Analysis of Refugee Protection Mechanisms

INTRODUCTION

On any given day, thousands of individuals including women and children from all parts of the world are forced to flee their homes for fear of persecution or to escape the dangers of armed conflicts and other refugee-creating force making claims for refugee status in foreign countries.

If the key in defining who a refugee is, should not be ‘the reason for leaving one’s country but rather the reason for being unable or unwilling to return to it, then in contemporary international system, the problems of border control and trans-boundary flows of asylum seekers are ever relevant to states as well as to the academic researchers in the field of International Relations.

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After the ‘crises’ in the management of refugees during World War II, international bodies, primarily United Nations, has allocated significant proportions of its attention and its resources to build up and develop norms of refugee protection as part of the international system of governance. The primary goal of the collective attempts was to lay down the basics for refugee protection in cases of political turmoil, civil or national wars and ethnic conflicts. These attempts, though, were not only the results of the dramatic event of World War II as hinted above, but also accompanied the development of Human Rights regimes at the global level since the late years of the 1940s. It is in this context that the Convention related to the status of Refugees had been drafted and was released on 28th July, 1951. Additional international document in the field is the 1967 Protocol Relating to the status of Refugees known as the New York Protocol.

According to the UNHCR 2008 Global Trends report, there were some 42 million forcibly displaced people worldwide at the end of 2008. This includes 15.2 million refugees, 827000 asylum-seekers (pending cases) and 26 million internally displaced person (IDPs).[1] The legal obligations requiring that receiving states not return these refugees to situations of serious human rights abuse derive from international law, but does the so-called international refugee law clearly determine how governments respond to involuntary migration? If the answer is yes then why do states pay lip service to the important of honouring the right to seek asylum, but in practice devote significant resources to keep refugees away from their borders.[2] My work will attempt to evaluate the international refugee system so as to discover whether the norms in the system for refugee protection constitute an international regime, as defined by international relations literature in order to show that if it is a regime, then states are no longer afforded the full freedom of action and decision making under the doctrine of sovereignty and that they have a certain level of obligation to abide by regime rules and help in the upkeep of the regime.

International regime is increasingly in a state of crisis. While armed conflict and human rights abuse continue to force individuals and groups to flee, many governments are retrenching from their legal duty to provide refugees with the protection they require. In this work, I will attempt to explain among other things, refugee law’s increasingly marginal role in defining the international response to refugee protection. This will lead me to suggest the basic principles upon which I believe reformulation of international refugee protection mechanisms should be predicated. Refugee law must be reaffirmed, bolstered and perhaps reconceived to respond to this serious deterioration in the rights and security of refugees. This thesis will evaluate the international legal mechanisms for refugee protection. Its premise is that refugee law is a mode of human rights protection. The paper will address the legal definition of a refugee, refugee rights and the institutional and procedural structures through which claims for protection are evaluated. It will clearly define and apply contemporary legal standards, within an international and domestic legal context, and subject the present domestic and international regime to critical scrutiny.

TOPIC AIM AND OBJECTIVE:

The aim of this work is to closely look at the international refugee protection system that is made up of the various conventions, treaties and regional agreements, and domestic refugee policies, in order to determine whether or not the system constitute an international regime. The purpose of trying to discover whether these mechanisms for refugee protection do or do not constitute an international regime is to show that the members of the regime (i.e. signatory states to the 1951 Convention and 1967 Protocol, regional agreements and those states that have enshrined the Convention in to their domestic asylum policies) thus have their actions restricted considerably by the very fact that they are members of the regime. They are no longer allowed the full freedom and decision-making afforded to them under the doctrine of state sovereignty. Regime plays important role in the international system in bringing about co-operation and stability. In my analysis of regime theory, I will attempt a highlight of the role the refugee protection regime plays within the international system as a whole and discuss whether the roles are changing.

THESIS QUESTION:

In lieu with the above, this paper will attempt to address the following thesis questions:

1. Do the contemporary refugee protection mechanisms in the international system constitute an international regime?
2. If the system of protection is an international regime, what kind of regime does it represent? What are its characteristics and how is it important?
3. How are restrictive measures adopted by states affecting the international protection regime? Specifically, do they account for the change within or of, the regime, or a weakening of the regime itself?
4. What is the role of the regime within the international system as a whole, and how is this role evolving especially in the face of states’ use of restrictive measures?

THEORETICAL FRAMEWORK

The study will use the Rationalist approach to regime theory. The mainstream rationalist theories of (interest- based) neo-liberalism and (power-based) neo-realism are the basis for the theoretical framework for this write-up. The focus on neoliberal or interest based theory of regime represents the fact that it has been extraordinarily influential in the past (two) decades and have come to represent the mainstream approach to analyzing international institutions.[3] The work will however not be limited to these two theories. In a situation where millions of innocent lives are at stake each year and states come together to attempt to solve the existing problems and potentially stop it from occurring in the future, the researcher believes that it is not rational to assume that state action is driven by self interest and power politics alone. In contrast, state behavior within the international refugee protection regime largely comes from humanitarian concerns for people in need and from respect for international human rights law and international humanitarian law. It is in this light that the thesis will also consider the use of constructivist paradigm so as to show the importance of international norms, rules and principles, both within the regime itself and the role they play within the domestic asylum policy.

