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At law's border : unsettling refugee resettlement Labman, Shauna Erin 2012

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AT LAW’S BORDER: UNSETTLING REFUGEE RESETTLEMENT by SHAUNA LABMAN B.A. (Honours) The University of British Columbia, 1999 LL.B. University of Victoria, 2003 LL.M. The University of British Columbia, 2007  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE STUDIES (LAW)  THE UNIVERSITY OF BRITISH COLUMBIA (VANCOUVER) December 2012 © Shauna Labman, 2012  ABSTRACT This dissertation looks at the development and operation of the Canadian refugee resettlement program. It queries how law influences the non-legal act of resettlement and conversely how resettlement contorts the law of asylum. Refugee resettlement is a voluntary act by states in which they bring refugees to their territories who have fled elsewhere but who have not received adequate protection. The voluntary nature of resettlement is in contrast to the legal obligation of non-refoulement that states take on with the promise not to send back refugees who reach their territory and claim asylum. Canada is one of the three leading resettlement countries in the world. It has a longstanding resettlement program and employs diverse and creative resettlement models. It is also a program in political and legal flux. Each Canadian resettlement model – governmentassisted, private sponsorship, source country, and group processing – is the basis for an analysis of the intersection of rights, responsibility and obligation in the absence of a legal scheme for refugee resettlement. This analysis is supported by an examination of the historical development of the international refugee regime and the United Nations High Commissioner for Refugee’s challenge in fulfilling a mandate tenuously connected to human rights and comprised of both legal obligations and voluntary burden-sharing. A comparative review of the programs in Australia and the United States, which lead in global resettlement alongside Canada, is undertaken to point out and contrast respective differences, weaknesses, and strengths. This analysis shows how differing models affect the law’s place and influence. With these frameworks, the dissertation offers a comprehensive picture and examination of resettlement in Canada, and contributes to a holistic understanding of international resettlement. Beyond this, the project explores the law’s influence on refugees, from outside of the law, and what this does to their access to protection. Refugee law is approached not from the border or at the point of an asylum claim, but further afield in the operation of the non-legal act of resettlement. Thus the project moves past traditional conceptions of law to consider the multitude of legal influences in both refugee law and policy.  ii  PREFACE This work was pursued under the supervision of Dr. Catherine Dauvergne. An earlier version of parts of Chapter Two were published in Shauna Labman, “Looking Back, Moving Forward: The History and Future of Refugee Protection” (2010) Chicago Kent Journal of International and Comparative Law; online: <http://www.kentlaw.edu/jicl/spring2010.html>. An earlier version of parts of Chapter Three were published in Shauna Labman, “Queue the Rhetoric: Refugees, Resettlement and Reform” (2011) 62 University of New Brunswick Law Journal 55. All research was conducted in compliance with the Behavioural Research Ethics Review Board at the University of British Columbia. Certificate Number H08-02233.  iii  TABLE OF CONTENTS ABSTRACT...........................................................................................................................ii	
   PREFACE ........................................................................................................................... iii	
   TABLE OF CONTENTS ....................................................................................................iv	
   LIST OF TABLES ..............................................................................................................vii	
   LIST OF FIGURES .......................................................................................................... viii	
   LIST OF ACRONYMS .......................................................................................................ix	
   ACKNOWLEDGEMENTS ................................................................................................xi	
   DEDICATION .................................................................................................................. xiii	
   CHAPTER ONE: AT LAW’S BORDER ...........................................................................1	
   Introduction.......................................................................................................................1	
   The Legal Periphery .........................................................................................................6	
   Canada at the Forefront...................................................................................................8	
   Bringing Law into Resettlement....................................................................................11	
   Beyond Traditional Concepts of Law ...........................................................................19	
   Conclusion .......................................................................................................................29	
   CHAPTER TWO: INTERNATIONAL RIGHTS AND BURDENS .............................31	
   Introduction.....................................................................................................................31	
   The Refugee Regime and Resettlement’s History........................................................36	
   Pre-1950 Refugee Regimes ..........................................................................................37	
   The United Nations High Commissioner for Refugees ................................................41	
   Reorienting Protection ...................................................................................................44	
   Lessons Learned ...........................................................................................................48	
   An Uncomfortable Union: Human Rights and Refugees .............................................52	
   Bearing and Sharing the Burden...................................................................................57	
   Global Leadership ..........................................................................................................72	
   Where the Law Is............................................................................................................77	
   Conclusion .......................................................................................................................82	
   CHAPTER THREE: CANADA’S COMMITMENT......................................................84	
   Introduction.....................................................................................................................84	
   Canada’s Humanitarian Commitment .........................................................................85	
   Background & Beginnings .............................................................................................87	
   Humanitarianism and Half-Open Doors .......................................................................87	
   A New Era: Asylum’s Ascendance ..............................................................................98	
   Boatloads and Backdoors: Resettlement’s Return......................................................102	
   Canada’s Resettlement Scheme...................................................................................106	
   Just Numbers ..............................................................................................................109	
   Legislative and Policy Framework .............................................................................110	
   Jurisprudence: Opportunities for Review..................................................................121	
   Where the Law Is..........................................................................................................134	
   Conclusion .....................................................................................................................140	
    iv  CHAPTER FOUR: COMPLEMENTARY OR CONSUMING? PRIVATE SPONSORSHIP ................................................................................................................141	
   Introduction...................................................................................................................141	
   Private Sponsorship in Canada ...................................................................................142	
   Before the Law............................................................................................................143	
   The Sponsorship Scheme............................................................................................146	
   The Public-Private Pull ................................................................................................151	
   The Indochinese..........................................................................................................152	
   After Indochina - Reining in Family Reunification....................................................159	
   Private-Public Partnerships.........................................................................................166	
   The Kosovars: Best Known and Least Accurate ........................................................172	
   Present Realities............................................................................................................175	
   Refusal Rates and Protection Concerns ......................................................................175	
   Family Reunification as Sponsorship .........................................................................177	
   Complaint and Review ...............................................................................................179	
   From Complementary to Consuming .........................................................................182	
   The State of Sponsorship..............................................................................................184	
   Where the Law Is..........................................................................................................189	
   Conclusion .....................................................................................................................194	
   CHAPTER FIVE: BEYOND THE CONVENTION.....................................................196	
   Introduction...................................................................................................................196	
   Source Country Resettlement ......................................................................................197	
   Going to the Source ....................................................................................................199	
   Colombia.....................................................................................................................211	
   Group Resettlement......................................................................................................217	
   Where the Law Is..........................................................................................................228	
   Conclusion .....................................................................................................................234	
   CHAPTER SIX: FURTHER AFIELD: AUSTRALIA AND THE UNITED STATES ............................................................................................................................................235	
   Introduction...................................................................................................................235	
   Government Resettlement............................................................................................237	
   The United States........................................................................................................237	
   Australia......................................................................................................................246	
   Private Sponsorship......................................................................................................254	
   The United States........................................................................................................254	
   Australia......................................................................................................................258	
   Source Country Resettlement ......................................................................................262	
   The United States........................................................................................................262	
   Australia......................................................................................................................266	
   Group Resettlement......................................................................................................266	
   Comparative Counterpoints ........................................................................................269	
   Where the Law Is..........................................................................................................271	
   Conclusion .....................................................................................................................274	
    v  CHAPTER SEVEN: UNSETTLING REFUGEE RESETTLEMENT .......................279	
   Law Distilled, Resettlement Unsettled ........................................................................279	
   Chapter by Chapter Review ........................................................................................281	
   Law in the Fields Beyond .............................................................................................286	
   Recommendations.........................................................................................................291	
   Recommendation 1: End Divisive Discourse .............................................................292	
   Recommendation 2: Better Align Resettlement and Refugee Status .........................293	
   Recommendation 3: Limit Discretionary Decision-Making ......................................295	
   Recommendation 4: Reinforce Joint Assistance Sponsorship and Formalize Pilot Projects .......................................................................................................................295	
   Recommendation 5: Connect Private Sponsorship and Government Assisted Resettlement ...............................................................................................................297	
   Recommendation 6: Clarify Place of Family Reunification.......................................298	
   Recommendation 7: Re-establish Some Level of IDP Protection..............................299	
   Recommendation 8: Encourage International Cooperation........................................300	
   Open Doors....................................................................................................................301	
   BIBLIOGRAPHY.............................................................................................................304	
   Interviews & Correspondence .....................................................................................304	
   International Documents..............................................................................................305	
   Bills, Legislation, Regulations & Rules.......................................................................306	
   Jurisprudence................................................................................................................308	
   Primary & Secondary Sources ....................................................................................308	
   APPENDICES...................................................................................................................338	
   Appendix A: Organizations and Individuals Interviewed ........................................338	
   Appendix B: Federal Court of Canada Resettlement Cases by Year ......................340	
   Appendix C: Federal Court of Canada Resettlement Cases by Result ...................343	
   Appendix D: Federal Court of Canada Resettlement Cases by Visa Application Country ..........................................................................................................................346	
   Appendix E: Federal Court of Canada Resettlement Cases Identified as Sponsorship ...................................................................................................................349	
    vi  LIST OF TABLES Table 1: UNHCR Resettlement Data 2007-2011 ...................................................................9	
   Table 2: 1951 Convention State Parties 1951-1968 .............................................................92	
   Table 3: Government-Assisted/Private Sponsorship Ranges & Landings 2001-2012 .......107	
   Table 4: Private Sponsorship Ranges & Landings 1979-2012 ...........................................164	
   Table 5: Designated Source Countries by Year 1997-2010 ...............................................201	
   Table 6: Humanitarian & Compassionate Applications Outside Canada 2002-2010 ........209	
   Table 7: Top Ten UNHCR Resettlement Departures by Country of Resettlement 2010-2011 ....................................................................................................................................236	
   Table 8: U.S. Refugee Ceilings & Admissions 2002-2012 ................................................239	
   Table 9: Australia Offshore Admissions 1999-2009 ..........................................................260	
    vii  LIST OF FIGURES Figure 1: UNHCR Logo .......................................................................................................58	
    viii  LIST OF ACRONYMS ATCR AWR CCCRR CCR CG CIC CPA DIAC DIMIA ERF ECOSOC EU EXCOM GAR GNP H&C ICGs IGCR ICRC IDP IFHP ILO INA IRO IRPA ISSBC JAS JIAS LGBTQ MFU MIIC NGO PSR RCOA RMAF RRF RSTP SAC SAH SHP SIPA UNHCR UNRRA UPP  Annual Tripartite Consultations on Resettlement Women-at-Risk Canadian Christian Council for the Resettlement of Refugees Canadian Council for Refugees Constituent Group Citizenship and Immigration Canada Comprehensive Plan of Action Department of Immigration and Citizenship Department of Immigration and Multicultural and Indigenous Affairs European Refugee Fund United Nations Economic and Social Council European Union Executive Committee (UNHCR) Government Assisted Refugees Gross National Product Humanitarian and Compassionate Grounds Interest-Convergence Groups Intergovernmental Committee on Refugees International Committee of the Red Cross Internally Displaced Persons Interim Federal Health Program International Labour Organization Immigration and Nationality Act International Refugee Organization Immigration and Refugee Protection Act Immigrant Services Society of British Columbia Joint Assistance Sponsorship Jewish Immigrant Aid Services of Canada Lesbian, Gay, Bisexual, Transgender and Queer/Questioning Multilateral Framework of Understandings on Resettlement Manitoba Interfaith Immigration Council Non Governmental Organization Private Sponsorship of Refugees Refugee Council of Australia Results-Based Management and Accountability Framework Resettlement Registration Form Refugee Sponsorship Training Program Special Assistance Category Sponsorship Agreement Holder Special Humanitarian Program School of International and Public Affairs (Columbia University) United Nations High Commissioner for Refugees United Nations Relief and Rehabilitation Agency Urgent Protection Program  ix  US Volag  United States Voluntary Agency  x  ACKNOWLEDGEMENTS At its beginning, this dissertation was simply a kernel of inspiration and a fair amount of passion. Developing the former and maintaining the latter was only achieved through the support of many people. When I requested Catherine Dauvergne as my supervisor I knew I had selected a brilliant and innovative scholar. It was my pleasure to discover I had also found a mentor and friend as well as a supervisor who challenged my thinking but gave me the confidence to take this project in my own direction. She has read multiple drafts and every footnote but also managed unlimited time in an impossibly busy schedule for casual conversation on all things outside of the project. Catherine, I simply cannot thank you adequately. I owe a further debt of gratitude to my committee for working together and with me to make this project what it is. Like Catherine, Donald Galloway has worked with me through both my masters and doctoral research and has been a wealth of knowledge and friendly support. I have benefitted from two geographers on my committee, Daniel Hiebert and Jennifer Hyndman. Each has added to the genuine interdisciplinarity of the project and offered helpful insight from their own perspectives reaching from the local to the global as well as enabling me to really think through how law is understood outside of my own discipline. The Faculty of Law at UBC has been an amazing place to base my research. Wes Pue and Joanne Chung welcomed me to the graduate program and encouraged me to apply for the grants that have propelled my project. Joanne has also been a constant support and resource. My cohort of classmates has pushed my thinking and I have marveled at their intellectual curiosity and passion. Most importantly