Refugee exam topics

Seyla Benhabib - malaise

The challenges facing refugees are "metaphors as well as symptoms of a deeper malaise in the politics of late modernity.” She reminds us, refugees have come to symbolize a deeper crisis within modern political orders—one in which the promise of human dignity collides with the precariousness of being left with nothing to hold on to but human rights.

The UNHCR estimates that presently…

more than 1 in every 67 people on Earth has been forced to flee. Displacement has nearly doubled in the past decade.

As of the end of 2024, approximately…

123.2 million people had been forced to flee their homes globally due to persecution, conflict, violence, human rights violations or events seriously disturbing the public order, but only a fraction of them are considered ‘refugees deserving of protection according to the Refugee Convention.

Abuya

• The image of the “ideal refugee” (white, male, European, fleeing communism) shaped Cold War-era asylum policies.

• Refugees from the Global South were later cast as “new” and less legitimate, leading to more restrictive asylum policies in the Global North.

• Some scholars argue this erosion of asylum rights reflects the same exclusionary, colonial logic that shaped the original Convention.

Over time the definition has expanded in some jurisdictions to include…

gender-based and gender-related persecution, such as that experienced by lesbian, bisexual, intersex, and transgender individuals, as well as victims fleeing child marriage and female genital mutilation.

Cartagena Refugee definition

5 situational events:

(i) generalised violence;

(ii) foreign aggression;

(iii) existence of threat to life, liberty, or

security;

(iv) massive violations of human rights;

(v) public order

Shacknove

1. Such concrete definitions are predicated on an implicit argument—or conception—that: a) a bond of trust, loyalty, protection, and assistance between the citizen and the state constitutes the normal basis of society; b) in the case of the refugee, this bond has been severed; c) persecution and alienage are always the physical manifestations of this severed bond;  and d) these manifestations are the necessary and sufficient conditions for determining refugeehood.

2. Thus, Shacknove  argues that refugees are, in essence, persons:

   1. whose basic needs are unprotected by their country of origin;

   2. who have no remaining recourse other than to seek international restitution of those needs; and

   3. who are so situated that international assistance is possible.

Hathaway and Foster

Although hathaway argues that it would not be productive in the current geopolitical climate to open up the refugee convention for edits, he advocates for a principled approach to treaty interpretation, asserting that whenever there is an ongoing or systematic risk of denial of a broadly accepted human right, there is a risk of persecution sufficient to engage the Convention’s protections. Human rights treaties should inform how the Convention is applied today.

Geoff Gilbert and Anna Magdalena Bentajou:

“Implementation at the domestic level and the trans-jurisdictional borrowing of ideas in the case law render it very difficult to make a clear distinction in any analysis of exclusion and security issues as to whether certain facts will be treated as falling within article 1F or 33(2)...It should also be noted that UNHCR’s separate treatment of each of these provisions leaves the 2003 UNHCR Guidelines on Exclusion failing to address all the issues in some domestic cases, as ideas from articles 1F, 33(2), and 32 are often fused in domestic practice. States often regard these provisions as a suite of measures enabling the deportation of refugees, a view that has been enhanced and emboldened by those 2003 Guidelines with their retroactive application of article 1F(a) and 1F(c) where there are serious reasons for considering that there has been criminal behaviour, or activity falling within those sub-paragraphs after refugee status has been properly accorded under article 1A(2).” 

IDEA: Development of specific provisions that include basic protections for refugees, similar to  the basic protections from the Geneva Conventions III and IV to preserve peoples humanity in dire circumstances.

Inclusion of the right to asylum in the RC - basic protections

As Matthew Gibney

the term “asylum seeker” has increasingly become shorthand in public and media discourse for so-called “economic refugees”—individuals perceived as exploiting asylum to circumvent normal migration controls and access welfare benefits, or, especially post-9/11, as potential security threats. Thus, economic migration and refugee flight have become entangled and criminalized. haunting phrase “a thousand little Guantánamos” encapsulates this paradox: while Western states formally recognize refugee rights, they simultaneously criminalize the pursuit of asylum.

OAU refugee definition

The OAU broadened the definition to cover:

• Armed conflict

• Foreign occupation

• Generalized violence or serious public disorder

• Not only individual persecution, but also group-level threats and civil strife.

