity produced through practices of truth. (shrink)

Although the Refugee Convention 1951 generally provided that contracting states should recognise those who came within its definition as refugees, it did not prescribe how contracting states should determine this in order to enable them to balance this obligation with their national interests. However, evidence from the background and drafting of the Refugee Convention 1951 suggests that the provisions that a contracting states would implement in order to protect its interests would be commensurate with the human rights spirit (...) of the treaty. This implied that contracting states would act fairly in balancing the competing interests in devising status determination policies and would take into account decent considerations. But, from a theoretical viewpoint, it is arguable that some recent asylum determination policies have been based on the threats posed by asylum seekers. Asylum seekers have come to be blamed for contributing to the national issues that some contracting states face and as such, some contracting states have adopted draconian measures as a result. (shrink)

A handful of scholars have offered explanations for why states with otherwise restrictive immigration laws should relax their demands for people applying to immigrate for family reasons. However, much less has been said about the family unification rights of refugees. This paper extends the existing discussion on family-based immigration to refugees, arguing that: (1) states have stronger duties to reunite refugee families; (2) some refugees should be entitled to reunite with their “extended” family; (3) refugee family reunion should (...) not be subject to financial conditions; and (4) the right to family reunion is especially strong for refugee children. (shrink)