they have encouraged me to laugh, relax, drink excellent wine, swim, and storm the wall; all making the Ph.D. experience so much richer. Nor can I imagine what the last several years would have been like without a friend like Christina Cook pursuing similar work alongside me and acting as both my cheerleader and challenger. Appreciation goes to Gina Wang for the energy she put into UBC’s Migration Network and to Asha Kaushal for encouraging me to take the network’s helm with her for one year and then carrying it forward ever since. The interdisciplinary collaboration and sharing encouraged through the Liu Migration Network is one of the great pleasures of graduate work in migration at UBC and my thanks go out to all the scholars I have met through the network. My doctoral research has been supported by the Social Sciences and Humanities Research Council, the Liu Institute for Global Issues and the Trudeau Foundation. The generous financial and administrative support of these organizations allowed me to enjoy the doctoral process and push my project to its potential. Thanks particularly to Josée StMartin and Bettina Cenerelli for their enthusiasm and insight. Through the Trudeau Foundation, I was mentored by Pierre Pettigrew who opened my eyes to politics and policy from the government perspective and freely shared his wisdom, connections and charm. Together, the Liu Institute and the Trudeau Foundation permitted me to pursue a crossCanada conference series. I cannot express the extent of my appreciation to my collaborators on this adventure, Erin Tolley, Asha Kaushal and Laura Madokoro for turning the vision into a reality and making conference calls so much fun. And Laura, I could not have wished for a more intellectually generous and charming nemesis. Sarah Kamal xi  organized a writing retreat in Niagara on the Lake in February 2011 and it was the warmth of that week with scholars and friends that put me on track to finish this project. With the hope that we will continue to come together for similar retreats long into the future, my immense thanks goes out to those who shared the experience with me, Sarah, Erin, Laura, Andrée, Julia, Chris, Lily, Kristi, Genevieve, Lisa and Zhan. I am indebted to those who provided candor, historical reminisce, critical insight and valued connections throughout the project. My sincere gratitude goes out to Howard Adelman, Rivka Augenfeld, Gregory Brown, Michael Cassasola, Janet Dench, Tom Denton, Michelle Foster, Chris Friesen, Michele Grossman, Jackie Halliburton, James Hathaway, Evelyn Jones, Sharalyn Jordan, Marta Kalita, James Milner, Mike Molloy, Joel Moss, John Peters, Debra Pressé, Suzanne Rumsey and Peter Showler for taking the time to discuss my research with me over the years. Francisco Rico Martinez permitted me the pleasure of spending a week with him conducting interviews in Bogotá. He is a man full of passion, energy, humour and generosity. I learned so much from him and all the dedicated individuals who spoke to us. There are also those to thank who set me on the path that eventually led to my research. Lee Seymour first proposed that we volunteer for Amnesty International’s RefNet in Ottawa and that work, with Michael Bossin, gave me my initial exposure to refugees. Linda Pinnacle at United Nations Association Canada matched my skills to the position with the United Nations High Commissioner for Refugees in New Delhi and Andrea Chow supported me through the placement. It was Carol Batchelor, then Deputy Chief of Mission at UNHCR in New Delhi who hired me, trained me, and supported my eventual decision to pursue graduate work in refugee law. The energy, compassion and commitment of the UNHCR staff I worked with in New Delhi, in particular, Jennifer Pongen, Richard Grindell, Yamine Pande, Alexandra Hardina, Yutaka Tatewaki, Sumbul Rizvi, Nayana Bose, Viniti Mehra, Gita Sequeira, Deepali Yadaav, Arnab Guha, Villi Shimrah and Ahad Zalaal has stayed with me through the years and propelled my research. Thanks in India must also go to Harp, Gareth, Massi, Kaavya, Saul, Ateesh, Liesl and Morane for making life there so incredibly full. The incredible love and support of my family keeps me grounded. My father has consistently read and impeccably edited every word I have ever written (except these) and my love of language comes from him. My mother instilled within me courage and compassion and her energies now as a grandmother are what has enabled me to finish this project. My sisters are simply awesome, and their thoughtful ability to continually send little notes and gifts in the mail when most needed is beyond appreciated. The Beauvilains continually ask inquisitive and thoughtful questions about my research. My partner Chris thinks this could have been achieved without him but he has never been more wrong. He has been by my side from the beginning with constant encouragement, support, absolute faith in my abilities, and uncharacteristic patience. And finally, my son Hugo reminds me daily that life is precious and of the importance to strive to make the world better. In closing, much of what follows was written at Wicked Café in Vancouver and Neighbourhood Café in Winnipeg and I owe the staff at both my sincerest thanks.  xii  DEDICATION This work is dedicated to my grandparents. Great people who came or whose parents came to Canada from diverse parts of the world and made this home.  xiii  CHAPTER ONE AT LAW’S BORDER Introduction Refugees flee. They fear persecution and they escape. Where they escape to depends on where they begin, the immediacy of their need for escape, their means, access and their own physical abilities. Some barely get across an international border. Some get across the world. The reality of the disproportionate distribution of refugees results in a dual system of protection. By international agreement, many countries have recognized that if refugees arrive on their territory they will not be sent back. This is the principle of non-refoulement set out in Article 33 of the 1951 Convention relating to the Status of Refugees (1951 Convention).1 Other countries have not become a party to the 1951 Convention or simply have an overwhelming and unmanageable number of refugees entering their territories. As a result, some countries far from the refugee flows have agreed to voluntarily bring refugees to their territory who have fled elsewhere but who have not received adequate protection. This is the act of resettlement. Resettlement is defined by the United Nations High Commissioner for Refugees (UNHCR) as “the selection and transfer of refugees from a State in which they have sought protection to a third State which has agreed to admit them – as refugees – with permanent residence status.”2 The decision to resettle a refugee is only made in the absence of other options – local integration or voluntary repatriation. This statement, however, belies the complexity of resettlement decisions that are explored in the substance of this dissertation. Resettlement is regarded by UNHCR as serving two further functions, working not only as 1 2  Convention relating to the Status of Refugees, 1951, 189 UNTS 150 (entered into force 22 April 1954). UNHCR, Resettlement Handbook (November 2004) at 1/2.  1  a solution but also as a tool of protection and expression of international burden-sharing.3 Possibly as a result of its multiple purposes, and definitely as a result of its voluntary nature, resettlement’s usage has been ad hoc, intermittent, and sometimes manipulative, all with incredibly low numbers. This dissertation explores the intersection of rights, responsibility and obligation in the absence of a legal scheme for refugee resettlement.  It asks how law influences the  voluntary act of resettlement and conversely how resettlement contorts the law of asylum. The chapters show that the core concept of refugee protection is often compromised by resettlement, both by the resettlement selection process and the influence of resettlement practices on in-country asylum. Resettlement is nonetheless argued to provide a positive complementary addition to in-country asylum claims. The intent of the dissertation is to analytically assess the current models and state practices of resettlement against resettlement scholarship and theory, so as to promote a restructuring of resettlement designed in a way to not only encourage resettlement but to also maintain a commitment to the notion of refugee protection. Beyond this, the dissertation is about the relationship between refugees and the law. It demonstrates that law plays an influential role even in the voluntary, non-legal act of resettlement. Within a sovereign nation-state, law is clear. It is based on a formal or written constitution that establishes general law making and law enforcement powers. In the international realm, law, by contrast, is consensus-based and lacks a centralized, hierarchical structure. The refugee travels from a home state to the international realm and  3  “Global Consultations on International Protection, Strengthening and Expanding Resettlement Today: Challenges and Opportunities” 4th Mtg., EC/GC/02/7 (25 April 2002) at para 5.  2  ideally, although not always ultimately, back to a state, be it return to the home state or acceptance in a new state. During this journey, law weaves in and out. Both individual states’ domestic laws and the consensus-based international laws influence the refugee’s journey. The central law that applies to refugees is the international legal obligation of nonrefoulement. Non-refoulement grants the refugee protection against return to the country where he fears persecution.  It does so by preventing the state bound by the 1951  Convention from expelling a refugee from its territory. States that have become party to the 1951 Convention have thus taken on the responsibility for refugees who arrive on their territory. As of September 2012, 145 states are party to the 1951 Convention.4 The concept of non-refoulement can be found in other international and regional documents,5  4  UNHCR, “States Parties to the Convention and the Protocol”; online: <http://www.unhcr.org/pages/49da0e466.html>. Nauru most recently acceded to the Convention on 28 June 2011. 5 Asian-African Legal Consultative Organization, Bangkok Principles on the Status and Treatment of Refugees (31 December 1966) at Article III(3): No-one seeking asylum in accordance with these Principles should, except for over-riding reasons of national security or safeguarding the population, be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or remain in a territory if there is a well-founded fear of persecution endangering his life, physical integrity or liberty in that territory. Declaration on Territorial Asylum, (14 December 1967) A/RES/2312(XXII) at Article 3(1): No person referred to in Article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution. Resolution on Asylum to Persons in Danger of Persecution, adopted by the Committee of Ministers of the Council of Europe (29 June 1967), 2: They should in the same spirit ensure that no one shall be subjected to refusal of admission at the frontier, rejection, expulsion or any other measure which would have the result of compelling him to return to or remain in a territory where he would be in danger of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa (10 September 1969) 1001 UNTS 45 at Article III(3): No person may be subjected by a member State to measures such as rejection at the frontier, return or expulsion, which should compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article 1, paragraphs 1 and 2. Organization of American States, American Convention on Human Rights, “Pact of San Jose” Costa Rica, (22 November 1969) at Article 22(8):  3  and some assert that it has reached the status of customary international law binding even those states that are not party to the 1951 Convention.6 In non-Convention states or in states where refugee recognition processes are not in place, UNHCR is often permitted to grant mandate refugee status under the Statute of the United Nations High Commissioner for Refugees (UNHCR Statute).7 A refugee’s fate is determined by where she claims protection. If the refugee reaches a state party to the 1951 Convention, non-refoulement triggers a domestic legal system that, in theory, will process the claim and accord the refugee a bundle of rights set out in the 1951 Convention but linked to the entitlement rights of citizens in the new state. If the refugee claims asylum in a state in which UNHCR is according “mandate status”, she will be recognized as a refugee but still lack the solution of a state.8 Despite UNHCR’s grant of  In no case may an alien be deported or returned to a country regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinions. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984) 1465 UNTS 85 at Article 3(1): No State Party shall expel, return (“refoule”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 6 See UNHCR, Note on Non-Refoulement (Submitted by the High Commissioner), 23 August 1977, EC/SCP/2; online: <http://www.unhcr.org/refworld/docid/3ae68ccd10.html>; Guy Goodwin-Gill & Jane McAdam, The Refugee in International Law (Oxford: Oxford University Press, 3rd ed., 2007) at 352353. But see also James Hathaway, The Rights of Refugees under International Law (Cambridge: Cambridge University Press, 2005) at 363-364 for response. 7 UN General Assembly, Statute of the United Nations High Commissioner for Refugees, UNGA A/RES/428(V) 14 December 1950. According to reporting from 2008, UNHCR conducted refugee status determinations in 75 countries, making decisions for 48,745 people. Over 90% of this work came from 15 operations: Algeria, Cameroon, China (Hong Kong), Egypt, India, Kenya, Libya, Malaysia, Morocco, Pakistan, Somalia, Syria, Thailand, Turkey, Yemen. UNHCR, “The Refugee Status Determination Project” (2008). Six of these 15 countries are not state parties to the 1951 Convention or the 1967 Protocol: India, Libya, Malaysia, Pakistan, Syria and Thailand. UNHCR “States Parties” supra note 4. In 2009 UNHCR received 114,000 asylum applications in over 50 countries, amounting to 12 percent of the total claims (900,000) worldwide. Erika Feller, Assistant High Commissioner-Protection “Rule of Law 60 Years On” Statement at Sixty-first Session of the Executive Committee of the High Commissioner’s Programme Agenda item 5(a) (6 October 2010) at 4. 8 This is true even in some states like Kenya; which is a state party to the 1951 Convention but where most refugees are left in camps with only the lesser designation of prima facie status unless they are being processed for resettlement. See Jennifer Hyndman & Bo Viktor Nylund, “UNHCR and the Status of Prima Facie Refugees in Kenya” (1998) 10 International Journal of Refugee Law 21. Prima facie status is not  4  refugee status, the refugee will not necessarily be permitted to remain in the state. The consequence is a massive refugee population in limbo, having fled one state but not finding solution in another. Refugees in states that have either not joined or are not living up to their obligations under the 1951 Convention encounter the conceptual failure of both universal human rights and refugee protection. In the realm between the persecuting and protecting states, refugees lack anywhere to assert rights or find protection. The global refugee population was 10.4 million at the end of 2011.9 At that time, an estimated 7.1 million refugees, almost three quarters of the global total, were in 26 host countries in long-standing states of protraction.10 Under UNHCR’s framework there are two aspects to the refugee’s journey: protection and solution. UNHCR’s Statute begins: The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly, shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute and of seeking permanent solutions for the problem of refugees by assisting Governments and, subject to the approval of the Governments concerned, private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities.11 While the “international protection” responsibilities of asylum are supported by a strong legal basis, “permanent solutions” depend on voluntary burden-sharing. The recognition of  defined by international law but is accorded by some states and UNHCR when asylum claimants arrive en masse and it is determined that those in the group can be deemed to be refugees on the basis of objective information related to the circumstances in the country of origin. Prima facie status can be used to facilitate the durable solutions of local integration and repatriation but not resettlement. See Matthew Albert, “Governance and Prima Facie Refugee Status Determination: Clarifying the Boundaries of Temporary Protection, Group Determination, and Mass Influx” (2010) 29 Refugee Survey Quarterly 61-91. 9 UNHCR, “A Year of Crisis: UNHCR Global Trends 2011” at 11; online: <http://www.unhcr.org/4fd6f87f9.html>. 10 Ibid. at 2. 11 Statute of the Office of the United Nations High Commissioner for Refugees, UNGA A/RES/428(V), 14 December 1950, s.1.  5  refugee status thus triggers protection but it does not necessarily offer a solution. Three solutions are possible: local integration, voluntary repatriation or third-country resettlement. Essentially the refugee may stay where she is, if so welcomed; go home, if it is safe; or go to another country, if that country is willing to take her. There are many “ifs” on the solution side. While the international community imposed the legal obligation of non-refoulement to ensure protection, solutions were left as voluntary decisions by individual states.12 The Legal Periphery Refugee protection is about law; refugee solutions are not. And yet the law is there on the periphery of refugee solutions. Resting on the periphery, the law does interesting things to both solutions and protection. This juxtaposition of protection and solution is most acute with the solution of third country resettlement. Resettlement offers a solution but it is also conceived of as protection in and of itself and representative of international burdensharing. In the less globalized world of the early twentieth century, resettlement was in fact the dominant response to refugees. Travel was more difficult and states therefore appeared further apart. Non-refoulement was practically irrelevant in much of the global North where access to asylum was often difficult to reach. Faced mid-century following the second world war with increasing refugee flows significant enough to demand and achieve an international response, the consequent 1951 Convention left resettlement to continue on 12  There are agreed upon criteria for UNHCR to determine its resettlement referrals endorsed by its Executive Committee in 1996 but states are in no way bound by these criteria: legal or physical security, survivors of torture and violence, medical needs, women and girls at risk, children and adolescents, elderly refugees, family reunification, voluntary repatriation or local integration not available or feasible in the foreseeable future. UNHCR Excom, Resettlement: An Instrument of Protection and a Durable Solution (EC/46/SC/CRP.32) Standing Committee, 28 May 1996.  6  a voluntary basis and legalized non-refoulement on an individuated case by case basis. That no law was imposed on resettlement by the international community was a purposeful absence. Burden-sharing was recognized and prominently placed in the Preamble to the 1951 Convention,13 but it was not made into a binding legal obligation. From the state perspective, however, resettlement has tended to be fit into a legal framework. Resettlement resembles immigration in the application and selection of individuals from abroad for citizenship in the new state. To facilitate this process, a domestic legal framework is placed on the voluntary act of protection and international burden-sharing. The body of the dissertation will cover in detail the Canadian regulatory scheme for resettlement, and show the modes through which resettlement is permitted and effected. Resettlement requires a government to decide on its approach to the selection and integration of refugees and how to fund the program. In Canada, this entails that regulations frame the resettlement process. The law is thus both present and absent in refugee resettlement. The underlying question of the dissertation is what to make of this legal positioning? What does the law do to resettlement? What does the absence of law entail? How does the legally framed but voluntary act of resettlement influence the non-voluntary legal arm of refugee protection? By answering these questions, law is brought into the story of resettlement. The dissertation therefore reveals resettlement in the previously unaddressed light of the law. Resettlement is not simply a voluntary act that states may do or not do at their leisure. It is an act of  13  Within the Preamble it is stated: “Considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation,” 1951 Convention, supra note 1.  7  international protection and burden-sharing that is influenced by law, and that through its voluntary nature, influences the international refugee law of non-refoulement. Canada at the Forefront Three states have traditionally been the leaders in resettlement: Canada, Australia and the United States of America. Combined they receive approximately 90% of UNHCR’s resettlement referrals.14 They are western states far removed from refugee flows. Incountry claims of asylum triggering non-refoulement occur but never in the numeric masses encountered by the refugee receiving countries that neighbour refugee producing countries generally in the global South. Large-scale resettlement programs recognize these geographic realities and contribute to international refugee burden-sharing. In total, now more than 20 states offer resettlement programs with yearly resettlement numbers ranging from the tens of thousands to single digits.15  14  UNHCR, “UNHCR Projected Global Resettlement Needs 2013” 18th Annual Tripartite Consultations on Resettlement, Geneva (9-11 July 2012) at 61; online: <http://www.unhcr.org/5006aff49.html>. 