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Copyright © 2021. Oxford University Press, Incorporated. All rights reserved.

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 The Refugee in International Law
Copyright © 2021. Oxford University Press, Incorporated. All rights reserved.

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 The Refugee in International Law
Fourth Edition

GUY S. GOODWIN-GILL
and
JANE McADAM
with
EMMA DUNLOP
Copyright © 2021. Oxford University Press, Incorporated. All rights reserved.

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 Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
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It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford
is a registered trade mark of Oxford University Press in the UK and in certain other countries
© Guy S. Goodwin-Gill and Jane McAdam 2021
The moral rights of the authors have been asserted
Third Edition published in 2007
Fourth Edition published in 2021
Impression: 1
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ISBN 978–0–19–880856–5 (hbk.)
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DOI: 10.1093/law/9780198808565.001.0001
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 Preface

International refugee law and organization are now over 100 years old, and the
League of Nations first High Commissioner for Refugees, Fridtjof Nansen, had
to deal with causes of displacement not so dissimilar to those facing the
international community today—war and conflict, social restructuring and State
building, famine and epidemic. Inspired by the League’s recognition of the
principle, no less than his own humanity, he put into practice the rule of no
compulsory return a decade before the word non-refoulement entered the
vocabulary of protection.
The 1951 Convention relating to the Status of Refugees, together with the
Statute of the United Nations High Commissioner for Refugees (UNHCR), is
itself now 70 years old, and together they form the bedrock of today’s
international protection regime. Yet all the years of experience since then seems
to have bred complexity, with the Convention now the most litigated treaty in the
world. The drafters would surely be surprised at the close scrutiny to which its
terms are subject, but it is truly an evolving instrument with the capacity to
respond to the changing needs of those in search of protection. In addition,
international refugee law today is often where other disciplines converge, pause,
and then move on, opening up new lines of inquiry or configuring new, much-
needed perspectives.
The reasons for the extended coverage in this fourth edition are self-evident—
States seem especially keen to keep those in search of refuge away from their
borders, and because such measures often take place or have effect in ‘disputed’
Copyright © 2021. Oxford University Press, Incorporated. All rights reserved.

areas, the extraterritorial dimension is contested, resulting in litigation. Civil

society is also concerned, for the most part, to ensure that the recognized reasons
for persecution now include gender, sexuality, and disability, and courts tend to
accept that they can be factored into the refugee definition by way of
interpretation. At the same time, governments incline to challenge what they
consider to be unjustifiable claims to refugee status and key findings of fact, or
dispute that they should provide protection at all
Within the UN and its refugee protection agency, UNHCR, there is also an
apparent disconnect between the ‘new’ tasks of protection that States want, for
example, on statelessness, the internally displaced, and the impacts of climate

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 change; and the mechanisms, the funding for solutions, and the ever-present
question of obligation. Since 2003, UNHCR’s existence has been confirmed
‘until the refuge problem is solved’, but nothing much else has changed. Like the
1951 Convention, the UNHCR Statute and the High Commissioner’s protection
mandate move ahead, with precedent building slowly on precedent, even as the
numbers of displaced people continue to rise, together with the budgets needed
to provide protection and some assistance. States, meanwhile, are still unable to
agree on which of them should take responsibility for protection, apart from
limited agreements, or to engage in long-term, more equitable approaches to the
movement of people. They continue to return asylum seekers to places where
they are not safe, to ignore those in distress at sea, to detain people indefinitely,
and to deny them any chance of a solution, of employment, or of education.
At the time of the third edition in 2007, we said that we would have to wait
and see whether the European Union’s harmonization efforts were indeed
producing an overall positive effect. The results are mixed; today, those efforts
are under review, and already there are political differences on Europe’s
response, and legal divergences between the ideal of universal, international
protection under the Convention and the Protocol, and the effects of a ‘European
refugee status’. By contrast, in the Americas and in Africa, regional treaty
supervisory mechanisms are beginning to have a substantial impact on the
development of effective protection principles, although too often State
implementation leaves much to be desired. In Asia and the Pacific, progress is
less sure, but some positive markers were put down before COVID-19
interrupted.
Needless to say, the pandemic has had a negative impact on all aspects of the
refugee experience, from closed borders preventing access, to restrictions on
Copyright © 2021. Oxford University Press, Incorporated. All rights reserved.

