Please register to join us for a conversation to launch the new edition of The Refugee in International Law.
Since the first edition appeared in 1983, The Refugee in International Law has seen many changes, even as the overall approach remains the same – to provide insight into the refugee, the meaning of persecution, and the scope of the principle of non-return (non-refoulement). 1983 was a year of crisis – but when isn’t it? – and refugees from Indochina, Latin America and Africa were even then dominating the headlines and making new demands on governments to meet the challenges of protection, resettlement and local integration. Then as now, the major obstacles were mostly at the political level for, like today, there was much broader public support for admission and protection than among governments.
By today’s standards, the text of the first edition was rather compressed – just 234 pages – and there was little refugee case law. Membership of a particular social group, for example, was covered in just two paragraphs, but the relevant criteria of ‘shared interests, values, or background – a combination of matters of choice with other matters over which members of the group have no control’ have held up, as has the fact that the identity of the group may well be ‘in direct proportion to the notice taken of it by others’. Today, the coverage goes to 20 pages, with copious citation to jurisprudential developments and to what has become contested – whether the ‘notice’ taken by others should be counted as an element requiring proof, and if so, of what exactly.
At first glance, the fourth edition may not appear much more extensive than the third edition (2007), or even the second (1996). Jane McAdam, Emma Dunlop and I nevertheless had to accept that our coverage was driven by a complex subject developed across multiple jurisdictions, and that something would have to change and something would have to go. We first considered reducing the number of annexes, but settled finally on cutting them entirely, and what remains is a list of States party to the principal treaties on refugees and stateless persons, and members of the UNHCR Executive Committee and the EU. The loss of the annexes, particularly the treaty text, is compensated to an extent by their being readily available in the electronic version on the website of Oxford University Press. Cutting the annexes freed up 180 pages or so which, together with some ‘re-formatting’, allowed for two new chapters on disaster and climate-change related displacement and on nationality and statelessness. It also offered us the opportunity to dig deeply into case law and practice in a thorough-going revision, in which we updated and analysed afresh every issue, old and new – the substantive coverage is now more than three times that of the original edition.
Apart from the length, what else has changed? The process of development of international law is undoubtedly slow, depending on political circumstances and countervailing pressures and processes. There is no new treaty, no updated UNHCR Statute, even as times have undoubtedly changed and the Covid–19 pandemic has brought in opportunities to control the movements of people between States, irrespective of their needs. Add to that an awareness of the increasingly protracted and unresolved nature of refugee problems in the world and increasing movements of refugees to where they might find better protection for themselves and their children, and you have the hallmarks of intensified confrontation in matters on which States are unwilling to commit themselves.
One can end up having a certain sympathy with the quandary in which States find themselves, uncertain how to react and unwilling in general to be seen to cooperate, equitably and meaningfully, with others. On the one hand, they continue to place barriers in the way of refugee movement, while on the other, their own and international jurisdictions insist that a small but important measure of protection – non-refoulement – is available to all who are touched by the agents of the State and who are at risk of return to harm. Somewhere in all of this stands UNHCR, the Office of the UN High Commissioner for Refugees, which States have formally mandated to provide protection and to seek solutions.
We have tried to capture this broad picture in the fourth edition. Essential as it is to the preservation of life and liberty, the right to seek asylum from persecution and other serious relevant harm is no substitute for the fullest protection of human rights at home – everyone ought to be free to enjoy their rights in the territory with which they are connected by the internationally relevant social fact of attachment, where local democratic and representative government, civil society and the rule of law flourish. But international refugee law exists and thrives because so many are denied so much by just a few governments.
For that reason, we have looked a little more into the legal and institutional history, and examined closely the application of the refugee definition, the grounds for recognition of status and for its denial. Here, we can see the international impact of ‘local’ case law which considers and develops the meaning of persecution, or applies the principle of non-penalisation, and of the jurisprudence of human rights bodies for whom the return to risk of harm of those seeking protection is to be avoided at all costs. Faced with the strengthening endorsement of basic principles, States seek ways and means to prevent arrival, by physical obstacles and by visas, carrier sanctions, denial of disembarkation, or by often spurious arguments that someone else is surely responsible.
