The End of Refugee Law?

A seminar by the Graduate Program on Human Security Program (HSP), University of Tokyo

SPEAKER: Prof. David Cantor, Director of the Refugee Law Initiative of the School of Advanced Study, University of London

COMMENTATOR: Dr. Ai Kihara-Hunt, Associate Professor, HSP, UTokyo

MODERATOR: Ms. Urara Furukawa, HSP, UTokyo

For one of the first seminars of the new year and the decade, on 15th January, the Graduate Program on Human Security (HSP) hosted Prof. David Cantor from the Refugee Law Initiative, University of London, as he delivered a succinct and stimulating lecture on the current perceptions and future prospectives for the field of Refugee Law (RL).

The field of Human Security directly addresses vulnerability within humans, and currently, one of the most vulnerable groups around the world is that of refugees. RL – though not the only factor in the situation – is a critical component of the regime that attempts to respond to this refugee crisis. With at least 25.9 million documented refugees in the world currently, and the undeniable role that RL has to play in influencing their future, Prof. Cantor’s lecture on RL was attended by many curious students and practioners and was followed by an equally engaging round of questions and answers.

Speaker David Cantor, alongside Professor Ai Kihara-Hunt and Urara Furukawa, presented an optimistic forecast of refugee law as well as its future possibilities.

To begin with, Prof. Cantor acknowledged that if we were to go by the mainstream portrayal of RL, it seems like the regime has outlived its utility, failed to display a sense of coherence and is no longer fit for purpose. This naturally leads one to questioning whether we have reached the end of refugee protection through RL. To answer this question, Prof. Cantor structured his presentation via three themes – first, a look at the current refugee situation and regime, second, a detailed and contextualised view of this regime, and third, the future of the regime as discernible from current trends.

In giving the audience a holistic view of the refugee situation, Prof. Cantor emphasized that refugees today are clearly a global phenomenon. Even though 2/3rd of refugees come from only 5 countries, and majority of refugees are located in the Global South, the number of refugees in the world today is the same as the population of a medium-sized country and there is almost no country globally that does not host refugees within its borders. Furthermore, refugee experiences feature in many ancient accounts, thereby also dismissing any claims of refugees being only a modern phenomenon. However, the most distinguishing factor of the current refugee situation is the global system for refugee protection which was developed in the 20th century. This system rests on two cornerstones – the United Nations High Commissioner for Refugees (UNHCR), created in the 1950 and the Refugee Convention of 1951, which requires governments to treat refugee arrivals according to shared standards and commitments. Importantly, article 1A(2) of the Refugee Convention provides the agreed definition of who qualifies as a ‘refugee’ under this global regime.

After providing an overview of the refugee situation and regime, Prof. Cantor highlighted some of the challenges inherently posed by refugees, such as issues of local, national and regional integration in host countries and the implicit criticism of home country that the presence of refugees generates and so on. By doing so, the audience was exposed to a critical but often overlooked aspect of the refugee situation, which leads to more scrutiny and attacks on the refugee regime. For many years, almost all parts of the refugee regime have been challenged, including the very definition of refugees. This has led many to claim that a complete overhaul or new system is needed. However, Prof. Cantor advised caution in this approach, and suggested that a contextualised view of the regime should be taken to objectively analyse its strengths and weaknesses.

Prof. Cantor then proceeded to the second major section of his presentation – his own contextualised analysis of the refugee regime. Firstly, he stated that in passionate and urgent discussions of reform, we should be careful not to throw the baby out of the bathwater, i.e. to not undo the progress that has already been made by the current regime. Secondly, he pointed out that the regime is often criticised in isolation and that the efficacy of any law is structured by its social and political context. If we were to take a comparative look at the regime with other existing branches of international law, it might well emerge that RL shows a relatively higher degree of implementation within nations than other fields of international law. Also, the criticism that existing agreements for burden sharing of refugees are non-binding and non-obligatory would emerge as a common issue in other similarly politically controversial areas of international law and cooperation. Thirdly, he was critical of those talks of reform of RL that consider reform as a single discrete event, such as renegotiating the 1951 Convention.

The reality is that the refugee regime already regularly adapts itself to changing circumstances. This is visible in many cases such as the 1967 Protocol, the extension of the UNHCR mandate, the African Union Refugee Convention, the Asian Comprehensive Plan of Action, new national laws from across the world and so on. The refugee regime as it is, is not static and contains its own diverse and dynamic processes for reinvention and change. Fourthly, refugees in many parts of the world today function as political actors themselves and/or form a sizeable political constituency. Their voices have shaped national and local practices in some instances, such as in the 1980s in Central America. Their role and their voices could play a more important role, and discussions of reform should also address the question of this challenge should be addressed. Such challenges might seem relatively easy, however if taken up in reality then they pose significant hurdles – such as the natural lack of uniformity in all refugee voices, and the subsequent question of how then to integrate them.

