Dividing TWAIL into "Generations"

Paper presented at the “Critical Legal Studies” colloquium at SOAS University in September 2018.  

Introduction

TWAIL scholarship has generally been divided into two generations: TWAIL I comprises of scholarship during the decolonization period and TWAIL II refers to scholarship since the end of the 1990s. The distinction was initially created to account for the political and theoretical differences between the two groups. Unlike their predecessors who aimed to use international law “to remedy the social and economic domination of the postcolonial world by their former imperial powers”, contemporary theorists focused on theoretical inquiries, investigating the centrality and continued relevance of colonialism to international law.[1] 

The division was first proposed in an article by Antony Anghie and B.S. Chimni, and has since become well-established. Anghie and Chimni explain that these two generations differ in four significant ways. 

The first difference is the critical stance towards “state sovereignty” taken by TWAIL II scholars. Unlike the first generation, who focused on the state, the contemporary project became more concerned with Third World people. Secondly, and significantly, unlike the earlier generation, TWAIL II scholars place great value in a theoretical inquiry. This inquiry centers around the idea that international law is a product of colonialism. TWAIL I did not focus heavily on theoretical inquiries since they were uncritical about techniques available in international law. Conversely, TWAIL II are highly critical of the emancipatory potential of the law. Thirdly, while ideas concerning the civilizing mission are present in earlier TWAIL scholarship, TWAIL II gives more importance to the civilizing mission than TWAIL I. Finally, epistemological inquiries into the politics of knowledge are another central focus of TWAIL II scholarship. Such methodologies are absent from earlier theorists.[2]

While the division between the two generations is generally well accepted, the utility of such a nomenclature to categorize and explain TWAIL as a theoretical school is questionable. There are many reasons for this, and the rest of this presentation will consider what I believe is an interesting issue in TWAIL theory: the problem of “terming” TWAIL i.e. should the term “TWAIL” be used to encapsulate scholars who have generally been categorized as “TWAIL I” jurists? By discussing the problems associated with creating such a divide, I will explain why this question should be answered negatively and thus my rationale for strongly considering reserving the use of the term “TWAIL” exclusively to refer to TWAIL II theorist. 

Problems with Dividing TWAIL

While scholars have previously discussed the TWAIL I/TWAIL II dichotomy in the context of forming comparisons and examining the relationship between the two generations, it was only at the 2015 TWAIL Conference in Cairo when George Galindo first examined the issue as a stand-alone topic and made convincing arguments opposing the idea of splitting TWAIL into generations.[3] Other than Galindo, Karin Mickelson has also previously raised several key issues with creating a generational divide.[4]

1.     Obscures internal debates between first generation theorists

While most first generation Third World theorists are linked in several ways, they each have different ideas and approaches.  Most share a common pursuit to examine the relationship between colonialism and international law and to reform the inequitable international system that disadvantages the Global South. However, their ideas about important concepts like “colonialism” and “imperialism”, and critically, how they each problematized the issue and their agenda, differ considerably. Thus, grouping all these diverse postcolonial theorists into one broad category of scholarship would not only conflate our understanding of TWAIL as a school of thought, but it also diminishes the significance of the various complicated debates amongst these first-generation theorists. 

This point is exemplified by comparing the views of two prominent first generation theorists: Mohammed Bedjaoui in “Towards a New International Economic Order” [1979] and S Prakash Sinha in “New Nations and the Law of Nations” [1969]. Bedjaoui’s views on neo-colonialism and capitalist expansion result in him identifying the main problem with international law to be its indifference about the current unequal system which disadvantages the Global South. On the other hand, Sinha’s passive views on colonialism and its impact on international law i.e. limiting Third World participation from the formulation of international rules, and private entrepreneurs investing in the developed world without considering development issues, led him to have different concerns about international law. Perceiving the situation as one concerning economic competitiveness, Sinha advocated rapidly growing Southern economies with a focus on development in order to keep pace with the North.  

Seeing how differently both these theorists approach and identify the main issue for international law therefore demonstrates the level of complexity of the internal debates of the Third World’s first generation theorists.

2.     Retrospective labelling 

Historically, the term “Third World Approaches to International Law” was formulated in the late 1990s at a conference entitled “New Approaches to Third World Legal Studies” at Harvard Law School in March 1997. The conference was organized by a group of students and theorists (now considered influential TWAIL II scholars), who drafted and circulated a Vision Statement that outlined a new theoretical approach to addressing international law.[5] Therefore first generation scholars were retrospectively grouped into the “TWAIL” movement by TWAIL II scholars. “TWAIL” is not a label chosen by these theorists.

Galindo also argues that previous generations may not necessarily self-identify as TWAILers. Pointing to Mohammed Bedjaoui’s contributions to the 2010 TWAIL Colloquium in Paris, Galindo argues “Bedjaoui showed some reluctance in fully engaging the scholarship from the later generation” given that the “first generation's targets were significantly different from TWAIL II's targets”.[6]

3.     Problems with periodization

a)     Anachronism

Galindo identifies an issue with periodization (which is also related to the issue of retrospective categorization) – anachronism. Galindo stresses the need to view the writings of past Third world scholars in the context in which they were writing. Arguing that past theorists were often concerned with answering different questions than contemporary scholars, Galindo warns that “[f]ailing to do this often means past authors are seen as human beings that think and act in the present”.[7]

b)    Progressivism

Mickelson explains how periodization creates a linear description of the history of Third World scholarship which implies “a gradual progression towards some glorious enlightened future.”[8] Galindo similarly describes the TWAIL narrative of its self-image as embedded in the language of “progress” and ideas of “improvement” and “evolution”, and thus one of “ascending periodization”. Galindo’s issue with “progress” is that “it is an ideology that aims to control nothing less than time itself. By stating the present is better than the past, it gives to previous generations no more than an instrumental role in present generations.”[9] 

c)     Periodization is a complex process

Galindo notes that periodization “[…] is not simply the drawing of an arbitrary line through time, but a complex process of conceptualizing categories […] Such conceptualization of categories invariably affects any theory, methodology or historical narrative supported by TWAIL scholars since the fixing of periods produces bias and reductions.”[10] 

4.     Intention of the original Vision Statement

Galindo acknowledges that the Vision statement did express "the need to understand and engage previous and prevailing trends in third world scholarship in international law", but does not see this as creating any formal theoretical link between the two generations. Rather, Galindo interprets this as a way the contemporary scholars “paid tribute to past third world international legal scholars”.[11] Similarly, while Mickelson acknowledges TWAIL’s original Vision Statement does imply a connection between TWAIL scholarship and earlier Third World scholarship, she interprets this “as a kind of homage, a tribute to those that have gone before.”[12] In fact, Mickelson does not think the wording related to “understand[ing]” and “engag[ing]” with previous Third World scholars necessarily mean that contemporary scholars must “unquestioning[ly] embrace earlier work”; rather Mickelson argues that creating such a dichotomy “seems to necessarily entail some degree of rejection of the past, of moving beyond a flawed and incomplete paradigm” and for the new TWAIL movement “to learn from the failures and disappointments of its predecessors.”[13] 

5.     Contradictory nature of the relationship between two generations

Galindo notes the paradoxical aspect of Anghie and Chimni’s analysis as they point out similarities but focus their attention on the differences between the two generations – identifying continuity but stressing discontinuity. Such incongruity leads to further confusion in conceptualizing TWAIL as a theoretical project.[14]

6.     “Heuristic value” of TWAIL

Given the “heuristic value” of TWAIL, Mickelson argues that TWAIL may “take on a life of [its] own, far removed from the careful qualifications and cautions that accompanied the original formulation.” The term “TWAIL” is also so generic it may start applying to “any international legal scholarship emanating from the Third World”.[15]

7.     Identifiability

Galindo argues that a consensus has not yet been reached regarding when TWAIL I started and ended, noting that in the original article that conceptualized the split, Anghie and Chimni simply list important scholarship and specific theorists associated with TWAIL I without providing a precise indication of a time-frame. Moreover, Balakrishnan Rajagopal, an influential TWAIL theorist, has identified the start of TWAIL I as the beginning of the twentieth century “when the articulation of the Calvo and Drago doctrines, the critique of imperialism and the creation of international control for the administration of colonies emerged.” Thus, the roots of TWAIL have been argued to commence decades before decolonization even began. 

