The End of the 1951 Refugee Convention? Dilemmas of Sovereignty, Territoriality, and Human Rights

Abstract

The 1951 Refugee Convention and its 1967 Protocol are the main legal documents governing the movement of refugee and asylum seekers across international borders. As the number of displaced persons seeking refuge has reached unprecedented numbers, states have resorted to measures to circumvent their obligations under the Convention. These range from bilateral agreements condemning refugees to their vessels at sea to the excision of certain territories from national jurisdiction. While socioeconomic developments and the rise of the worldwide web have led to deterritorialization of vast domains of the economy and the media which enable them to escape from state control, territorial presence, whether on terra firma or on vessels at sea which are functional surrogates for territorial sovereignty, continues to be the basis for the entitlement to human and citizens' rights. We are facing a dual movement of deterritorialization and territorialization at once, both of which threaten the end of the 1951 Convention. This article is an exercise in non-ideal theory which, nonetheless, has implications for a seminal question in ideal democratic theory as to how to define and justify the boundaries of the demos. If the demos refers to the constitutional subject of a self-determining entity in whose name sovereignty is exercised, regimes of sovereignty, including those which govern the movement of peoples across borders, define the prerogatives as well as obligations of such sovereign entities under international law. The period ushered in by the 1951 Convention was such a sovereignty regime which today may be nearing its end.

Refugee mental health and human rights: A challenge for global mental health

“…The Refugee Convention recognizes the need to preserve territorial sovereignty and the responsibility of nations to protect the stateless (Benhabib, 2020). The ambivalent reception that refugees receive in host countries reflects the inherent tension between these two goals.…”

“…The Moria camp, which hosted four times the number of people it was built for, was ravaged by fire this in September 2020, leaving over 10,000 asylum seekers temporarily homeless (Khamoosh, 2020; Lowen, 2020; UN News, 2020). Of course, the circumvention of international obligations to protect refugees did not begin with COVID-19 (Benhabib, 2020), but the pandemic has aggravated the situation. State and structural violence produce and target migrants—the vast majority of whom are from racialized groups—and this demands a collective reckoning and response (Fox et al., 2012; Garner, 2007; Maneri, 2021; Olmos, 2019; Silverstein, 2005).…”

Unequal access: wealth as barrier and accelerator to citizenship

“…By allowing the intrusion of money matters into the demos-sculpting sphere, governments not only permit but actively facilitate queue jumping for the well-resourced; these individuals gain entry ahead of others who might have a more pressing need, rather than want, to enter the destination country. Whereas 'uninvited' migrants, including asylum seekers and refugees escaping abject poverty, political violence or climate disaster are preemptively blocked long before they reach the actual borders of the desired destinations (Shachar 2020a;McNevin 2020;Benhabib 2020), 'desired' high net worth individuals are propelled to the front of the citizenship line. Wealth becomes an added, invisible barrier to entry, an extra 'protective coating' that states put in place to ensure that the undesired remain outside the gates while the prosperous glide through them.…”

Legal Grounds for Restrictions of Human Rights in the European Court of Human Rights Case-Law

“…The main idea was the necessity to revise the negative concept of freedom. 12 The new liberalism, assessing the unfavourable situation associated with the sharp polarisation of the bourgeois society, put forward the idea of its innovative restoration. Its main goal was to soften the confrontation between the rich and poor in society through a set of social reforms.…”