Finally, Prof. Cantor addressed the third and last major section of his lecture – a look at the future of the regime through the current trends. In doing so, he found the Global Compact on Refugees (GCR) adopted by the United Nations General Assembly in 2018, to be a powerful force. The fairly recent confrontation of mass arrival of refugees on the borders of wealthy Western states, prompted their renewed interest in the situation, and resulted in the GCR – an attempt by the global community to be better prepared for such situations in the future. While in essence, it reaffirms the existing infrastructure of the 1951 Convention, it also tries to build on those foundations and to increase strength of host states by providing for a Comprehensive Refugee Response Framework (CRRF), discussing objectives such as easing pressure on host countries, enhancing self-reliance in refugees, and instating a follow-up and review mechanism (Global Forum). Prima facie, these provisions seem unobjectionable, and are more of technical fixes to achieve existing commitments or ideals.

However, at the same time, the GCR also sheds light on the future direction of the refugee regime in various aspects, two of which were then covered by Professor Cantor.

Firstly, one consequence of the process of negotiations for the GCR is that the ideas of ‘fairness’ and ‘equality’ were once again placed more centrally within the refugee debate. While more systemic changes such as those recommended by the UN Secretary General were not undertaken, the ‘technical’ arrangements of the GCR on responsibility sharing (paras 14-48) have the potential to initiate engagement with the notion of ‘fairness’ in the refugee regime. This is in itself a modest yet significant outcome, and a hopeful trend for the future of RL.

Secondly, it is important to recognise that the GCR does not stand in isolation and builds upon an existing regime. This existing regime of RL provides the foundation for the GCR, however, association is not a one-way street and just as the existing regime shapes the GCR, so will the impact and successes and failures of the GCR affect the perception of the wider refugee regime itself. Owing to the very recent nature of the GCR, there are no decided factors for judging its impact; however, the GCR has clearly begun to affect practices of existing refugee regime debates and negotiations. While a comprehensive assessment of the GCR will only be possible once it is put into action, this assessment will be vital to shaping the future of the whole refugee regime as we know it.

Thus, Prof. Cantor concluded his lecture, with the analysis that the end of refugee protection is not yet here. While it is certainly true that the international refugee regime faces a number of considerable challenges, most of those concerns are not recent, or even isolated to the refugee regime itself, and reflect the broader social and political realities of the refugee regime. To contribute to the future of refugee protection through RL, Prof. Cantor restated the importance of a contextualised holistic analysis, and ended with the claim that while many have shown strong pessimism for the future of RL, there is more than enough room for optimism, as highlighted at many points in his lecture. The future of Refugee Law and the surrounding global refugee protection regime is very much alive, and while it benefits from critical questioning and discussion, it also continues to offer multiple nuanced and diverse ways to address many of its own current issues.

An audience comprised of undergraduate, master’s students, and full-time organizational staff attended and asked questions after the lecture.

Prof. Cantor’s lecture was followed by comments from Prof. Ai Kihara-Hunt. She approached the field of RL from the perspective of Human Rights Law (HRL) and the Rule of Law. In doing so, she identified many dualities that exist in the system – such as limitations placed on HRL and RL by each other but affirmed that they usually do work in tandem. Similarly, by discussing the role of the Rule of Law for refugee protection, she said that it can do both – threaten and strengthen refugee protection. Even within the objective of RL itself, that is providing a minimum standard of protection, Prof. Kihara-Hunt pointed out that some states implement this objective to shield themselves from their responsibilities. As an answer for whether RL is relevant today, she said that while it is very much alive at least for states, there is also a visible decline in the importance of states, as the private sector continues to expand in all walks of life, including refugee protection.

After both the presenter and the commentator concluded their presentations, the seminar ended with a question answer session that addressed issues such as the emergence of climate-change refugees, claims that RL embodies a primarily Western perspective and is thus limited in its global scope and of course, Japan’s strict implementation of the 1951 Convention. Prof. Cantor provided apt answers to these questions – for climate change refugees he said that more often than not they are locally displaced, are not yet a global phenomenon, and that there are existing approaches to deal with the climate induced movement which do not require rewriting RL; he did not agree with the claim that RL reflects Western values only, and instead said that it embodies a sense of hospitality towards guests and strangers alike which is common in almost all cultures; and, for the unique case of Japan’s strict implementation of the Refugee Convention (RC), he pointed out how this is an example of the RC being only the beginning of RL, and of the importance of political and social factors in practical implementation.

Thus, the seminar left all of the attendees with a new insight into Refugee Law, and the whole refugee crisis as Prof. David Cantor’s deep study and clear presentation of thoughts made a complex issue such as Refugee Law, comprehensible and interesting for so many. The students at the University of Tokyo benefitted greatly from this short interaction, and as members of the University of Tokyo International Law Training Hub, our hope is that this article makes the contents of the seminar accessible to a much wider audience. Prof. Cantor’s papers on the topic – Fairness, Failure, and the Future in the Refugee Regime (2019), and the End of Refugee Law – would be your next source of information, if the contents of the article and the seminar match your interests!

Written by Amishi Agrawal; Photography by Hwa Namkoong

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