Conclusion

In my opinion, the main problem with the generational divide relates to the idea that TWAIL I scholars were grouped into the TWAIL movement ex post facto and therefore may not necessarily self-identify with TWAIL. Connected to this idea is the issue of identifiability – what is it specifically that differentiates TWAIL I theorists from other scholars writing about analogous ideas during the same time-period but who associate themselves with other theoretical schools, such as Edward Said and Orientalism or Gayatri Spivak and Subaltern Studies?[16]

Anghie and Chimni fail to mention these theorists amongst those whom they consider part of TWAIL’s first generation. One possible explanation could be that theorists like Said and Spivak have already self-identified with other theoretical schools, and so the term “TWAIL I” was used to provide a convenient category for the remaining postcolonial scholars with similar ideas. Such an explanation, however, would imply using a rather dangerous and undesirable methodology for classification that clumps all the leftover scholarship of the period into one broad label. Relying on such a retrospective labelling technique is not only disconcerting given the problems associated with self-identification and anachronism, but the point about the “heuristic value” of TWAIL and that it may take on a life of its own makes it difficult as a researcher with interests in TWAIL to accurately identify what classifies as TWAIL scholarship.

This, along with the negative implications of creating a narrative of progress, the contradictory nature of identifying continuity but stressing discontinuity and, importantly, the obscurities in the internal debates of theorists categorized as “TWAIL I” has led to my conclusion that TWAIL’s generational divide is misconceived. Grouping both sets of scholars within the same broad theoretical group may serve to confuse the beliefs and goals of the movement, may further dilute an already fluid grouping of scholars who use different methodologies to make similar arguments, and may complicate our understanding of what the term “TWAIL” truly means.  I therefore believe that TWAIL should be seen a part of a Third World tradition of international legal scholarship, rather than an overarching framework into which all Third World scholarship can be fit and so the term TWAIL should be reserved exclusively to refer to TWAIL II scholars.

[1] Eslava, Luis, and Sundhya Pahuja, (2011) “Between Resistance and Reform: TWAIL and the Universality of International Law” at 117.

[2] Anghie and Chimni (2003) at 82-87.

[3] Galindo (2016) “Splitting TWAIL”.

[4] Mickelson (2008) “Taking Stock of TWAIL Histories”.

[5] Mickelson (2008) at 356.

[6] Galindo (2016) at 49-50.

[7] Galindo (2016) at 44.

[8] Mickelson (2008) at 361.

[9] Galindo (2016) at 48.

[10] Galindo (2016) at 40.

[11] Galindo (2016) at 40.

[12] Mickelson (2008) at 359-361.

[13] Mickelson (2008) at 361.

[14] Galindo (2016) at 43.

[15] Mickelson (2008) at 361.

[16] This issue also arises in the context of identifying interdisciplinary TWAIL scholarship, particularly literature related to theoretical schools studying other marginalized groups such as Feminist approaches, Critical Race Theory, Indigenous Studies, etc.  i.e.  the problem of differentiating between specific articles that combine TWAIL and Feminist approaches (for example) and those generally about Feminist approaches but the author happens to be from the Third World. 

Certain lacunas in customary international law obligations related to non-refoulement and the definition of a refugee

 Paper presented at a conference at the McCoubrey Centre for International Law (Hull, UK) on “Customary International Law”,  July 2015. Key note speaker: Sir Michael Wood

1.    Introduction

The principle of non-refoulement is fundamental to refugee law. It imposes an obligation on the international community to accept persecuted individuals qualifying as refugees, and can be found not only in treaty law (Article 33 of the 1951 Refugees Convention) but also in customary law.

Although custom is absolutely necessary, it is indeed a problematic source of international law. Lacunas in refugee law, together with consistent global state practice disobeying non-refoulement provisions, lead to questioning whether the principle of non-refoulement is still a part of customary international law. Moreover, implicit acceptance of violations of Article 33 by the international community by 1) no sanctions or reprisals being applied for violations of non-refoulement, and 2) no subsequent hard or soft law declarations condemning such practice, leads to questioning whether custom has now changed as a reaction to difficulties arising due to these lacunas in refugee law. Has this practice of closing national borders to asylum seekers now effectively become a part of customary international law? What does this tell us about the role that custom can and should play in the making of international law?

Another lacuna in customary international law relates to the definition of a “refugee”, which excludes certain categories of asylum seekers that fail to meet the test of “well founded fear of persecution” and hence do not qualify to receive the protections and safeguards afforded to refugees. However, such forced migrants account for a majority of asylum seekers in existence and so this lacuna in customary international law reveals an equally significant threat to the fundamental rights of international asylum seekers.

This paper will begin by outlining the non-refoulement provisions in customary international law (as they have been historically interpreted). It will go on to examine the main lacunas in refugee law and in customary international law, exposing the significance of these gaps in the law in 1) reinterpreting the customary international law standpoint on non-refoulement based on the current practise of non-abidance, and 2) assessing the practicality of the non-refoulement provisions in customary international law. The definition of a “refugee” sheds light on a further lacuna in refugee law and this, together with the previous point regarding non-abidance, will be considered to ultimately question whether customary international law is useful in filling the lacunas in refugee law, thus aiding this branch of international law to achieve its primary and overarching objective (namely, the promotion of fundamental rights and safeguards for refugees).

2.    Non-refoulement in customary international law

The principle of non-refoulement has been described as the “[…] linchpin of refugee law”[1] and in broad terms it forbids “[…] the forced direct or indirect removal of an individual to a country or territory where he runs a risk of being subjected to human rights violations.”[2] The provisions prohibiting refoulement in refugee law are found in Article 33 of the 1951 Refugees Convention relating to the Status of Refugees[3] (hereafter, “the Refugees Convention”). Article 33(1) of the Refugees Convention states:

“No Contracting State shall expel or return ('refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 

But does non-refoulement exist as an obligation in customary international law?

Custom “[…] has evolved through a long historical process by which state practices and recognition of those practices within the international community have crystallised into normative rules.”[4] Article 38(1)(b) of the Statute of the International Court of Justice (“ICJ”) directs the Court to apply “[…] international custom, as evidence of a general practice accepted as law.”[5] In interpreting this provision, the ICJ has found that two conditions must be satisfied for a rule to be established in customary international law: first, there must be evidence of State practice which is “[…] both extensive and virtually uniform… and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved”[6]; second, the requirement of opinion juris has been described as “an intention on the part of the relevant States tending to such recognition ‘to distinguish legal obligations from non-legal obligations, such as obligations derived from considerations of morality, courtesy or comity’”.[7]

While considering evidence of “State practice” demonstrating the existence of the principle of non-refoulement in customary international law, Chan notes that there must be both generality and consistency of practice. As evidence of generality of practice, first, so far 148 states are parties to the Refugees Convention or the 1967 Protocol relating to the Status of Refugees (hereafter, “Refugees Protocol”), or both. This signifies general consensus as “it is widely recognized that ‘the multilateral treaty-making process is legislative in objective but contractual in method’”.[8] Second, other than the exceptions in Article 1(F) and 33(2) of the Refugees Convention, Article 42(1) expressly forbids any reservations to the right to non-refoulement.

