Moving Beyond the Refugee Law Paradigm

Abstract

Refugees dominate contemporary headlines. The migration “emergencies” at the southern U.S. border and the southern borders of the European Union, as well as the “crisis” in the Bay of Bengal, have drawn global attention to the dire inadequacies of the international refugee regime, even as extended through various principles of non-refoulement, in governing modern migration flows. Political responses to these mass movements, from the Brexit vote to the election of Donald Trump and his executive order halting the refugee resettlement process in the United States, have threatened the viability of refugee law's protections. At the policy level, numerous high-level stakeholders have convened in different constellations, through the United Nations and other bodies; many commentators agree that these meetings have accomplished little thus far in terms of law reform. The refugee law paradigm consumes so much space in the imagination of international lawyers and policymakers that it is hard even to begin to conceptualize an alternate approach to global migration law. The fear of losing even the narrow ground staked out to protect refugees stiffens the resistance to change. Proposals for reform tend to follow the tired old path of suggesting ways in which the refugee definition can be expanded to include new groups of migrants (ranging from climate change refugees to anyone fleeing serious human rights abuses) rather than critically evaluating the structure of global migration law more broadly.