Blog post written by Professor Jaya Ramji-Nogales (Temple University) who is the convenor of the panel ‘The Role of the “Regional”: Shoring Up Refugee Rights?’ at the upcoming RLI 4th Annual Conference.
The conference draft programme is available online and registration for the event is now open.
The past few years have seen unprecedented and unrelenting attacks on the rights of refugees by national governments in Australia, Europe, and the United States. In this era of nationalism, these sovereigns have pushed aside international refugee law’s longstanding protection obligations in favor of increasingly strict border control policies and decreasing procedural and substantive protections in adjudication of asylum claims, not to mention diminished opportunities for refugee resettlement. With national governments shirking their obligations under international treaties, regional law offers a potential bulwark against these degradations of refugee rights.
The Fourth Annual Refugee Law Initiative Conference, Rethinking the “Regional” in Refugee Law and Policy, provides a timely opportunity to take a deeper look at the possibilities and limitations of regional law in protecting refugees. This inquiry gives rise to plentiful questions, and the conference will doubtless provide a space for engaging and thoughtful conversations around many of the thornier issues. This blog post focuses on three that will be highlighted by the panel on which I am speaking along with Diego Acosta Arcazaro, Iris Goldner Lang, and Omar Hammoud Gallego: the scope of the “regional”, the variety of laws that may be involved in refugee protection, and the ability of regional law to stand up to sovereigns.
A strict definition of regional law would include only laws promulgated and enforced by a regional body such as the African Union, the Council of Europe, the European Union, or the Organization of American States. Those bodies of course offer the clearest legal standards and the most powerful enforcement mechanisms. Yet, other less formal regional efforts should not be overlooked in efforts to protect refugee rights. The effectiveness of regional law stems from the closely linked economic interests and shared cultural norms that are often found within distinct regions of the world. Those commonalities also provide strength to other efforts to shame or support regional actors who are not living up to their commitment to protect refugees. One such effort is the lawsuit filed by civil society actors challenging the Safe Third Country Agreement between Canada and the United States. This case argues that Canada is violating its international treaty obligations when it returns asylum seekers to the United States because the Trump administration is so far out of compliance with international standards relating to refugee protection. While this is a domestic legal action, the consequences – and the expressive message sent – are distinctly regional.
Similarly, a traditional examination of refugee protection would focus on laws explicitly designed to assist those who meet the definition found in the 1951 Refugee Convention, perhaps expanding to cover those encompassed by the Cartagena Declaration and the OAU Convention. While a thorough understanding of such laws is important, it is only a starting point in determining whether and how refugees are being protected. The 2002 MERCOSUR Residence Agreement provides a case in point, enabling temporary residence permits that can, under certain conditions, be converted into permanent residence permits. The Colombian government has granted a Permiso Especial de Permanencia (PEP) to many Venezuelans who have fled violence in their home country, a flow that likely includes people who fit the refugee definition. The PEP allows these Venezuelans to remain in Colombia for two years and renders them eligible for health, education, and employment benefits. It is critical that scholars of refugee law understand these laws that might provide other forms of protection to refugees, and that we have a systematic understanding of who is availing themselves of the various forms of protection. (A shout-out to the law faculty undertaking migration-related research at the Universidad del Rosario in Bogotà, where I am writing this post: Prof. Marìa Teresa Palacios Sanabria and her research team are engaging in crucial empirical fieldwork with Venezuelan refugees to understand the flows, their reasons for fleeing, and their ability to access this lawful status and benefits.)
That takes us to the thorniest of the issues: Can regional law stand up to sovereigns and do the work that international law is struggling to perform? The European Union’s relatively powerful enforcement mechanisms appear to have the capability to ensure that member states comply with refugee law but they face a real challenge in ensuring that nationalist politicians in Hungary and elsewhere uphold those obligations. The Inter-American Commission on Human Rights, in contrast, has no enforcement power over the United States, yet its work may perform a useful expressive function in the public rather than the legal arena. Using a broader definition of regional law, it is increasingly important to understand whether and how states, civil society actors, and social movements are able to influence their regional neighbors to protect refugee rights. This question is sure to be at the heart of this year’s conference, and I look forward to learning from and engaging with the thoughtful scholars who will be grappling with its many dimensions.
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