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Politics of the International Refugee Regime (Final author summary)

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What?        Who? When?        Why? (Context)        Criticisms/Notes

Refugees as state failure

Betts and Loescher (2011)

  • Refugee as prima facie evidence of HR violations
  • State-citizen-territory relationship has broken down
  • State building = citizen versus foreign other
  • Refugees reinforcing state system “outside” before “inside”
  • Assumes that refugees are inherently vulnerable
  • Refugee power and


Rightlessness as absence of group membership

Arendt (1948)

  • Can rights exist without a society or government to give them authority?
  • Human rights no longer fundamental; a fallback
  • “No law exists for them, let alone equality before it”
  • Human rights versus citizen rights is political
  • Assumes no agency on the part of refugees; passive actors
  • Refugee power and


  • Refugees as passive challenged by Moulin (2012) on refugee protests

State of refugee legal regimes

Goodwin-Gill (2014)

  • Historical development: IRO (Soviets opposed political)

> UNHCR (temp) > UNHCR (perm)

  • Convention standard: non-refoulement, travel docs, national treatment
  • Protection gap: what rights apply? 1966 ICCPR?

- Addresses the political aspect of Palestinian refugees/UNRWA

Persecution complex in asylum law

Price (2006)

  • Asylum as a scarce political resource
  • Persecution criterion in 1951 Convention; two-tiered


  • Asylum as a political good = class membership = rights
  • Political orientation is norm oriented (looks at cause)
  • Opposes expansion of def to include gangs
  • Favours narrow defs so

states support > not static/contested concept

Fracturing of the refugee label

Zetter (2007)

  • Post-WWII labels at best nuance interpretation, at worst deny rights
  • Haitian TPS, Turkish guests, IDPs, stowaways, aliens
  • Refugee label a prized status and commodity
  • States avoid refugee terminology to avoid obligations
  • Problematic nature of grounds: race defined?
  • Borders (Sudan/South)?
  • Cultural and historical?
  • Patriarchal 1961 def

Who is (not) a refugee

Haddad (2008)

  • Refugees leave domestic political community > gaps between states
  • Not hope for a better life but rebuilding a life lost
  • Victim-like definition necessary for survival of concept
  • Creates institutionalised dependency > loyalty to labeller
  • No distinction between refugees and IDPs
  • Acknowledge contested concept
  • Current definitions

homogenise refugees

  • Too broad (economic)?
  • Price, Mooney challenge

“no difference” assertion

  • Contrast with

Krähenbühl (2014) on UNRWA

  • Contrast with Hyndman

(2011) on state-centric

- Enduring challenge: refugee labels in Syria, Palestinian refugees in Syria, Turkey has not signed Protocol, UNHCR registration as power

IDPs as a Category of Concern

Mooney (2005)

  • IDP as a descriptive but not legal definition
  • Categorisation of IDPs because displacement connected to violation of certain rights
  • E.g., means of survival, social/cultural support, symbolic

goods (culture, friendship)

  • Urgent material needs (e.g., food)
  • Underplays importance of agency like UNHCR
  • Only solutions are return

or settlement within country; not viable?

  • Sovereignty as

responsibility + R2P?

What?        Who? When?        Why? (Context)        Criticisms/Notes

Statelessness and the problem of resolving nationality status

Batchelor (1998)

  • Nationality as a right and also precursor to other rights
  • Link between state and person: jus soli, jus sanguinis, naturalisation
  • De jure and de facto statelessness; nationality within local

laws so UNHCR cannot pronounce

  • States may believe national elsewhere and refuse to extend de jure statelessness
  • Gap in nationality laws: proscriptive but not prescriptive
  • 1954/1961 Convention

relatively weak, few obligations, few sigs

  • Nationalism in Dominican Republic, Haitian-born residents stripped of citizenship, Haiti agree to recognise on return but human rights?
  • Rohingya as de facto stateless: no documents

Right to flee

Orchard (2014)

  • 1685 Huguenots fleeing France: norm governed world
  • Right to seek asylum as modified two-level games (norms

diffuse at I, situated within domestic interests at II)

  • Constructivist: states pursue self interest unless it

conflicts with norm prescribing different behaviour

Development of right to leave as personal liberty

McAdam (2011)

  • Emigration restriction poses a problem for right to immigrate/claim asylum; “incomplete right”
  • Evolution: laissez-faire/domestic law > restrictive/

bilateral > multilateral/UNHCR > non-entrée/absence of Cold War pressure

  • Abuse of rights by Nazis (forced relocations and

restrictions on movement) a trigger, not a cause

  • Other rights connected to mobility
  • “must permit movement

on a temporary basis” to allow fulfilment of other rights; short term?

  • Problems w Puchala and Hopkins’ broad definition of a regime
  • Krasner’s definition: bundle related norms, regularise state practice and identities

Non- refoulement as an open concept

Pirjola (2008)

  • Non-refoulement not explicitly stated in international law
  • False sense of capability of international law to protect
  • Inhuman treatment, persecution, religion, violence?
  • Limitation of legal language: majestic/false promise
  • E.g., fluid definition of interrogation as inhumane/torture
  • Ignores power of norms even if definition is indeterminate
  • International society


  • 2016 EU-Turkey Deal: migrants returned to Turkey if claim denied or not filed
  • Returning to Turkey a deterrent to migration
  • 100+ asylum seekers returned to Syria per day by Turkey
  • Wet foot/dry foot policy for Cuban rafts, Haitians w HIV

Cooperation and burden sharing in the refugee regime

Betts (2011)

  • Suasion Game to understand role of power relations beyond PD (refugee protection as public good)
  • Substantive issue linkage (security, migration, trade)
  • UNHCR as broker of substantive linkages
  • Burden-sharing as weak legal/normative framework
  • CIREFCA/CPA: EU/US contributions & regional security
  • ICARA: no state interdependence, no UNHCR broker
  • Overstates the role of issue linkages
  • Sees burden sharing as

the solution (normative), see IOM Ashutosh and Mountz (2009)

  • CIREFCA projects often

failed, did not address land claims, no reforms


, Judicialisation, and Evolution

Gibney (2003)

  • Tension in the democratic state (HR so restrictionism to limit state obligations)
  • Democratisation made refugees a political policy instead

of bureaucratic

  • Consolidation of due process/judicial RSD (int’l


  • Norm of group membership after time, reluctant to deport
  • Protections against refoulement, regional agreements

(CAT), threaten golden thread of Convention?

  • Expansion of judicial oversight & law beyond borders


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