Pushback for removing national security & serious crimes & danger from non-refoulement

These exclusions reflect a balance between refugee protection and states’ legitimate security concerns.The clawback is not necessarily counter to customary law — the principle of non-refoulement is absolute for torture or inhuman treatment, but not necessarily for threats to national security.

Pushback for broadening the refugee definition

Broadening the refugee definition risks blurring the line between refugees and migrants. If the definition includes everyone fleeing general violence, poverty, or climate change, states may reject the regime altogether or fail to honor commitments. The real problem is not the legal definition but inconsistent application and lack of political will.

Pushback for creating new monitoring/enforcement mechanisms

The Convention deliberately relies on states and UNHCR (created separately in 1950) to supervise implementation. States did not want a binding supranational authority. A legally binding enforcement body would have been politically unacceptable then — and likely would be now. Sovereignty concerns still make states reluctant to cede migration control. In practice, UNHCR does coordinate, monitor, and supervise refugee protection globally. Its supervisory role is recognized in the Convention’s Preamble and Article 35. Adding an enforcement mechanism could paradoxically weaken cooperation: states might withdraw or limit cooperation with UNHCR if they see it as overreaching.

Gilbert

The primary purpose of exclusion clauses is to safeguard the integrity and credibility of the international refugee protection system.

Edwards

There is a false but pervasive perception that the 1951 Convention was not designed for conflict victims, but for those of “peacetime persecution”. Proper application of the convention does not preclude conflict refugees from falling within the existing definition. Persons flee conflict for different reasons, which can amount to persecution, including: direct threats to life, food insecurity and health, gender-based violence when rape is used as an instrument of conflict.

Hathaway - refugee def

The existing refugee convention definition is “close to brilliant”, arguing that it includes any conflict refugees that are being persecuted based on ethnicity, religion or political opinion, “which they most likely are”. 

Wouters:

UNHCR has repeatedly highlighted that in conflicts like Syria, warring parties often attribute a political opinion to entire groups—such as families, tribes, religious or ethnic communities, or whole towns—simply by association, putting civilians at real risk of persecution whether or not they are individually targeted. Similarly, journalists, human rights defenders, health workers, and humanitarian aid workers frequently face persecution for their work, as reporting on the conflict or helping victims is often viewed as siding with the opposition, meaning they are persecuted based on an imputed political opinion or belief.

ICJ Advisory Opinion on climate change July 2025

The Court considers that conditions resulting from climate change which are likely to endanger the lives of individuals may lead them to seek safety in another country or prevent them from returning to their own. In the view of the Court, States have obligations under the principle of non-refoulement where there are substantial grounds for believing that there is a real risk of irreparable harm to the right to life in breach of Article 6 of the ICCPR if individuals are returned to their country of origin (see Human Rights Committee, Teitiota v. New Zealand, 24 October 2019, UN doc. CCPR/C/127/D/2728/2016, para. 9.11).

Persecution linked to one of the five grounds

Being at risk of persecution alone is not sufficient to qualify as a refugee within the meaning of the Refugee Convention. The risk of persecution needs to be linked to one or more of the ve Convention grounds, namely race, religion, nationality, membership of a particular social group, or political opinion.

Model International Mobility Convention (MIMC)

Doyle has worked with 40+ academics to develop the MIMC which addresses all types of migration. While the RC could never have such a broad scope as to include management of tourists, international students, or business travelers, drawing lessons from how states willingly facilitate positive forms of mobility the RC protocol could embed mechanisms that make refugee protection part of a broader, mutually beneficial mobility framework for filling gaps where workers are needed. A new agency could be created, that works in cooperation with the UNHCR, the ILO and key NGO representatives at the country and local levels to ensure oversight and respect for workers rights.

Deloitte Ukraine case study

 in 2024 Ukrainian refugees boosted Poland’s GDP by 2.7%, with their employment rate rising from 61% to 69% in just one year. Poland’s decision to open its labor market helped refugees integrate economically and support themselves. Today, they contribute to the economy as employees, entrepreneurs, and consumers.