In examining the consistency of practice, other important multilateral treaties and UN resolutions and declarations have broadened the principle of non-refoulement. For example, Article 3(1) of the 1967 Declaration on Territorial Asylum (unanimously adopted by the UN General Assembly) states that “[n]o one [entitled to asylum] shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subject to persecution”[9], and the Fourth Geneva Convention on the Law of Wars imposes a similar obligation in Article 45.[10]

Further examples of regional declarations reaffirming the right to non-refoulement include the 1984 Cartagena Declaration on Refugees (which Chan argues is now authoritative on this matter to all Central American countries)[11], Article II(3) of the 1969 Organization of African Unity Convention Governing Specific Aspects of Refugee Problems in Africa and  Article 3(1) of the 1966 Principles Concerning Treatment of Refugees propounded by the Asian-African Consultative Committee.[12]

The principle of non-refoulement has also been articulated in the context of the prohibition against torture and cruel and degrading treatment in a number of legal instruments. Examples include, Article 3 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, Article 7 of the International Covenant on Civil and Political Rights and Article 3 of the Convention against Torture.[13]

Moreover, as Hersch Lauterpacht has famously stated, opinio juris does not need to be proved separately to State practice given that evidence of opinion juris can be derived from evidence of State practice:

“Unless judicial activity is to result in reducing the legal significance of the most potent sources of rules of international law, namely the conduct of States, it would appear that the accurate principle on the subject consists on regarding all uniform conduct of Governments (or, appropriate cases, abstentions therefrom) as evidencing the opinion necessitates juris except when it is shown that the conduct in question was not accompanied by any such intentions”.[14] 

It is therefore reasonable to conclude that “ […] in light of the importance of the principle of non-refoulement, the significant number of State Parties to the Refugees Convention and the Refugees Protocol, the consistency of observance of non-refoulement even outside the Refugees Convention regime at both global and national levels, the close correlation between refoulement and torture, and, above all, ‘elementary considerations of humanity’, the necessary opinion juris should be found as sufficiently exemplified by reference to such State practise […]”.[15]

 “The principle of non-refoulement can thus be seen to have crystallised into a rule of customary international law, the core element of which is the prohibition of return in any manner whatsoever of refugees to countries where they may face persecution.”[16] In fact, there is an argument that the absolute nature of the prohibition against torture and cruel and degrading treatment has a significant effect on the right to non-refoulement in this context making the right to non-refoulement in such situations arguably a rule of jus cogens,[17] and so “[…] there is general consensus amongst legal scholars that non-refoulement has so ‘become binding as a matter of both treaty and customary law, if not also a so-called peremptory norm or jus cogens.’”[18]

3.    Lacunas in refugee law and customary international law

While, as the section above demonstrates, there is a fair bit of consensus that the principle of non-refoulement has acquired the status of a customary international norm, there are certain lacunas within the principle of non-refoulement.  

For one, the Refugees Convention and customary international law imposes obligations on the international community to accept persecuted individuals qualifying as refugees, however there are no defences or safeguards available in international law for host states forced to absorb these refugees which may, at times, result in an overwhelming humanitarian situation resulting within the host state’s own territory. Moreover there are no obligations placed on the international community as a whole to assist States affected by substantial amounts of refugees. Also there is a lack of stipulations explaining the point at which the obligation to accept refugees ceases, with no reference to when the refugee problem in a host nation becomes so significant that the social, political and economic climate in the host state renders the host state itself to become debilitated. Therefore are certainly lacunas in this area of the law.

It would be reasonable to wonder why these lacunas, having been present since the inception of the Refugees Convention in 1951, have surfaced in current times. The reason for this is likely related to the social, economic and political realities that we are faced with today, and the effects of these realities on forced migrants.

The number of displaced people across the world has exceeded 50 million for the first time since the Second World War.[19] The Refugees Convention came into force immediately following the Second World War. At the time, European countries were flooded with millions of displaced people who were unlikely to leave their new country of residence. Therefore the Refugees Convention aimed to provide two guarantees: 1) non-refoulement, and 2) refugees who have been lawfully admitted to a host state were to enjoy equal treatment in exercising civil and political rights; and States who signed and ratified the Refugees Convention in 1951 acquiesced to accepting these obligations. There was no fear of removing or denying admission to refugees at the time and thus, apart from the exceptions to non-refoulement[20], there was no great concern to address these lacunas in refugee law.

However as a consequence of the new age of globalisation and technology, increased arms flows prolong internal armed conflicts.[21] Moreover there has been an escalation in international terrorism. The recent Global Terrorism Index report contends that there has been a five-fold rise in terrorism since 9/11.[22] Political theorists like Paul Kahn have argued that terror has created a sense of paranoia in society as it undermines our sense of security. Moreover given advancements in weapons of warfare, including the availability of weapons of mass destruction, society is threatened by “an imagined threat of total annihilation”[23] (the “ticking time bomb” scenario[24]). Therefore there has been a diminished sense of security globally, forcing more people to flee their homes, resulting in a rise of asylum seekers.[25] The lacunas in refugee law are therefore quickly becoming a significant issue for both asylum seekers and host states.  

Finally, another lacuna in the context of the non-refoulement obligation is that the principle of non-refoulement applies only to those who qualify as “refugees”. Refugees are a specific and well-defined group of individuals in international society. The obligation does not extend to the majority of forced migrants that currently exist, and thus there are doubts about whether the current customary international law obligations relating to non-refoulement are sufficient to protect the majority of the vulnerable subjects of the discourse. Given the lack of stipulations governing  “humanitarian” or “war” refugees in customary international law (i.e. those forced migrants fleeing civil war, military occupation, natural disasters, gross violations of human rights, or simply bad economic conditions, as opposed to fleeing based on a “well-founded fear of persecution” as is the express stipulation in the Refugees Convention), there are concerns over whether the laws related to providing rights for the vast majority of asylum seekers are adequately governed by customary international law. 

4.    Selected case studies demonstrating violations of non-refoulement

High surges of asylum seekers into a host state may often times result in negative social, economic and political consequences within the host state’s own borders. This has often resulted in host states taking drastic, and often times dehumanizing, measures to stop influxes of asylum seekers into their territory. The case studies examined below demonstrate the desperate attempts by host States to alleviate the humanitarian strain within their borders, most of which are in violation of the principle of non-refoulement, therefore questioning the practicality of the law relating to non-refoulement and more fundamentally, whether the many cases of infringement of the principle of non-refoulement, especially on territorial frontiers, has led to the diminishing status of the customary norm in modern times.

Cast Study 1: Kenya’s reaction to the Somali refugee issue

The severe refugee situation in Kenya began emerging in 1991, following the ousting of the then Somali dictator, Mohammed Siad Barre. In January 2001 the United Nations High Commission for Refugees (hereafter, “UNHCR”) reported that 140,000 Somali refugees had reached Kenya, with another 700 arriving everyday.[26] Moreover given the escalation of hostilities in 2006, Kenya is currently still suffering from the consequences of massive surges of Somali refugees.

In addition to the rising burden on resources, recently the UNHCR highlighted the high-risk and dangerous situations in Kenyan refugee camps, exemplified by a series of abductions of aid workers and fatal attacks on refugee leaders and Kenyan security forces.[27] Moreover the political, social and economic strains on Kenya are apparent.[28] Critical shortages of schools, health centres and water stations have raised fears that refugees are being recruited by the warring parties of the very conflict that they fled. These camps have also experienced several cases of reported and unreported violence since their inception in 1991.[29]

The Kenyan government has repeatedly voiced strong concern about the harmful effects of Somali refugees within its territory. For example, the Kenyan Government published the Garissa District Development Plan 1994-1996, asserting that the influx of refugees into the Garrisa district resulted in insecurity thus adversely affecting the supervision of development programmes.[30] Kenya claims that due to “[…] the resultant influx of more than 150,000 [Somali] refugees, a lot of insecurity in the district is now being experienced. A lot of resources have been diverted to attending refugees and in stemming the problem of insecurity. Sophisticated weaponry have [sic] found their [sic] way into the district promoting banditry, cattle rustling and general violence in the district.”[31]

Kenya has also consistently highlighted the acceleration of existing internal conflicts and the infiltration of cross-border terrorist organisations into its territory caused by the Somali conflict, most recently exemplified by the incident in the Westgate shopping mall in Nairobi in September 2013[32].

Faced with few options available under refugee law to cope with such a refugee situation, Kenya’s reaction has involved targeting the most vulnerable subjects affected by the conflicts – the Somali refugees. In 2012 the Kenyan government ordered more than 30,000 refugees living in urban areas to return to remote and overcrowded camps. With limited means to act outside their borders, anger about the Somali refugee situation has also resulted in cruel and degrading treatment towards these refugees by Kenyan authorities.