15 While ad hoc resettlement changes the number of states each year, UNHCR indicates 26 resettlement states worldwide in 2012: Argentina, Australia, Brazil, Bulgaria (implementation in 2012 onwards), Canada, Chile, the Czech Republic, Denmark, Finland, France, Germany, Hungary (implementation in 2012 onwards), Iceland, Ireland, Japan (pilot programme), the Netherlands, New Zealand, Norway, Paraguay, Portugal, Romania, Spain, Sweden, the United Kingdom, Uruguay, the United States of America. UNHCR, “Frequently Asked Questions about Resettlement” online <http://www.unhcr.org/4ac0873d6.html> at 2. See Table 7: Top Ten UNHCR Resettlement Departures by Country of Resettlement 2010-2011.  8  Table 1: UNHCR Resettlement Data 2007-201116 2007  2008  2009  2010  2011  Submissions  98,999  121,214  128,558  108,042  91,843  Departures  49,869  65,859  84,657  72,914  61,649  80  80  94  86  79  65  68  77  71  77  25  24  24  28  22  Country of Asylum* Countries of Origin* Countries of Resettlement**  * Based on Submissions ** Based on Departures  The dissertation will focus on Canadian resettlement. The Canadian program offers diverse and creative resettlement models. It is also a program currently in a period of political and legal flux. As such, the Canadian program offers a wide range of resettlement insight that will be of comparative benefit and helpful to a holistic and international examination of resettlement. The American and Australian resettlement programs will be used to better understand the Canadian models and the alternative approaches that are possible. The dissertation consists of seven chapters. Following this Introduction, Chapter 2 “International Rights and Burdens” will situate resettlement in its international context and provide a review of the literature addressing resettlement and connected to the concepts of human rights and burden-sharing. Chapters 3-5 will follow the Canadian resettlement models. Resettlement in Canada occurs through either a government program or citizen supported private sponsorship. Within these two main models the program permits group resettlement of a specific group of refugees sharing the same ethnicity, language and, or, culture, to one location thereby creating immediate social networks, and previously 16  Table based on table in UNHCR, “UNHCR Projected Global Resettlement Needs 2013” supra note 14 at 61.  9  permitted source country resettlement from specifically identified countries. Chapter 3 “Canada’s Commitment” will examine Canada’s government assisted resettlement program. It sets out the distinction between resettlement and refugee law and the juxtapositioning of the two in refugee protection. Chapter 4 “Complementary or Consuming?” will look at the introduction of a complementary scheme of private sponsorship in Canada and how the addition of private citizens into resettlement affects the approach to and selection of refugees for resettlement. Chapter 5 “Beyond the Convention” will probe the programs within these programs, group sponsorship and source-country sponsorship, and what these selection processes reveal about the shifting focus of Canadian resettlement. With this examination of the full context of the Canadian resettlement program, Chapter 6 “Further Afield” will examine Australia and the United States and each state’s use or non use of these same resettlement models. With each resettlement model three issues are examined. The framing question and key issue is what role does the law play? Where is the law present? Where is it absent? What are the intentional and unintentional consequences of the law’s mingling with the voluntary act of resettlement? To understand and assess the law, two other issues must be explored. They are the conflicting or mutually complementary justifications of refugee protection: international burden-sharing and human rights. Burden-sharing is non-binding and operates through political maneuvering in the shadow of the law. Resettlement tends to be motivated by the rhetoric of burden-sharing but is arguably often used to avoid greater refugee burdens in the resettlement states. The dissertation examines the consequences on burden-sharing though the use of resettlement.  10  Whereas burden-sharing highlights the voluntary basis of refugee protection, human rights assertions impose a secondary layer of legal obligations that may either help or hinder refugee protection. While the intent is for human rights arguments to broaden protection justifications, there is the adverse risk that they permit a shirking of responsibility. The dissertation queries how a rights discourse influences the voluntary perception of burdensharing responsibility. Ultimately, exploring the languages of law, burden-sharing, and human rights, the dissertation seeks to determine how resettlement is best used to promote both burdensharing and the protection of human rights, how it can be positively promoted, where it is unintentionally misused, and where it risks corruption. Bringing Law into Resettlement Though this be madness yet there is method in it.17 As will be seen in the following chapter, resettlement’s international status as mostfavoured or least-favoured solution to the refugee ‘problem’ fluctuates over time. What remains constant is that it is a necessary, albeit modest, solution and component of refugee protection and burden-sharing. Arguably because of its given but limited role and use by only a select number of states, resettlement receives minimal consideration. As the dissertation will show, it is attached to burden-sharing proposals with little elaboration beyond its stated presence in the plan, and unproblematically presumed in human rights agendas. Alternative resettlement models such as group resettlement, in-country processing and private sponsorship receive limited and specific examination disconnected from a  17  William Shakespeare, Hamlet, Barbara A. Mowat & Paul Werstine (eds.) (New York: Washington SquarePocket, 1992.) Act 2, Scene 2 (spoken by Polonius).  11  holistic approach to resettlement. The aim of the dissertation is to remedy this absence and provide a comprehensive understanding and analysis of refugee resettlement that is lacking in the existing refugee law discourse. My research intention is to map and assemble existing resettlement scholarship and models into a singular and thorough analysis of what resettlement is. Establishing this picture of resettlement allows for the question of law to be introduced. A hitherto unrecognized linkage between law and resettlement is identified, analyzed and assessed. At law’s border, resettlement is ultimately unsettled from the unquestioned cursory role it usually plays in refugee discourse. The novelty of the question of law’s role in resettlement combined with the scarcity of academic literature considering resettlement necessitates a multi-pronged research design and methodological approach to the dissertation. A variety of sources of information are required in each chapter to define, clarify and analyze the research question. That said, the methodology is grounded in the legal discipline. Statutory and judicial authority frame and define resettlement. International law, Canadian and other states’ statutory law, regulations, court decisions, and policies are collected and interpreted. The 1951 Convention, and Canada’s Immigration and Refugee Protection Act (IRPA) and Regulations,18 as well as predecessor legislation, are at the forefront of this analysis. Chapter 3 devotes particular attention to judicial review in the Canadian Federal Court of visa officer decision-making on resettlement cases. Legislative review and Standing Committee reports are examined in Chapters 3-5 to reveal the considerations underlying law’s movement and particular  18  Immigration and Refugee Protection Act, S.C. 2001 c. 27. [IRPA]; Immigration and Refugee Protection Regulations, SOR/2002-227.  12  attention is paid to the nuanced shifts from the previous Immigration Act19 to IRPA. Two Access to Information Requests were also made to Citizenship and Immigration Canada to gain statistics on humanitarian and compassionate grounds applications made under IRPA and a breakdown of permanent resident visas issued under the vulnerable/urgent need exception in IRPA. How these layers of law, both domestic and international, interact and conflict with each other demonstrate law’s relevance to resettlement. Other primary texts including Canadian government documents and those produced by UNHCR are examined and critiqued. Library-based traditional legal research of secondary sources supports the interpretation of primary texts. There is also a necessary historical context to the analysis. To understand how states, and Canada in particular, engage with refugees requires a long-term view of the creation and development of laws and policies in the twentieth century. The historical component of the project was achieved through the review of primary and secondary sources. Chapter 4’s discussion of the origins of private sponsorship in Canada pre-dating the Indochinese boatpeople relied on documents from the Jewish Immigrant Aid Society found in the Canadian Jewish Congress Charities Committee National Archives. Interviews were further conducted with representative players20 from both the public and private sector involved in the creation of Canada’s private sponsorship scheme. Media coverage from Canada’s national and provincial newspapers and government news releases were broadly surveyed through Factiva searches of relevant terms to provide  19  Immigration Act, R.S.C. 1985, c.I-2. Howard Adelman, telephone interview with author, 8 July 2010; Rivka Augenfeld, former JIAS employee, telephone interview with author, 9 July 2010 & interview with author, 23 August 2010; Mike Molloy, former Director of Refugee Policy Division interview with author, 24 March 2011.  20  13  insight into Government positioning and public perspectives on specific events and policies.  Interviews in Canada were conducted with representatives from UNHCR,  Citizenship and Immigration Canada, Immigrant Services Society of British Columbia, Immigrant Settlement and Integration Services Nova Scotia, Manitoba Interfaith Immigration Council and the City of Winnipeg Wellness and Diversity Coordinator. Discussions in Australia were conducted with refugee scholars as well as informal conversations with the Refugee Council of Australia, a solicitor with the Refugee and Immigration Legal Service and a resettlement worker. The interviews and conversations sought to address knowledge gaps, clarify and confirm policies and procedures, expose any outstanding issues, redundancies or contradictions in resettlement policies, test tentative conclusions, and explore options for reform.21 I also represented the Canadian Council for Refugees (CCR)22 as a delegate on a factfinding mission to Colombia in November 2010. The objective of the delegation was to gather information on the human rights situation within the country in the face of declining acceptance rates of Colombian refugees at the Canadian Immigration and Refugee Board, as well as significantly reduced source country class resettlement from Colombia to  21  A complete list of individuals and organizations interviewed is provided in Appendix A. The CCR began in 1978 as the Standing Conference of Canadian Organizations Concerned for Refugees. The organization changed its name to the Canadian Council for Refugees in 1986 and sought charitable status. Its Mission Statement, adopted in 1993, positions the CCR as “a non-profit umbrella organization committed to the rights and protection of refugees in Canada and around the world and to the settlement of refugees and immigrants in Canada.” With a focus on information exchange, networking, policy-analysis and advocacy for and among its member organizations involved in protection, sponsorship and settlement, the CCR does much to promote public and political awareness of refugee rights, interests and protection. With connections to NGOs, academics and government officials, the CCR is a leading Canadian voice on refugee issues and provider of information Canadian Council for Refugees, “Brief History of Canada's Response to Refugees” (2009); online: <http://ccrweb.ca/canadarefugeeshistory5.htm.>; Canadian Council for Refugees, “Mission Statement”; online: <http://ccrweb.ca/en/about-ccr.>.  22  14  Canada.23 Interviews were conducted with twelve organizations in Bogota.24 Through the assistance of the Jesuit Refugee Service, we visited an Internally Displaced Persons (IDP) Camp in Soacha, south of Bogota, and met with several IDPs. The purpose of my participation was two-fold. First, participation on the delegation enabled first-person interviews and insight on the largest source country class resettlement program offered by Canada to inform Chapter 5’s examination of this resettlement class. This involvement was crucial to my understanding of the program at a time of program flux. It preceded the Canadian government’s announced repeal of the source country class by four months.25 Second, my participation enabled a working relationship with the CCR which granted me access to a wide range of involved participants in refugee resettlement for informal interview purposes. These conversations shaped my insight and understanding of the program from a wide array of perspectives across Canada. Chapter 6 is primarily a comparative law piece. Konrad Zweigert and Hein Kötz define comparative law as simply “the comparison of the different legal systems of the world.”26 They go on to clarify such comparison must be specific and not merely descriptive.27 The chapter is an applied microcomparison28 looking at the U.S. and Australia, and examining the specific use of resettlement in these states in comparison to Canada.  23  Francisco Rico Martinez & Canadian Council for Refugees, “The Future of Colombian Refugees in Canada: Are We Being Equitable?” (Canadian Council for Refugees, 2011). 24 See Appendix A for list of organizations visited. 25 On 10 March 2011 the Canadian government gave notice to remove the source country class from IRPA’s regulations. Citizenship and Immigration Canada, “Regulations Amending the Immigration and Refugee Protection Regulations and Regulatory Impact Analysis Statement” 145:2 Canada Gazette (19 March 2011); online: <http://www.gazette.gc.ca/rp-pr/p1/2011/2011-03-19/html/reg3-eng.html>. 26 Konrad Zweigert & Hein Kötz, Introduction to Comparative Law (Oxford: Claredon Press, 3rd ed., 1987) at 2. 27 Ibid. at 6. 28 Ibid. at 5, 12.  15  A key contribution of the dissertation is therefore the gathering together and mapping of existing resettlement scholarship, historical documents, primary policy and legislative material, government and United Nations reports, documents, posted data and statistical reports. While the information itself is not new, it has not previously been brought together into a singular examination; nor has there been an overlay of legal analysis onto the data as is achieved here. The project is thus not primarily empirical in the narrow meaning of analysis of a gathered data set, but is nonetheless based on observation and analysis. In arguing for a clearer recognition of, and statement of, methodology for empirical legal research, Lee Epstein and Gary King suggest: What makes research empirical is that it is based on observations of the world – in other words, data, which is just a term for facts about the world. These facts may be historical or contemporary, or based on legislation or case law, the results of interviews or surveys, or the outcomes of secondary archival research or primary data collection. Data can be precise or vague, relatively certain or very uncertain, directly observed or indirect proxies, and they can be anthropological, interpretive, sociological, economic, legal, political, biological, physical, or natural. As long as the facts have something to do with the world, they are data, and as long as research involves data that is observed or desired, it is empirical.29 As a voluntary endeavor taken on by willing states, resettlement is ad hoc with terms, conditions and approaches that vary between states and understandings of intentions that vary between individuals. A succinct and straightforward understanding of how resettlement operates is impossible. The gathered information will set out a picture of resettlement models in key resettlement states, state resettlement policies and intentions, state-UNHCR interaction, and to an extent, attitudes and approaches to resettlement in both resettlement states and among UHNCR officials. The creation of such a comprehensive picture establishes the schematic basis of the dissertation and enables comparative textual 29  Lee Epstein & Gary King, “The Rules of Inference” (2002) 69 The University of Chicago Law Review 133 at 3.  16  analysis of scholarly and primary sources and an understanding of the intersection of the theoretical with the practical application of the models. Ultimately, as a dissertation in law, the point of the project is to make a persuasive argument.30 The methodology is structured around gathering the factual evidence to evaluate this argument. The analytical work on the place of law within resettlement will permit the argument to be made that resettlement is more legally influenced and influential to the legal scheme than assumed, and deserves attentive restructuring to ensure refugee protection is forefront. The greatest obstacle in data collection was achieving a clear picture of a scattered program with a variety of players and interests and fluctuating policy. In particular, government rhetoric can often cover or blur unstated intentions. Sifting through public announcements and assessing their timing and issue linkages was both fascinating and confounding. This was particularly the case during this project as the research period spanned significant legislative reform of Canadian refugee law,31 the consequences of which cannot yet be fully known or appreciated. Many in the Canadian resettlement community, particularly amongst private sponsorship groups and those in government, were resistant to the dissertation’s premise that law and resettlement are linked. That resettlement is a voluntary scheme seemed to close off any openness to the possibility of law’s relevance. The failure of key actors to appreciate the project’s central assertion highlights the novel ambitions and importance of the dissertation.  30  Of course, a doctoral project in law can be empirically based as well, see ibid. Nor in indicating the central argument of the dissertation do I mean to suggest that the discussion is one-sided or dismissive of alternative views. 31 Balanced Refugee Reform Act, S.C. 2010, c. 8 (assented to 29 June 2010) (formerly Bill C-11); Protecting Canada’s Immigration System Act, S.C. 2012 c.17 (assented to 28 June 2012) (formerly Bill C-31).  17  The absence of a legal obligation to resettle further places resettlement in a vulnerable position. Critiquing a voluntary government program requires delicacy. Chapter 4’s discussion of the expansion of private sponsorship into a tool for family reunification predicted a 2012 announcement by the Canadian government to place significant limits on the program to curtail this tendency toward family reunification. As will be examined in Chapter 5, concerns that Canada’s source country class resettlement required reform led instead to the removal of the class. Refugee advocacy tends to focus on Canada’s meeting of its international obligations to refugees. Resettlement is sidelined in an unstated but apparent “be grateful for what we have” mentality. I encountered significant hesitancy in interviews and casual conversations with those working in resettlement in Canada to express any criticisms of the program’s operation beyond the desire for more freedom for more resettlement. By putting resettlement at the forefront of a critical academic examination, the dissertation seeks to provide an accurate assessment of the program free from concerns about the consequences of criticism. Nevertheless, the dissertation arises out of a sincere belief in the importance and continuance of the resettlement of refugees as a voluntary activity. It is necessary to take a further moment to address the academic-advocacy divide, particularly given the dissertation’s grounding in law. Many of the individuals interviewed for this project are actively involved in refugee advocacy. Publications by organizations such as the CCR are likewise oriented toward advocacy. The dissertation project is however quite distinct from these interests. In general terms, while their concern is with refugees, the focus of the dissertation is on law. Law clearly plays a role in advocacy for refugee protection. While advocacy may be a consequence of the dissertation, it is not an  18  intent. Nor is the aim to provide policy directions to governments; although some recommendations are offered in the Conclusion. Rather, the intent is to provide a research output that can serve as a reflection against which to evaluate state resettlement policies. The incorporation of my recommendations by resettlement states is a desirable consequence but not a direct ambition of the project. Beyond Traditional Concepts of Law Cathedrals, too, have windows. Grand and ornately stained, one cannot look out of them. On the contrary, they are meant to let the light in but to cloister the soul. The orthodox are within, knees bent in prayer. The heretics are without, hammering their theses to the door and noses pressed to the glass. But what, I wonder, would be the view, across the glebe and into the fields beyond?32 This dissertation is located in the fields beyond. Before the substantive work can begin, the final necessary task of this introduction is to state my conception of a doctoral project in law. To do so I must address what it is that I mean by the term “law.” This introduction has already reviewed the fluidity of law from the tenuous grounding of international law to the firm foundation of domestic law and the peripheral presence of law even in the voluntary scheme of refugee resettlement. This is not a project on the examination of doctrinal law in either its domestic or international form. Rather, law is embraced in both forms and in all their nuances to explore its hidden influences and consequences. To situate my conception of law for this purpose, I take as my starting point Desmond Manderson’s notion of “apocryphal jurisprudence.”33  32  Desmond Manderson, “Apocryphal Jurisprudence” (2001) 23 Studies in Law, Politics and Society 81; online: <http://www.mcgill.ca/files/crclaw-discourse/manderson-apocryphal.pdf> at 22 [citation pinpoints are to the online article]. 