Human Rights and The Revision of Refugee Law

Romit Bhandari

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9781000172157
• Edition: 1
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

This book addresses the relationship between International Refugee Law and International Human Rights Law. Using international refugee law's analytical turn to human rights as its object of inquiry, it represents a critical intervention into the revisionism that has led to conceptual fragmentation and restrictive practices.

Mainstream literature in refugee law reflects a mood of celebration, a narrative of progress which praises the discipline's rescue from obsolescence. This is commonly ascribed to its repositioning alongside human rights law, its veritable rediscovery as an arm of this far greater edifice. By using human rights logic to construct the current legal paradigm and inform us of who qualifies as a refugee, this purportedly lent areas of conceptual uncertainty a set of objective, modern criteria and increased enfranchisement to new, non-traditional claimants.

The present work challenges this dominant position by finding the untold limits of its current paradigm. It stands alone in this orientation and hereby represents one of the most comprehensive, heterodox and structurally detailed reviews of this connection. The exploration of the gap between modern approaches and the unsatisfactory realities of seeking asylum forms the substance of this book. It asserts, by contrast, the existence of revolution rather than evolution. Human rights law has erased the founding tenets of the Refugee Convention, enabling powerful states to contain refugees in their region of origin.

The book will be essential reading for those interested in Refugee Law, Refugee Studies, Postcolonial Legal Studies, Postmodern Critiques and Critical Legal Theory. Additionally, given its relevance for the adjudication of refugee claims, it will be an important resource for solicitors, barristers and judges.

Part I

The suggestion

In The Last Utopia, Moyn presents a compelling counter-narrative to received histories about the origins of human rights. He helps to recast their emergence using a more recent timeline, not as the inevitable crystallisation of ancient ideals but as contingent upon the failings of other, more recent ideologies. “The drama of human rights”, he notes, “is that they emerged in the 1970s seemingly from nowhere”.¹

But its academic worth extends far beyond its most obvious contribution – it helps to pronounce a salient but hidden quality in the presentation of history: its malleability. Recovered in this work are the raw materials, the complex and disparate strands of development, from their framing as poignant historical moments in mainstream discourse. It recognises that amongst all the processes of organising information, of making a world of infinite phenomena intelligible, innate proclivities exist. What Moyn makes more explicit, then, is the tendency to create “usable pasts”,² a mode of linear chronicling that treats the past as “if it were simply the future waiting to happen”.³ This same counterweight is largely absent from the field of international refugee law.

Such a feeling of foreboding is inescapable in our modern era of refugee law, particularly in its slow but unyielding reawakening as human rights law. Orthodox accounts of the decades passed often share common boundaries: abandonment in the normative realm,⁴ belligerence in the political realm,⁵ and explicitly set against this,⁶ the use of human rights by judges and academic commentators to rejuvenate the discipline. They speak of a desperate post-Cold War struggle for relevance and, through turns of innovation and creativity, a feted road to recovery – a veritable rebirth. Under this lens, evidence of incremental improvement is incontrovertible.

Yet these boundaries are far from stable. In spite of an aggregate growth in the literature, there is an unevenness to it, and its unfurling has led to the manifestation of several blind-spots.⁷ It has been noted, for example, their widespread cross-pollination notwithstanding, the compatibility of these two bodies of law is “rarely considered via a systemic perspective”.⁸ More seldom still is the type of structural analysis that connects surface and depth conditions, the visible with the more ensconced.⁹ For all of the landmark successes and new tributaries of deepened enfranchisement, the same reforms have failed a number far greater. And one struggles to get a true sense of the scale and legitimacy of the alterations that have been made, or of the simulacrum that has emerged. These are symptoms of a discipline in which the analytical turn to human rights has been uncritically embraced.

Part I will focus on the first milestone in this path – by engaging in a detailed analysis of one of the most canonical texts, James Hathaway’s 1991 Law of Refugee Status,¹⁰ the precursor to the syncretism of the modern era – and lay bare the extent to which the founding axioms of refugee law have been displaced. This first stage of theory, the proposal of the idea, will then be compared and contrasted with its wider reception and ossification in Part II. More than a mere objet d’art, the LORS is an important resource both for its methodical approach and its impact, as emblematic of wider thought.¹¹ As Krivenko explains, “the central thesis of the approach proposed by Hathaway, [is] namely, that ‘refugee law ought to concern itself with actions which deny human dignity in a key way’”.¹² It is thus memorialised for its progressive contribution to our understanding of Convention Article 1A2’s persecution, linking a previously narrow, politically partisan standard to a broader range of human rights violations.¹³