Rights groups have accused Kenyan police of a brutal campaign against Somali refugees, following a string of grenade attacks and shootings within Kenya blamed on supporters or members of Al-Shebaab.[33] Human Rights Watch, in a report released in May 2013, documented multiple cases of police rape of Somali refugees[34]. The report states that, "[…] police held the detainees […] sometimes for many days in inhuman and degrading conditions […] while threatening to charge them, without any evidence, with terrorism or public order offences."[35]

The situation has become so serious that the Kenyan government has repeatedly insisted on having Somali refugees returned home. In June 2013 Kenya and Somalia signed an agreement for "voluntary repatriation", with plans under way to work out how refugees can start moving back to Somalia.[36] Given that the situation in Somalia is far from stable, such repatriation efforts would be a violation of international law.

Case Study 2: The United States response to Haitian refugees in 1994

The origins of the Haitian refugee situation in the US date back to September 1994, following a surprising coup against President Jean-Bertrand Aristide. Within six months of the coup the US Coast Guard had intercepted more than 38,000 Haitians at sea.[37] To cope with this sudden surge of refugees, the US established detention camps at Guantánamo Bay and a “refugee processing program” at the US embassy in Port-au-Prince. When the camps at Guantánamo filled up with 12,000 refugees, President Bush ordered the summary return of all Haitians picked up at sea (acting on a decision by the US Supreme Court that the Refugees Convention did not apply on the high seas).[38]

During the Clinton administration, the policy changed slightly. Almost all of the Guantánamo refugees were permitted to enter the US to pursue asylum claims while those picked up at sea were returned to Haiti despite continued violence and unstable conditions in the country. The US tried using alternative procedures to streamline the processing of refugee claims, such as the establishment of on-ship refugee screening processes and seeking to obtain a network of “safe haven zones”[39] for Haitians in the Caribbean. However these attempts proved futile. When Caribbean nations refused to resettle the refugees and the shipboard screening processes became overwhelmed, the US sent the Haitian refugees to the detention camps in Guantánamo.[40]

Hence the US response to Haitian refugees in 1994 highlights similar violations of the principle of non-refoulement. Left with few options to react under refugee law, and after exploring the option of safe haven zones and on-ship refugee screening processes, the US established detention camps at Guantánamo Bay for Haitian refugees and ordered the return of Haitians picked up at sea.

Case Study 3: The current situation in Syria

The current situation in Syria is a good example of the strains suffered by States forced to absorb asylum seekers fleeing an internal conflict. More than four million refugees have fled Syria since hostilities began in March 2011[41], sparking one the worst humanitarian crises of this decade.

The UN High Commissioner for Refugees, Antonio Guterres, has warned that “[t]he impact of the refugee influx on the societies, economies and communities of the host countries is immense […] [these States are] going through huge demographic changes following the refugee influx, unsettling their social and economic fabric”[42].

The UNHCR accepts that “urgent action [is needed] to mitigate the economic and social impacts of the humanitarian crisis spawned by the Syrian conflict on neighbouring countries struggling under the weight of more than two million Syrian refugees”[43]. In a joint statement, the UNHCR agreed on the need for massive support to enable Iraq, Jordan, Lebanon, Turkey, and Egypt to continue hosting Syrian refugees.[44]

Lebanon for example, a country of just 4.4 million people, counts some 760,000 registered Syrian refugees; meaning as much as a quarter of its population is now Syrian.[45] The Chief of the World Bank, Jim Yong Kim, further predicts that unemployment rate in Lebanon will “double from 11 to 22 percent” in the next five years and has stated that “Lebanon, who has taken $7.5 billion in terms of loses, has reached their borrowing limit with the World Bank"[46]. Thus there is considerable evidence of deteriorating conditions in Lebanon due to the influx of Syrian refugees.

Similarly, Jordan has now assumed over 522,000 Syrian refugees, representing around 10 percent of the population. The Al-Zaatari refugee camp has now become the country's fourth largest city.[47] Also Turkish Foreign Minister, Ahmet Davutoglu, claims his country is now home to over 600,000 fleeing Syrians and has already spent $2 billion in direct support to the refugees.[48]

Furthermore concerns over access for humanitarian workers has led to renewed pressure for a UN Security Council resolution focused on access for humanitarian workers in Syria. The US Deputy Secretary of State, William Burns, has stated that "[w]e need to do more to ensure our aid moves across battle lines and across borders and reaches the most conflict-affected areas and the most vulnerable populations".[49]

In a recent statement Lebanon's Minister of Social Affairs, Wael Abu Faour, acknowledged "a certain bitterness" over the lack of assistance from outside the region claiming the "huge pressure" on infrastructure, schools, health system and services is creating "antagonistic trends against Syrian refugees" in Lebanon and has provoked calls from some quarters to close the borders.[50]

While not completely closing its border, access to Jordan by refugees fleeing the Syrian conflict has been restricted over the past months with recent research by Amnesty International highlighting four categories of individuals currently being denied access to Jordan: 1) Palestinian refugees from Syria, 2) people lacking identity documents, 3) Iraqi refugees living in Syria, and 4) unaccompanied men with no demonstrable family ties in Jordan. Jordan has also repeatedly threatened to close off its borders if the Syrian government collapses.[51]

The Turkish Foreign Minister has similarly stressed that "[t]he international community needs to replace words with deeds"[52].

Thus the Syrian case study exemplifies that, due to the lack of any obligations imposed on the international community as a whole to assist States affected by substantial amounts of refugees originating from a regional humanitarian situation, neighbouring host states forced to absorb the refugees resulting from the conflict are often times overburdened and take severe actions to curtail the adverse humanitarian situation developing within their own borders.

Cast Study 4: Australia’s Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014

The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014[53] (“the 2014 Bill”) is a highly controversial piece of legislation passed by the Australian Parliament in December 2014. The 2014 Bill grants the Immigration Minister unfettered powers to disallow an asylum seeker from even making a claim and/or detain an asylum seeker (without charge) or refoul them under the vague grounds of “character” or “national interest”, and his reasons may be confidential and unchallenged. Moreover, asylum seekers arriving by boat will no longer have access to the Refugee Review Tribunal; instead, applications will be classed as “fast track applicants” and will be processed under a new agency, the Immigration Assessment Authority. The Immigration Assessment Authority will not have the capacity to hold a hearing for any application, only a paper review, and the only manner of appeal for any “excluded fast track applicants” will be by an internal review by the Immigration Minister’s own department.[54] It therefore gives the Immigration Minister what has been described as “[…] unprecedented, unchallengeable, and secret powers to control the lives of asylum seekers”, accusing the Immigration Minister of being able to ““play God” with asylum seekers’ lives.”[55] 

“Stripped of the legalese, that paragraph says Australia is now entitled to return an asylum seeker to a country where they have been, or it is known they will be, tortured.”[56] The 2014 Bill has therefore been criticized as an express violation of the most basic and fundamental obligation of the Refugees Convention – the prohibition against refoulement. “Instead of adhering to the established, internationally-agreed framework for dealing with asylum seekers, Australia will follow a “new, independent and self-contained statutory framework”, that sets out the government’s own interpretation of international law.””[57]

This blatant violation of fundamental customary international law by Australia sheds further light on the desperate attempts by host states to mitigate problems perceived by massive surges of refugees. Once again, in this case, faced with few options under refugee law to mitigate the perceived domestic refugee strains, the refugee host state has targeted the most vulnerable subjects of the discourse – the asylum seekers. 

Case Study 5: Miscellaneous cases concerning the treatment of “boat people”

So-called “boat people” cases further exemplify the desperate actions employed by host states to alleviate the strains caused by massive refugee influxes. Cases in point include: 1) the Clinton Administration's policy of forcing all Cuban refugees intercepted at high seas to return to Cuba[58]; 2) Malaysian and Indonesian “boat people” detained at the Christmas Island detention centre by Australian authorities[59]; and 3) The Thai government’s treatment of Rohingyas, a persecuted Muslim minority unrecognized as citizens by the Burmese government, arriving by boat. The Burmese Rohingya population have been making their way to Bangladesh, Thailand, Malaysia and Indonesia for the last few decades. According to the UNHCR, since 2009 thousands of Rohingya “boat people” who reached Thai shores were towed out to sea and left to die without adequate supplies.[60] The UNHCR has consistently voiced strong concern over their treatment.[61] 

5.    The effect of infringements of non-refoulement on the current status of the principle in customary international law

There are two aspects that require consideration in the context of evaluating whether the case studies mentioned above have had an effect on the principle of non-refoulement in customary international law: first, consideration of the status of non-refoulement provisions in customary international law with reference to mass refugee influx situations; and second, whether the principle of non-refoulement in customary international law extends to frontier asylum claims (i.e. asylum claims from persons intercepted before crossing territorial borders).

