David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Harvard International Law Journal 26 (2):483-500 (1985)
This article examines the humanitarian premise on which refugee law rests and finds it tragically inadequate for our time. It observes that contemporary refugee law is primarily human rights law and was designed to relieve victims of defunct regimes. Today, however, the persecutors are existing governments, able to insist on the prerogatives of sovereignty while creating or helping to generate refugee crises, and likely to castigate as politically motivated the human rights claims made against them. Censuring these governments as persecutors often exacerbates a refugee crisis because it diminishes the opportunity to gain their necessary cooperation.This article promotes the more traditional concept of international law (as dealing with inter-state rights and obligations) as a key to the problem of the refugee. Its thesis is that the humanitarian premise of refugee law seriously limits, and even undermines, constructive response to the problem of the refugee, and that the problem becomes more manageable the more it is treated as a problem of relations and obligations among states. This article calls for a new foundation for refugee law built upon the fundamental principle of international law that every state is obligated to respect the territorial integrity and rights of other states. Territorial sovereignty includes both a state's right to exercise exclusive jurisdiction over its own territory and its legal obligation to prevent its subjects from committing acts which violate another state's sovereignty. Mass expulsions clearly run against the principle of territorial sovereignty because of the burden cast on receiving states. This article's new formulation of refugee law is designed to take advantage of the politics of sovereignty and articulates inter-state obligation as the basic foundation for international refugee protection and relief, replacing human rights principles at center stage. The goal is not to eliminate the humanitarian aspect, but to identify mass exodus as a matter of international legal responsibility, not just a violation of human rights ideals that states can denigrate on the basis of national sovereignty. This approach would avoid the moral judgments of humanitarianism and preserve and advance opportunity for negotiated resolution.
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