internal movement, health care and vaccination, and to discrimination in general,

and the denial of resettlement and other solutions. In many cases, COVID-19
was just an excuse, and many of the limitations on protection allegedly justified
by the pandemic will be challenged, using the principles of international refugee
law and international human rights law. There is no good reason why those in
search of refuge should be targeted, but as we know, ‘no good reason’ is often
excuse enough for those anxious to divert attention away from dealing with
fundamental issues.
In this fourth edition, we have tried to capture at least some of this complexity,
to set out the law at 31 May 2021, and to encourage discussion and debate. We
have considerably revised the text, while keeping to our initial thesis and focus

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 on three general themes, namely, the refugees themselves, asylum for refugees,
and protection of refugees. After a short introduction in Chapter 1 situating the
issues in today’s international legal and political context, Chapter 2 looks at how
refugees have been and are described in the law. Chapter 3 then takes article 1 of
the 1951 Convention as the basis for a thorough examination of the meaning of
the elements of the refugee definition, while Chapter 4 considers how refugee
status can cease, be denied, or be lost.
In Part 2, the principle of non-refoulement is considered across two chapters
(Chapters 5 and 6), and two further chapters then look at protection under human
rights and general international law, and at the concept of asylum (Chapters 7
and 8, respectively). Part 3 takes up ‘Protection’ in more detail, with Chapter 9
focusing on the relevant international institutions. Chapter 10 looks at the
particular challenges raised by the principle of cooperation and solutions, while
Chapter 11 examines the implementation of international standards in national
law, with particular reference to the determination of refugee status. Finally, we
end with two completely new chapters: Chapter 12 considers the legal
implications of displacement related to the impacts of disasters and climate
change, and Chapter 13 considers the developing law on nationality and
statelessness.
For reasons of space, regrettably we have had to forego the annexes, although
a limited number can still be found in the online version. We have included a
‘List of States’, indicating which are party to the relevant international
instruments, and which are members of UNHCR’s Executive Committee (107, at
the time of writing …) or Member States of the European Union (back to 27 …).
We hope once again to have provided a timely reminder of the inherent dignity
of everyone in search of refuge, and of the fact that it is not criminal for anyone
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to seek asylum from persecution or other serious harm. We have tried, once
again, to stress the importance of the international protection regime and its
resilience and capacity to evolve. We have aimed to provide an authoritative
statement of the refugee in international law, offering pointers to present and
upcoming debates, and, indeed, looking towards a future in which the necessity
for flight may be reduced.

Guy S. Goodwin-Gill
All Souls College Oxford
Kaldor Centre for International Refugee Law
Faculty of Law & Justice

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 University of New South Wales
Sydney
Jane McAdam
Kaldor Centre for International Refugee Law
Faculty of Law & Justice
University of New South Wales
Sydney
Emma Dunlop
Faculty of Law & Justice
University of New South Wales
Sydney
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 Acknowledgements

Many are those who have contributed over the years to this fourth edition,
whether in commenting on particular initiatives, supporting related projects
reflected in the text, or in the almost daily discussion that accompanies
involvement in the issues of displacement.
Guy Goodwin-Gill is particularly grateful to the Warden and Fellows of All
Souls College, Oxford, for providing the space and the opportunity to develop
many of the ideas that figure below, and for contributing an environment that
encouraged thinking and cogent criticism. He is also very pleased to
acknowledge friends and colleagues in Blackstone Chambers, London, as well as
Raza Husain and Christopher Jacobs, who kept the questions coming.
We are especially appreciative of the continued efforts of Andrew and Renata
Kaldor, who had the wisdom to establish the Kaldor Centre for International
Refugee Law at a crucial time in Australia’s history; and to the Faculty of Law &
Justice at the University of New South Wales (UNSW) which, under successive
Deans, David Dixon, George Williams, and Andrew Lynch, provided the support
that allowed the coming together of such an imaginative and productive team;
thanks to Joyce Chia, Madeline Gleeson, Claire Higgins, Lauren Martin, Kelly
Newell, Frances Nolan, Sangeetha Pillai, and Frances Voon, in particular. We are
also pleased to recognize the Kaldor Centre’s affiliates, including the members of
its advisory and steering committees, as well as the many doctoral students (at
UNSW and Oxford) with whom we have worked. Emma Dunlop gratefully
acknowledges the Australian Government Research Training Program
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Scholarship, while Jane McAdam acknowledges the Australian Research