Refugee exodus situations

With regard to the issue of non-refoulement in refugee exodus situations, Coleman argues in favour of an exception to the non-refoulement rule in such situations with reference to the travaux préparatiores of the Refugees Convention, specifically citing comments made by the Swiss and Dutch delegates.[62] Coleman also notes that Article 3(2) of the 1967 United Nations Declaration on Territorial Asylum “[…] contains further indication towards a mass exodus exception to non-refoulement.”[63]

However while the text of the Article 3(2) states: “Exception may be made to the [principle of non-refoulement] only for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons”, it is followed by Article 3(3) which states: “Should a State decide in any case that exception to the principle stated in paragraph I of this article would be justified, it shall consider the possibility of granting to the persons concerned, under such conditions as it may deem appropriate, an opportunity, whether by way of provisional asylum or otherwise, of going to another State.” [64] [emphasis added], therefore not completely negating the host state’s non-refoulement obligations even in such extreme cases as when the host state’s own national security is under threat due to the refugee exodus situation.

In fact Coleman concedes that “[n]otwithstanding [his above argument], a massive influx of refugees exception to the principle of non-refoulement is, as of yet, not recognized.”[65] Furthermore the UNHCR has always emphasized the added necessity to protect refugees in such exodus situations, and has urged contemporary international policy to provide the possibility of temporary protection and to develop burden-sharing agreements in such situations.[66]

An example is the Executive Committee of the UNHCR’s (“EXCOM”) Conclusion No. 22, which is an informal mechanism devised by the UNHCR to combat this problem. EXCOM Conclusion No. 22 recommends that in cases of conflict, refugees should be admitted to geographically proximate countries as ports of “first asylum” (i.e. “the principle of first asylum”), followed by assistance to the region by the international community[67]: “In situations of large scale influxes, seekers should be admitted to the State in which they first seek refuge and if that state is unable to admit them on a durable basis, it should always admit them at least on a temporary basis [….]”[68]. Moreover with regards to burden sharing, the Conclusion provides that “States shall, within the framework of international solidarity and burden-sharing, take all necessary measures to assist, at their request, States which have admitted asylum seekers in large-scale influx situations.”[69]

Frontier asylum claims

Do acts such as closing off borders and inceptions at high sea signify that enough state practise has been established for non-refoulement to no longer apply to such frontier asylum cases?

Coleman argues that “[r]ejecting a refugee at the frontier is […] synonymous with the refoulement of a refugee [in customary international law].”[70] The idea that 1951 Refugees Convention supports an inclusionary reading of rejection at border is supported by three reasons: first, the drafters of the Refugees Convention expressly chose not to use English word “return” and instead relied on the French word “refouler” which refers to “police actions without formality which are applied to aliens which are in the country in an irregular manner or who are turned back at the frontier”[71]; second, the phrase “in any manner whatsoever” suggests inclusion rather than exclusion; and third, Article 31(1) of the Vienna Convention on the law of Treaties requires the text of Article 33 to be read in light of the “object and purpose” of the Refugees Convention and since protecting the broadest possible assurances of refugees’ fundamental rights may be read into the object and purpose of the Convention, this would include non-rejection at frontiers.[72] 

The UNHCR has also stated that “[i]n all cases the fundamental principle of non-refoulement – including non-rejection at the frontier – must remain observed.”[73] [emphasis added].

Moreover, Coleman stresses that the high number of Member States that have expressed support for the inclusion of non-rejection into the principle of non-refoulement in their recorded is evidence in favour of opinion juris of the existence of the right. Stressing this point with reference to the European context, Colemen lists certain European Union instruments that “provide a strong indication that non-rejection at the border has evolved as a regional customary international norm in Europe”.[74]

First, Council Resolution of 20 June 1995 on minimum guarantees for asylum procedures of the European Union states: “9. Any asylum- seeker must be able to lodge an [asylum] application at the frontier. The application may then be examined to establish, prior to the decision on admission, whether it is manifestly unfounded […]”[75] [emphasis added]. Moreover there is a current proposal for a Directive on these minimum procedures, which includes non-rejection in Article 3(1): “The Directive shall apply to all applications for asylum at the border, at port and airport transit zones or on the territory of Member States”[76] [emphasis added]. Finally, Article 3(1) of the Dublin Convention states that: “Member States undertake to examine the application of any alien who applies at the border or in their territory to any one of them for asylum”.[77] This demonstrates that there is an obligation for EU members to examine an asylum claim at borders and therefore any rejections at frontiers are acts of refoulement. Moreover, given that the Member States of the EU are also parties to the 1951 Convention, it makes the obligations of the 1951 Convention (and therefore consequently Article 33) part of the contextual analysis of Article 3(1) of the Dublin Convention.[78] Therefore, Coleman concludes that the abundance of declarations, resolutions and commitments by the EU to include asylum application at frontiers as part of the right to non-refoulement proves that regardless of generality in state practise, sufficient opinio juris exists for such an interpretation of the non-refoulement provisions in customary international law to be reasonable (at least in Europe).

What emerges is thus that opinion juris “[…] is virtually uncontested […]”[79] regarding the requirements for both reviewing asylum claims at frontiers and for providing so-called temporary provisions and “safe havens” for asylum seeks (even if these do not result in resettlement in the “first country”). Reasons why opinion juris remains uncontested include: 1) the fact that no State party would agree to the right to refoulement; 2) not only are there a high number of parties to the Refugees Convention but there are also similar non-refoulement provisions in other treaty instrument; 3) the same States that are a party to the Refugees Convention are also members of other treaties prohibiting refoulement; and 4) even when States infringe the right to non-refoulement, the fact that they always try to justify their actions signifies that they are violating a rule of law.[80] The only aspect of non-refoulement in customary international law which is of concern is the requirement of generality of practice.

Therefore the requirement of non-refoulement in customary international law still exists despite current state practise demonstrating contrary actions in cases of refugee exodus situations and at frontiers. The fact that case studies exemplifying violations of non-refoulement are abundant further reveals that the lacunas in customary international law render the non-refoulement obligations to lack any practical value, thus questioning whether there needs to be an advancement in customary international law for both rights for host states suffering from refugee exodus situations, and also (stricter) obligations on the international community as a whole to assist such host states suffering from massive refugee influx  situations.  

6.    The limiting nature of the definition of a “refugee” in customary international law

The Refugees Convention provides a definition for a “refugee” in Article 1(A)(2) and in essence it provides for two qualifications for refugee status to be awarded: first, the person must have crossed an international border; and second, the so-called “nexus requirement” which requires the person to have a “well founded fear of persecution” based on five specified categories (race, religion, nationality, membership in a particular social group or political opinion).[81] Moreover, “[t]he predominant , generation-old [legal] conception advanced by international instruments, municipal statutes, and scholarly treatises identifies the refugee as, in essence, a person who has crossed an international frontier because of a well founded fear of persecution.”[82] Therefore customary international law supports the Refugees Convention’s definition of a refugee.

The definition of a refugee as it stands today therefore excludes persons commonly referred to as “humanitarian” or “war” refugees i.e. those fleeing “[…] generalized violence and internal turmoil, rather than persecution, by their home countries.”[83] This “humanitarian” refugee lacuna in customary international law is significant as it does not provide protection for the majority of forced migrants in the world seeking shelter from general armed violence or natural disasters. War produces refugees, and indeed some international commentators go as far as to argue that “[…] it does so in greater numbers than it does fatalities in the traditional sense”.[84] Even the UN Security Council has “[…] often deplored the fact that ‘combatants with increased frequency target civilians and the unarmed directly’ [leading to] the UN Security General […] sorrowfully observ[ing] that ‘[whilst] those obliged to leave their countries  [as a result] should enjoy the protection of international refugee law… this is not the case for many of them.’”[85]

Hailbronner therefore concludes that “[…] state practice, particularly as shown by asylum laws of Western Europe, the United States and Canada, does not support non-refoulement of humanitarian refugees as a norm of customary international law.”[86] However, Hailbronner does point out that there are a small category of humanitarian refugees that are protected by the non-refoulement provisions as they stand today: namely, those subjected to torture or inhuman treatment[87] (as explained in Section 2, non-refoulement obligations related to this category of individuals may even be argued as a rule of jus cogens).