SCOPE AND LIMITATION OF STUDY

The work will aim at addressing the contemporary mechanisms in the international system for the protection of refugees focusing on post WWII onwards to current from historical perspective. While looking at the restrictive measures that states across the entire international system practice, the researcher will not undertake a close examination of any specific state within the international system of protection, but rather would address the system as a whole in an attempt to define and analyze its contents, discuss its importance in the international system and analyze the various changes that may be occurring within it and how these may affect the regime.

RESEARCH METHODOLOGY

The methodological framework of this research is a qualitative one. This study will use interpretivism as its main research philosophy. A descriptive research intends to present facts concerning the nature and status of a situation, as it exists at the time of the study (Creswell, 1994). It is also concerned with relationships and practices that exist, beliefs and process that are on-going, effects that are being felt or trends that are developing. In addition, such approach tries to describe present conditions, events or systems based on the impressions or reactions of the respondents of the research (Creswell, 1994).

Unlike quantitative research methods, which largely use a positivist epistemological position, qualitative research methods are based on an interpretivist epistemological position which stresses “the understanding of the social world through an examination of the interpretation of that world by its participants. Interpretivism holds a different logic of research procedure from positivism. It seeks to understand human behavior, instead of just explaining it, which is what positivism seeks to do. The ontology of qualitative methods is constructivist, which contends that social phenomenon is continually being accomplished by social actors- they are produced through social interaction and are thus constantly being revised.[4]

Basically, a descriptive research utilizes observations and surveys. It is for this particular reason that this approach was chosen by the researcher, whose intention is to gather first hand data. Moreover, this will allow for a flexible approach that when important new issues and questions arise at the duration of the study, a further investigation can be conducted. Another advantage is that with this approach, the research will be fast and somehow cost-effective.

Aside from the qualitative finding method, secondary research will be conducted in this study. Sources in secondary research will include previous research reports, existing findings on journals and existing knowledge on books, newspapers, magazines and in the internet. The study will undertake an extensive review of the relevant literature on the subject of refugee flow, asylum policy, border control, state sovereignty, international humanitarian and human rights laws, and international refugee law. Basically, interpretation will be conducted which can account as qualitative in nature.

STRUCTURE OF THE PAPER

CHAPTER 1. INTRODUCTION

In the first chapter, the researcher will introduce the aim of the thesis and formulates the research questions. The methodology of the thesis, a secondary research method and a qualitative, interpretivist, constructivist approaches will be outlined. Finally, the relevant theoretical and empirical literature will be reviewed.

CHAPTER 2. THEORETICAL FRAMEWORK

This chapter will present the rationalist approach to regime theory, including neoliberal and neorealist theories. These theories are chosen as the theoretical framework for the thesis and will be used to evaluate the international mechanisms for refugee protection so as to discover whether or not the system constitutes an international regime considered as legal.

CHAPTER 3. THE INTERNATIONAL REFUGEE PROTECTION MECHANISMS: AN INTERNATIONAL REGIME?

The third chapter will firstly provide the definitions of the key terms discussed in the work. Then, it will discuss the historical background of the system. It will further discuss the three major components of the refugee protection mechanisms in the international system namely: the legal documents (various conventions, treaties and regional agreements), the protection bodies (UN bodies, human rights organizations, among others) and finally domestic refugee policy. The chapter will finally show how these three levels of protection are integrated to form the refugee protection mechanism.

CHAPTER 4. THE REFUGEE PROTECTION MECHANISMS AS AN INTERNATIONAL REGIME.

In this chapter, the researcher will attempt a discussion of the various types and components of international regime that exist in the international system. This discussion is then related to the international protection system in an attempt to prove whether or not the system constitutes an international regime, and what type of regime it is. It evaluates the role of the regime and its importance within the international system as a whole.

CHAPTER 5. RESTRICTIVE MEASURES

In this chapter, a description of the various restrictive measures that states practice in order to cut down the influx of refugees across national borders is presented. The reasons for, and effect of, the restrictive policies are outlined. The concept of state sovereignty in relations to states’ reasons for, and justification of, the use of restrictive policies will also be discussed in this chapter.

CHAPTER 6. RESTRICTIVE POLICIES AND REGIME CHANGE

This chapter will outline the neoliberal, neorealist and constructivist explanation of regime transformation. It will attempt to prove whether or not the use of restrictive measures by member states represents a change within, or of, the regime, or a weakening of the international regime of refugee protection. It then discuss the potential impact of the regime weakening on the regime itself, as well as for member states and for the refugees.

CHAPTER 7. CONCLUSION

This is the conclusive part of the work. The researcher will address the research question and attempts to answer them by providing a summary of the main conclusions about the refugee regime’s type, strength and importance, and the role that it plays in the international system and how this is evolving.