Council which has supported a number of projects whose findings are reflected
in this volume. In particular, we would like to thank the research associates who
have worked on aspects of the book over the years: Fiona Chong, Sophie
Duxson, Naomi Hart, and Regina Jefferies.
The study of international refugee law necessarily involves coming together
and exchanging views and papers with colleagues around the world (now more
often virtually, than in person). The Refugee Studies Centre in Oxford, the
Refugee Law Initiative in London, and the Center for Gender and Refugee
Studies at the University of California Hastings College of the Law in San

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 Francisco, have all been ready and willing collaborators. In addition, the
following friends and colleagues responded to queries for the book or otherwise
provided assistance and support through collaborative research projects with the
authors: Bruce Burson, David Cantor, Cathryn Costello, Ben Doherty, Michelle
Foster, Matthew Gibney, María-Teresa Gil-Bazo, Geoff Gilbert, Agnès Hurwitz,
Kate Jastram, Walter Kälin, Hélène Lambert, Audrey Macklin, Violeta Moreno-
Lax, Stephen Sedley, Matthew Scott, and Tamara Wood.
UNHCR is and has long been a valued partner. The Regional Office in
Canberra, and representatives Thomas Albrecht and Louise Aubin, in particular,
have proven to be notable and inspiring interlocutors, seeking regularly to
represent the international aspects of refugee rights and State obligations to
governments in a frequently difficult environment. UNHCR in Geneva, through
Madeline Garlick, Volker Türk, and Kees Wouters, has likewise continued to
provide encouragement and challenge our thinking.
The list could and should go on. Over the past 14 years, there have many
collaborators, colleagues, friends, and doctoral students, all of whom, in one way
or another, have become part of this book—we thank you for your support,
robust discussion, and inspiration. We look forward to continuing the dialogue
with you and with an emerging generation of scholars who, we are sure, will
energize and enrich the field.
We are grateful once again to have worked with Oxford University Press,
especially with Merel Alstein, Jack McNichol, and John Louth, and we extend
our warm thanks as well to Arokia Anthuvan Rani and the production team at
Newgen Knowledge Works.
Finally, we could not have finished this fourth edition without the lasting
support of our families, near and far—to them we owe a very special debt.
Copyright © 2021. Oxford University Press, Incorporated. All rights reserved.

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 Summary Table of Contents

List of States
Tables of Cases
Table of Treaties and Other International and Regional Instruments
Selected Abbreviations
Note to the Reader

1 The Refugee in International Law

PART 1: REFUGEES

2 Refugees Defined and Described

3 Determination of Refugee Status: Analysis and Application

4 Loss and Denial of Refugee Status and Its Benefits

PART 2: ASYLUM

5 The Principle of Non-refoulement– Part 1

6. The Principle of Non-refoulement– Part 2

7 Protection under Human Rights and General International Law

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8 The Concept of Asylum

PART 3: PROTECTION

9 International Protection

10 International Cooperation, Protection, and Solutions

11 Treaty Standards and their Implementation in National Law

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 12 Displacement related to the Impacts of Disasters and Climate Change

13 Nationality, Statelessness, and Protection

Select Bibliography
Index
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 Contents

List of States
Tables of Cases
Table of Treaties and Other International and Regional Instruments
Selected Abbreviations
Note to the Reader

1 The Refugee in International Law

1. Introduction
2. The refugee in the law and practice of the United Nations Security
Council
3. The refugee in national and international law
4. Protection
5. A future circumscribed, or free?

