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.
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 (University of Wollongong). The project’s Research Associate is Adrienne Anderson.
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)
International legal compliance scholarship is awash with critiques of traditional domestic expressions of law and policy, such as legislative actions, judicial decisions, and decisions of administrative tribunals. However, the lack of attention to the discretionary decisions of low-level executive branch actors in implementing international norms has contributed to a persistent weakness of the theory to account for actual legal compliance, particularly in human rights regulatory regimes. In the context of increased refugee flows and mixed-migration, States like Australia and the United States have resorted to increasingly securitised language and broad assertions of sovereignty to avoid or modify clear legal obligations. Engaging the international legal compliance theory of Transnational Legal Process from a socio-legal perspective, this PhD project explores how States internalise international refugee law obligations by examining the role of front-line executive branch actors, or ‘street-level bureaucrats’, to look inside the ‘black box’ of the State and explore questions of norm internalisation and compliance.
|Jane McAdam, Complementary Protection in International Refugee Law (Oxford University Press, Oxford, 2007)|
|Guy S Goodwin-Gill & J McAdam, The Refugee in International Law (3rd edn, Oxford University Press, Oxford, 2007)|
Jane McAdam, ‘Australian Complementary Protection: A Step-by-Step Approach’ (2011) 33 Sydney Law Review 687–734
Jane McAdam, ‘Crisis without Borders’, Panellist, Festival of Dangerous Ideas, Sydney Opera House (4 September 2016) (with Philippe Legrain, Miranda Johnson and Hamish Macdonald)
|Guy S Goodwin-Gill, ‘The International Law of Refugee Protection’ in Elena Fiddian-Qasmiyeh, Gil Loescher, Katy Long, Nando Sigona (eds), The Oxford Handbook of Refugee and Forced Migration Studies (Oxford University Press, 2014) 36-47|