33 Ibid.  19  The idea of apocryphal jurisprudence is meant to challenge the theoretical underpinnings of traditional legal theory.34 Manderson suggests that both legal positivism35 and its antithesis of critical legal studies36 exist within a shared tradition and discourse. This discourse, while divisive, remains within a particular framework of the parties.37 Within this framework there is definitional acceptance in the ideal of justice as a system of rules. Debate is centered on whether this ideal has been met or is over-ridden with justice realized instead through politics.38 William Lucy’s text Understanding and Explaining Adjudication39 in which Lucy presents the debate on the meaning of adjudication as a war between the orthodoxy and the heresy is the catalyst for Manderson’s discussion. Manderson’s appropriation of the apocrypha is meant to build upon this analogy and illustrate an alternative approach. The apocrypha is situated as not opposed to but rather outside of this framework containing the legal canon and its critics.40 Texts within the apocrypha reconceive the law. Apocryphal work “focuses on what is missing from a certain conception of law, about the resources that yet remain within it to speak of these absences and failures, and about  34  See Andrei Marmor, “The Nature of Law” in Edward N. Zalta (ed.) The Stanford Encyclopedia of Philosophy (2011) for a summary of the basic debates in traditional legal theory. 35 The basic premise of positivism is that law is the command of a sovereign backed by force. See Jeremy Bentham, Of Laws in General (1782) H.L.A. Hart (ed.) (London: Athlone Press ,1970); H.L.A Hart, The Concept of Law, 2nd ed., P. Bulloch & J. Raz (eds.) (Oxford: Clarendon Press, 1994); Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979); Hans Kelsen, Pure Theory of Law, M. Knight (trans.) (Berkeley: University of California Press, 1967). 36 Critical legal studies challenges the notion of law’s neutrality and argues law and politics are intertwined. See Roberto Unger, “The Critical Legal Studies Movement” (1983) 96:3 Harvard Law Review 561. 37 “one senses a mutual complicity in this dialogue of the damned.” Manderson, “Aprocryphal Jurispurdence” supra note 32, at 3. 38 Ibid. at fn 15 and fn 32. 39 William Lucy, Understanding and Explaining Adjudication (Oxford, U.K.; New York: Oxford University Press, 1999). 40 Manderson “Aprocryphal Jurispurdence” supra note 32.  20  drawing our attention to how and where the law gives out.”41 In this way, one can move away from the specificity of legal rules and concern over the definition of law to broader explanations of law’s purpose, its interest, its power.42 It is the idea of law as a verb and not a noun, law’s ability to control, modify and structure reactions and responses.43 For Manderson, this is the “genre of law” beyond the singular moment of determination in law.44 Manderson presents apocryphal jurisprudence as “a new genre of legal theory”45 but also less robustly as an “apocryphal temperament.”46 I find this latter description more fitting as the apocrypha is decidedly outside of canonical work, possesses a “freedom to be singular” and represents “a collection of unusual documents that speak and only speak for themselves.”47 The task of the apocrypha is to “look where the tradition is blind, to engage with different concerns entirely, and thus to develop a new language whose strength lies in its very incommensurability.”48 Manderson notes that it was not the inauthenticity of the biblical namesake for his genre that led to its exclusion but the impossibility of domestication.49 The move with apocryphal jurisprudence is to give legitimacy to emerging literature that is outside of the canon and distanced from doctrine and yet still actively contributing to the study of the law.  41  Ibid. at 21. Ibid. at fn 39. 43 Desmond Manderson, “Desert Island Disks: Ten Reveries on Inter-Disciplinary Pedagogy” (2008) 2 Public Space: The Journal of Law and Social Justice. 44 Manderson, “Apocryphal Jurisprudence” supra note 32 at 38. 45 Ibid. at 31. Manderson is careful to add “I do not say the genre or seek to over-estimate its importance.” 46 Ibid. at 47, 59. 47 Ibid. at 47. 48 Ibid. at 29. 49 Ibid. at 31. 42  21  Manderson is not strictly forward-looking in his presentation of a new genre but rather puts the name of apocryphal jurisprudence on an “avowedly eclectic” array of scholarship already taking new and diverse approaches to law.50 In doing so he grants these approaches a collective legitimacy lacking in their individual orientations: Through the analysis of legal and non-legal texts, jointly not severally, we are invited to learn more about the relationship of the discourse of law to the cultural framework in which it is embedded; about the society through which both law and non-law emerge; about the mutual constitution of values and concepts through the dialogue which these social structures sustain.51 I embrace the idea of the apocrypha to move me likewise outside of traditional approaches to and understandings of law. The current of apocryphal jurisprudence therefore runs beneath this dissertation. The hope is that with such a temperament the project can move beyond the traditional conception of refugee law to see the multitude of legal influences in both refugee law and policy on a domestic and international sphere. Manderson’s invocation at the outset of this section to move away from the cathedral and across the glebe to the fields beyond is well suited to the aim of this project which seeks to explore refugee law not at the border or at the point of an asylum claim, but further afield in the operation of the non-legal act of resettlement. The  50  See as only a few examples of the multiple references Manderson provides: William MacNeil, “The Monstrous Body of Law: Wollstonecraft v. Shelley” (1999) 12 Australian Feminist Law Journal 21; “John Austin or Jane Austen?” The Province of Jurisprudence Determined in Pride and Prejudice (1998) 4:2 Law Text Culture 1; Adam Gearey “Death and the Law Between James Joyce and Pierre Legendre” in Courting Death: The Law of Mortality, Desmond Manderson (ed.) (Pluto Press, 1999) 194; Brook Thomas, Cross Examinations (New York: Cambridge University Press, 1987), Costas Douzinas, Justice Miscarried: Ethics, Aesthetics, and the Law (Hemel Hempstead: Harvester Wheatsheaf, 1994); Costas Douzinas, Shaun McVeigh, and Ronnie Warrington, “The Alta(e)rs of Law” (1994) 9:4 Theory Culture and Society 193; Piyel Haldar, “In and Out of Court: Of Topographies of Law and the Architecture of Court Buildings” 7 International Journal for the Semiotics of Law 185; Costas Douzinas and Lynda Read, (eds.), The Law of the Image (Chicago: University of Chicago Press, 1999); Slavoj Zizek, The Plague of Phantasies (London: Verso, 1997); Peter Goodrich, Oedipus Lex: Psychoanalysis, Law, History (Berkeley: University of California Press, 1995) as well as Manderson’s own body of work. 51 Manderson, “Apocryphal Jurisprudence” supra note 32 at 39.  22  reluctance noted in the previous section by some to even contemplate the possibility of a dissertation in law on the legally lacking voluntary scheme of resettlement illustrates the apocryphal nature of the project that appears by definition incomprehensible. The project is interested in how refugees are influenced by the law, from outside of the law, and what this does to their access to protection, their rights. Manderson speaks of the apocryphal’s interest in “the marginal, in voices excluded by normative law, and by the complex layers of that exclusion.”52 Here, again, refugees waiting in a state of legal limbo at both actual and metaphoric borders are the clear manifestation of these marginal excluded voices. Manderson suggests that practitioners of apocryphal jurisprudence are “interested in ideas of myth and reality, of the historical contingency of authority, and of the importance of narratives in the construction of our beliefs.”53 While the work he considers much more directly embraces the discourses of other genres, there is a conceptual congruence with the aspirations of this project. The chapters that follow delve deeply into the myths and narratives that both direct refugee policy and influence understandings of refugee identities and arrival routes. The historical context of the development of the 1951 Convention and Canada’s refugee legislation is necessary to understand these laws and the myths that accompany them. And yet, as Manderson makes clear, the methodology does not claim outside disciplines to lend authority to law.54 Law is the focus of this dissertation but it is law as much more than a medium of decision-making.55  52  Ibid. at 58. Ibid. at 31. 54 Ibid. at 39. 55 Manderson explains: “Law is not about determination because that is law’s medium but not its function.” Ibid. at 40. 53  23  Law’s influence outside of its application has been previously examined in other manners as well. In Bargaining in the Shadow of the Law: The Case of Divorce, Robert Mnookin and Lewis Kornhauser present an argument on how the legal system surrounding divorce affects the bargaining process between separating couples that occurs outside of this system.56 This is a helpful and approachable analogy to the task at hand. They suggest the interactions between separating couples occurs “in the shadow of the law” by which they mean that bargaining is influenced by a knowledge of the legal outcomes if the legal process were to be invoked.57 In essence, it is not the law but an awareness of the law that is relevant. Mnookin and Kornhauser conclude by noting that law’s shadow is cast in many contexts, and stress the need for further research on this influence.58 While my project does not address the individual bargaining between parties that these authors consider, it does pursue the basic premise that law affects outcomes outside of its direct application. The rejection of traditional legal theory to ground this dissertation is further supported by Margaret Davies’ apocryphal work Asking the Law Question: The Dissolution of Legal Theory.59 While the substance of Davies’ text examines the various theories and approaches to law that constitute the legal canon, it is her introduction that sets out her own understanding of law that is most relevant to my interests. Davies presents the basic understanding of law as a means of ordering society. The suggestion is that law is a “huge system of categorization.”60 This is evident in the refugee context where categorizations of legality and illegality dominate. But, just as Manderson urges us to turn to other sources to 56  Robert Mnookin & Lewis Kornhauser, “Bargaining in the Shadow or the Law: The Case of Divorce'” (1978-1979) 88 Yale Law Journal 950 at 951. 57 Ibid. at 968. For Mnookin and Kornhauser, this suggests that the primary function of the legal system is to enable private ordering and dispute resolution. 58 Ibid. at 997. 59 Margaret Davies, Asking the Law Question (Sydney: Law Book Co., 2nd ed., 2002). 60 Ibid. at 5.  24  understand law, for Davies, the reality is that law cannot be separated out: “we cannot dissociate our understanding of law from our conventional environments – our language, our social existence, and the institutions which structure our lives.”61 Seeking an answer to her own query of what the law is, she notes that “[l]imiting jurisprudence to the idea of law in a legal system is therefore only reinforcing the artificial distinction between law and non-law.”62 Again this is the fault in defining law against politics and morality and all that is not law because it is all “always there in law.”63 Moreover, as Davies’ points out “legal definitions are never separated from popular ones.”64 Law expands outward from its basic function. The legal/illegal categorizations break down in a realm where various laws interweave. These intersections are at the crux of the dissertation. Davies’ urges us to look at “the ways that the intersections of all sorts of laws define our society, our political agendas…”65 Just as borders are inherently porous despite a state’s best efforts to seal, there is no closure to the law.66 We are back in Manderson’s glebe stretching out into the fields beyond. The further difficulty in situating this dissertation in anything other than apocryphal theory is the failure of traditional legal theory to envision such a fluidity of law. Legal theorists tend to think only in national units. Often this is linked to the objective of seeking  61  Ibid. at 93. Ibid. at 7. 63 Ibid. at 16. 64 Ibid. at 6. 65 Ibid. at 21. 66 Ibid. at 84-85. Drawing on Hans Kelsen’s work on legal norms, Davies explains: Thus the basic norm is in a paradoxical position. It is not itself law, but it is the basic definition of what is law. It would seem at once to be both inside and outside the legal system. This is hardly surprising, since it is the limit of law. A limit is neither inside or outside that which it defines…Basically what this paradox indicates to me is the impossibility of legal closure. 62  25  legitimacy for law’s authority within a legal system.67 Catherine Dauvergne refers to this as “law’s traditional tie to the nation.”68 It reverberates throughout modern legal philosophy and serves almost as a precondition of any attempt to explain law.69 Even the concept of international law, which is only a component of the discussion that follows, struggles to locate itself in a discipline of law based in domestic legal systems. Jutta Brunnée and Stephen Toope address this challenge of international law.70 These authors grapple with the perception of international law by social scientists, as well as traditional legal theorists and lawyers, that is trapped in “the distorting optic of the domestic law analogy.”71 While it is unnecessary to explore in depth their attempt to set international law in a theoretical framework understandable by both social scientists and legal scholars, their recognition of the need for a language of law that can stand up to interdisciplinary work is insightful as much for the challenges they set out, as for the solutions they put forward. They note: “In looking for such interdisciplinary insights,  67  See John Rawls’ “just society” in Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press, 2005); Ronald Dworkin’s concept of integrity within but not among political communities in Dworkin, Law’s Empire (Cambridge, Mass.: Belknap Press of Harvard University Press, 1986) at 185. 68 Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (Cambridge: Cambridge University Press, 2008) at 175. Andreas Wimmer and Nina Glick-Schiller similarly suggest that a “container model of society…developed in the social sciences and became dominant after the Second World War.” They challenge the “taken-for-granted assumption of methodological nationalism” that preclude migration research. Andreas Wimmer and Nina Glick-Schiller, “Methodological Nationalism and Beyond: Nation-State Building, Migration and the Social Sciences” (2002) 2:4 Global Networks 301 at 309, 310. 69 The exception to this is natural law which offers a universal embrace. Davies suggests that “[t]he attraction of natural law in the modern era is its ideal of providing a basic system of universal moral values according to which atrocities in war and other abuses of human rights can be objectively condemned.” Davies, Asking the Law Question, supra note 59 at 72. While natural law is not limited to the state it nonetheless remains limited: “if we try to base our actions directly on the truths of natural law, we immediately confront the question, ‘Whose natural law?’” Jeremy Webber, “National Sovereignty, Migration, and the Tenuous Hold of International Legality: the Resurfacing (and Resubmersion?) of Carl Schmitt” in Of States, Rights, and Social Closure, Oliver Schmidtke & Saime Ozcurumezeds (eds.) (New York: Palgrave Macmillan, 2008) at 75. 70 Jutta Brunnée & Stephen Toope, Legitimacy and Legality in International Law: An Interactional Account (Cambridge; New York: Cambridge University Press, 2010). Brunnée and Toope build upon the work of legal theorist Lon Fuller and bring it into international law, an area he “barely touched” at 15. 71 Ibid. at 9.  26  scholars have often adopted reductionist definitions of the ‘other’ discipline because they have not been actively involved in the constitutive internal disciplinary debates and processes that lead to healthy uncertainty and nuance.”72 In the case of law, a basic appropriation of the positivist view of law as sovereign enforcement is easily grasped by outsiders: “law can be found, defined, and labeled.”73 Again, this is the basic idea of categorization of law and non-law set out by Davies. The difficulty for Brunnée and Toope is that international law fails to fit within this theoretical framework. They therefore present an interactional theory that considers international law as not just between states but made through the interactions of a variety of actors (elites, media, non-governmental organizations (NGOs), citizens).74 Their aim is to explain the creation and arguments for upholding international law. In another vein, new legal realism seeks more broadly to bridge dialogues between law and social science. My reliance on apocryphal jurisprudence over new legal realism results from new legal realism’s desire to achieve interdisciplinarity and translation between the law and social sciences as well as its predictive predisposition. This dissertation remains devotedly legal in discipline while embracing interpretive assistance from other disciplines. It is not outcome oriented as is the focus of legal realism. Nor is the project primarily empirical in design whereas new legal realism’s aim is to bring legal theory and empirical research together. However, like Manderson’s apocryphal jurisprudence, new legal realism is concerned that “disciplinary orthodoxies do not wind up setting limits on their  72  Ibid. at 9. Ibid. at 10. 74 Ibid. at 5. 73  27  investigations.”75 There is thus an openness to new ways of approaching law: “Traditional legal material is necessary but not sufficient…law is a social institution that does not operate in a vacuum.”76 Three aspects of new legal realism prove particularly helpful to the construction of this project. First is the recognition of the need for “bottom up” as well as traditional “top down” research. The idea of bottom up, ground level, research to examine the “impact of law” and the understanding that “the less powerful people in society are often more invisible and silenced”77 is what takes this project beyond the top down examination of the domestic and international laws that govern the refugee regime. Second, new legal realism recognizes the global dimensions of the law.78 This is distinct from Brunnée and Toope’s discussion of the creation of international law. Instead, it is an acknowledgement of the global influences on domestic law and conversely the influences of domestic laws on other states. Third, new legal realism directly engages with policy issues.79 The combination of policy, legal theory and empirical research is presented as the “core ‘trilectic’ at the heart of this new paradigm.”80 In an effort to understand resettlement, the dissertation likewise embraces this joining of policy, theory and empirical research. The task of this dissertation is to search for where law is absent and to look differently at the law that is present. It is to give law a greater presence but also a warning to be wary of its greater influence. Law as an academic pursuit remains relatively young. In 1887 the  75  Howard Erlanger, et al., “New Legal Realism Symposium: Is It Time For A New Legal Realism?: Foreword: Is It Time For A New Legal Realism?” (2005) Wisconsin Law Review at 356. 76 Ibid. at 360. 77 Ibid. at 339, 341. 78 Ibid. at 343. 79 Ibid. at 344. 80 Ibid. at 345.  