OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/05/2021, SPi The Oxford Handbook of I N T E R NAT IO NA L R E F UG E E L AW OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/05/2021, SPi OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/05/2021, SPi The Oxford Handbook of INTERNATIONAL REFUGEE LAW Edited by CATHRYN COSTELLO, MICHELLE FOSTER, and JANE McADAM 1 OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/05/2021, SPi 1 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Oxford University Press 2021 Introduction © Cathryn Costello, Michelle Foster, and Jane McAdam 2021 Chapter 9. The Architecture of the UN Refugee Convention and Protocol © James C. Hathaway 2021 The moral rights of the authors have been asserted First Edition published in 2021 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2020949095 ISBN 978–0–19–884863–9 Printed and bound by CPI Group (UK) Ltd, Croydon, cr0 4yy Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/05/2021, SPi Foreword I learnt about the denial of human rights and lack of justice before I knew what those concepts meant, legally. As refugees, the circumstances we are born into are shaped by powers beyond our reach. Yet we live the consequences of persecution and displacement and the laws purportedly used to provide pathways to protection. The circumstances I was born into—as a Kurd whose family escaped genocide— shaped my interest in equality, justice, and human rights very early on. My family’s his­ tory of resistance in the face of persecution and oppression instilled in me the importance of standing up for what is right, even when your life is on the line. As the daughter of human rights activists, an ingrained passion for equality and just­ ice inspired me to pursue a career in law. I wanted to understand the power of law to cre­ ate positive change. So, I decided to dedicate my career to helping others find their voice and access justice, as a lawyer. In Pakistan, I was denied an education because of my refugee status. And in New Zealand, when I was in high school, a careers adviser told me I ‘should consider other options’ because law school would be too difficult for someone like me—a refugee with no history of education in the family. People like me did not finish school, let alone end up at university. All our lives, we are trained to survive. Being a refugee means that our existence is based on trying to survive just another day and to reach safety. That’s all we ever dreamed of. Wanting more than safety and survival seemed ungrateful. And there I was, ‘Rêz the ungrateful refugee’, dreaming of things that were not for me—going to law school. To me, it was not just about studying law. It was all the barriers, the stereotypes, and the assumptions that I wanted to crush. To prove that we, refugees, could dream bigger than the constraints of our identities and experiences allowed. It was about taking back control of our own lives and, one day, hopefully, being able to influence the laws that apply to people who are displaced, as I once was. As a refugee, going through the legal processes of refugee status determination, iden­ tification, credibility assessments, and asylum proceedings can be disempowering and frustrating. We are subject to laws and systems that were not created for us or by us. While it is referred to as ‘refugee protection’, in many ways it epitomizes a system that is often designed to protect against us. To keep us out. Theoretically, seeking asylum is recognized, internationally, as a right; however, in practice, many asylum seekers are treated as criminals. The political discourse on refu­ gees has shifted from seeing us as ‘at risk’, to ‘a risk’. Paradoxically, a system designed to protect some of the most vulnerable people in the world can make us feel even more vulnerable and helpless, further exacerbating the pain of fleeing from our homes. OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/05/2021, SPi vi foreword We find ourselves tasked with navigating the complexities of legal systems—often in languages foreign to us—to reach some semblance of protection afforded under the Refugee Convention as recognized refugees. Yet, disappointingly, successfully navigat­ ing these systems does not always result in any guarantees. Access to education, employ­ ment, and living a somewhat dignified life in the host country remain everyday uncertainties, as does the prospect of being resettled in a third country. With UNHCR figures indicating that less than one per cent of the world’s refugees are resettled annu­ ally, the chances are slim. My family was told it would be six months before we were resettled. It ended up being nine years. Being born as a refugee in a camp, I was at one point one of the statistics referred to in UNHCR’s annual global trends reports about the number of displaced people worldwide. But I am also part of another statistic: the one per cent of refugees who complete higher education. While there are many scholars, like me, who also hap­ pen to have lived experiences of displacement, refugee voices are still largely unheard in refugee research and scholarship. While many of the Refugee Convention’s drafters were themselves refugees, and drew directly on their personal experiences of displacement, today we see a considerable lack of refugee engagement on issues that impact us. From decision­making outcomes to research that has the potential to influence law and policy related to the predicament faced by refugees, it is imperative that refugees play a key role. Refugee situations have increased in scope, scale, and complexity, and this necessi­ tates new and innovative methods for protection, assistance, and solutions. While the status quo continues to work for some issues, large­scale refugee movements and pro­ tracted refugee situations persist around the world, indicating that things must change. My parents fled for my safety and took me to the opposite side of the world, yet I made my way right back to where they started. I am currently based in the Kurdish region of Iraq working as part of an international team of lawyers gathering evidence of the tar­ geted genocidal campaign carried out by ISIS against the Yezidis, including mass execu­ tions, kidnappings, torture, sexual violence, and other egregious human rights abuses. This evidence will be used to build cases in collaboration with relevant European and Iraqi/Kurdish authorities to prosecute the perpetrators. Finding the best