Norms of the international refugee regime

Addressing the normal relationship between states and refugees is like addressing the normal response to fire. In such situations, there are several layers of “normal” embedded in the situation. In certain situations, the occurrence of fire is regarded as an emergency, which in turn constructs a “normal” situation as one in which there is no uncontrolled fire. Yet, fires are a normal and recurring feature of life in buildings that are built in a certain way or of certain materials. The occurrence or fear of such a fire represents an emergency situation; yet, response to a fire is predictable and orderly-in essence it is normalized; it has been thoroughly and successfully securitized. In this normalized condition, there are norms and procedures that govern the reaction to fire by a variety of agencies: the occupants, the fire department, police, insurance companies, etc. Additionally, each of these institutions standardize their response and has embedded decision-making procedures. Under certain circumstances, even these norms may be violated: the command structure may be broken and measures may be implemented that are not part of the standardized response. When referring to and studying the construction and violation of norms pertaining to fire in Western societies, it is necessary to specify which set of norms is being addressed. Similarly, when referring to the securitization of refugee flows, we are

dealing with a specific set of normative structures. The “normal” as it pertains to refugees exists at a variety of levels. At its core, the refugee regime is constitutive of the normal relationship between states and their citizens, and refugee flows represent a violation of this relationship, and an exceptional condition (Nyers, 2006a; Soguk, 1999), not unlike house fire as abnormal. Yet, refugee flows have been and are a recurring and normal feature of international politics. Following the Second World War, the international refugee regime was established to normalize these situations, to create a standard and predictable response. In essence, refugee flows were securitized and the normal mode of dealing with these emergencies was established, a decisionmaking apparatus was constructed and a set of behavioral guidelines to be followed were codified in international law and domestic practice. Thus, it is possible to refer to two processes of the securitization of humanitarian migration-the first occurs at the international level, and was escalated

following the Second World War in which refugee flows were reproduced as the “abnormal” condition of the state/citizen norm and as a threat to international security, which required a standardized international response. The second, which is the focus of this book, occurs in individual states in which the norms and decision-making procedures that are the institutional expressions of the standardized international response are violated. The first section of this chapter examines how the refugee regime works to

construct the “normal” at the international level. It does so in two ways: first, it constructs the state/citizen as the normal mode of political organization, with the refugee as exception. Secondly, it constructs a specific Western liberal understanding as the normal type of relationship between states and their citizens. Thus, the creation and implementation of the international refugee regime was constructed to maintain an emergent international system emanating from the Second World War. The refugee regime functioned as one element of a larger structure constituting a clear “self” and “other” based on political and economic ideologies, with respect for human rights as an important element of this distinction. The refugee regime helped structure the relationship in this manner by providing a clear measuring stick by which to differentiate the two rivals. Thus, states from which refugees flowed were the “other”—states that violated human rights. The “self” was defined as the protectors of human rights, evidenced by the flow of refugees into these states. Changes in that international structure combined with the emergence of refugee flows from states excluded from the original “we-other” relationship have had an adverse impact on the relationship between states and refugees. Thus, I argue that it is essential that any explanation of individual state policies toward asylum seekers and refugees must take into account the structure of the international system. In short, the analysis that follows demonstrates how international structures constituted agents, and how those agents in turn structured key relations in international politics. The second section of this chapter examines how the modern international

refugee regime constructed humanitarian migration as a distinct form of migration, producing a series of behavioral expectations that distinguished the refugee from other immigrants. This constructed identity and the concomitant expectations produced an ideal-type standard against which state actors measure those who apply for refugee status. When the actual behavior of refugees has not conformed to these expectations, their identity as refugee has been cast into doubt by securitizing agents. By ascribing non-humanitarian motivations to asylum seekers based on their behavior, securitizing agents have been able to reconstruct the identity of asylum seekers as economic or family migrants, and in so doing, violate the normal rules governing the treatment of asylum seekers. These rules are the subject of the third section of the chapter, where I

examine in greater detail specific norms created by the refugee regime regarding states’ treatment of asylum seekers. While the 1951 Convention specifically addresses state obligations toward refugees, in practice it has created a number of obligations toward asylum seekers as well. I identify four

basic expectations created by the international refugee regime for signatory states. Three of these expectations are negative, in that they outline what signatory states are not supposed to do to individuals seeking asylum, while the last is positive, in that it creates an expectation of what a state should do for asylum seekers. I argue that the norms of non-refoulement, non-arbitrary detention, non-punishment based on mode of entry and access to a fair hearing structure the relationship between refugee-protecting states and asylum seekers.