Shacknove points out the ironic nature of this narrow conception of the refugee given the fact that the status of “refugee” is viewed as “[…] a privileged position.”[88] Combining this point with Hailbronner point above, given that in contrast to certain destitute individuals in war situations that do not benefit from the rights and safeguards afforded by virtue of being recognized as a refugee (including material relief, asylum and permanent resettlement), the absurdity of the current state of customary international law related to the definition of a refugee is that individuals that are currently suffering in severe conditions and do not meet the nexus requirement for persecution are actually hoping to prove they have been subjected to cruel and degrading treatment in order to qualify as a refugee.[89] Another irony in the definition, pointed out by Durieux and Cantor, is that the definition of a refugee does not provide protection for those fleeing an armed conflict when the entire reason why the Refugees Convention 1951 was conceived in the first place was to respond to civilian casualties resulting from the two world wars in Europe.[90]

Shacknove argues that persecution is just one manifestation of refugeehood, but should not be sufficient to determine the status of a refugee. The essence of refugeehood, Shacknove argues, “[…] is [the] absence of state protection which constitutes the full and complete negation of society […]”[91] and so Shacknove proposes an alternative conception of refugeehood, where a refugee is one whose “[…] basic needs are unprotected by the country of their origin, who have no remaining recourse other than to seek international restitution of their needs, and who are so situated that international assistance is possible”.[92] Shacknove main assertion is that such an inclusive definition will have greater claim to moral validity.

Judge Storey refers to this lacuna in refugee law as the “war flaw” and describes it as “the failure of international protection to analyse claims by persons fleeing armed conflict by reference to the correct international framework”.[93] Storey’s argument is that while International Human Rights Law (“IHRL”) provides a framework, in both practice and theory, to interpret the concept of “persecution”, International Humanitarian Law (“IHL”) (and therefore consequently the laws governing armed conflict) is unable to address this aspect of the law. “Therefore, when considering the elements of the refugee definition, applying only international human rights standards to such exceptional situations [such as in times of war] leads to lacunae.”[94]

The biggest contention with applying IHL to International Refugee Law (“IRL”) is that both fractions of international law have different purposes: IHL seeks to regulate the conduct of hostilities while IRL seeks to protect persecuted individuals. Moreover, IHL is inherently plagued with definitional debates that further undermine customary international law obligations related to refugees in times of armed hostilities. For one, most cases of generalized violence fall short of IHL’s “armed attack” threshold. Furthermore, even in cases where this threshold has been crossed, most cases concern non-international armed conflicts towards which fewer IHL norms apply than in cases of international armed conflicts. Finally, by focusing attention on the “persecution” requirement, it requires consideration of the situation in the country as a whole, including aspects that may not be associated with the armed conflict.[95]

Therefore, in light of the numerous forced migrants that may be defined as “humanitarian refugees”, the so-called “war flaw” exposes large numbers of individuals that are excluded from the definition of a refugee, and are therefore unprotected from the non-refoulement obligations in customary international law. This evidences a further lacuna in customary international law. In order to ensure adequate protections are in placed for the majority of the most vulnerable subjects of the refugee law discourse, the customary international law definition of a refugee needs to advance to include such categories of vulnerable asylum seekers such as “humanitarian refugees” who are not currently protected by the law.

7.    Conclusion 

The analysis above has shed light on two important aspects: first, regardless of non-abidance with the principle of non-refoulement (both in situations of mass influxes and in the context of frontier asylum cases), customary international law requires the international community to accept refugees regardless of a quantitative and qualitative analysis. Constant violations of this principle at territorial frontiers or by way of inception at high sea expose certain lacuna present within the principle of non-refoulement in customary international law.

 Customary international law imposes obligations on the international community to accept persecuted individuals qualifying as refugees, however there are no defences or safeguards available in refugee law or in custom for host states forced to absorb these refugees which may, at times, result in an overwhelming humanitarian situation resulting within the host state’s own territory. Moreover there are no obligations placed on the international community as a whole to assist States affected by substantial amounts of refugees. Also there is a lack of stipulations explaining the point at which the obligation to accept refugees ceases, with no reference to when the refugee problem in a host nation becomes so significant that the social, political and economic climate in the host state renders the host state itself to become debilitated.

A further lacuna in refugee law is demonstrated by way of the “war flaw” argument. However, unlike the unconditional obligation to accept all refugees at territorial frontiers and regardless of exodus situations, “humanitarian refugees” escape the ambit of protection from the principle of non-refoulement in customary international law.  

How useful is customary international law in filling the gaps in refugee law? Moreover, given the lacunas in refugee law, what role can and should custom play in the making of international law? Is strict adherence to the two-element approach to identifying customary international law useful in achieving the primary and overarching aims of IRL and IHL? The answer to all of these questions is not straightforward.

In relation to the first aspect of the analysis i.e. the obligation of non-refoulement with regard to influx situations and those pertaining to frontier asylum claims, customary international law seems adequate to impose such obligations, however is unable to enforce them. The lack of concentrated resources and a coordinated international effort render such obligations to lack the necessary “teeth” to amount to any violation in international law for which an enforcement mechanism is conceivable. Customary international law therefore must evolve to include obligations that that are more practical. Although the UNHRC and the UN Security Council have voiced support for such positive measures, if the international community is to depend on customary international law, changes in both practice and mentalities in the international community is imperative.

Moreover, with regard to the second lacuna in customary international law, regarding the definition of a “refugee”, customary international law is not only unhelpful but also negates the argument that “humanitarian” or “war” refugees deserve the same protection as those enjoyed by refugees defined by Article 1(F)(2) of the Refugees Convention. This is a huge issue given that the majority of forced migrants in existence today do not fit the highly selective “refugee” definition in the Refugees Convention. It is therefore up to customary international law to fill the gap in this aspect of the law and advance a new protection regime for a well-defined group of individuals that may be described as “humanitarian refugees”.

Has the two-pronged test for developing customary international norms related to non-refoulement been successful? Simma and Alston shed light on an important development in customary international law, something they refer to as the “identity crisis of customary international law”: namely, while traditional understandings of international custom emphasize the importance of State practice over opinion juris (in fact, evidence of opinion juris has traditionally been derived from State practice), modern interpretations of customary international law have amended what is required in order to successfully demonstrate the customary acceptance of a norm. As such, elements such as UN General Assembly Resolutions and other soft law declarations, which would have traditionally been considered evidence of “general practice”, are now considered as part of a deductive methodology to construct custom, thus rendering a change in what we perceive as amounting to State “practice” “[…] from something happening out there in the real world, after the diplomats and delegates have had their say, into paper practice: the words, texts, votes and excuses themselves.”[96]

This signifies a change in the direction of customary international law in modern times, reevaluating traditional methodological approaches to interpret and argue that certain resolutions and declarations of the UN General Assembly have “[…] a law-making function.”[97] This has permitted custom to be formed even in cases of negative practice. It is therefore positive that custom has evolved in this way to reflect the true opinion juris of the international community; however this assessment of the two-pronged test for the establishment of customary international legal norms is equally worrying as it confuses the distinction between custom and “general principles” (Article 38(1)(c) ICJ Statute): “[…] if we perceive customary international law to be derived not only from a generalization of State practice but from the express articulation of the General Assembly, the concept of custom would be difficult to distinguish from that of general principles recognized internationally […].”[98]

The reason why this blurred distinction between the two sources of law is significant is that general principles are implemented as a top-down mechanism (i.e. principles are articulated in the form of universally accepted principles which are prescriptively applied to the international community unanimously), while custom is a bottom-up mechanism (i.e. universal principles are derived from State practice and opinion juris). If custom can now be derived from the prescriptive soft law declarations that provide the international community with general principles, how is it possible to know which norms are customary international legal requirement and which are general principles? Since Article 38(1) of the ICJ Statute requires prioritization of certain sources of international law, the distinction between “general practice” and “custom” is important.