28  first law journal, the Harvard Law Review, commenced as an effort to legitimize the law school’s place in a university setting. Examining the historical development of the now ubiquitous law review, Bernard Hibbitts notes “As the patron of a ‘learned’ journal…[a law school] could at last make common academic cause with other progressive departments and professional schools on its campus…[and] more fundamentally, …demonstrate that the law was amenable to ‘scientific’ study.”81 And yet, over a century later, law remains an outsider in academia markedly distinct from the social sciences and humanities and not so easily amenable to scientific study.82 Law’s outsider status is a consequence of its inherent presence inside. It cannot be extracted for analysis. And so, while this dissertation is about law, and an effort to extract and analyze the unique instances of law that arise in resettlement, the dissertation is also, inevitably, about much more. Conclusion This dissertation follows from my 2007 Master of Laws thesis titled The Invisibles: An Examination of Refugee Resettlement.83 That project argued that refugees who fail to make it to the frontiers of safe states are simply not seen, with attention focused on asylum claimants. It is interesting to reflect back on that work’s focus on invisibility as the dissertation will show how the intervening years have brought resettlement refugees to the forefront of visibility with the assertion that they are, in fact, the only “real” refugees. With new initiatives in Canada to reduce human smuggling, promote resettlement, and reduce 81  Bernard Hibbitts, “Last Writes? Reassessing the Law Review in the Age of Cyberspace” Version 1.2 created 10 March 1997 (Version 1.0 created February 5, 1996 printed in (1996) 71 New York University Law Review 615); online: <http://faculty.law.pitt.edu/hibbitts/lastrev.htm> at 1.3. 82 See Epstein & King, “The Rules of Inference” supra note 29; Erlanger, et al. “New Legal Realism” supra note 75; Paddy Hillyard, “Law’s Empire: Socio-legal Empirical Research in the Twenty-first Century” (2007) 34 Journal of Law & Society 266; Brunnée & Toope, Legitimacy and Legality, supra note 70 for discussions of law’s interaction with the social sciences. 83 Shauna Labman, “The Invisibles: An Examination of Refugee Resettlement” LL.M. Thesis, UBC Faculty of Law (Vancouver: University of British Columbia, 2007).  29  refugee processing in Canada, the dissertation reveals how refugees waiting in camps are now much more commonly noted in government news releases, opinion pieces, and arguably public consciousness, than they were five years ago. Yet there is a danger in getting what you wish for. With this new assertion that resettlement is the right way to achieve refugee protection, those refugees waiting in camps with practically no chance of resettlement remain as invisible as before. At the same time, refugees validly claiming asylum are losing visibility in the juxtapositioning of resettlement and asylum.  This  research seeks to remedy this imbalance. By looking at law’s role in resettlement and the influence of resettlement on the law of asylum, the dissertation argues for the complementarity between the two programs.  30  CHAPTER TWO INTERNATIONAL RIGHTS AND BURDENS Introduction The dissertation queries how law influences the non-legal act of resettlement and conversely how resettlement compromises the law of asylum in both intentional and unintentional ways. This chapter begins with an overview of the historical development of the contemporary refugee regime and UNHCR’s challenge in fulfilling a mandate tenuously connected to human rights and comprised of both legal obligations and voluntary burden-sharing. In doing so, it also provides the necessary review of literature to frame the dissertation. There was a time when the refugee “problem” was thought to be solvable. While the movement of people has always occurred, and the Old Testament speaks of welcoming the stranger,1 the twentieth century marked the first modern attempts by the international community to act together to address refugee flows. These first attempts were all reactive to individual events and offered specified solutions for particular refugees. Even the scope of the 1951 Convention was originally limited to persons who became refugees as a result of events occurring in Europe before 1 January 1951.2 The 1967 Protocol relating to the Status of Refugees (1967 Protocol) confronted the reality that refugee crises are chronic and  1  Leviticus 19:34 “But the stranger that dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself; for ye were strangers in the land of Egypt: I am the LORD your God.” Numbers 35:6 “And among the cities which ye shall give unto the Levites there shall be six cities for refuge, which ye shall appoint for the manslayer, that he may flee thither: and to them ye shall add forty and two cities.” Deuteronomy 23:15-16 “ Thou shalt not deliver unto his master the servant which is escaped from his master unto thee: He shall dwell with thee, even among you, in that place which he shall choose in one of thy gates, where it liketh him best: thou shalt not oppress him.” (The Holy Bible, King James Version). 2 Convention relating to the Status of Refugees, 1951, 189 UNTS 150 (entered into force 22 April 1954).  31  worldwide, and expanded the 1951 Convention’s temporal and geographic coverage,3 but did not acknowledge the permanence of the problem. In fact, the continuation of the Office of the United Nations High Commissioner for Refugees (the Office) was originally only for three years.4 The Office was renewed by the General Assembly every 5 years thereafter. This temporal limitation on UNHCR’s continuation repeated until December 2003.5 At that time, the General Assembly removed the limitation and created a permanent framework for refugee protection. While stating that the Office would now continue “until the refugee problem is solved”6 the removal of the temporal limitation speaks to a recognition of the increasing unlikelihood of such resolution. A refugee, by international definition, is an individual who has been forced to flee his or her homeland for fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.7 While the refugee definition applies equally to all who are found to meet it, the protection attached to refugee status can differ greatly. Protection ranges from new citizenship to crowded camps. The determining factor is where refugee status is claimed. The 1951 Convention obliges state parties to not send back (“refoule”) refugees who have arrived within the state’s territory.8 While state parties  3  Protocol relating to the Status of Refugees, 1967, 606 UNTS 267 (entered into force 4 October 1967). UN General Assembly, Statute of the United Nations High Commissioner for Refugees, UNGA A/RES/428(V) 14 December 1950, at 5: The General Assembly shall review not later than at its eighth regular session, the arrangements for the Office of the High Commissioner with a view to determining whether the Office should be continued beyond 31 December 1953. 5 UNGA Res 57/186 C.3 104. The final five year continuation of the Office of the High Commissioner for Refugees was made on 18 December 2002. 6 Implementing actions proposed by the United Nations High Commissioner for Refugees to strengthen the capacity of his Office to carry out its mandate, UNGA A/RES/58/153, 22 December 2003. 7 1951 Convention, supra note 2 at Article 1A). 8 Article 33(1) of the 1951 Convention, ibid., provides: No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 4  32  are expected to grant refugee status and sometimes a route to citizenship to the refugees who reach their shores, other states, often overwhelmed by refugees and determined to discourage further flows, have not become party to the 1951 Convention or do not live up to their Convention obligations. The conundrum is that protection requires reaching a state party to the 1951 Convention and the states closest to refugee flows, as a result of their proximity, have often not become parties.9 The dilemma is heightened with the twenty-first century focus on state security where the fear of terror translates into a fear of foreigners and borders become barriers. Legally mandated protection is simply too often inaccessible. The majority of refugees find themselves inadequately protected, often in camps grudgingly set up in the neighbouring countries from which they have fled. In non-party states and states without their own refugee protection structure, UNHCR may grant mandate refugee status to identify asylum seekers meeting the criteria for refugee protection. A recognized mandate refugee receives protection from UNHCR despite being in a country not party to the 1951 Convention or regardless of whether the host county recognizes her as a refugee. UNHCR then seeks “durable solutions” for these refugees. Durable solutions comprise local integration in the receiving country, voluntary repatriation  9  For example, Malaysia, Nepal, Thailand, Jordan, and Lebanon are all within the top ten countries of asylum from which UNHCR made resettlement submissions in 2011 and none are state parties to either the 1951 Convention or the 1967 Protocol. UNHCR, “UNHCR Projected Global Resettlement Needs 2013” 18th Annual Tripartite Consultations on Resettlement, Geneva (9-11 July 2012) at 62; online: <http://www.unhcr.org/5006aff49.html>. Nor have other large refugee hosting states including Pakistan, India or Ecuador become state parties to either the 1951 Convention or the 1967 Protocol. Pakistan hosts one of the largest refugee populations in the world with approximately 1.7 million refugees, India hosts one of the largest urban refugee populations, and Ecuador hosts the largest refugee population in South America. UNHCR, “2012 UNHCR country operations profile – Pakistan”; online: <http://www.unhcr.org/pages/49e487016.html>; UNHCR, “2012 Regional Operations Profile - Asia and the Pacific”; online: <http://www.unhcr.org/pages/4a02d8ec6.html>; UNHCR, “2012 UNHCR country operations profile – Ecuador”; online: http://www.unhcr.org/pages/49e492b66.html>.  33  to the country of origin where the situation has changed so as to make this a possibility, or resettlement to a third country.10 While voluntary repatriation and local integration require negotiation with origin and host states, individual states concerned with refugee protection and the problems of protraction can independently and voluntarily decide to take on resettlement at any numeric level they determine to be appropriate. Resettlement is thus the solution controlled by the states seeking solutions. If willing, these states could solve the refugee problem through the resettlement of all refugees in cases where local integration or repatriation prove impossible. Resettlement in 2009 offered a solution for 112,400 refugees worldwide. UNHCR boasted the highest resettlement submission numbers in 16 years and a six percent increase from 2008.11 This represented the resettlement of just over 1 percent of the global refugee population. Much of the remainder of the global population waits in limbo in increasingly protracted situations.12 Protraction was previously defined by UNHCR as 25,000 or more refugees of the same nationality having resided in a host country for five years or longer.13  10  UNHCR, Resettlement Handbook (November 2004) at 1/2. UNHCR, “2009 Global Trends” (Division of Programme Support and Management, 2009) at 30-31. UNHCR submitted more than 128,000 individuals for resettlement in 2009 and 84,000 departed with UNHCR assistance. The remainder of 2009 resettlement places, 28,400, were resettled by states through their broader humanitarian programs and not directly through UNHCR. By 2011, numbers had decreased somewhat with UNHCR submitting 92,000 refugees to states for resettlement, close to 62,000 departing with UNHCR assistance and state statistics indicating a total of 79,000 refugees resettled to 22 states. UNHCR, “A Year of Crisis: UNHCR Global Trends 2011” at 3; online: <http://www.unhcr.org/4fd6f87f9.html>. 12 See Howard Adelman & Elazar Barkman, No Return, No Refuge: Rites and Rights in Minority Repatriation (Columbia Univeristy Press, 2011); Alexander Betts, The Politics, Human Rights and Security Implications of Protracted Refugee Situations (Conference Report) 19-20 September 2006, St. Antony’s College, University of Oxford (Oxford: OUP, 2006); Jeff Crisp, No Solutions in Sight: The Problem of Protracted Refugee Situations in Africa (Geneva: UNHCR, 2003); Gil Loescher, Protracted Refugee Situations: Political, Human Rights and Security Implications (Tokyo: United Nations University Press, 2008); Gil Loescher & James Milner, Protracted Refugee Situations: Domestic and International Security Implications (Abingdon; New York: Routledge for the International Institute of Strategic Studies, 2005); James Milner, “Refugees and the Regional Dynamics of Peacebuilding” (2009) 28 Refugee Survey Quarterly 13; UNHCR Executive Committee, “Conclusion on Protracted Refugee Situations” ExCom Conclusion No. 109 (LXI) (8 December 2009). 13 UNHCR, “2009 Global Trends” supra note 11 at 6. 11  34  By this definition, in 2009 an estimated 5.5 million refugees, over half of the global total, were in 25 protracted situations across 21 host countries.14 Even so, this definition is static and inadequate. It fails to encompass the chronic, irresolvable and recurring character of protracted refugee situations or articulate the long-term political consequences of protraction.15 A 2009 Conclusion by UNHCR’s governing Executive Committee removed the numeric minimum of 25,000 and strongly called on states and other relevant actors to commit themselves to address the roots causes of protraction.16 Protracted situations represent the failure of local integration, voluntary repatriation and resettlement. Protraction is the antithesis to solution.17 But the reality remains that resettlement will never be the “solution” to the refugee problem. It is, in fact, the smallest piece of the puzzle. This is as it should be. The relocation of people from their homes, their families, their regions, their languages or their cultures is by no means ideal. Nor would it be fair to assume that individuals, even those who have suffered tremendously in their countries of origin, do not ultimately desire to return home. There are many who argue that resettlement is a costly solution that acts as a “pull factor” inducing migration and creating greater problems in host countries, permits countries of origin to rid themselves of unwanted ethnic minorities, and hampers peace and stabilization possibilities through the permanent departure of citizens.18 The argument has been made that attention and resources should focus proactively on “preventative 14  Ibid. at 6. Loescher & Milner, Protracted Refugee Situations, supra note 12 at 14. 16 UNHCR, “Conclusion on Protracted Refugee Situations” supra note 12. 17 Gervase Coles, “The Human Rights Approach to the Solution of the Refugee Problem: A Theoretical and Practical Inquiry” in A. Nash (ed.), Human Rights and the Protection of Refugees Under International Law (Halifax: Institute for Research on Public Policy, 1988) 195-222 at 206. 18 See Michael Casasola, “Current Trends and New Challenges for Canada’s Resettlement Program” (2001) 19 Refuge 76 at 77; Gil Loescher, Beyond Charity: International Cooperation and the Global Refugee Crisis (New York; Oxford: Oxford University Press, 1993) at 16, 22, 59 for discussions of pull-factor arguments. 15  35  protection”19 to diminish the causes of displacement and reactively on peace-building. Yet, even unproblematically taking these programs at their best they are not enough. Refugee flows should never simply be assumed to occur and therefore abandon efforts to curtail flows, but neither can the remaining reality of these flows be ignored. Nor can they necessarily be resolved in the regions. The reality of protracted refugee situations with refugees lacking any solution betrays the idealism of the above arguments. The Refugee Regime and Resettlement’s History20 Prior to this century…The practice of sheltering those compelled to flight was not perceived as a burden, but rather as a necessary incident of power, and indeed as a source of communal enrichment.21 Resettlement is but one component of a refugee protection regime that has struggled with its identity, place and purpose since its creation more than 50 years ago. To appreciate resettlement’s place in the narrative of protection requires an understanding of the refugee regime’s shifting priorities and perspectives. The regime’s story is told in different ways as one that moves from exile to containment, from protection to assistance, conversely from charity to rights, and, in many ways, from enthusiasm to exhaustion. Resettlement’s role  19  UNHCR, “Report of the UNHCR Working Group on International Protection” (Geneva: UNHCR, 1992); Jennifer Hyndman argues that preventative protection …is at least as much about states’ interests as it is about assisting displaced persons in need…[it] is an expression of the more powerful states’ desire to avoid the legal obligations of refugees and to save nonrefugee taxpayers’ money in their home territories. It speaks to a desire for a multilateral, or UN, solution to displacement in order to avoid incurring the perceived expense of refugees, both economically and politically… She later notes: “To assist displaced people at home by employing the language of preventative protection and the safe spaces it designates is to maintain a safe and less costly distance between ‘us’ and ‘them’” Jennifer Hyndman, Managing Displacement: Refugees and the Politics of Humanitarianism (Minneapolis; London: University of Minnesota Press, 2000) at 27-28, 181; see also Bill Frelick, “Preventive Protection‚ and the Right to Seek Asylum: A Preliminary Look at Bosnia and Croatia” (1992) 4 International Journal of Refugee Law 439. 20 Components of this section come from Shauna Labman, “Looking Back, Moving Forward: The History and Future of Refugee Protection” (2010) Chicago-Kent Journal of International and Comparative Law; online: <http://www.kentlaw.edu/jicl/spring2010.html>. 21 James Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991) at 1.  36  within this story has been one of fluctuating favour as it swings between least and most preferred solution. Pre-1950 Refugee Regimes Refugee resettlement has a checkered past that pre-dates the 1951 Convention and lies at the foundations of modern day refugee protection. Founded in 1919 pursuant to the Treaty of Versailles, the League of Nations was the first international organization to address refugee issues.22 In response to an appeal from the International Committee of the Red Cross (ICRC) the League appointed a High Commissioner for Refugees in 1921. The first High Commissioner for Refugees, Fridtjof Nansen, was tasked to resolve the specific problem of the Russian refugees created by civil war and famine in the Soviet Union.23 His solution for the Russian and subsequent Armenian, Assyrian and other Christian refugees following the fall of Ottoman Empire was a travel document. The “Nansen Passport” gave refugees a legal identity and enabled them to travel internationally. Refugees were perceived through a redistributive lens. Rather than a promise not to turn refugees away, the passport assisted in the movement of refugees – their ‘egress’ and ‘ingress’ – in an ‘equitable’ manner to willing states.24 Nansen’s 1922 High Commissioner’s report refers to  22  Peace Treaty of Versailles, Covenant of the League of Nations, Articles 1-30. The League of Nations stated: The Conference considered the difficulties which existed with reference to passports for Russian refugees. These called for special arrangements which could only be made by the High Commissioner with the various interested Governments. In particular such arrangements should make possible the egress of Russian refugees from countries where they were presently congregated and for their ingress to the States which were willing to receive them. (League of Nations, Fourteenth Council Session, Annexes 245 and 245a, emphasis added) 24 Ibid. The League’s resolutions did mention non-refoulement but only briefly and in connection with repatriation: Finally, the Conference considered that no Russian refugee should be compelled to return to Russia (non-refoulement) but that it would be expedient to collect without delay particulars of the number of refugees desiring to be repatriated (voluntary repatriation). Quoted in Ivor C. Jackson, “Dr. Fridtjof Nansen a Pioneer in the International Protection of Refugees” (2003) 22 Refugee Survey Quarterly 7 at 9. 23  37  the passport in international burden-sharing language as “a great step towards a more equitable distribution of Russian refugees.”25 In 1924 the League of Nations entered into an arrangement with the International Labour Organization (ILO) in which the ILO matched refugees with countries and employers in need of workers. Once the Refugee Commissioner identified refugees, the ILO coordinated the refugees’ job-placements and emigration.26  Between 1925 and 1929 the ILO  coordinated employment placements for approximately 50,000 refugees.27 The ILO model highlights the challenge of resettlement in the merger of refugee protection and immigration incentives. The upcoming chapters will elaborate this tension. Following Nansen’s death in 1930, the League of Nations opted to create the Nansen International Office charged with the protection of refugees under the League’s mandate.28 The Nazi rise to power in 1933 triggered an outpouring of new refugees, mostly Jews from Germany, and the League of Nations was forced to address the issue. By the 1930s, the refoulement of refugees was commonplace29 but the inclusion in the 1933 League of Nations’ Refugee Convention that state parties were obliged not to expel authorized refugees from their territories and to avoid “non-admittance [of refugees] at the frontier”30 received little support.31 The League also appointed an independent High Commissioner  25  Fridtjof Nansen, “Russin Refugees: Report to the Council of July 20th, 1922 by Dr. Nansen” Official Journal (August 1922). 26 Claudena Skran, “Profiles of the First Two High Commissioners” (1988) 1 Journal of Refugee Studies 277 at 284. 27 Ibid. 28 Ibid. at 289. 29 Claudena Skran, Refugees in Inter-War Europe: The Emergence of a Regime (Oxford: Clarendon Press, 1995) at 131. 