 Langford, Simmons and Ridel,

Despite the low ratification rate, many scholars argue, including that the CESCR has helped to normalize the justiciability of core protections like the right to housing, in the same way that a refugee convention treaty body could normalize the inherent need for protections in situations of forced migration.

O’Byrne - ICJ

 Article 38 of the 1951 Convention and Article IV of the 1967 Protocol provide for the possibility of bringing an alleged breach before the International Court of Justice (ICJ). Moreover, a competent UN body may request an ICJ advisory opinion on interpretative questions related to the Refugee Convention. Despite these dormant avenues, states have consistently avoided litigating refugee issues at the ICJ, largely due to the political sensitivities involved; refugee flows frequently implicate neighbouring states, key trading partners, or regional security allies, and initiating proceedings could risk damaging delicate diplomatic relationships.

quote from the late Elie Wiesel

“When human lives are endangered, when human dignity is in jeopardy, national borders and sensitivities become irrelevant.”

Meili

Empirical evidence supports this potential: for instance, the growing citation of CEDAW in Canada’s domestic gender-related asylum claims from the mid-1990s onwards has been linked to mentions of CEDAW in the interpretive guidelines issued by Canada’s Immigration and Refugee Board (Meili).

Loescher

Reliance forces UNHCR to navigate a “perilous path” to maintain its relevance and state support, which has at times arguably facilitated serious violations of refugee law, such as the refoulement of Rwandan and Rohingya refugees in the 1990s.

Milner and Ramasubramanyam - UNHCR

UNHCR’s dual function—as both operational protector and supervisor—creates conflicts of interest

Executive Committee (ExCom),

the state-representative-composed Executive Committee (ExCom), may not be able to provide clear guidance on politically sensitive issues. 

O’Byrne highlights two key gaps that the establishment of a treaty body could help bridge

Firstly, there is an absence of an independent international mechanism that delivers binding or highly influential interpretations of the Convention’s provisions, unlike other human rights treaties that benefit from treaty bodies issuing general comments.

Secondly, the Convention lacks a formal system to systematically monitor and assess how states comply, such as regular reporting obligations or complaint mechanisms.

Seyla Benhabib - spirit

“contemporary state practices are, in effect, gutting the spirit of the [Refugee] Convention”.

Chetail

IRL and IHRL “have become so intimately interdependent and imbricated that it is now virtually impossible to separate one from the other.”

Teoh v Australia and Baker v Canada

courts relied on the Convention on the Rights of the Child (CRC) to reach asylum decisions, demonstrating that the best interest of the child should also be considered

Shah and Islam in the UK

where the House of Lords held that domestic violence could amount to persecution under the RC if the state fails to protect victims.

National Human Rights Commission v State of Arunachal Pradesh

India’s Supreme Court cited Articles 13 and 14 of the ICCPR and the Indian Constitution to justify protecting refugees, highlighting how domestic constitutions and international human rights law can work together to provide tangible protection.

Hirsi Jamaa v. Italy

the European Court of Human Rights prohibited collective expulsion and refoulement at sea.

Suresh v. Canada

the Supreme Court acknowledged that deporting someone to torture breaches international norms, recognizing non-refoulement as an emerging jus cogens principle.

Teitiota v. New Zealand

In its 2020 ruling in Teitiota v. New Zealand, the UN Human Rights Committee for the first time recognized that returning someone to a place where climate change threatens their life could breach the right to life under the ICCPR. Although the applicant’s claim failed, the decision marks an important step toward acknowledging climate refugees as a new “persecuted group” under international human rights law. However, the ruling highlights the high bar for proving such claims and shows how states’ mitigation plans can complicate protection for those displaced by climate impacts.

case of K-E-S-G

who was rejected asylum in the United States despite credible threats from gang members, due to narrow interpretations of “particular social group.”

the 1951 Refugee Convention goes further by conferring practical, status-based protections

Articles 27 and 28 oblige States to issue identity papers and Convention Travel Documents to refugees who lack valid national documents, ensuring that those who have lost the protection of their home State are not rendered invisible or immobile.

Convention’s identity and travel provisions operationalise the refugee’s ability to live, move, and rebuild life abroad — echoing the original idea of the League of Nations “Nansen Passport” that first enabled stateless persons to cross borders.