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Moving Beyond the Refugee Law Paradigm

  • Jaya Ramji-Nogales (a1)


Refugees dominate contemporary headlines. The migration “emergencies” at the southern U.S. border and the southern borders of the European Union, as well as the “crisis” in the Bay of Bengal, have drawn global attention to the dire inadequacies of the international refugee regime, even as extended through various principles of non-refoulement, in governing modern migration flows. Political responses to these mass movements, from the Brexit vote to the election of Donald Trump and his executive order halting the refugee resettlement process in the United States, have threatened the viability of refugee law's protections. At the policy level, numerous high-level stakeholders have convened in different constellations, through the United Nations and other bodies; many commentators agree that these meetings have accomplished little thus far in terms of law reform. The refugee law paradigm consumes so much space in the imagination of international lawyers and policymakers that it is hard even to begin to conceptualize an alternate approach to global migration law. The fear of losing even the narrow ground staked out to protect refugees stiffens the resistance to change. Proposals for reform tend to follow the tired old path of suggesting ways in which the refugee definition can be expanded to include new groups of migrants (ranging from climate change refugees to anyone fleeing serious human rights abuses) rather than critically evaluating the structure of global migration law more broadly.

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1 For further discussion of the “emergency” paradigm and the role of international law in constructing migration “emergencies,” see Jaya Ramji-Nogales, Migration Emergencies, 65 Hastings L. Rev. 101 (2017).

3 See, e.g., United Nations General Assembly, Resolution adopted by the General Assembly on 19 September 2016: New York Declaration for Refugees and Migrants, UN Doc. No A/RES/71/1 (Oct. 3, 2016) [hereinafter New York Declaration]; Organization of American States and United Nations High Commissioner for Refugees High Level Round Table, San Jose Action Statement (July 7, 2016).

4 See, e.g., Bill Frelick, Theresa May's Refugee Vision is Narrow and Divisive, Newsweek (Sept. 20, 2016); Aurélie Ponthieu, Empty Promises? Radical Policy Shift Needed on Refugees and Migrants, Médécins sans Frontières Analysis (Sept. 22, 2016); ACTNOW, 7 actions world leaders urgently need to take to make a new deal for refugees, migrants and societies a reality (2016). But see Kathleen Newland, New Approaches to Refugee Crises in the 21st Century: The Role of the International Community, Migration Policy Institute Policy Brief 8–9 (Oct. 2016) (Newland's take is more optimistic, noting that the agreements have created frameworks for law reform in the form of two proposed “global compacts” even if they have not yet altered legal standards).

5 For a thoughtful assessment of this problem, see Moria Paz, Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls, 34 Berkeley J. Int'l L. 1 (2016).

6 On this point, see Kate Ogg, The Future of Feminist Engagement with Refugee Law; From the Margins to the Centre and out of the ‘Pink Ghetto’?, forthcoming in Research Handbook on Women and International Law (Edward Elgar ed., 2017). Kate's article applies Martha Fineman's theory of the responsive state and Nedelsky's theory of relational autonomy to the concept of surrogate state protection in refugee law, critiquing “the development of two models of surrogate state protection polarized along gender lines [, namely independence/self-sufficiency and vulnerability/dependence/care responsibilities, as] inconsistent with feminist theories [which stress] that both men and women are dependent on the state or family for care and … both are constituted by relationships.”

7 See Beyond Survival: Setting Priorities in Livelihoods Research and Education for Refugees in the Middle East, Conference Proceedings Report 20–21 (2015), for a brief discussion of the history of the Refugee Convention, which I argue “conceptualized refugees as laborers, either in wage-earning employment, self-employment, or the liberal professions.” This was exemplified by the U.S. representative to the drafting conference for the Convention, who stated that “without the right to work all other rights were meaningless.”

8 This binary is reinforced by the New York Declaration, supra note 3, which lays the ground work for two separate agreements, a “comprehensive refugee response framework” and a “global compact for safe, orderly and regular migration.”

9 For a terrific discussion of the role that temporary regimes can play, see Jean Galbraith, Temporary International Legal Regimes as Frames for Permanent Ones, in 45 Neth. Y.B. Int'l L. 41 (2014).

10 See Paz, supra note 5.

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