"Building a Better Refugee Status Determination System": Introduction
The numbers that provide a context for this issue on refugee status determination (RSD), though stark and well-known, bear repeating. In excess of two hundred million people live outside of their country of nationality. (1) Sixty-seven million people have been forcibly displaced from their homes. (2) Twelve million individuals have no country of nationality. (3) Of these overlapping populations, only about eleven million (4) fall under the definition of "refugee" within the meaning of the term set out in the mandate of the United Nations High Commissioner for Refugees (5) and as defined in the Convention Relating to the Status of Refugees of 1951. (6) In these statistics lie the challenges of refugee status determination (RSD): determining who is a "refugee" and, conversely, who is not. As to how this task should be accomplished, neither the treaty nor the statute is of much direct assistance: there are 46 articles in the Refugee Convention and 22 paragraphs in the Statute of UNHCR, none of which address the issue of RSD. And yet every year, over half a million individuals approach state or UNHCR officials and seek a determination that they are refugees. In Canada alone, over 25,000 individuals seek recognition of their status as refugees every year. (7) Decisions are made by states and UNHCR in a similar number of claims and there is a slowly shrinking backlog of 750,000 individuals who continue to await a determination of their status. Decisions are issued by a variety of officials and institutions: administrative officers of a state, quasi-judicial tribunals, courts, members of the political executive of states, and by agencies of the United Nations. (8) Amongst policy makers the problematic of RSD--of sorting out the eleven million refugees from a larger group of migrants and displaced persons--has become known as "the asylum-migration nexus" (9) or, more recently and more prosaically, the problem of "refugee protection and durable solutions in the context of international migration" (10) The articles in this issue of Refuge directly and indirectly engage with this problematic but collectively see the problem less as ensuring migrants do not access refugee protection and more as ensuring that refugee protection is in fact offered and legal protections guaranteed to refugees. As Care points out in his article in this issue, RSD has been with us in one form or another for more than a century. However, it has only been within the past few decades that RSD processes became widely entrenched in most Northern countries. As a guide to the more recent development of RSD, it is now almost three decades since the UNHCR's seminal global survey of RSD processes and the publication of its handbook on how RSD decisions should be made. Before these publications, there was almost nothing by way of common standards and guidelines that extended beyond the parochial study of the system presently in place in any given country. In the 30 years since these publications, a vast scholarship has emerged on the criteria that should be applied by decision-makers in RSD or, in short, the definition of a refugee. The cornerstones of the refugee law scholarship addressed in this issue were laid by Grahl-Madsen (11), Goodwin-Gill (12) and Hathaway. (13) Their work has enduring worth but precious little to say about RSD. Perhaps the neglect of RSD is simply a reflection of a relative inattention in the scholarship and in practice to the processes of law as opposed to its substance. Nonetheless, the debate over RSD has increased in recent years. European states and civil society turned their attention to the issue in the drafting of the European Union's minimum standards on RSD. (14) NGOs from the Global South have campaigned for UNHCR to reform its RSD. (15) Throughout the late 1990's numerous countries, including Canada, the United Kingdom, and Australia, immersed themselves in debates over the reform of their RSD processes. …
Law v. Canada (Minister of Employment and Immigration)
The Women's Court of Canada is an innovative project engaged in systematically rewriting Canadian equality law by issuing its own versions of leading Supreme Court of Canada equality-related decisions. The judgment of the WCC in Law v. Canada (Minister of Employment and Immigration) traces the emergence of dignity as the touchstone of section 15 equality rights, and reviews the factors relevant to finding a violation of dignity from the Supreme Court of Canada's 1999 decision in Law. These factors are reinterpreted as pointing to three forms of indignity that may be inflicted by law or policy: grounding law or policy in prejudice, the use of, or reliance on, stereotype, and exclusion from dignity-constituting benefits. In analyzing the Canada Pension Plan (CPP) limitation on eligibility for a spousal survivor's pension to those over age thirty-five, the Women's Court finds that the exclusive focus on the age-related differential treatment in the courts below provides an incomplete picture of the program and its rationale. The vast majority of survivor pension recipients are women, and this part of the CPP cannot be properly understood or evaluated absent this gendered context. Denying any assistance to those under a certain age differentially affects mainly women in that age group. Further, the assumption that losing a spouse causes no financial hardship to younger survivors, even in the short term, adopts a male norm by treating as typical of younger spouses those who are employed and fully. self-sufficient. Given the roadblocks women typically encounter in their efforts to be self-sufficient, the financial dislocation due to a spouse's death may easily be severe enough to impair women's ability to live lives of dignity and be full participants in society. Accordingly, the Women's Court reverses the Supreme Court decision, and holds that the CPP survivor pension scheme is discriminatory on the combined basis of age and sex. Based on the arguments put forward in the courts below, the legislation cannot be saved under section 1.
Rights in exile : Janus-faced humanitarianism
Of the estimated 12 million refugees in the world, more than 7 million have been confined to camps, effectively "warehoused," in some cases, for 10 years or more. Holding refugees in camps was anathema to the founders of the refugee protection regime. Today, with most refugees encamped in the less developed parts of the world, the humanitarian apparatus has been transformed into a custodial regime for innocent people. Based on rich ethnographic data, Rights in Exile exposes the gap between human rights norms and the mandates of international organisations, on the one hand, and the reality on the ground, on the other. It will be of wide interest to social scientists, and to human rights and international law scholars. Policy makers, donor governments and humanitarian organizations, especially those adopting a "rights-based" approach, will also find it an invaluable resource. But it is the refugees themselves who could benefit the most if these actors absorb its lessons and apply them. Guglielmo Verdirame is a Lecturer in Law at the University of Cambridge and a Fellow of Corpus Christi College. He is also the author of a forthcoming book on the accountability of the United Nations. Barbara Harrell-Bond, Founding director of the Refugee Studies Centre, University of Oxford, has, after retirement, been Visiting Professor at Makerere University and at the American University in Cairo. In 1996, she received the Distinguished Service Award of the American Anthropological Association. She is the author of Imposing Aid (Oxford, 1986).