Accidents,Agency and Asylum: Constructing the Refugee Subject

Refugee law demands that the asylum seeker demonstrate an extremely limited and distorted form of agency that is encapsulated within the legal definition of the refugee. Such a framework also denies the role of the accidental in the refugee experience. I argue that the problem lies at the heart of the legal form, as constructed under capitalism. The sans-papiers show us the potential for refugees themselves to reconstruct a subjectivity that transcends the distorted form of agency and the false dichotomy between the accidental and agency found in law, through their rejection of legal definitions and the re-emergence of themselves as political subjects.     

欧盟难民与庇护一体化法律制度研究

基于对区域利益及国家安全的共同考虑,欧盟建立了较为统一的外部人口迁移法律制度.其中,欧盟将难民制度与庇护制度结合为一个整体,统称为难民与庇护制度,创设了以庇护申请国家审查机制与庇护申请者待遇标准为两翼,以庇护申请审查程序规则和难民地位确定及权利保护的实体法规则为核心的统一密不可分的一体化法律制度.     

Complementary Protection in International Refugee Law

Netherlands International Law Review -     

International Refugee Protection Challenges and Opportunities

The new Millennium heralded a promise of change. For refugeesand other displaced persons, the start of the new Millenniumwas mixed; not much changed on the ground, but the fiftiethanniversary of the 1951 Convention brought Declaration of Statesparties reaffirming their commitments and the Agenda for Protection.Five years on, has the reaffirmation of States' commitment tothe international protection regime, and their endorsement ofthe Agenda for Protection, made a difference to refugees? Havewords been matched with actions to ensure access to asylum forthose who need it and a greater sharing of international responsibilityin this regard? This article looks at the major refugee protectionchallenges that confront us at the beginning of the 21^st centuryon both sides of the development divide. It also addresses whymany of these problems have developed and examines some of theemerging opportunities, which, if seized in good faith, couldprovide more robust protection for refugees, while respondingto the security, sovereignty and economic concerns of States.     

International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention

US refugee law reflects an ever-increasing conception that theapplication of international standards would constitute an unacceptablerisk to national security. CSR Article 31(2)’s requirementthat refugees ‘shall not’ be detained unless ‘necessary’appears among the chief casualties of such suspicions. US jurisprudenceremains strikingly devoid of reference to Article 31, and 2003’sMatter of D-J- is a prime example. D-J- was an administrativedecision in which the US Attorney General held that nationalsecurity required all US asylum seekers who successfully arrivevia boat must be subject to mandatory detention throughout thecourse of removal proceedings. Despite US accession to the Protocol,Article 31(2) was not mentioned. This article explores what might have happened to D-J- if theRefugee Convention had indeed been applied to his case. Utilizingthe international methodology for treaty interpretation, itapplies Article 31(2) to various aspects of the Attorney General'sdecision. Part 2 argues that under the Supreme Court's CharmingBetsy rule, statutory discretion to detain must be interpretedconsistently with US international obligations. Part 3 concludesthat Article 31(2) of the Refugee Convention grants asylum seekersa right to release whenever their detention is not ‘necessary’.Part 4 proposes a three-part ‘pyramid’ approachto explain the elemental phases of the decision to detain anasylum seeker and examines necessity at each stage. Finally,Part 5 discusses Article 31(2)’s implications regardingevidence and proportion. The premise throughout is that, hadit been applied, the Refugee Convention could have protectedthe interests of both D-J- and ‘national security’.     

难民保护面临的国际法问题及对策

对难民提供国际保护既是人道主义的要求,也是维护国际和平与安全使然,然而拒不接受难民的趋势越来越严重。应对这一问题的法律措施,一是修改既有难民定义,扩大国际难民法的保护范围,使得各国对那些不符合既有难民定义却处于与难民同样境地的人的援助,从纯粹基于人道主义考虑的自觉自愿行为转化为法律义务。二是强调国际人权法在难民国际保护中的应有作用。将人权原理应用到难民保护领域,通过敦促国家履行国际人权保护义务来实现对难民的保护,可以克服国际难民法的固有缺陷,并强化难民国际保护的法律基础。     

The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination

The number of individual RSD applications received by UNHCRoffices worldwide nearly doubled from 1997 to 2001, while UNHCR'sRSD operations have been criticized for failing to implementbasic standards of procedural fairness. Yet, although thereis some literature critiquing how UNHCR determines refugee status,there is little literature examining whether UNHCR should doso, and if it should, when, where, and under what conditions. UNHCR performance of RSD poses protection challenges becauseit is founded on a basic contradiction. On the one hand, governmentaction is essential for effective refugee protection. On theother hand, UNHCR RSD is premised on at least partial governmentfailure. Neither direct concern for protection from non-refoulement norstrict legal obligations completely explain UNHCR's currentRSD activities. UNHCR's RSD activities seem best explained bywhat Goodwin-Gill has called ‘negative responsibility’,and hence can represent a risky shift of responsibility fromgovernments to the UN. At the same time, in some circumstancesUNHCR RSD substantially advances refugee rights. In order to match its actual mandate and resources, UNHCR shouldperform RSD when it can enhance the protection provided to refugeesby governments, but the activity should be more limited andconditional than it is today.