But in other ways, despite its standing, it is underappreciated and this makes it a useful coign of vantage for unmasking revisionism and history’s pliability. Its contribution depends upon historical and theoretical assumptions which are misguided. Two related assertions are made. First, the LORS chapter on persecution may be the most overt and recognisable engagement with human rights but it is not a standalone modification. Its other, equally influential chapters, in matter rather than form are calibrated around a human rights framework in order to make this proposal appear more amenable.¹⁴ This initial movement is aided by contranyms, techniques of literary persuasion and the manipulation of presuppositions. By revisiting it in this manner, this chapter both retrieves wider aspects of the definition and aims to provide an explanation for the success of the LORS. To illustrate this skew, Chapter 1 will revisit three LORS chapters (on Alienage, Well-founded Fear and History) to provide an appraisal of their surface, doctrinal logic and show they are more the result of revolution than any principled evolution. It will show, for example, that persecution is dependent upon a particular version of history. This is contrasted with a more equitable reading which recovers those power relations important in our modern era. Understanding these dynamics at their base starts to connect theory with the practice on the ground, though it is worth noting here that the focus will primarily be on the instrumentalism of these doctrinal changes.

The second claim is that although at times subtle, there is a palpable shift in tone and logic away from a refugee-oriented remedy under a traditional reading of the Refugee Convention and towards an emphasis on the state’s obligations that is more in line with human rights law. The degree of these changes cannot be reconciled solely with the aims of aiding adjudication or broadening the remit of accepted forms of persecution through the use of human rights. Rather, they are merely incidents of more ambitious but ultimately flawed plans for a separate global protection regime. Chapter 2 concludes Part I by analysing the impact of doctrinal changes at a structural level. It argues that these alterations must be understood alongside Hathaway’s other more radical but discredited reform proposals, which tend more towards the containment and control of refugee flows.

1 Samuel Moyn, The Last Utopia (Harvard University Press 2012) 3.

2 Ibid 11.

3 Ibid.

4 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 – Hereafter the “Refugee Convention”. This and the Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267, hereafter the “1967 Protocol” are the sole instruments of refugee law. They will be interchangeably referred to simply as the Convention or the Refugee Convention.

5 Developing initially “blunt tools of deterrence”, such as carrier sanctions and interdiction at sea to prevent asylum seekers reaching states has become a profession in its own right, with hostile political rhetoric driving ever-more sophisticated and sinister ways to prevent them from reaching Northern territories. See Thomas Gammeltoft-Hansen, ‘International Refugee Law and Refugee Policy: The Case of Deterrence Policies’ (2014) 27 Journal of Refugee Studies 4.

6 This link is expressly stressed amongst authors. See James Hathaway, Human Rights and Refugee Law (Elgar Research Reviews in Law 2013), Introduction: “with broadened understanding of the contours of refugee status and hence of entitlement to full Convention rights … came the rise of the ‘politics of non-entrée’.”

7 See Bhupinder S Chimni, International Refugee Law: A Reader (1st edn, Sage Publications 2000), Preface XV: “It is only fair to warn readers that this unevenness may be reflected in the Reader”.

8 Vincent Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law’ in Ruth Rubio-Marin (ed) Human Rights and Immigration (Oxford University Press 2014) 19.

9 See Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press 2006). More recently this has even been described as difference between the language and the grammar of international law.

10 James C Hathaway, The Law of Refugee Status (1st edn, Butterworths 1991) – Hereafter “LORS”).

11 See David Martin, ‘Review of the Law of Refugee Status’ (1993) 87 American Journal of International Law 348. This compartmentalisation might impede a holistic appreciation of his changes. Certainly, one of the charges made here is that changing the definition in Article1A2 without an appreciation of the rest of the Convention is not a principled mode of expansion.

12 Ekaterina Yahyaoui Krivenko, ‘Muslim Women’s Claims to Refugee Status Within the Context of Child Custody Upon Divorce Under Islamic Law’ (2010) 22 International Journal of Refugee Law 48, 67.

13 Each chapter is dedicated to a component of the Article 1(A)(2) qualifying criteria in the 1951 Convention:

Someone 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. (emphases added)

14 Their influence is best seen in Hathaway and Foster’s Law of Refugee Status (2nd edn, Cambridge University Press 2014), where each chapter contains numerous footnotes dedicated to showcasing the praise that the first edition of the LORS has received in courts. Hereafter LORS2.

1 The Law of Refugee Status’s doctrinal changes

This chapter will examine several LORS chapters at their doctrinal level and plot a general conceptual gravitation towards the primacy of the state and away from the refugee’s autonomy. This occurs in direct ways in its chapters on alienage and well-founded fear, but the net will be cast more widely to reveal the influence of the chapter on history on its chapter on persecution. This relies upon false historical images of state protection, an overemphasis on Cold War persecution and the concurrent silencing of other racial and geopolitical movements.

Alienage

Of all the constituent parts of the Convention’s definition, the requirement of alienage – the c...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Abbreviations
• Introduction
• PART I: The suggestion
• PART II: The academic reception
• PART III: The human rights paradigm in practice
• Bibliography
• Index