30 Convention relating to the International Status of Refugees, 28 October 1933, 3663 LNTS. 31 Eight states ratified the Convention: Belgium, Bulgaria, Czechoslovakia, Denmark, France, Great Britain, Italy and Norway. It was signed but not ratified by Egypt. See Robert J. Beck, “Britian and the 1933  38  for Refugees coming from Germany.32 James G. McDonald, the American professor who first held the post from 1933-1935, resettled approximately two thirds of the 80,000 refugees who left Germany during his tenure.33 The concept of refoulement is not even mentioned in either the 1936 Provisional Arrangement34 or the consequent 1938 Refugee Convention.35 The 1938 Convention did however specifically address resettlement.36 The year 1938 also saw the merging of the League of Nations’ Nansen International Office, which was scheduled to terminate, with the High Commissioner for Refugees coming from Germany. The resulting High Commissioner was assigned the responsibility to oversee the application of the 1933 and 1938 conventions, assist governments and “…to coordinate in general humanitarian assistance along with resettlement and other solutions…”37 A separate organization, the Intergovernmental Committee on Refugees (IGCR) was also created at the League of Nations conference in Evian, France, convened in July 1938 to address the growing refugee crisis.38 The two organizations were essentially amalgamated in February 1939 when the High Commissioner Sir Herbert Emerson concurrently became Director of the IGCR.39  Refugee Convention: National or State Sovereignty?” (1999) 11 International Journal or Refugee Law 697 at 600 and 603. 32 Skran, “Profiles” supra note 26 at 289. 33 John Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge: Cambridge University Press, 2000) at 138. 34 Provisional Arrangement concerning the Status of Refugees coming from Germany, 4 July 1936, 3952 LNTS 77. 35 Convention concerning the Status of Refugees coming from Germany, 10 February 1938, 4461 LNTS 61. 36 Article 15, ibid, stated: With a view to facilitating the emigration of refugees to overseas countries, every facility shall be granted to the refugees and to the organizations which deal with them for the establishment of schools for professional re-adaptation and technical training. 37 Alessandra Roversi, “The Evolution of the Refugee Regime and Institutional Responses: Legacies from the Nansen Period” (2003) 22 Refugee Survey Quarterly 21 at 28. 38 Torpey, The Invention of the Passport, supra note 33 at 135. 39 Roversi, “The Evolution of the Refugee Regime” supra note 37 at 29.  39  The United Nations Relief and Rehabilitation Agency (UNRRA) was created by the allied powers in 1943 in preparation for the liberation of Europe. UNRRA was not a refugee agency but focused on the repatriation of displaced persons. It was during this period that the reality shifted from an individual’s inability to return home to his or her unwillingness to return home. Tensions arose between Eastern and Western states on the freedom to refuse return.40 The League of Nations’ inability to prevent the Second World War signaled its downfall and it dissolved as the war drew to a close. At the conclusion of the war, the world’s leaders sought to form a new international forum for world opinion. The United Nations was established on 24 October 1945. The League’s dissolution caused the High Commissioner’s office to close on 31 December 1946.41 That same year, the International Refugee Organization (IRO) was established by a resolution of the United Nations General Assembly.42 The IRO was designed to assist those persons who could not be repatriated or who “in complete freedom and after receiving full knowledge of the facts…expressed valid objections to returning to [their countries of origin.]”43 The IRO was strongly supported by the United States and its resettlement mandate was intentionally counter to UNRRA’s repatriation focus supported by the Soviet bloc.44  40  Loescher, Beyond Charity, supra note 18 at 48-49. Atle Grahl-Madsen, The Status of Refugees in International Law (Leyden: A.W. Sijthoff, 1966) at 17. 42 Question of Refugees, UNGA Res. (8/1), 12 February 1946. 43 Constitution of the International Refugee Organization (15 December 1946) at Part1(C)(1). 44 Loescher, Beyond Charity, surpa note 18 at 50. The United States had been the primary funder of UNRRA and refused to support it beyond 1947, moving their support to the IRO. Loescher, Beyond Charity, surpa note 18 at 49. 41  40  By mid-1947, the IRO had assumed the responsibilities of UNRRA, the IGCR and, indirectly the League of Nations’ High Commissioner for Refugees.45 The IRO oversaw the resettlement of displaced Europeans to countries such as the U.S., Canada, and Australia. Between 1947 and 1951 the IRO resettled close to 1 million refugees, including 329,000 in the U.S., 182,000 in Australia, 132,000 in Israel, 123,000 in Canada and 170,000 in various European states.46 During this same period a mere 54,000 people were repatriated to Eastern and Central Europe.47 The IRO was a specialized agency of limited duration to close in 1951. With the Second World War creating a continued flow of refugees, the United Nations was thus forced to again revisit the refugee issue leading to the creation of UNHCR and the 1951 Convention. The United Nations High Commissioner for Refugees By resolution on 3 December 1949 the United Nations General Assembly decided to establish a High Commissioner’s Office for Refugees.48 The Statute of the Office of the United Nations High Commissioner for Refugees was adopted by the United Nations General Assembly on 14 December 1950.49 UNHCR began its work on 1 January 1951 with 33 staff and a budget of $30,000.50 The Convention relating to the Status of Refugees  45  James Hathaway, “The Evolution of Refugee Status in International Law: 1920-1950” (1984) 33 International and Comparative Law Quarterly 348 at 376. 46 Dennis Gallagher, “The Evolution of the International Refugee System” (1989) 23 The International Migration Review 579 at 579. 47 Loescher, Beyond Charity, supra note 18 at 51. 48 Refugees and Stateless Persons, UNGA Res. 319(IV), 3 December 1949. 49 UNHCR Statute, supra note 4. 50 Erika Feller, “The Evolution of the International Refugee Protection Regime” (2001) 5 Washington University Journal of Law and Policy 129 at 131. The organization now operates in 125 countries. UNHCR, Where We Work; online: <http://www.unhcr.org/pages/49c3646c206.html>; see also Biennial Program Budget 2012-2012 of the Office of the United Nations High Commissioner for Refugees, Report by the High Commissioner, Executive Committee of the High Commissioner’s Programme, Sixty-second sessions, Geneva 3-7 October 2011 (A/AC.96/1100) for a detailed review of UNHCR’s current operation and budget.  41  was adopted on 28 July 1951 and came into force on 22 April 1954.51 On December 4, 1952, Denmark became the first state to ratify the 1951 Convention. Given the early twentieth century tendency to resolve refugee crises through the movement and transfer of refugees overseas, it is not surprising that UNHCR commenced as a reactionary organization with an “exilic” orientation.52 Unlike its predecessors however, the 1951 Convention successfully garnered state support to address asylum through the concept of non-refoulement. One explanation for this reorientation is that with the IRO’s mandate ending, a core of refugee rights was necessary to maintain the willingness of states to offer resettlement as a viable alternative.53 Resettlement would therefore continue as a protection mechanism when refugee rights could not be attained. While resettlement is indeed part of some countries’ current refugee schemes, the difference between these programs and the earlier agendas of the IGCR and the IRO is that resettlement is now statecentered rather than flowing from the international refugee agency.54 The 1951 Convention thus established the dichotomous protection relationship between resettlement and nonrefoulement that will be traced throughout this dissertation. The South Asian boat people crisis of the 1970s and early 1980s, which will be examined in Chapter 4, brought a resurgence in resettlement enthusiasm with 1.2 million Indochinese resettled by UNHCR between 1976 and 1989. By the late 1970s UNHCR was involved in 51  1951 Convention, supra note 2. Gil Loescher, “Protection and Humanitarian Action in the Post-Cold War Era” in Aristide R. Zolberg & Peter Benda (eds.), Global Migrants, Global Refugees: Problems and Solutions (New York, Oxford: Berghahn Books, 2001) at 172. 53 James Hathaway, The Rights of Refugees under International Law (Cambridge: Cambridge University Press, 2005) at 92-93. Of course, the atrocities of World War II also loomed large on the states supporting the 1951 Convention. Peter Showler suggests that the promise not to send people back to persecution is commonly viewed as the response of “nations still bruised by post- Holocaust guilt, conscious of having denied entry to pre-Holocaust Jews.” Peter Showler, Refugee Sandwich: Stories of Exile and Asylum (McGillQueen’s University Press, 2006) at 212. 54 Hathaway, The Rights of Refugees, ibid. at 964. 52  42  the resettlement of 200,000 persons per year, and at one point in 1979 a UNHCR representative reports that “resettlement was viewed as the only viable solution for 1 in 20 of the global refugee population under the responsibility of UNHCR.”55 Beginning in the late 1980s however, with still increasing refugee flows from Indochina and diminishing state resettlement quotas, resettlement came to be viewed by UNHCR as the least preferred durable solution.56 By 1991 UNHCR’s Executive Committee issued a conclusion emphasizing that resettlement be pursued “only as a last resort, when neither voluntary repatriation nor local integration is possible.”57 Concerns that large-scale resettlement was leading to the abandonment of asylum in first countries and serving as a pull factor for individuals to leave home for social and economic reasons, combined with an increased emphasis on voluntary repatriation,58 limited enthusiasm for resettlement.59  At the same  time there was a numeric explosion of refugees from third world countries as the revolution of transportation opened access to the West and the end of the Cold War removed  55  Gary Troeller, “UNHCR Resettlement: Evolution and Future Direction” (2002) 14 International Journal of Refugee Law 85 at 87. 56 The approach to the resettlement of Indochinese boatpeople changed drastically between 1979 and 1989. In July 1979, sixty-five governments met in Geneva for the first international conference on refugees from Indochina and pledged to resettle Indochinese who arrived in the region in return for the countries of first asylum permitting these boats to land. This “blanket” resettlement was replaced by the Comprehensive Plan of Action (CPA) for Indochinese Refugees adopted in June 1989 as a multilateral agreement between countries of first asylum, countries of origin and resettlement countries with the objective of finding durable solutions for recognized refugees but also to stop the clandestine departures from Vietnam considered to be increasingly economically driven. The CPA still permitted landings but now all arrivals would be screened for refugee status and those found not to meet the narrow refugee definition would have to return to Vietnam. UN General Assembly, Declaration and Comprehensive Plan of Action of the International Conference on Indo-Chinese Refugees, Report of the Secretary-General (22 September 1989) A/44/523; UNHCR, Resettlement Handbook, supra note 10 at 9-10; Adelman & Barkman, No Return, No Refuge, supra note 12 at 98. 57 UNHCR Executive Committee, “Resettlement as an Instrument of Protection” ExCom Conclusion No. 67 (1991) at para (g); online:<http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3ae68c4368> 58 See Coles, “The Human Rights Approach” supra note 17. 59 Troeller, “UNHCR Resettlement” supra note 55 at 88.  43  ideological protection incentives.60 The realities of resettlement fatigue, the fear of enticing mixed migration flows and ostensibly offering an immigration program through resettlement had therefore hit by the early 1990s. By 1996 UNHCR resettled only 1 in every 400 of the global refugee population under its care.61 The new century has seen a revival of resettlement yet again. However, before examining resettlement in the twentyfirst century it is necessary to probe the underlying justifications for resettlement’s pendulum-like position in the regime. Reorienting Protection Both the mechanism of resettlement and the principle of non-refoulement contemplate a solution outside of return to the home state. This has been negatively labeled as the “exilic bias”62 of both the 1951 Convention and UNHCR’s Statute. Gervase Coles suggests the “thrust was directed almost exclusively to separation and alienation.”63 The further fact is that as the regime developed in the Cold War era, an exile-orientation was perceived to be within states’ interests. It expressed a “Eurocentric humanitarianism” that reflected the earlier tension between UNRRA and the IRO and idealized settlement in the civilized West, and garnered “ideological points” for taking in refugees from the East.64 The critique of the exilic focus centers on the concern over the accepted detachment from home country. It has been challenged as a violation of human rights65 and more recently,  60  See B.S. Chimni, The Geopolitics of Refugee Studies and the Practice of International Institutions: A View from the South (Oxford: Refugee Studies Programme, 1998); Stephen Castles, “The Factors That Make and Unmake Migration Policies” (2004) 38 International Migration Review 852. 61 Troeller, “UNHCR Resettlement” supra note 55 at 85 and 89. 62 Coles, “The Human Rights Approach” supra note 17 at 211. 63 Ibid. 64 Alexander Aleinikoff, “State-centered Refugee Law: From Resettlement to Containment” in E.V. Daniel & J.R. Knudsen (eds.), Mistrusting Refugees (Berkeley: University of California Press, 1995) at 260. 65 Coles, “The Human Rights Approach” supra note 17 at 199.  44  facilitating the interests of those driving the refugees out and counter to the interests of peace-building.66 By the 1990s, there is general consensus that a paradigm shift had occurred in the refugee regime that was tied to an ostensible concern with human rights and humanitarianism.67 Turning to the foundational conceptualizations of refugee issues in human rights terms68 the reorientation offered a focused concern for refugees as human beings rather than a state-based focus on borders.69 The shift thus signaled a new focus on countries of origin, repatriation, and human rights monitoring.70  The move was couched in the language of a “repatriation turn”71 and  “preventative protection.”72 The focus was on preventing and resolving the causes of refugee flows. A major project was jointly undertaken by the ILO and UNHCR in 1992 to investigate the capacity of foreign aid to minimize unwanted migration.73 With respect to refugees, it was argued that the two “Rs” of relief and resettlement needed to expand to four “Rs” through the inclusion of repatriation and the reduction of root causes.74 The early 1990s also saw UNHCR undergo a comprehensive management review resulting in a “care and maintenance” sector prioritizing assistance over protection.75 The suggestion was  66  See Loescher & Milner, Protracted Refugee Situations, supra note 12. See Coles, “The Human Rights Approach” supra note 17; Hyndman, Managing Displacement, supra note 19. 68 James Hathaway, “Reconceiving Refugee Law as Human Rights Protection” (1991) 4 Journal of Refugee Studies 113. 69 Aleinikoff, “State-centered Refugee Law” supra note 64 at 264. 70 Ibid. at 258. 71 Chimni, The Geopolitics of Refugee Studies, supra note 60 at 364. 72 Hyndman, Managing Displacement, supra note 19 at 181. 73 W.R. Böhning & M.L. Schloeter-Paredes, (eds.) Aid in Place of Migration?: Selected Contributions to an ILO-UNHCR Meeting, A WEP Study (Geneva: International Labour Office, 1994). 74 P.L. Martin, “Reducing Emigration Pressure: What Role Can Foreign Aid Play?” 241 in Böhning & Schloeter-Paredes ibid. at 242, 244. 75 Guglielmo Verdirame & Barbara Harrell-Bond, Rights in Exile: Janus-Faced Humanitarianism (Oxford; New York: Berghahn Books, 2005) at 289. 67  45  that a ‘full-belly’ theory – “the idea that rights and legal protection were pointless for ‘starving’ refugees” guided this move.76 While ideologically legitimate, for many this geopolitical shift was critiqued as merely a turn in terminology but not underlying interests. Accusations point to “engineered regionalism”77 and the “demise of protection”78 with a move clearly toward containment79 and encampment.80 Humanitarianism was merely the “ideological guise.”81 The actual shift would then be seen to be about shifting state interests from the “exilic bias” to a “source control bias.” Alexander Aleinikoff concisely presented the dilemma: Rather than a paradigm shift, then, we may well be witnessing the troubling use of humanitarian discourse to mask a reaffirmation of state-centeredness…If this analysis is correct, then the story of change is not about the melding of refugee law into human rights law; rather, it is the exchange of an exilic basis for policies of containment – detention of asylum seekers, visa requirements, closing opportunities for resettlement, pushbacks and return.82 Interestingly, the second half of the 1990s also marked a period of budget shortfalls for UNHCR and the reduction of humanitarian and development assistance.83 Western states were able to deter refugee flows and avoid their legal obligations to refugees while maintaining a rhetoric of concern. Refugees meanwhile often lacked either protection or a “full-belly.”  76  Ibid. at 289. Matthew Gibney, “Forced Migration, Engineered Regionalism and Justice between States” in Susan Kneebone & Felicity Rawlings-Sanei (eds.), New Regionalism and Asylum Seekers (Oxford: Berghahn Books, 2007) 57 at 57-77. 78 Verdirame & Harrell-Bond, Rights in Exile, supra note 75 at 289. 79 Chimni, The Geopolitics of Refugee Studies, supra note 60; Aleinikoff, “State-centered Refugee Law” supra note 64; Gibney, “Forced Migration, Engineered Regionalism” supra note 77. 80 Loescher & Milner, Protracted Refugee Situations, supra note 11 at 21. 81 Verdirame & Harrell-Bond, Rights in Exile, supra note 75 at 289. 82 Aleinikoff, “State-centered Refugee Law” supra note 64 at 265. 83 Loescher & Milner, Protracted Refugee Situations, supra note 12 at 21. 77  46  Another layer of analysis contends that the shifting of state interest was tied to a change in the composition of the refugee flow. B.S. Chimni argues that the paradigm shift was achieved through the creation of the “myth of difference”: the nature and character of refugee flows in the Third World were represented as being radically different from refugee flows in Europe since the end of the First World War. Thereby, an image of a ‘normal’ refugee was constructed—white, male and anti communist—which clashed sharply with individuals fleeing the Third World.84 Founded on a myth that demonstrated dissimilarities in volume, nature and cause between European and Third World refugees, Chimni shows how this approach “articulated a set of policy proposals which justified restrictive measures. The proposals included the rejection of the exilic bias of international refugee law; a nearly sole reliance on the solution of voluntary repatriation; and an emphasis on the responsibility of the state of physical origin.”85 Whereas Western states wished to embrace the ideological Cold War exile, with the “new” third-world refugees there was the potential to resolve the flight-causing political conflicts and return home. Exile no longer made sense. Chimni therefore suggests that the “repatriation turn” in refugee policy was “the outcome of a marriage between convenient theory, untested assumptions and the interests of states.”86 The validity of these arguments is difficult to deny in the face of a regime that ostensibly turned to human rights but has created a reality that has fallen deeper into protraction where rights are glaringly lacking. A socio-legal analysis of compliance with international human rights law and refugee law in Kenya and Uganda deplored that “as a matter of fact no  84  Chimni, The Geopolitics of Refugee Studies, supra note 60 at 351. The current rhetorical twist of presuming asylum seekers, particularly those arriving by boat, to be terrorist threats rather than refugees can be seen as the newest construction of the myth of difference. This issue will be covered in detail in Chapter 3. 85 Ibid. at 369. 86 Ibid. at 364-365.  47  refugee enjoyed his or her rights when confined to a camp/settlement.”87 In Jennifer Hyndman’s study of camps along the Somali-Kenyan border, she observes: “Legal arguments of protection and assistance are navigated, and in some cases avoided, through the introduction of a more politicized and exigent set of humanitarian practices.”88 In Hyndman’s analysis: “Humanitarian assistance at the end of the millennium is synonymous with neither protection, in the legal sense, nor solutions to displacement;”89 a fact tied to the realities of refugee camps that “remove evidence of human displacement from view and contain ‘the problem’ without resolution, as noncommunities of the excluded.”90 Matthew Gibney similarly concludes: “Western states seemed, by the end of the 1990s, to have foiled the globalization of asylum, at least temporarily.”91 Refugees remained contained far from the western world. Lessons Learned While UNHCR and other humanitarian organizations are able to deliver large quantities of humanitarian supplies under extremely difficult conditions, they are much less successful in protecting civilians from human rights abuses…92 For many refugee scholars, the events of the 1990s served to teach an important lesson in advocacy. They recognized their potential complicity in state evasion of protection through the promotion of humanitarian assistance and repatriation. Aleinikoff wearily warned of the risk of becoming “unwitting allies in reinforcing the state-centered paradigm they seek  87  Verdirame & Harrell-Bond, Rights in Exile, supra note 75 at xiv. Hyndman, Managing Displacement, supra note 19 at 18. 