Therefore while arguably custom has developed to suit the needs of current State practice, and the modern-day two-pronged test may be useful (in theory) with regard to issues of mass refugee influx and frontier claims given that it has created legal obligations on the international community regardless of numerous cases of non-abidance, it has been equally deficient in providing a solution to such problems. There is a general lack of positive actions by the international community to uphold the right to non-refoulement, and this lack of a genuine commitment with regard to mass refugee influx situation and frontier claims sits uncomfortably in customary international law as it signifies that custom currently lacks the enforcement mechanisms to create any binding obligations and the right to non-refoulement may therefore be argued simply as an aspirational right. What is the point in having an obligation forbidding refoulement even in severe refugee situations when states are permitted to not abide by the rule without any repercussions?

The lacunas related to the principle of non-refoulement in customary international law demonstrate its deficiency as a source of law. Without positive obligations placed on the international community as a whole, the normative effect of customary international law in this area is weak. Since it is up to the international community to develop State practice and opinion juris (such as passing legally binding UN Security Council resolutions [under Article 25 of the UN Charter] condemning such actions or placing economic sanctions on offending states), customary international law related to an enforcement regime for refoulement violations has not yet emerged.

Moreover, the two-pronged test has been completely ineffective with regards to expanding the definition of a “refugee” in international law. Refugee law is incapable of dealing with this lacuna without completely amending its governing statute. Customary international law has been weak in devising a solution to this problem. Customary international law has insisted on basing its definition of a refugee on the Refugees Convention. Rather than using State practice and opinion juris from a number of different areas of law to construct a new approach to addressing the “war flaw”, the law in this area has been stagnant. Whether this can be attributed to failures of the two-pronged test is dubious. It is likely due to the lack of desire and motivation by the international community to take any positive measures to adopt such a broad and far-reaching “refugee” interpretation.

Customary law related to non-refoulement may therefore be viewed as a problematic source of international law as 1) it has been slow to develop; 2) it is largely dependent on the individual will of states who may, at times, act in self-interest and therefore not commit to obligations that are necessary to uphold the object and purpose of both IRL and IHL; and 3) custom can be confusing, given that non-abidance by states does not necessarily negate customary international legal obligations. Customary international law related to the obligation of non-refoulement needs to develop in order to cure the lacunas in refugee law, and also to create a binding enforcement regime that currently does not exist in refugee law. Until such positive measures are taken by the international community custom related to this area of the law may be reasonably argued as a weak source of international law.  

[1] David A. Martin, Alexander T. Aleinikoff, Hiroshi Motomura, Maryellen Fullerton, “Forced Migration Law and Policy (American Casebook Series)”, Thomson/West: 2nd edition (Minnesota, 2007), pg. 70 (Hereafter, “Martin et al.”).

[2] C.W. Wouters, “International Legal Standards for the Protection from Refoulement”, Intersentia (2009) (Hereafter, “Wouters”).

[3] UN General Assembly, “Convention Relating to the Status of Refugees”, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: http://www.refworld.org/docid/3be01b964.html.

[4] Gillian Doreen Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2006) at 43.

[5] Statute of the International Court of Justice art 38(1)(b). Available  at http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_II

[6] North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), Judgement of 20 February 1969, ICJ Report, 1969 at 3 and 43.

[7] Phil C. W Chan, “The Protection of Refugees and Internally Displaced Persons: Non-refoulement under Customary International Law?”, The International Journal of Human Rights, Vol. 10, No. 3, September 2006 at 232. (Hereafter, “Chan”)

[8] Chan at 232.

[9] UN General Assembly Resolution 2312(XXII) of 14 December 1967.

[10] Geneva Convention Relative to the Protection of Civilian Persons in Time of War, adopted on 12 August 1949 by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War and entered into force: 21 October 1950.

[11] Chan at 233.

[12] Chan at 233.

[13] Martin et al., pg. 70.

[14] Hersch Lauterpacht, “The Development of International Law by the International Court: Being a Revised Edition of the Development of the Permanent Court of Justice (1934)” (London: Stevens, 1958) at 380 quoted in Chan at 234.

[15] Chan at 235.

[16] Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007) at 248. See also Martin et al. at 70.

[17] Chan at 234.

[18] Chan at 235. See also Ian Brownlie, “Principles of Public International Law, 4th ed. (Oxford: Clarendon Press, 1990) at 7 and David Kennedy, “International Refugee Protection”, Human Rights Quarterly, Vol. 8, Issue 1 (1986) at 60-61.

[19] The UN Refugee Agency, “UNHCR Global Trends 2013”, available at http://www.unhcr.org/5399a14f9.html.

[20] Article 33(2) states “The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” [Emphasis added].

[21] RT News, “Arms flow fuels Syrian ‘internal conflict’ - UN rights chief” (July 2012), available at http://rt.com/news/un-human-rights-syria-internal-conflict-251/.

[22] Institute for Economics and Peace, “Global Terrorism Index Report 2014”, available at http://www.visionofhumanity.org/sites/default/files/Global%20Terrorism%20Index%20Report%202014.pdf. See also, The Guardian, “Fivefold increase in terrorism fatalities since 9/11, says report” (November 2014), available at http://www.theguardian.com/uk-news/2014/nov/18/fivefold-increase-terrorism-fatalities-global-index.

[23] Paul W. Kahn, “Sacred Violence: Torture, Terror, and Sovereignty”, (Ann Arbor: University of Michigan Press, 2008), pg. 11 (Hereafter, “Kahn”).

[24] Kahn, pg. 5

[25] The Guardian, “Arab spring prompts biggest migrant wave since second world war” (January,= 2015), available at http://www.theguardian.com/world/commentisfree/2015/jan/03/arab-spring-migrant-wave-instability-war.

[26] The United Nations Refugee Agency, “Review of UNHCR's Kenya-Somalia Cross-border Operation”, December 1994, available at http://www.unhcr.org/3bd4228b4.html.

[27] The United Nations Refugee Agency, “2013 UNHCR country operations profile – Kenya”, available athttp://www.unhcr.org/pages/49e483a16.html.

[28] Jeff Crisp, New Issues in Refugee Research, Working Paper No.16, A State of Insecurity: the political economy of 
violence in refugee-populated areas of Kenya, December 1999,13; Guglielmo Verdirame, Human rights and refugees: the case of Kenya”, Journal of Refugee Studies, 12, 
1(1999), pg. 63.

[29] Josh Kron, “Somalia’s Wars Swell a Refugee Camp in Kenya”, New york Times, 11 November 2010, available at http://www.nytimes.com/2010/11/12/world/africa/12dadaab.html?_r=0.

[30] Republic of Kenya, Garissa District Development Plan (1994-1996), (Nairobi: Government printer), pg. 81.

[31] Garissa District Development Plan 1997-2001, Office of the Vice President and Ministry of Planning and National 
Development, (Nairobi: Government Printer), pg. 59.

[32] Douglass K. Daniel, “39 people killed in Kenya mall attack claimed by Somali militants; hostages still held", The Washington Post, 21 September 2013.

[33] Abdullahi Mire, “Somali refugees nervous as Kenya eyes their return”, Fox News, 14 July 2013, available at http://www.foxnews.com/world/2013/07/14/somali-refugees-nervous-as-kenya-eyes-their-return/ (Hereafter, “Abdullahi Fox News article”)

[34] Human Rights Watch “You Are All Terrorists: Kenyan Police Abuse of Refugees in Nairobi”, May 2013, available at http://ijrl.oxfordjournals.org/cgi/pdf_extract/4/2/217. http://www.hrw.org/sites/default/files/reports/kenya0513_ForUpload_0_0.pdf.

[35] Ibid, pg. 2.

[36]Abdullahi Fox News article.

[37] “Haiti: The impact of the 1991 coup” 4 International Journal of Refugee Law, pgs. 217-229 (June 1992).

[38] Norman L. Zucker and Naomi Zucker, “Desperate Crossings: Seeking Refuge in America”, (New York: ME Sharpe, 1996), pg. 78.

