There are few greater challenges facing the international community today than how to provide safe, durable and legal solutions for refugees and other forced migrants. This research program examines both the capacity and the limits of existing international legal and institutional frameworks to ensure protection for those who need it. The international protection regime is dynamic and flexible, yet in some respects it has not kept pace with the changing nature of human mobility. The reach of refugee law is deliberately confined, and States have been unwilling to create new legal obligations in this area, including in relation to responsibility-sharing. Yet, at the same time, developments in human rights law have had the effect of widening the class of people whom States must not remove. With increasing numbers of people on the move, how can the international protection regime best respond to the needs of the world’s displaced? Are new protection frameworks needed? 

The refugee in international law (Jane McAdam and Guy S Goodwin-Gill)

Millions of people worldwide are forced to flee their homes as a result of conflict, systemic discrimination, persecution, and other human rights violations. The core instruments on which they must rely to secure international protection are the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, complemented by international and regional human rights treaties. This project examines key challenges to the system of international protection – including those arising from within the asylum process, increased controls over the movement of people, and security concerns – as well as developments within the international protection regime.

The meaning of 'protection' in international law (Guy S Goodwin-Gill)

This project examines whether a general principle of ‘protection’ exists in international law, and if so, what are its legal, practical and operational implications for States and international organizations. A general principle of protection could contribute to better policy (that is, policy aligned with human security and human dignity), and to the more effective management of interest areas that States view as critical, such as borders and migration.

‘Protection’ and ‘international protection’ are commonly used when discussing the movements of people between States today; not surprisingly, what is intended depends very much on who is talking, on the user and the context. For example, legal protection has a very particular focus. Protection here can mean using legal tools, including treaties and national laws, which prescribe or implement the obligations of States and which are intended to ensure that no refugee in search of asylum is penalized, expelled or refouled, that every refugee enjoys the full complement of rights and benefits to which he or she is entitled as a refugee; and that the human rights of every refugee are guaranteed. In this approach, protection is primarily based in international refugee and human rights law; it may be wider than rights, but it begins with rights and rights tend to characterise the picture as a whole. Moreover, although solutions remain the ultimate objective of the international refugee regime, protection can be and often is an end in itself, so far as it serves to ensure the fundamental human rights of the individual.

In common parlance, and in common practice, ‘protection’ clearly goes beyond the provision of rights and security for refugees, whether fleeing persecution or conflict. Among others, it is implicit in the ‘duty’ of rescue, in the reception of the shipwrecked and of those forced to move by reason of famine and drought, and in the sanctuary often given to those subject to discrimination or liable to penalties falling short of ‘persecution’, because of their religious or philosophical beliefs. Although less prominent today, protection may also be extended for political reasons, reflecting particular inter-State relations, as in the Cold War.

Complementary protection (Jane McAdam)

‘Complementary protection’ describes the obligations that States have under international human rights law to protect people who are at risk of serious human rights violations if removed, but who do not qualify as ‘refugees’ under the 1951 Refugee Convention. For instance, States are prohibited from sending people back to places where they face a real risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment, or being arbitrarily deprived of their life.

This project examines the operation of complementary protection regimes around the world. It has a particular focus on Australia and New Zealand, providing a weekly update of all complementary protection decisions by courts and tribunals in those jurisdictions that shed light on how the concept is interpreted and applied.

The concept of ‘imminence’ in the protection of refugees and other forced migrants (Jane McAdam)

If a person crosses a border to escape a risk of persecution, conflict, a disaster, or the impacts of climate change, how ‘imminent’ must the feared harm be before another State is required to offer protection? Should international law protect only people who face the risk of immediate danger, or should it also protect those at risk of harm that may manifest more gradually over time—for instance, the slow-onset impacts of climate change? This is an increasingly crucial, yet under-explored, legal issue in international protection, and the focus of this large research project.

Through a detailed examination of international and national jurisprudence, this project examines the concept of ‘imminence’ in international protection to determine whether a systematic, principled approach is possible. In addition to its scholarly innovation, the project will have practical benefits for the refugee decision-making process, and ultimately for displaced people themselves.

The project is supported by an Australian Research Council Discovery Grant held by Professor Jane McAdam (UNSW), Professor Michelle Foster (Melbourne) and Professor Hélène Lambert (UTS).  

Justice in exile: A study of States’ obligations to ensure refugees’ access to courts under international law (Emma Dunlop)

This PhD project investigates the scope and content of States’ obligations to provide refugees with access to courts under international refugee law, international human rights law, and customary international law. The project will also examine how State obligations to give refugees access to domestic courts have been interpreted and implemented in practice.

Beyond storytelling: The meaningful participation of refugees in decision-making processes (Tristan Harley)

This PhD project seeks to better understand how refugees can be more meaningfully included in decision-making processes that affect them. In particular, this research examines what participation in decision-making means in the context of the international refugee regime, how it has been attempted in practice, and what could or should be done going forward to address refugee participation in law and policy. In addressing these questions, this PhD project analyses the current obligations states, international organisations and others may have to include refugees in decision-making processes, as well as the attempts and outcomes of initiatives international organisations, civil society organisations and refugee-led organisations have undertaken to include refugees in decision-making. It is hoped that the shortcomings, lessons learned and promising practices identified in this analysis will inform the development of better laws, policies and practices relating to the participation of refugees in the future. 

Reconceptualising compliance: ‘Street-level bureaucrats’ and the implementation of international law (Regina Jefferies)

Addressing the current challenges facing international refugee law – and international human rights law more generally – requires an understanding of its practical and legal origins, in addition to an understanding of its transnational application to those the law is meant to protect.  This PhD project engages with international legal compliance and legal theory, adopting a multi-method approach to understand how international human rights norms flow through national legal systems in their eventual application to individuals.

Through an exploration of the role of street-level bureaucrats and the pathways and drivers of norm internalisation, the project critiques and builds upon Harold Koh’s Transnational Legal Process theory using implementation of the norm of non-refoulement in Australia and the United States as illustrative case studies. Using doctrinal analysis, semi-structured interviews of state officials and others involved in implementation, along with social network analysis, the project explores how the interactions and interpretations of international law that occur in various organisational and legal contexts within a state do not lead to uniform norm-internalisation, as Koh suggests. Instead, the complexity of institutional organisational cultures and the role of individual state actors in the implementation process require a more nuanced understanding of how international law norms unfold and take shape in a transnational legal process. 

  Cathryn Costello, Michelle Foster and Jane McAdam (eds), The Oxford Handbook of International Refugee Law (Oxford University Press, 2021)
Guy S Goodwin-Gill, ‘The Office of the United Nations High Commissioner for Refugees and the Sources of International Refugee Law’ (2020) 69 International and Comparative Law Quarterly 1 
 

Regina Jefferies, Daniel Ghezelbash and Asher Hirsch, Assessing Protection Claims at Airports: Developing Procedures to Meet International and Domestic Obligations (Kaldor Centre Policy Brief 9, September 2020)

Tristan Harley and Harry Hobbs, 'The Meaningful Participation of Refugees in Decision-Making Processes: Questions of Law and Policy' (2020) 32 International Journal of Refugee Law 200

  Emma Dunlop, Jane McAdam and Greg Weeks, ‘A Search for Rights: Judicial and Administrative Responses to Migration and Refugee Cases’ in Matthew Groves, Janina Boughey and Dan Meagher (eds), The Legal Protection of Rights in Australia (Hart Publishing, 2019)
The Kaldor Centre plays a vital role in developing legal, sustainable and humane solutions for displaced people around the world.