Refugees, Democracy and the Law

Political Rights at the Margins of the State

Dana Schmalz

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000175783
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

The book provides an in-depth discussion of democratic theory questions in relation to refugee law.

The work introduces readers to the evolution of refugee law and its core issues today, as well as central lines in the debate about democracy and migration. Bringing together these fields, the book links theoretical considerations and legal analysis. Based on its specific understanding of the refugee concept, it offers a reconstruction of refugee law as constantly confronted with the question of how to secure rights to those who have no voice in the democratic process. In this reconstruction, the book highlights, on the one hand, the need to look beyond the legal regulations for understanding the challenges and gaps in refugee protection. It is also the structural lack of political voice, the book argues, which shapes the refugee's situation. On the other hand, the book opposes a view of law as mere expression of power and points out the dynamics within the law which reflect endeavors towards mitigating exclusion.

The book will be essential reading for academics and researchers working in the areas of migration and refugee law, legal theory and political theory.

Part I

The refugee

1 Who is a refugee?

Dimensions of the refugee concept

There are different uses of the refugee concept, which are not mutually exclusive. The term is used descriptively, it is defined in law and used as a legal concept, and it has a broader normative dimension. In a most general sense, the term “refugee” refers to a person migrating or having migrated for reasons of hardship.¹ The English word “refugee,” over the French “réfugié,” goes back to the Latin refugium: a place, where a person can find shelter.² These terms highlight the aspect of a refugee being a person in search for, or who has found, shelter. In other languages, the corresponding term puts the emphasis on the flight itself.³ What characterizes the refugee is first a movement from one place to another, and second an element of hardship and involuntariness, as the notions of flight and shelter indicate.

A descriptive use of the refugee concept builds on this general understanding. In that sense, the term is used with a view to displacement of various kinds and for various reasons, in relation to war or civil war, to environmental disasters, or broadly to persons migrating under deprived conditions. Even in this general, descriptive sense, the refugee notion involves a dual demarcation: from persons not migrating, and from those migrating without reasons and conditions of hardship. It is along these demarcations that questions of definition arise. What constitutes hardship, how can one assess the often mixed and entangled motives for migration? And up to which point in time do we distinguish persons who have “found shelter” from permanent members of a community? These questions gain relevance where a consequence is attached to someone being called a refugee.

The main consequence that international law attaches to the refugee notion is the prohibition of refoulement: the prohibition to expel or return a person to the place she is fleeing. The 1951 Geneva Refugee Convention (GRC) in that regard contains a stipulation of who is to be considered a refugee.⁴ It states that for its purposes the term “refugee” shall apply to any person who

[…] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.⁵

This core definition formulates three main criteria for refugee status: having crossed an international border, a well-founded fear of persecution, and the causality of one of the five enumerated reasons for persecution. In addition to the quoted part, the GRC contains several qualifications and exceptions as to whom the definition applies. It begins with a temporal limitation to flight resulting from events before January 1, 1951, which was lifted by the 1967 Protocol that almost all state parties to the GRC have ratified.⁶ Moreover, the GRC included the possibility of declaring a geographical limitation of its applicability to refugees coming from Europe.⁷ This possibility was ended by the 1967 Protocol; declared geographical limitations remained, however, valid.⁸ Furthermore, the GRC contains exclusion clauses in its Article 1 D and F. Article 1 D exempts from its application persons who are under the protection of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).⁹ Article 1 F exempts from protection as a refugee persons who have committed serious crimes. The refugee definition of the GRC is thus elaborate, and the criteria have been subject to extensive interpretation by courts and administrative bodies.¹⁰ Especially the criterion of “membership of a particular social group” has enabled a dynamic interpretation, which successively included, for instance, persecution based on gender or sexual orientation.¹¹ The United Nations High Commissioner for Refugees (UNHCR) since 1979 has issued a handbook that summarizes and guides the interpretation of the GRC refugee definition.¹² There is, however, no institution that has a binding last word regarding the interpretation of the GRC.

Despite this complexity, the refugee definition of the GRC is pivotal today not only for international refugee law but has shaped the understanding of who is a refugee far beyond. In debates about states’ obligations towards migrants, the core definition often serves as a reference point. At the same time, the GRC definition must be seen in its specific context, embedded in a preceding history of the refugee concept and a subsequent development. Neither does it foreclose differing legal definitions, nor does it answer the question who should receive protection. The second chapter will return to the question of codification and competing definitions of the refugee. For now, it should be noted that the refugee concept is widely used in the sense of a legal term and that its legal definition influences the understanding more generally.

Beside the descriptive uses of the refugee concept and its legal definition, the refugee is also referred to as a normative category in political philosophy.¹³ Refugees, in that understanding, are a category of migrants with special entitlements, persons towards whom states have special obligations.¹⁴ Such a perspective focuses on the claim to inclusion and to rights that is linked to the refugee concept. There have been various attempts to formulate a definition of the refugee in relation to this normative specificity.¹⁵ The philosophical debate thereby does not take place without note of the legal regulations,¹⁶ yet aims at an abstract understanding of what is specific to the refugee and what are adequate criteria of distinction.

Another strand of the debate, particularly in social and political sciences, engages with the specificity ascribed to the refugee concept and focuses on its exclusionary side. The refugee concept, as seen in its basic definition, contains a dual demarcation: from other migrants and from the citizens at the place of a refugee’s presence. Regarding conditions of mobility, the refugee is a category of entitlement, which strengthens the perception that other migrants have no legitimate claim to access. In that vein, the refugee concept is criticized as part of an order that distributes freedom of movement unfairly. Simon Behrman describes, for instance, how refugee law works as a means of controlling, placing the person claiming asylum in dependence from criteria she has no influence on.¹⁷ Heaven Crawley and Dimitris Skleparis argue that the monopolization of claims to territorial entry under the refugee notion tends to ultimately reduce the schemes for legal migration.¹⁸

These different perspectives on the refugee concept do not require adjudication. They do not necessarily reflect a disagreement, although some views do. Foremost, the different uses lead at times to a talking past each other in scholarship. A descriptive use of the refugee concept does not exclude its use as a legal term in another context, and a use in a legal sense does not preclude reflections about the best definition in a philosophical discourse. One core point of disagreement is whether the refugee concept is something to uphold or to move beyond. The chapter will return to this question in the last section. Ultimately, the aim is not to claim a right view, but to unpack some of the refugee concept’s complexity by exploring its history and its theoretical position in the thinking about law.

The emergence of the refugee concept alongside the territorial state in Europe

There have always been people fleeing their homes, but there have not always been refugees. The terms “réfugié” in French and “refugee” in English appear in the sixteenth and seventeenth century.¹⁹ The flight of about 200,000 Huguenots from France in the late seventeenth century is often referred to as the first case of refugees in that sense,²⁰ although several events of forced migration took place within Europe around that time.²¹ What can explain the emergence of the refugee notion during that period, and how is it distinct from prior concepts dealing with persecution and flight?

When the refugee concept emerges in Europe, it is a time in which the political order and legal thinking undergo fundamental changes. From an order mainly structured by religious belonging, a process of change towards a territorially defined order begins. The Westphalian Peace Treaties from 1648 are in that sense often viewed as th...