PART 1: REFUGEES

2 Refugees Defined and Described

1. Refugees
2. Refugees defined in international instruments 1922–46
3. Refugees for the purposes of the United Nations
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3.1 Statute of the United Nations High Commissioner for Refugees

(UNHCR)
3.2 Development of the statutory definition and extension of the
mandate
3.3 Internally displaced persons
3.3.1 The problem in context
3.3.2 UN and UNHCR responsibilities
4. Refugees in the sense of the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees

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 5. Regional approaches to refugee definition
6. Refugees in municipal law: some examples
7. Institutional responsibilities and international obligations
8. ‘Refugees’ for the purposes of general international law

3 Determination of Refugee Status: Analysis and Application

1. Respective competence of UNHCR and of States parties to the
Convention and Protocol
2. Determination of refugee status by UNHCR
3. Determination of refugee status by States
3.1 The European Union Qualification Directive
4. Persecution: issues of interpretation
4.1 Protected interests
4.2 The ways and means of persecution
4.2.1 Persecution as a crime in international law
4.3 Agents of persecution
4.3.1 Agents of persecution and State responsibility
4.4 Fear, intent, motive, and the rationale for persecution
5. The refugee definition and the reasons for persecution
5.1 General matters
5.1.1 ‘Good faith’ and activities in the country of refuge
5.1.2 Nationality and statelessness
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5.1.3 Deprivation of citizenship, persecution, and the country

of one’s nationality
5.2 Reasons for persecution
5.2.1 Race
5.2.2 Religion
5.2.3 Nationality
5.2.4 Membership of a particular social group
5.2.4.1The concept develops

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 5.2.4.2The categories of association
5.2.4.3Common victimization
5.2.4.4Gender-based claims
5.2.4.5Sexual orientation and gender identity claims
5.2.4.6A social view of ‘social group’
5.2.5 Political opinion
6. Persecution: issues of application
6.1 Persecution and laws of general application
6.1.1 Conscientious objectors
6.1.1.1The right of conscientious objection
6.1.1.2The right to object to participation in conflict ‘condemned by the
international community’
6.1.1.3The nature of the dispute between the individual and the State
6.1.1.4Establishing a well-founded fear of being persecuted
6.1.2 Political and non-political offenders
6.2 Persecution and situations of risk
6.2.1 Internal protection/flight/relocation alternative
6.2.2 Flight from armed conflict and violence
6.2.3 The individual and the group
6.3 Children as asylum seekers
7. Persecution and lack of protection
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4 Loss and Denial of Refugee Status and Its Benefits

1. ‘Revocation’, cessation, and exclusion
2. Cessation: voluntary acts of the individual
3. Cessation: change of circumstances
3.1 Personal circumstances
3.2 Change of circumstances in the country of origin
3.3 The cessation inquiry
3.4 Continuing status in exceptional circumstances

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Another random document with
no related content on Scribd:
 Dear Sir,—Will you oblige me by not writing me any more silly
letters? I really have no time to attend to them.

Your most obedient servant,

JOSEPH A. MILLER, Esq.

Mr. Sparks' MS. has an odd appearance. The characters are large,
round, black, irregular and perpendicular. The lines are close
together, and the whole letter wears at first sight an air of confusion
—of chaos. Still it is not very illegible upon close inspection, and
would by no means puzzle a regular bred devil. We can form no
guess in regard to any mental peculiarities from this MS. From its
tout-ensemble, however, we might imagine it written by a man who
was very busy among a great pile of books and papers huddled up
in confusion around him. Paper blueish and fine—sealed, with the
initials J. S.

LETTER XXVI.

My Dear Sir,—It gives me great pleasure to receive a letter from

you. Let me see, I think I have seen you once or twice in——
where was it? However, your remarks upon “Melanie and other
Poems” prove you to be a man of sound discrimination, and I
shall be happy to hear from you as often as possible.

Yours truly,

JOSEPH B. MILLER, Esq.

Mr. Willis writes a very good hand. What was said about the MS. of
Halleck, in the February number, will apply very nearly to this. It has
the same grace, with more of the picturesque, however, and,
consequently, more force. These qualities will be found in his
writings—which are greatly underrated. Mem. Mr. Messenger should
do him justice. [Mem. by Mr. Messenger. I have.] Cream colored
paper—green and gold seal—with the initials N. P. W.

LETTER XXVII.

Dear Sir,—I have to inform you that “the pretty little poem” to
which you allude in your letter is not, as you suppose, of my
composition. The author is unknown to me. The poem is very
pretty.

Yours, &c.

JOSEPH C. MILLER.

The writing of Miss Gould resembles that of Miss Leslie very nearly.
It is rather more petite—but has the same neatness,
picturesqueness and finish without over-effeminacy. The literary
style of one who writes thus is sure to be forcibly epigrammatic—
either in detached sentences—or in the tout ensemble of the
composition. Paper very fine—wafered.