89 Ibid. at 4. 90 Ibid. at 190. 91 Gibney, “Forced Migration, Engineered Regionalism” supra note 77 at 63. 92 Gil Loescher, “UNHCR at Fifty: Refugee Protection and World Politics” in Niklaus Steiner, et al. (eds.), Problems of Protection: The UNHCR, Refugees and Human Rights (New York, London: Routledge, 2003) 3 at 13. 88  48  to overthrow.”93 He suggested: “refugee scholars and advocates would do well to stay off the repatriation bandwagon until there are far stronger reasons to believe that the international regime stands ready and able to keep its human rights commitments to returnees or other victims of persecution.”94 James Hathaway likewise recognized the potential subversion of the idealized theory: “There is, however, a very real risk that governments will seize on the Coles framework [critiquing the exilic bias] in order to divert attention from their failure to provide meaningful protection to refugees.”95 Bandwagons, the rhetoric of “least preferred” and critiques of varying solutions as misdirected, risk corruption of a regime designed to be holistic and multi-pronged. Protection and solution sit as the central components of the refugee regime.96  Their  achievement requires support for each aspect, protection as well as all three manners of solution. Sacrificing any one for the promotion of the other strengthens neither protection nor solution but rather creates more cracks for refugees to slip through into protraction. The onset of the twenty-first century has returned resettlement to the foreground of protection attention. Resettlement has been at the forefront of UNHCR initiatives such as Convention Plus in 2002 articulating the strategic use of resettlement,97 rewriting the  93  Aleinikoff, “State-centered Refugee Law” supra note 64 at 266. Ibid. Howard Adelman and Elazar Barkan have more recently reviewed cases of minority repatriations spanning Asia, Europe, the Middle East and Africa. The “minority” reference is to the refugees’ minority status in their country or region to which repatriation is sought. Adelman and Barkan outline a policy preference for the solution of repatriation over the last two decades and demonstrate how a focus on repatriation has ultimately led to the protraction of refugees in camps: “They cannot resettle because they are supposed to be repatriated; they cannot repatriate because they are a minority.” Adelman & Barkman No Return, No Refuge, supra note 12 at x. 95 Hathaway, “Reconceiving Refugee Law” supra note 68 at 117. 96 UNHCR Statute, supra note 4 at 1. 97 See Alexander Betts & Jean-François Durieux, Convention Plus as a Norm-Setting Exercise (Oxford: OUP, 2007); Jean-Francois Durieux, “The Role of International Law: Convention Plus” (2005) 24 Refugee Survey Quarterly 89; Marjoleine Zieck, “Doomed to Fail from the Outset? UNHCR’s Convention Plus Initiative 94  49  Resettlement Handbook in 201198 and a general promotion of resettlement in nontraditional resettlement countries.99 This has aligned with a renewed interest in resettlement by states.100 Hyndman notes: “Public opinion and government planning cycles are more likely to favour refugee resettlement in which eligible, screened refugees in need of protection can be brought to Canada in controlled numbers for settlement.”101 Moreover, the securitized paradigm shift triggered by the 2001 terrorist attacks102 can arguably have contributed to a renewed interest in resettlement.103 As the body of the dissertation will reveal, the control and order inherent in resettlement offers states a protection measure counter to the unpredictable nature and, by necessity, often illegal, entrance of asylum seekers. Both the academic and advocacy sides identified an opportunity for renewed conversation on resettlement.104 John Fredriksson argued that “[i]n the aftermath of the tragic events of  Revisited” (2009) 21 International Journal of Refugee Law 387; Debra Pressé & Jessie Thomson, “The Resettlement Challenge: Integration of Refugees from Protracted Refugee Situations” (2007) 24 Refuge 48. 98 UNHCR, Resettlement Handbook (July 2011). 99 UNHCR, “Frequently Asked Questions About Resettlement”; online: <http://www.unhcr.org/4ac0873d6.html>. 100 Chapter 3 will review in detail the Canadian government’s approach to resettlement. 101 Jennifer Hyndman, “Second-Class Immigrants or First Class Protection” in Pieter Bevelander, et al. (eds.), Resettled and Included? The Employment Integration of Resettled Refugees in Sweden (Malmö University, MIM, Malmö: Holmbergs, 2009) 247 at 255. 102 In the introduction to UNHCR’s Global Consultations the editors note that: it has been noticeable that the post-September 11 context has been used to broaden the scope of provisions of the 1951 Convention allowing refugees to be excluded from refugee status and/or to be expelled. The degree of collaboration between immigration and asylum authorities and the intelligence and criminal law enforcement branches has also been stepped up. Erika Feller, et al., Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Cambridge: Cambridge University Press, 2003) at 5. Catherine Dauvergne has noted: “[t]he worldwide fear of terror has overlapped and intertwined with the fear of illegal migration.” Catherine Dauvergne, “Sovereignty, Migration and the Rule of Law in Global Times” (2004) 67 The Modern Law Review at 588. 103 John Fredriksson, “Reinvigorating Resettlement: Changing Realities Demand Changed Approaches” (2002) 13 Forced Migration Review 28 at 30; Gregor Noll & Joanne van Selm, “Rediscovering Resettlement: A Transatlantic Comparison of Refugee Protection” (2003) 3 MPI Insight at 2. 104 See Casasola, “Current Trends” supra note 18; Troeller, “UNHCR Resettlement” supra note 55; Fredriksson, “Reinvigorating Resettlement” ibid.; Noll & van Selm, “Rediscovering Resettlement” ibid.;  50  11 September, [resettlement] may prove to be one of the most useful tools in the protection kit.”105 Joanne van Selm similarly suggested the post-11 September security measures “could in fact benefit some of those people seeking asylum and refuge by ensuring other, safer, means of arrival, including the expansion of resettlement.”106 Hathaway noted a “recent renaissance of interest by some governments” in resettlement schemes.107 And indeed, resettlement has proven quite attractive to states, albeit in an altered form. In 2003, the international community defined the “strategic use of resettlement” as “the planned use of resettlement in a manner that maximizes…, directly or indirectly, benefits other than those received by the refugee being resettled.”108 The focus is therefore on using resettlement as a tool to achieve durable solutions other than resettlement. Resettlement’s most recent resurgence must be understood in the context of shifting protection paradigms that may be mere restatements of state interest. While the promotion of increases in resettlement numbers is urged in this dissertation, the willingness of states to comply with this call must be cautiously approached. The reasons behind the willingness are crucial to an assessment of whether resettlement actions are an embrace or an evasion of states of their protection obligation. To understand resettlement in the context of the refugee regime in the twenty-first century requires the insertion of the two justifications that encapsulate discussions: human rights and burden-sharing. Neither approach is new. Indeed it was the international cognizance David Steinbock, “The Qualities of Mercy: Maximizing the Impact of U.S. Refugee Resettlement” (2003) 36 University of Michigan Journal of Law Reform 951 for examples of renewed discussion. 105 Fredriksson, “Reinvigorating Resettlement” supra note 103 at 28. 106 Joanne van Selm, “Refugee Protection in Europe and the U.S. after 9/11” in Steiner, Problems of Protection, supra note 92, 237 at 239. 107 Hathaway, The Rights of Refugees, supra note 53 at 964. 108 UNHCR, “The Strategic Use of Resettlement” Discussion Paper by the Working Group on Resettlement, WGR/03/04.Rev4 (2003); online: <http://www.unhcr.org/protect/PROTECTION/3ee6dc6f4.pdf >.  51  of human rights following the Second World War and the recognized need for international burden-sharing that frames the creation of the 1951 Convention and the United Nations. However, the 1951 Convention is not recognized by the United Nations as a human rights document,109 and UNHCR has traditionally sought to maintain a distance between itself and the promotion and protection of human rights.110 Burden-sharing experiences a more Sisyphean cycle of debate and its most recent recurrence in the form of the “strategic use” of resettlement will be examined for its repetitive tendencies and the consequences of its incentives to persuade states. An Uncomfortable Union: Human Rights and Refugees The refugee problem is, very centrally, an issue of rights - of rights which have been violated and of rights, as set out in international law, which are to be respected…The challenges faced when refugees seek sanctuary are, in legal terms, challenges to the realization of human rights, which at the same time pose significant social and humanitarian dilemmas.111 Underlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination.112 While there is legitimate contention with the humanitarian justifications for the protection approach of the 1990s, there remains a sincere desire to attach a human rights approach to  109  On its webpage “International Law Instruments Relating to Human Rights” the 1951 Refugee Convention is not listed as one of the nine “core international human rights treaties” but is noted as one of “many other universal instruments relating to human rights”; online: <http://www2.ohchr.org/english/law/>. 110 UNHCR, UNHCR and Human Rights, a policy paper resulting from deliberations in the Policy Committee on the basis of a paper prepared by the Division of International Protection (1997). The paper commences with the statement: Extreme caution traditionally marked UNHCR’s approach to any suggestion that it should cooperate and collaborate with established mechanisms for the promotion and protection of general human rights principles. While being prepared to acknowledge its human rights origins, as well as the complementarity of refugee protection and human rights promotion, UNHCR nevertheless kept a deliberate distance from the proliferating and increasingly forceful UN mechanisms for monitoring and ensuring compliance with international human rights norms. Motivating this approach was the fear that greater activism would lead to politicisation of UNHCR activities which would compromise our capacity to work with our government counterparts. 111 Erika Feller, “Asylum, Migration and Refugee Protection: Realities, Myths and the Promise of Things to Come” (2006) 18 International Journal or Refugee Law 509 at 518. 112 Canada v. Ward, [1993] 2 S.C.R. 689 at 733.  52  refugee advocacy. The overt union of refugee protection and human rights is a relatively recent, and seemingly growing, trend. UNHCR began to recognize collaborative potential with human rights bodies in the 1990s.113 It has become increasingly commonplace for academics to situate their interpretation of the 1951 Convention and the refugee regime in a human rights framework.114 The benefit of a rights-based stance is that it adds a concrete assertion of legal obligation and accountability to refugee protection.  It further adds  dignity to the demand. There is an entitlement to rights. There is equality between the parties. Stuart Scheingold defines this as “the call of the law.”115 He suggests that the assertion of a right implies a legitimate and dignified reciprocal relationship that is societal and not personal.116 The current, alternative calls in refugee protection are for compassion, humanitarianism and morality.117 Such claims lack reciprocity and are founded on personal need. As Catherine Dauvergne explains: “A claim for compassion does not effectively function as a right because rights are grounded in equality but compassion is grounded in generosity and inequality.”118 So long as refugees seek only compassion they remain dependent, often invisible, outsiders in the realm between the persecuting and protecting countries.  113  UNHCR, UNHCR and Human Rights, supra note 110. Hathaway, The Rights of Refugees, supra note 53; Feller, “Asylum, Migration and Refugee Protection” supra note 111; Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge; New York: Cambridge University Press, 2007); Emma Haddad, The Refugee in International Society: Between Sovereigns (Cambridge: Cambridge University Press, 2008); Jane McAdam, Complementary Protection in International Refugee Law (Oxford: Oxford University Press, 2007). 115 Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy and Political Change (Ann Arbor: University of Michigan Press, 2004) at 39. 116 Ibid. at 58. 117 See Matthew J. Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: Cambridge University Press, 2004); Catherine Dauvergne, Humanitarianism, Identity, and Nation: Migration Laws of Australia and Canada (Vancouver: UBC Press, 2005). 118 Dauvergne, Humanitarianism, Identity, and Nation, ibid. at 174 114  53  The human rights approach further renders the citizen/non-citizen assertion irrelevant.119 A universalism is attached to the human rights as opposed to the specified refugee rights argument. While the invocation of these rights for refugees makes absolute sense, it seems to simultaneously deteriorate the demarcating line of refugee status. On what basis could refugees claim such specialized status within a human rights regime? Emma Haddad points to the irreconcilability of the regimes: “whereas the human rights regime aspires to a solidarist world beyond the nation-state, the refugee regime rethinks the state as the ‘solution’ to the ‘problem.’”120 Asylum through non-refoulement and each durable solution presents the embrace of a state, be it home or host, as the resolution of refugeehood. The universalism of the human rights approach thus leads to challenges of the refugee definition and the out of country requirement.121  This can be seen in UNHCR’s gradual and  uncomfortable embrace within its mandate of internally displaced people (IDPs) who have not crossed an international border and are not refugees. As will be examined in detail in Chapter 3, Canada’s protection scheme exemplifies just such an expansion. With its Immigration and Refugee Protection Act (IRPA) Canada’s protected persons class now includes those beyond the refugee definition and specifically references the Convention Against Torture.122 In the U.S., and previously in Canada, there is the potential to designate source country states for in-country processing of claims.123  119  Guy S. Goodwin-Gill & Jane McAdam, The Refugee in International Law (Oxford: Oxford University Press, 3rd ed., 2007) at 448. 120 Haddad, The Refugee in International Society, supra note 114 at 88. 121 Aleinikoff, “State-Centered Refugee Law” supra note 64 at 264. 122 Immigration and Refugee Protection Act, S.C. 2001 c. 27. [IRPA] at s.97. 123 Judith Kumin, “In-Country ‘Refugee’ Processing Arrangements: A Humanitarian Alternative?” in Michael Jandl (ed.), Innovative Concepts for Alternative Migration Policies (Amsterdam: Amsterdam University Press, 2007) 79.  54  The traditional refugee definition, however, still stands alongside these broader interpretations in both countries. At the time when human rights were beginning to gain momentum in discussions of refugee protection, there was speculation that refugee law would be lost in the merger.124 Indeed Hathaway advocated such a melding in his first proposal to reconceive refugee law as human rights protection: Fear of persecution by reason of one’s civil or political status (i.e. the enumerated grounds in the Refugee Convention…) is simply not an adequate definitional standard to embrace all those who require protection because they have been coerced to migrate. If the new systemic human rights focus of refugee law is to strive for solutions to the causes of all forms of coercive migration, it follows that all those forced to migrate should similarly be entitled to interim protection.125 Hathaway perceived that bringing human rights law into refugee law benefited not only the refugee regime but would also address an “inadequacy” of human rights law. While broader in coverage, the inadequacy of human rights lies in the practical challenge of attainment. Both refugee law and human rights law possess something the other desires. Refugee advocates desire the broader expanse of a human rights interpretation of applicability. Human rights advocates desire the definitive status attached to those who meet the refugee definition. Jane McAdam suggests status is the “‘primary’ feature of the Convention.”126 Beginning with the establishment of refugee law as part of international human rights law, she examines the duties states owe to people under other human rights law instruments which complement the duties under the 1951 Convention. The distinguishing factor in the 1951 124  Aleinikoff, “State-Centered Refugee Law” supra note 64 at 264. Hathaway, “Reconceiving Refugee Law” supra note 68 at 120. 126 McAdam, Complementary Protection, supra note 114 at 15. 125  55  Convention obligation of non-refoulement, she argues, is the attaching refugee status.127 Given that the basis of the protection need, non-refoulement, is the same, McAdam suggests that the 1951 Convention should be read as “specialist law” and its provision of legal status be read to extend to all those in need of international protection. The difficulty is that her focus on the “status” the Convention creates for refugees fails to recognize the constraints that prevent refugees from obtaining this status. The reality is that status is consequently meaningless for many of those to whom it currently applies. Expansion may thus risk more than it offers. Broader application of lesser and non-treaty rights offers increased protection to neither refugees nor other victims of human rights abuse. While advocating for a complete reorientation of the regime,128 Hathaway also provides a detailed interpretation of the rights currently set out in the 1951 Convention.129 In his analysis of refugee rights, he interprets the rights set out in the 1951 Convention through (near) universally applicable international human rights as established in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (as opposed to other regional and specialized norms).130 In so doing, he counters reliance on generic human rights law and “affirm[s] the importance of refugeespecific rights.”131 The desire is to maintain the core of the 1951 Convention for the fear that stretching of the Convention will eventually cause it to snap. The existing applications of human rights both point to and help assess the shifts in resettlement models that embrace a human rights oriented definition of those included in 127  Ibid. at 267. Hathaway, “Reconceiving Refugee Law” supra note 68. 129 Hathaway, The Rights of Refugees, supra note 53. 130 Ibid. at 8. 131 Ibid. at 13. 128  56  their schemes. Both group resettlement and source-country processing shift away from the refugee definition in their protection offerings. David Martin has warned: …by opening up a prospect of extensive new legal obligations, such claims risk undermining the political support – already threatened in a time when Western nations are receiving unprecedented numbers in direct asylum applications – that is essential if even Treaty commitments are to retain vitality. Moreover, to assert that an expanded UNHCR mandate entails an expansion in the direct legal obligations of states is to create incentives for shrinking the mandate.132 One question to be explored in the dissertation is thus whether these resettlement models expand or shrink the protection mandate. Bearing and Sharing the Burden The bottom line is that international law does not require any state to resettle anyone.133 We are extremely unlikely in this new century to find the United States or any other country willing to make an open-ended commitment to resettlement of virtually all who escape a designated nation.134 At this point in the analysis, certain realities come into focus. Resolution of refugee status occurs through the two arms of UNHCR’s mandate: protection and solution. Protection is considered to occur through the provision of asylum and the monitoring of state compliance with the legal obligations of the 1951 Convention. Solutions encompass the negotiation of local integration, voluntary repatriation and third-country resettlement. UNHCR’s movement from protection to durable solutions therefore requires a shift from one arm to the other. The impossibility of this task is evident in the numerical reality of protraction. While theoretically the two arms of protection and solution embrace the refugee “problem,” the reality is that the majority of the world’s refugees slip through the fingers of this 132  David Martin, “Refugees and Migrants” in Christopher C. Joyner (ed.), The United Nations and International Law (Cambridge: Cambridge University Press, 1997) 155 at 176. 133 Noll & van Selm, “Rediscovering Resettlement” supra note 102 at 13. 134 David A. Martin, The United States Refugee Admissions Program: Reforms for a New Era of Refugee Resettlement (Washington, DC: Migration Policy Institute, 2005) at 8.  