At its most basic, the concept of the refugee reinforces the modern understanding of the political: that each individual belongs to a bounded territorial community of citizens. In this understanding, the refugee is the exception to the citizen norm, and the only remedy is to “restore her to the natural political condition through repatriation or resettlement” (Soguk, 1999: 11). Peter Nyers makes a similar argument, arguing that the modern construction of the refugee is based on an understanding of what constitutes the proper and enduring form of political community-the citizen and the sovereign nation-state (Nyers, 2006a: 9). In this formulation, the refugee is an accident that scars the moral and political landscape of the international order, but one that is part of the practice of modern statism to secure the normality of citizenship and the state (Nyers, 2006a: 9). What is clear, however, is that the modern understanding of the refugee is

not concerned only with normalizing citizenship and the sovereign state as the proper form of political order, but also to privilege the Western liberal conceptualization of this relationship as the ideal form of political community. The international refugee regime as constituted by the 1951 Convention and the 1967 Protocol reflected and reinforced the rivalry in the international system that emerged post-1945. This regime contributed to the construction of the identity of the two rivals (the “free world” and the Soviet bloc in the parlance of the times) based on their adherence to certain human rights and also created expectations regarding their behavior toward their own citizens and toward foreign nationals fleeing persecution. The definition adopted in the 1951 Convention established a hierarchy of

rights, privileging civil and political rights over economic, cultural and social right and scales of violence broader than individual persecution (Hyndman, 2000: 9). According to Hathaway, the refugee definition was crafted by Western states to give priority to protection to those whose flight was motivated by pro-Western political values (Hathaway, 1991: 6). A prime example is the conflict between the two rivals over the issue of emigration and border control; the Western democratic states upheld the right of their citizens to choose their place of residence and to emigrate while the Soviet bloc states prevented their citizens from emigrating over fears of a mass exodus of dissatisfied citizens (Weiner and Munz, 1997: 25). So the refugee regime advocated only certain rights, those most likely to embarrass or de-legitimize specific regimes,

namely communists and Nazis. As a result, refugees represented a form of power because the granting of asylum was generally used to reaffirm the failures of communism and the benevolence of the West (Loescher, 2003). In addition to constructing the relations between the Soviet bloc and the democratic West based on ideological commitments to freedom of movement and democracy, refugee policy served an instrumental role, in that the West used it to embarrass communist states or to frustrate communist revolutions and destabilize nascent communist governments (Keely, 2001: 307). That the refugee regime reflected an emergent rivalry is evident in its crea-

tion and evolution. Prior to the establishment of the UNHCR as the permanent body designed to deal with the problem of European refugees, temporary refugee agencies were used to help resolve the problem, including the United Nations Relief and Reconstruction Agency (UNRRA) and the International Refugee Organization (IRO). While these organizations were successful in looking after many people in need, and repatriating some as well, they were among the first victims of the emerging rivalry in the international system that would ultimately culminate in the Cold War between the Soviet Union and its European and American adversaries (Barnett, 2002: 242-46). Soviet hostility essentially ended the UNRRA’s mandate, as the UNRRA had refused to forcibly repatriate refugees to Soviet territory after 1945, leading to the Soviet claim that the UNRRA prevented displaced persons from returning home. The IRO suffered a similar fate amid Soviet claims that the IRO was merely protecting traitors and serving US policy (Barnett, 2002: 244). Eventually, the Western powers created the international refugee regime and its permanent institutional presence, the United Nations High Commissioner for Refugees (UNHCR) in January 1951, without the consent or cooperation of its rival, the USSR; which in turn accused the Western powers of protecting people associated with fascist and anti-democratic regimes. The debate over the definition of the refugee, the institution responsible for

refugee protection as well as the preferred solutions to the “problem” was symptomatic of a larger struggle to identify the proper and ideal form of political organization in the international system. In addition to identifying the state/citizen relationship as the normal form of political organization, it further identified Western liberal states as the normal/preferred relationship structure between the state and its citizens. Tied to these concerns with establishing the sovereign nation-state based on the Western liberal model as the idealized norm, the refugee regime demonstrated that stability in relations between states was also a primary normative value. This is evident in the midand post-war discussion on refugees. A concern to promote regional stability in Europe was, and has continued to be, a dominant factor in the response to the refugee issue (Loescher, 2003). The successful reconstruction of devastated European states after the war was seen as essential to rebuild viable sovereign states and to prevent the spread of communism in Europe. The twin solutions of repatriation and resettlement of the millions of refugees in Europe following the war became essential to European stability.