LETTER XXVIII.

Dear Sir,—Herewith I have the honor of sending you what you

desire. If the Essay shall be found to give you any new
information, I shall not regret the trouble of having written it.

Respectfully,
 JOSEPH D. MILLER, Esq.

The MS. of Professor Dew is large, bold, very heavy, abrupt, and
illegible. It is possible that he never thinks of mending a pen. There
can be no doubt that his chirography has been modified, like that of
Paulding, by strong adventitious circumstances—for it appears to
retain but few of his literary peculiarities. Among the few retained,
are boldness and weight. The abruptness we do not find in his
composition—which is indeed somewhat diffuse. Neither is the
illegibility of the MS. to be paralleled by any confusion of thought or
expression. He is remarkably lucid. We must look for the two last
mentioned qualities of his MS. in the supposition that he has been in
the habit of writing a great deal, in a desperate hurry, and with a
stump of a pen. Paper good—but only a half sheet of it—wafered.

LETTER XXIX.

Dear Sir,—In reply to your query touching the “authenticity of a

singular incident,” related in one of my poems, I have to inform
you that the incident in question is purely a fiction.

With respect, your obedient servant,

JOSEPH E. F. MILLER, Esq.

The hand-writing of Mr. Mellen is somewhat peculiar, and partakes

largely of the character of the signature annexed. It would require
no great stretch of fancy to imagine the writer (from what we see of
his MS.) a man of excessive sensibility, amounting nearly to disease
—of unbounded ambition, greatly interfered with by frequent moods
of doubt and depression, and by unsettled ideas of the beautiful.
The formation of the G in his signature alone, might warrant us in
supposing his composition to have great force, frequently impaired
by an undue straining after effect. Paper excellent—red seal.

LETTER XXX.

Dear Sir,—I have not the pleasure of your acquaintance, but

thank you for the great interest you seem to take in my welfare.
I have no relations by the name of Miller, and think you must be
in error about the family connection.

Respectfully,

JOSEPH G. H. MILLER, Esq.

The MS. of Mr. Simms resembles, very nearly, that of Mr. Kennedy. It
has more slope, however, and less of the picturesque—although still
much. We spoke of Mr. K.'s MS. (in our February number) as
indicating “the eye of a painter.” In our critique on the Partisan we
spoke of Mr. Simms also as possessing “the eye of a painter,” and we
had not then seen his hand-writing. The two MSS. are strikingly
similar. The paper here is very fine and wafered.

LETTER XXXI.

Dear Sir,—I have received your favor of the —— inst. and shall
be very happy in doing you the little service you mention. In a
few days I will write you more fully. Very respectfully,
 Your most obedient servant,

JOSEPH I. K. MILLER, Esq.

Lieutenant Slidell's MS. is peculiar—very neat, very even, and

tolerably legible, but somewhat too diminutive. Black lines have
been, apparently, used. Few tokens of literary manner or character
are to be found in this writing. The petiteness, however, is most
strikingly indicative of a mental habit, which we have more than
once pointedly noticed in the works of this author—we mean that of
close observation in detail—a habit which, when well regulated, as in
the case of Lieut. Slidell, tends greatly to vigor of style. Paper
excellent—wafered.

LETTER XXXII.

Dear Sir,—I find upon reference to some MS. notes now lying by
me, that the article to which you have allusion, appeared
originally in the “Journal des Sçavans.”

Very respectfully,

JOSEPH L. M. MILLER, Esq.

The writing of Professor Anthon is remarkably neat and beautiful—in

the formation of particular letters as well as in the tout-ensemble.
The perfect regularity of the MS. gives it, to a casual glance, the
appearance of print. The lines are quite straight and at even
distances—yet they are evidently written without any artificial aid.
We may at once recognise in this chirography the scrupulous
precision and finish—the love of elegance—together with the scorn
of all superfluous embellishment, which so greatly distinguish the
compilations of the writer. The paper is yellow, very fine, and sealed
with green wax, bearing the impression of a head of Cæsar.

LETTER XXXIII.