57  embrace and wait in limbo for resolution. Interestingly, the visual capturing of UNHCR’s challenge can be seen in the agency’s logo, which has two hands cupping over a person in a house-like shape. While the image is meant to convey protection, one can also easily picture the refugee either trapped or falling through the space between the hands.135 Figure 1: UNHCR Logo  While the protection responsibilities of asylum are supported by an obligatory legal basis, durable solutions depend on voluntary burden-sharing among states to establish the refugee in a new state or resolution of the fear of persecution and return to the home state. Protection simply does not automatically lead to solution. Alexander Betts and JeanFrançois Durieux suggest the gap between the structure of asylum and that of burdensharing indicates the “half-complete” reality of the refugee regime.136 Increased state participation through “burden” or “responsibility”137 sharing is commonly invoked as necessary for UNHCR to meet its solution responsibilities.  135  In 2010, UNHCR submitted a request for proposals for its brand development. UNHCR, “Request for Proposal for UNHCR’s Brand Development” RFP/2010/384 (28 May 2010). 136 Betts & Durieux, Convention Plus as a Norm-Setting Exercise, supra note 97 at 510. 137 The choice of terminology tends to be interchangeable although each term is indeed loaded. There are those who suggest the term “burden” should be discarded and replaced with “responsibility” so as to combat the negative meaning of the word “burden.” Others distinguish between the terms to clarify whether physical or financial sharing is discussed or use both terms to cover all aspects. Hathaway and Neve made this  58  In its broadest sense, burden-sharing refers to the shared responsibility the international community bears for refugees. Gregor Noll divides burden-sharing into three schemes: 1. Sharing the burden of preventing and resolving refugee crises. 2. Sharing the burden of preventing and deflecting arrivals. 3. Sharing the burden of reception.138 The first burden encompasses preventative protection139 and peace-keeping initiatives. Preventing arrivals reflects policies of containment and involves visa requirements, interception of unauthorized arrivals and carrier sanctions, all of which may involve unilateral state action140 or inter-state coordination. States may also cooperate to control flows through safe third country agreements.141 Noll subdivides the burden of reception into three further categories: a) Harmonizing refugee and asylum legislation (sharing norms). b) Reallocating funds (sharing money). c) Distributing protection seekers (sharing people).142 Noll suggests that the sharing of people through reception is appealing to states: “From a state perspective, the attraction of people sharing lies in the redistribution of the perceived  distinction between these terms: “to provide safe and humane protection to the refugees (responsibility sharing) and how to apportion the fiscal costs of meeting protection needs (burden-sharing)” James C. Hathaway & Alexander Neve, “Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection” (1997) 10 Harvard Human Rights Journal 115 at 45. Despite the negative connotation of describing refugees as a burden, this term will be primarily used in the dissertation as it more accurately reflects the view states take of their refugee responsibilities. 138 Gregor Noll, “Protection in a Spirit of Solidarity” in Rosemary Byrne, et al. (eds.), New Asylum Countries?: Migration Control and Refugee Protection in an Enlarged European Union (The Hague; London: Kluwer Law International, 2002), 305 at 308. 139 See UNHCR, “Report of the UNHCR Working Group on International Protection” (Geneva: 1992). 140 See Savitri Taylor on whether states violate their non-refoulement obligations when they intercept individuals without valid entry authorization in overseas airports. Savitri Taylor, “Offshore Barriers to Asylum Seeker Movement: The Exercise of Power without Responsibility?” in Jane McAdam (ed.), Forced Migration, Human Rights and Security (Oxford; Portland: Hart, 2008). 141 For example, see Canada-U.S. Safe Third Country Agreement, 5 December 2002, online: <http://www.cic.gc.ca/english/policy/safe-third.html>. 142 Noll, “Protection in a Spirit of Solidarity” supra note 138 at 308.  59  source of all conceivable costs linked to reception, be they fiscal, social or political.”143 The long-term implications, however, are much greater for the state to receive refugees and offer them citizenship in comparison to the containment consequence of sharing the burden of preventing and resolving the refugee crises and sharing the burden of preventing and deflecting arrivals. Noll’s analysis does however point to the attractiveness of resettlement when the primary prevention techniques of burden-sharing fail and sharing of people is required. The predictability and planning of reception is particularly true of resettlement where reception is completely within the control of the state. Not only the costs, but the refugee herself and the method of her arrival is known. As will be seen in Chapter 3, the Canadian government has demonstrated a clear preference for controlled resettlement over the unknown arrival of asylum seekers in the country. The alternative to sharing of people is the sharing of costs – transferring funds to another state to bear the burden of hosting the refugees. Japan, for instance, makes financial compensations as a top donor state in acknowledgement of its low intake.144 The European Refugee Fund (ERF) provides financial assistance to member states on the basis of the number of persons receiving international protection. In September 2009, the European Commission proposed the establishment of a Joint EU Resettlement Programme. Member States who resettle according to the common EU annual priorities would receive additional  143  Ibid. at 314. The government of Japan also established a resettlement pilot project in December 2008, the first of its kind in Asia. UNHCR, “Japan to Start a Pilot Resettlement Programme” Briefing Notes (19 December 2008); online: <http://www.unhcr.org/494b7e3011.html>.  144  60  financial assistance of 4.000 Euros per resettled person from the European Refugee Fund.145 The EU proposal reflects a willingness of states to engage in regional burden-sharing. Regional burden-sharing is seen as more realistically attractive to states as it is more contained, controllable and likely to achieve consensus.146 Earlier regional agreements such as the 1969 Organization of African Unity Convention and the 1984 Cartagena Declaration have been hailed for harmonizing standards and providing a targeted regional response. While regional models may be more realistic, they may not be more desirable. The counter to the argument for regional burden-sharing agreements is tied to the reality of the location of refugee flows and the disproportionate burdens that arise in such a scheme. Stephen Castles argues that the focus in regional agreements is exclusion.147 Gibney makes the accusation of Western states’ “engineered regionalism” to achieve containment.148 By this, he means the current regionalization of asylum is “engineered” by Western states through deterrent and preventative asylum measures. The critique here moves beyond a rejection of regionalism to argue for the necessity of global burden-sharing. The difficulty is that refugee flows are geographically located and globally unbalanced. Returning to the gap between protection and solution, dependence on asylum does not achieve equal distribution. Gibney advocates for the need for a global  145  European Refugee Fund, Decision No 573/2007/EC of the European Parliament and of the Council (23 May 2007) and COM(2009) final amending Decision No 573/2007EC 2009/0127(COD); online: <http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0456:FIN:EN:PDF>. 146 Noll, “Protection in a Spirit of Solidarity” supra note 138 at 308. 147 Stephen Castles, “The Migration-Asylum Nexus and Regional Approaches” in Susan Kneebone & Felicity Rawlings-Sanei (eds.), New Regionalism and Asylum Seekers (Oxford: Berghahn Books, 2007) 25 at 40 148 Matthew J. Gibney, “Forced Migration, Engineered Regionalism” supra note 77 at 58, 63. See also Gibney, The Ethics and Politics of Asylum, supra note 117 on “tyranny of geography” which refers to unregulated regionalism.  61  regime: “The non-refoulement principle distributes state responsibility for refugees almost entirely on the basis of proximity….inequity seems virtually guaranteed by it.”149 Because voluntary resettlement has traditionally drawn the interest of only a handful of countries, more specific proposals to share burdens have gained both currency and criticism. Hathaway originally proposed a burden-sharing scheme in 1991 as a supplement to the human rights based repatriation re-orientation of the refugee regime. His reform was founded on the need to remedy the lack of obligation in international protection. He proposed the realization of inter-state obligation through “a binding regime of international burden-sharing.”150 State inducements toward this more expansive model would be created through “a consensual dynamic” in which “no state would be compelled to enter into any arrangement not reconcilable to its own sense of self-interest.”151 This consensual dynamic would be achieved through the creation of an “international supervisory organization,” a system of sharing based on each state’s resources and absorptive capacity and the ability to “assume part of another state’s asylum quota in return for cash or development assistance on such terms as might be mutually agreeable, subject to approval by the supervisory agency.”152 Hathaway’s proposal broadened into a research project with Alexander Neve that spanned six years and brought together international refugee law scholars and created North-South teams of experts to generate empirical evidence. The resulting reports led to further international consultations with resulting support for global reform through “solution-  149  Gibney, “Forced Migration, Engineered Regionalism” supra note 77 at 67. Hathaway, “Reconceiving Refugee Law” supra note 68 at 120. 151 Ibid. at 127. 152 Ibid. at 127. 150  62  oriented temporary protection.”153 The breakdown of refugee law was attributed to two shortcomings: “the absence of a meaningful solution orientation and the problem of individuated state responsibility.”154 The authors envision “interest-convergence groups” (ICGs) involving “systematic and ongoing sharing within associations of states.”155 They propose a balance between granting physical asylum and providing financial support through “common but differentiated responsibility.”156  The ICGs would operate like  insurance schemes with advance agreement on contributions through temporary protection, resettlement where temporary protection is insufficient, financial support, or a combination of these contributions. Essentially states of the South are convinced to host refugees by the provision of financial support and the assurance the protection is temporary. Peter Schuck came out with a proposal that parallels the Hathaway and Neve model in its combined approach of temporary protection and permanent resettlement. His model differs in its greater focus on allocation and lesser concern with durable solutions. While Schuck recognizes four means of addressing refugee flow: root causes, repatriation, temporary protection and resettlement, he suggests the latter two are strategies of last, but too often, only resort.157 Schuck proposes an international agency that would “calculate a worldwide total of refugees who need temporary protection and a total of those who need permanent resettlement, and then allocate those totals among participating states by assigning a quota to each.”158 The allocation would create a system within groups of states (regional and  153  Hathaway & Neve, “Making International Refugee Law Relevant Again” supra note 137 at 115. Ibid. at 137. 155 Ibid. at 143. 156 Ibid. at 143. 157 Peter H. Schuck, “Refugee Burden-Sharing: A Modest Proposal” in Peter H. Schuck (ed.), Citizens, Strangers, and in in-Betweens: Essays on Immigration and Citizenship (Colorado: Westview Press, 1998), 281 at 293. 158 Ibid. at 308. 154  63  similar to ICGs) in which quotas could be traded and physical asylum obligations bought and sold. Noll has noted that burden-sharing “hinges on the establishment of a distributive key.”159 Schuck’s proposal suggests that allocation be based on a market-based process. Hathaway and Neve review other allocation proposals that include looking at both gross national product (GNP) and population but with greater weight attached to GNP than population; and a land mass equation proposed by Chimni in which all states that are 20,000 square kilometers or more agree to take the same number of refugees with an adjustment for total land mass and population density and with a numerical ceiling.160 Hathaway and Neve argue these models are misplaced and present a four-part approach that considers 1) physical security, 2) functional compatibility between refugees and host communities, 3) cultural harmony, and 4) geographical proximity to country of origin.161 The authors’ acknowledged consequence of this distribution is that refugees will remain in their regions of origin. They suggest that other states “would more often contribute by a combination of fiscal transfers and residual resettlement opportunities.”162  The suggestion is that the  proposal would appeal to the South as it adds equity and Northern participation in the protection, and would appeal to the North due to linked issue incentives tied to manageability, security and economic interests. There is an appeal to the burden-sharing regimes proposed by these authors. In a failing regime where protection is not being effected, the authors offer specific proposals to create 159  Noll, “Protection in a Spirit of Solidarity” supra note 138 at 314. Hathaway & Neve, “Making International Refugee Law Relevant Again” supra note 137 at 203-204. 161 Ibid. at 204. 162 Ibid. at 205. The model is an example of the tendency to tack on resettlement with little examination or analysis. 160  64  increased obligations and reach solutions. In a direct reply to both the Hathaway and Neve proposal and the Schuck proposal, Deborah Anker, Joan Fitzpatrick and Andrew Shacknove critique the proposals on the basis of three major failings: 1) failure to identify the crucial defects in the current system; 2) no realistic chance of implementation; and 3) de-emphasis on existing protection responsibilities which risks aggravating protection failures.163 The authors argue that the “context in which refugee crises of various origins unfold is too complex and unpredictable for one over-arching structural cure,”164 and not a result of individualized determinations as Hathaway and Neve argue. They challenge the presumption in the proposals of the extent of state dominance in asylum issues and query how, with even a lesser degree of state influence, the state-based solutions are plausible: “Neither proposal appears to us to offer sufficient incentives to over-come states’ resistance to meaningful and binding burden-sharing obligations, particularly those that are forwardlooking.”165 The idea of temporary protection is further challenged by the reality that situations are increasingly protracted and Anker, Fitzpatrick and Shacknove suspect that resettlement numbers would likely be much higher than the proposals acknowledge.166 They take issue with both proposals’ “commodification” and see the models as moving the issue from the realm of law to the realm of political bargaining.167 Their “alternatives” reinforce the law and are centered on “rigorous respect for non-refoulement,”168 the continual pressing of states to honour their 1951 Convention and human rights commitments, closer coordination between the refugee regime and human rights 163  Deborah Anker, et al., “Crisis and Cure: A Reply to Hathaway/Neve and Schuck” (1998) 11 Harvard Human Rights Journal 295 at 296; see also Daniel Warner & James Hathaway, “Refugee Law and Human Rights: Warner and Hathaway in Debate” (1992) 5 Journal of Refugee Studies 162. 164 Anker, et al., “Crisis and Cure” ibid. at 297 165 Anker, et al., “Crisis and Cure” ibid. at 300. 166 Anker, et al., “Crisis and Cure” ibid. at 302. 167 Anker, et al., “Crisis and Cure” ibid. at 305-306. 168 Anker, et al., “Crisis and Cure” ibid. at 308.  65  organizations, enhanced independence, professionalism and institutional capacity of UNHCR as well as a more secure and independent financial basis for the agency.169 Essentially it is a call for solidarity and internationalism.170 While somewhat specific, the alternatives lack any practical incentives for the reform they propose and serve only to highlight the realities that led Hathaway, Neve and Schuck along their radical paths. Schuck’s “Response to the Critics” accurately, I would argue, suggests their list of alternatives “is simply a repetition of the familiar pieties and exhortations for states to be better than they are and for scholars to remind them ad nauseam of their obligations.”171 Schuck is frustrated by the critique that his proposal is not viable alongside state sovereignty. He argues: “The whole point of my article – and the value of my approach – is to see how improved refugee protection might be achieved within this enormous but inescapable constraint.”172 He considers the internationalist approach “woefully unrealistic”173 and retorts that “Simply wishing sovereignty away, as Anker et al. do, is a familiar theme today but it adds nothing to the difficult quest for practical solutions.”174  The force of law, both international law pushing for obligations and state  sovereignty pushing against obligations move the discourse away from legal arguments to practical political bargaining. Gibney throws himself into this reform debate in an attempt to navigate to a practical yet ethical resolution. He identifies an “ethical stalemate”:  169  Anker, et al., “Crisis and Cure” ibid. at 309. Chimni, The Geopolitics of Refugee Studies, supra note 60 at 369. 171 Peter H. Schuck, “A Response to the Critics” (1999) 12 Harvard Human Rights Journal 385 at 387. 172 Ibid. at 385. 173 Ibid. at 385. 174 Ibid. at 386. 170  66  Most people accept that engineered regionalism leads to an unjust distribution of the refugee burden between states. But it appears that measures to relieve this state of affairs create new forms of injustice. This suggests that there is a conflict here between the requirements of justice to refugees and justice amongst states.175 Gibney breaks down the proposals into three central objections: a) burden-sharing arrangements corrupt asylum by putting a price on something that is priceless; b) burdensharing arrangements deny refugee agency by not respecting a refugee’s choice of where to seek asylum; and c) burden-sharing arrangements demean refugees by treating refugees as if they possess negative value.176 The first objection is rejected on the basis that allocation only offers a determination of “where” asylum is to be provided and does not put a price on the idea of asylum itself. The second objection is dismissed based on its underlying assumption that refugees have the right to choose their country of asylum but this does not seem “an inextricable part of the idea of refugee protection.”177 With the third model, a rough sketch of Schuck’s proposal, Gibney is unable to offer a counter to the objection. He views the model as illustrating “a genuine conflict between the demands of justice amongst states and justice to refugees.”178 Gibney distinguishes the concern with demeaning the refugee from the compensation critique because in compensation schemes, money is being exchanged but not refugees and the payment does not reflect a subjective view of refugees as bad or a cost but simply an objective recognition of the costs associated with accepting refugees. As neither state is attempting to rid itself of refugees, the “powerful sense of rejection is thus absent.”179  175  Gibney, “Forced Migration, Engineered Regionalism” supra note 77 at 69. Ibid. at 69-70. 177 Ibid. at 71. 178 Ibid. at 73. 179 Ibid. at 74. 176  67  Gibney’s objection to trading schemes goes beyond the individual detriment to the refugee and expands to a concern for the asylum regime: Market systems for determining where a refugee will find protection exist…because of an axiom that the existence of asylum is of value. But demeaning refugees – treating them like toxic waste – reinforces a view of refugees as unworthy of respect. In the long-term the dehumanization of the refugee seems likely to result in the erosion of support for this axiom. The benefits in terms of more efficient provision of asylum offered by a market based response are thus likely to be short-term.180 The warning is that ultimately a market solution to promote burden-sharing will remove the underlying recognition that refugees are an international responsibility and burden to be borne. This risk of erosion points again to the risk of losing support for refugee protection implicit in the human rights arguments. And yet, this argument sits opposite to the rights argument. By placing refugees into a human rights regime, the rights are embedded into the refugee. The refugee becomes a universalized human. Commodification achieves the reverse and the refugee is dehumanized. With the burden-sharing regime the refugee is reduced from a rights bearing body to a numeric quota. Whereas the risk with rights enhancement was stretching the application to a snapping point, here the risk is the reduction of the refugee into a meaningless entity. Obligation risks erasure by either expansion or contraction. Gibney’s justice model does permit burden-sharing by physical and financial means and does not challenge the goal