LITERATURE REVIEW (ANNOTATED)

From the initial review of literature, the researcher found resource materials including the following books, legal documents, journals and articles which will provide insights in to the study:

ALTERNATIVES, Turkish Journal of International Relations. Volume 5, number 1&2, spring and summer 2006.

Countries have different approaches to refugee protection system. This article can be very useful for the research as it shows that one of the major differences in approaches is the ‘receiving’ and/or ‘transit’ status vis-a-vis the refugee flow. Using four European countries- Belgium, Slovenia, Greece and Turkey as cases, the article examines refugee policies and makes an evaluation of differences in refugee protection system that each country develops.

Donnelly, Jack, “International Human Rights: A Regime Analysis” in International Organization, Vol. 40, No. 3 (summer, 1986), 599-642.

Donnelly’s article will be used in order to discover what type of regime the mechanism for protection in the international system is. It is useful for regime analysis.

Creswell, J. W. 2003. Research Design: Quantitative, Qualitative, and Mixed Methods Approaches. SAGE. Thousand Oaks. USA.

For the researcher’s choice of method of investigation, a reference to Creswell’s work on research design will provide great help.

Guy S Goodwin-gill: (1996) The Refugee in International Law2nd Edition. Oxford University Press: Oxford.

In this book, Goodwin-Gills provide an excellent overview of contemporary international refugee law, the three levels of protection, and the meanings and workings of the treaties and conventions on refugee protection. The book is widely recognized as the leading text on refugee law and as an excellent treatise of the international law on refugee, all the major problems are discussed in a general and lucid way.

Hasenclever, Mayer and Rittberger (1997) Theories of International Regimes. Cambridge University Press: Cambridge.

This book is very essential in the writing of this thesis as it provides an overview of the rationalist approach to regime theory. The book examines in detail the neoliberal and neorealist’s distinct views on the origins, robustness and consequences of international regimes.

Hathaway, James (ed) (1997) Reconceiving International Refugee Law. Martinus Mijhoff Publishers: The Hague.

Hathaway’s Book, a collection of essays by leading migration scholars, will be helpful in that it offers a response to the concerns of many states that refugee protection has become no more than a ‘back door’ route to permanent immigration. It explores the potential for a shift to a robust and empowering system of temporary asylum, supported by a pragmatic system of guarantees to share both the cost and human responsibilities.

Helmut Breitmeier (2008). The Legitimacy of International Regimes. Ashgate Publishing Limited. England.

How legitimate are outcomes, outputs and impacts of international regimes? In this book, theoretical and empirical chapters balance one another. The book explores the question whether problem-solving in international regimes is effective and equitable and whether regimes contribute that sates comply with international norms. It also analyses whether non-state actors can improve the output and input-oriented legitimacy of global governance systems.

Michelle Foster (2007) International Refugee Law and Social Economic Rights. Refugee from Deprivation. Cambridge University Press: Cambridge.

A range of emerging refugee claims is beginning to challenge the boundaries of the refugee convention regime and question traditional distinction between ‘economic migrants’ and ‘political refugees’. Foster’s book will greatly help in identifying the conceptual and analytical challenges presented by socio-economic deprivation. It undertakes an assessment of the extent to which these challenges may be overcome by a creative interpretation of the refugee convention, consistent with correct principles of international treaty interpretation.

Keohane, Robert O., “International Institutions: Two Approaches” in International Studies Quarterly, Vol. 32, No. 4 (Dec., 1988), 379-396.

This is a journal article by Keohane that will also be helpful in formulating the rationalist approach to regime theory.

Krasner, Stephen D. (ed) (1989) International Regimes. Cornell University Press: Cambridge

This book by Krasner includes articles by various authors on neorealist and neoliberal approaches to regime theory. It also provides sharp criticism of regime theory and so therefore will help the research.

Wendt, Alexander, “Anarchy is what States Make of it: The Social Construction of Power Politics” in International Organization, Vol. 46, No. 2 (Spring, 1992), 391-425

Wendt’s article will be useful in creating an alternative understanding to neorealism of how and why cooperation occurs in the international system of states.

Aside, a variety of conventions, treaties, and agreements Will also be reviewed and referred to, including the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, the Cartagena Declaration on Refugees, the 1990 Dublin Convention, the 1990 Schengen Convention, the 1977 Treaty of Amsterdam, the 1950 European Convention on Human Rights, the 1981 African Charter on Human and peoples’ Rights and the 1948 Universal Declaration on Human Rights and its Protocols. These documents can be accessed in the annexes of Guy S, Goodwin-Gill’s book The Refugee in International Law2nd Edition. Oxford University Press: Oxford, 379-550.

1. 2008 Global Trends: Refugee Asylum- seekers, Returnees, Internally Displaced and Stateless Persons (16 June 2009).
2. James C. Hathaway (Ed.). Re-conceiving International Refugee Law. P. xvii
3. Hasenclever, Mayer and Rittberger (1997) Theories of International Regimes.p.4
4. Creswell, J.W. (1994) Research design: Qualitative and quantitative approaches. Thousand Oaks, California: Sage. in Bryman (2001) Social Research Methods, Oxford University Press, Oxford, p.264