All of this played out against, and in tension with, the institutions and the principles of protection – UNHCR, UNRWA, OCHA, the ICRC and NGOs, among others – which are all part of a system endorsed and supported by States, in their better nature as it were. We have therefore thoroughly analysed the law and practice on non-refoulement, both with an eye on what has happened over the past fourteen years, and with a view to determining and refining this central principle in refugee protection. While it is as robust as ever from a theoretical perspective, we note that State practice continues to look for ways around it or to chip away at its obligatory scope.
The linkage to asylum in the sense of a durable solution also remains contested, which inspires States to think that protection can be a temporary response to what is, in their view, a necessarily temporary phenomenon. This perspective, though it is belied by experience, encourages States – some more than others – to support short-term responses that become longer and longer, and end up wasting the capital of refugees’ lives. It would be far better to think and act as if refugees were with us indefinitely – to enable them to plan for the long-term, to acquire skills and to earn, to see their children educated, not detained hopelessly and without hope.
In this threefold spectrum of flight, refuge, and solution, the responsibility for protection falls on States and, of course, on international institutions. But it is also the responsibility of civil society, of us all, to see that the law is upheld in relation to refugees, or those displaced further to disasters or climate change, or those threatened with statelessness as a result of deprivation or denial of citizenship.
Which brings us to the purpose of the fourth edition, and that is to show, as clearly as possible, the strength, flexibility and capacity of the refugee regime and the rules of protection. They can all be traced back to the essential idea of no compulsory return to the risk of danger. Before any high commissioner, any recommendation, any organisation, or any treaty, this basic principle was adopted instinctively by those in the League of Nations called on in 1921 to discuss what was to be done for refugees.
The idea of no compulsory return reflects a basic, humanitarian response to a fundamental human predicament, and the development of international refugee law ever since has put flesh on the bones, even as States have tried, from time to time, to curb its development and the scope of its protection.
It is in this dynamic environment that the fourth edition aims to fit, and to highlight the direction in which States and international organisations ought to go. Thus, the fourth edition provides a pointer, showing how the refugee definition has developed and is likely to evolve; showing how non-refoulement applies in the State, at the frontier, or on the high seas, beyond territorial boundaries; showing how national procedures can and should be strengthened for the next movement of refugees; and how States should configure their responses in collaboration with each other and with UNHCR, so as to promote solutions that are equitable, but also durable and meaningful for refugees.
The fourth edition of The Refugee in International Law is, above all, a handbook (though no longer pocketable... ); a handbook for governments considering what to do if policy and practice are to stay within the law; a handbook for lawyers, advocates, international and non-governmental organisations keen to protect asylum seekers and to push the envelope of protection; and a handbook for civil society at large, which aims to understand what drives people to seek asylum, and how they should be treated.
In today’s world of push-backs, beatings, deaths and denial of rights, it is critically important to know what the law is, and to have to hand the means by which to hold governments and international institutions to account. If the fourth edition manages to contribute in some way to these goals, it may be counted a success.
Please register to join us on 29 September, when Guy S Goodwin-Gill and Jane McAdam will reflect on the many issues confronting the global protection regime at this moment, in a conversation with Guardian Australia’s Ben Doherty, chaired by Kaldor Centre Advisory Committee member, Shukufa Tahiri. At another event on November 9, Arif Hussein will speak to authors Goodwin-Gill and Emma Dunlop about the law and practice of refugee status determination.
Guy S. Goodwin-Gill is a Professor of Law at UNSW’s Kaldor Centre for International Refugee Law and Emeritus Fellow, All Souls College, Oxford.
The Refugee in International Law, by Guy S. Goodwin-Gill and Jane McAdam, with Emma Dunlop, Oxford: Oxford University Press, 4th edition, 2021, is available now. For a 30% discount on the book, use code ALAUTHC4.