[39] It is noteworthy that the reliance and the use of “safe haven zones” in refugee law are often ineffective and there is considerable speculation amongst commentators about the ability of such zones to offer the full protections of refugee law or a durable solution to persecution and political exclusion: See Katy Long, “In Search of Sanctuary: Border Closures, ‘Safe’ Zones and Refugee Protection”, 3 Journal of Refugee Studies Volume 26 (2013) 26, 458, Available at http://jrs.oxfordjournals.org/content/26/3/458.

[40] Patrick Gavigan, “Migration Emergencies and Human Rights in Haiti”, Paper prepared for the Conference on Regional Responses to Forced Migration 
in Central America and the Caribbean, OAS Department of International Legal Affairs (October 1997), available at http://www.oas.org/juridico/english/gavigane.html#1.

[41] These states include, Egypt, Jordan, Lebanon, Iraq and Turkey. United Nations Office of Coordination of Humanitarian Affairs (OCHA), “Syrian Arab Republic: Humanitarian Snapshot”, 2 April 2015. Online: http://reliefweb.int/sites/reliefweb.int/files/resources/SYR_HumSnap_A4L_150414_EN.pdf.

[42] Nina Larson, Fox News, “Syria’s neighbours plead for help in dealing with refugees”, 30 September 2013, available at http://www.foxnews.com/world/2013/09/30/syria-neighbours-plead-for-help-in-dealing-with-refugees/ (Hereafter, “Larson Fox News article”).

[43] See 64th annual session of UNHCR's Executive Committee in Geneva, 1 October 2013, available at http://www.un.org/apps/news/story.asp/html/story.asp?NewsID=46160&Cr=syria&Cr1=#.UnX_NxadCFI.

[44] High-Level Segment of the Executive Committee of the High Commission’s Programme on solidarity and Burden Sharing with Countries Holding Syrian Refugees, “Final Statement”, 1 October 2013, available at http://www.unhcr.org/524a87659.html.

[45] Al Jazeera, “Lebanon seeks help to cope with Syrian influx”, 19 October 2013, Available at http://www.aljazeera.com/news/middleeast/2013/10/refugee-influx-strains-lebanon-resources-20131018121452780803.html.

[46] World Bulletin News Desk, “Lebanon facing economic crisis from refugee influx”, 2 November 2013, available at http://www.worldbulletin.net/?aType=haber&ArticleID=121992.

[47] Larson Fox News article.

[48] See Larson Fox News article surpa note 29.

[49] See Larson Fox News article surpa note 29.

[50] See Larson Fox News article surpa note 29.

[51] Amnesty International, “ Refugees from Syria Face Further Suffering if Jordan closes Border”, 18 January 2013, available at http://www.amnesty.org/en/news/refugees-from-syria-face-further-suffering-if-jordan-closes-border-2013-01-18/.

[52] See Larson Fox News article surpa note 29.

[53] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 online: Parliament of Australia http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbills%2Fr5346_first-reps%2F0000%22;rec=0.

[54] Doherty.

[55]Ben Doherty, “Senate gives Scott Morrison unchecked control over asylum seekers’ lives” (4 December 2014) online: The Guardian http://www.theguardian.com/australia-news/2014/dec/05/senate-gives-scott-morrison-unchecked-control-over-asylum-seekers-lives?CMP=share_btn_fb. (Hereafter, “Doherty”).

[56] Doherty.

[57] Doherty.

[58] Larry Rahter, “U.S., Enforcing New Policy, Turns Over 13 Boat People to Cuba”, New York Times, 10 May 1995, available at http://www.nytimes.com/1995/05/10/world/us-enforcing-new-policy-turns-over-13-boat-people-to-cuba.html.

[59] Sascha Kouvelis, “Australia Are Hoarding Asylum Seekers on Prison Island”, Vice Magazine, February 2013, available at http://www.vice.com/en_uk/read/australias-problem-with-boat-people.

[60] UN Office for the Coordination of Humanitarian Affairs: humanitarian news and analysis, “THAILAND: UNHCR seeks access to Rohingya boat people”, IRIN Bangkok, 29 January 2009, available at http://www.irinnews.org/report/82635/thailand-unhcr-seeks-access-to-rohingya-boat-people. Christopher D. Foulkes, “Australia’s Bpat People: Asylum Challenges and Two Decades of Policy Experimentation”, Migration Policy Institute (July 2012), available at http://www.migrationpolicy.org/article/australias-boat-people-asylum-challenges-and-two-decades-policy-experimentation/.

[61]UN Office for the Coordination of Humanitarian Affairs: humanitarian news and analysis, “MYANMAR: UNHCR concerned over treatment of Rohingya boat people”, IRIN Myanmar/Thailand, 11 February 2011, available at http://www.irinnews.org/report/91899/myanmar-unhcr-concerned-over-treatment-of-rohingya-boat-people.

[62] Coleman at fn. 110.

[63] Coleman at 45.

[64] Declaration on Territorial Asylum, G.A. res. 2312 (XXII), 22 U.N. GAOR Supp. (No. 16) at 81, U.N. Doc. A/6716 (1967). Available at http://refugeestudies.org/UNHCR/Intl%20Instr.%201967%20-%20Declaration%20on%20Territorial%20Asylum.pdf,

[65] Coleman at 45.

[66] Coleman at 45.

[67] Coleman at 45.

[68] Executive Committee Conclusion No. 22 (XXXII) 1981, “Protection of Asylum Seekers in Situations of Large-Scale Influx”. See also ECON Conclusion No. 85.

[69] [69] Executive Committee Conclusion No. 22 (XXXII) 1981, “Protection of Asylum Seekers in Situations of Large-Scale Influx”.

[70] Nils Coleman, “Non-Refoulement Revised: Renewed Review of the Status of the Principle of Non-Refoulement as Customary International Law” 1 European Journal of Migration and Law, issue 5 pg. 23 (2003), (hereafter, “Coleman”) at pg. 23-68 (2003).

[71] Coleman at 41.

[72] Coleman at 41.

[73] Executive Committee Conclusion No. 22 (XXXII) 1981, “Protection of Asylum Seekers in Situations of Large-Scale Influx”. See also ECON Conclusion No. 85.

[74] Coleman at 41.

[75] OJ C 274, 19 September 1996.

[76] Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, COM(2002) 326 final, 3 July 2002.

[77] Ireland: Dublin Convention (Implementation) Order, 1997. Available at http://www.refworld.org/docid/3ae6b4eb0.html.

[78] Coleman at 42-43.

[79] Coleman at 46

[80] Coleman at 47.

[81] Martin et al. at 39.

[82] Andrew, Shacknove, “Who is a Refugee?”, 95 Ethics 274 (1985) cited in Martin et al. at 51. (Hereafter, “Shacknove”)

[83] Kay Hailbronner, “Nonrefoulement and “humanitarian” refugees: customary international law or wishful thinking?” in “David A. Martin, “The New Asylum Seeker? Refugee Law in the 1080s: The Ninth Sokol Colloquium on International Law” (Martinus Nijhoff Publishers: The Netherlands, 1988) at 123-158. (Hereafter, “Hailbronner”).

[84] Jean-Francois Durieux and David James Cantor, “Refuge from Inhumanity?” (Koninklijke Brill NV: Leiden, 2014) at 3. (Hereafter, “Cantor”)

[85] Report of the Security-General to the Security Council on Protection of Civilians in Armed Conflict” (8 September 1999) UN/DOC S/1999/ 957, paras 2 and 12 cited in Cantor at 5.

[86] Hailbronner at 123.

[87] Hailbronner at 124

[88] Shacknove at 51.

[89] Hugo Storey, “The War Flaw and Why it Matters”, in Jean-Francois Durieux and David James Cantor, “Refuge from Inhumanity?” (Koninklijke Brill NV: Leiden, 2014) at 39 - 56. (Hereafter, “Storey”).

[90] Cantor at 6.

[91] Shacknove at 52.

[92] Shacknove at 52

[93] Hugo Storey, “Armed Conflict in Asylum Law: The War Flaw” (2012) 31 RSQ 1.

[94] Storey at 39.

[95] Storey at 43.

[96] Bruno Simma and Philip Alston, “The Sources of Human Rights Law: Custom, jus cogens and general principles”, at 88-89.  (Hereafter, “Simma and Alston”)

[97] Simma and Alston at 90.

[98] Simma and Alston at 102.

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