responses and solutions for the complex issues facing the millions of displaced people across the globe requires strong evidence­based research and a com­ mitment to translating findings into impact. It requires input from those with lived experiences of displacement for policies to be developed that are closer to the reality on the ground. Participation begets solutions. Refugee participation is not only an ‘ethical imperative’; it can also contribute to changes in policy, the development of law, and durable solutions that are innovative, sustainable, and more impactful. The importance of reflecting the perspectives of those with lived experiences of displacement has been highlighted in many fora. However, a number of obstacles still hinder the participation of refugee scholars. We need to develop more effective measures for redressing the imbalance in legal scholarship to include refugee voices. We must do better. OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/05/2021, SPi foreword vii There are many avenues for better incorporating refugee perspectives into academic research in a more genuine and systematic way. Refugees are not homogeneous, and neither are our voices. Refugees belong to many different national, social, religious, and ethnic groups, and inevitably have varying opinions and beliefs. Therefore, no one scholar could ever represent a comprehensive ‘refugee voice’. As such, scholarship should endeavour to seek input from scholars representing diverse views, and include different nationalities, ethnicities, and backgrounds. We need to create scholarship identified by people currently displaced to address cur­ rent and future challenges associated with forced displacement. To achieve these goals, this requires a prioritization and orientation towards capacity­building and co­designing, to ensure that it can provide a platform for scholars with displacement experiences. Leading and emerging scholars can facilitate research, training, and scholarship opportunities which result in specific deliverables, and ensure genuine and effective participation and involvement of refugees in academic work which has the potential to impact and respond to challenges and opportunities relating to us. The Handbook’s approach is pivotal. As the editors note in their introductory chapter, it reflects a range of approaches—from doctrinal analysis of the law, through to critiques of foundational practices and underlying assumptions. As the editors explain, the Handbook does not simply ‘recount the status quo’ but also challenges it, and in so doing, sets the future research agenda for international refugee law. It is critical that this next phase incorporates a more balanced consideration of refugee voices. The meth odo logic al challenges this entails should not prevent the legal community from championing meaningful refugee participation in scholarship. With unprecedented numbers of displaced people, we need to work together—now more than ever—to come up with practical, effective responses to displacement through multidimensional, multidisciplinary, and intersectional approaches. The call for ‘noth­ ing about us, without us’ is not merely a call to engage with refugees in consultations and research, then to write about us. It is a call to make space for us to use our skills, perspec­ tives, and experiences to contribute to scholarship directly. After all, we—refugees—are the experts of our lives and the issues affecting us, and we should be treated as such. Rêz Gardî, Hewlêr, Kurdistan Region of Iraq, October 2020 OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/05/2021, SPi OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/05/2021, SPi Acknowledgements The publication of this Handbook would not have been possible without the support and hard work of many individuals, and the institutional support of several organiza­ tions and funders. In the first place, thanks are due to Oxford University Press and the editors who commissioned and shepherded this Handbook, in particular, Merel Alstein and Jack McNichol. We are indebted to Merel for suggesting that we work together as a trio, which has been both a professional and a personal pleasure. A volume of this scale requires many pairs of keen eyes. We are grateful to our edi tor­ ial assistants who undertook meticulous copyediting and proofing: Hannah Gordon at Melbourne Law School, Dr Sean Lau at Harvard Law School, and Dr Yulia Ioffe, for­ merly at the University of Oxford, now at Queen Mary. Yulia took on a multifaceted role—an Assistant Editor in all but name, as well as a contributor to the Handbook. Her expertise on general international law, the rights of the child, and refugee law, were fre­ quently called upon, as well as her editorial skills. Over two days in July 2019, we had the privilege to host a workshop in the beautiful surroundings of All Souls College, Oxford, with the generous support of Emeritus Fellow Professor Guy S Goodwin­Gill. The College staff, in particular Irini Hatzimichali, ensured that the event was both efficiently and elegantly run. Our graduate student assistants, Natalie Nguyen, Dr Claire Walkey, and Elspeth Windsor, prepared meticu­ lous notes for authors, which enabled us to share ideas with those who could not be there in person. The workshop, which was attended by most of the authors, provided an opportunity to discuss and shape the contributions for the Handbook. We were deeply grateful to our contributors for the collaborative and generous spirit with which they approached the workshop, and for their willingness to both give and receive feedback so constructively. This collegial approach extended well beyond the workshop, as exemplified by authors’ willingness to refine and revise their contributions—in several cases co­authoring chap­ ters in newly established international collaborations—and to engage closely with us as editors to produce excellent scholarship. We are proud to be part of this community of scholars. We gratefully acknowledge the various institutions and funders that supported the Handbook. Cathryn Costello and Michelle Foster’s long­standing collaboration was supported by generous funding from the Allan Myers Oxford–Melbourne Law School fund. At Oxford, the Refugee Studies Centre (RSC) staff supported the organization of the workshop, in particular, Tamsin Kelk and Susanna Power. The RSC also supported the work on the Handbook via a grant from the Swiss Federal Department of Foreign