Dear Sir,—I have looked with great care over several different
editions of Plato, among which I may mention the Bipont
edition, 1781–8, 12 vols, oct.; that of Ast, and that of Bekker,
reprinted in London, 11 vols. oct. I cannot, however, discover
the passage about which you ask me—“is it not very ridiculous?”
You must have mistaken the author. Please write again.

Respectfully yours,

JOSEPH N. O. MILLER, Esq.

The MS. of Professor Lieber has nearly all the characteristics which
we noticed in that of Professor Dew—besides the peculiarity of a
wide margin left at the top of the paper. The whole air of the writing
seems to indicate vivacity and energy of thought—but altogether, the
letter puts us at fault—for we have never before known a man of
minute erudition (and such is Professor Lieber,) who did not write a
very different hand from this. We should have imagined a petite and
careful chirography. Paper tolerable and wafered.
 LETTER XXXIV.

Dear Sir,—I beg leave to assure you that I have never received,
for my Magazine, any copy of verses with so ludicrous a title as
“The nine and twenty Magpies.” Moreover, if I had, I should
certainly have thrown it into the fire. I wish you would not worry
me any farther about this matter. The verses, I dare say, are
somewhere among your papers. You had better look them up—
they may do for the Mirror.

JOSEPH P. Q. MILLER.

Mrs. Hale writes a larger and bolder hand than her sex generally. It
resembles, in a great degree, that of Professor Lieber—and is not
easily decyphered. The whole MS. is indicative of a masculine
understanding. Paper very good, and wafered.

LETTER XXXV.

Dear Sir,—I am not to be quizzed. You suppose, eh? that I can't

understand your fine letter all about “things in general.” You
want my autograph, you dog—and you sha'nt have it.

Yours respectfully,

JOSEPH R. S. MILLER, Esq.

Mr. Noah writes a very good running hand. The lines, however, are
not straight, and the letters have too much tapering to please the
eye of an artist. The long letters and capitals extend very little
beyond the others—either up or down. The epistle has the
appearance of being written very fast. Some of the characters have
now and then a little twirl, like the tail of a pig—which gives the MS.
an air of the quizzical, and devil-me-care. Paper pretty good—and
wafered.

LETTER XXXVI.

Mister—I say—It's not worth while trying to come possum over

the Major. Your letter's no go. I'm up to a thing or two—or else
my name isn't

JOSEPH T. V. MILLER.

The Major writes a very excellent hand indeed. It has so striking a

resemblance to that of Mr. Brooks, that we shall say nothing farther
about it.

LETTER XXXVII.

Dear Sir,—I am exceedingly and excessively sorry that it is out

of my power to comply with your rational and reasonable
request. The subject you mention is one with which I am utterly
unacquainted—moreover it is one about which I know very little.

Respectfully,

JOSEPH W. X. MILLER, Esq.

Mr. Stone's MS. has some very good points about it—among which is
a certain degree of the picturesque. In general it is heavy and
sprawling—the short letters running too much together. From the
chirography no precise opinion can be had of Mr. Stone's literary
style. [Mr. Messenger says no opinion can be had of it in any way.]
Paper very good and wafered.

LETTER XXXVIII.

My Good Fellow,—I am not disposed to find fault with your

having addressed me, although personally unknown. Your favor
(of the —— ultimo) finds me upon the eve of directing my
course towards the renowned shores of Italia. I shall land
(primitively) on the territories of the ancient Brutii, of whom you
may find an account in Lempriére. You will observe (therefore)
that, being engrossed by the consequent, necessary, and
important preparations for my departure, I can have no time to
attend to your little concerns.

Believe me, my dear sir, very faithfully your

JOSEPH Y. Z. MILLER, Esq.

Mr. Fay writes a passable hand. There is a good deal of spirit—and

some force. His paper has a clean appearance, and he is
scrupulously attentive to his margin. The MS. however, has an air of
swagger about it. There are too many dashes—and the tails of the
long letters are too long. [Mr. Messenger thinks I am right—that Mr.
F. shouldn't try to cut a dash—and that all his tales are too long. The
swagger he says is respectable, and indicates a superfluity of
thought.]
 *** END OF THE PROJECT GUTENBERG EBOOK THE SOUTHERN
LITERARY MESSENGER, VOL. II., NO. 9, AUGUST, 1836 ***

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