"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. …
Critical Spaces in the Canadian Refugee Determination System: 1989–2002
This paper draws its conclusions from a multidisciplinary study of the refugee determination process in Canada, the aim of which was to examine the strengths and weaknesses of the system and to explore means of improving it through an in-depth analysis of the diversity of attitudes and perceptions of different actors involved in the process. The basic hypothesis is that the legitimacy of the action of the Immigration and Refugee Board (hereafter IRB) is challenged because of a series of disagreements on the way it operates. Using interviews with former Board members, as well as with other professional actors of the system (lawyers, NGO workers, interpreters, health professionals), we try to understand better the parameters of the problems facing the IRB on three sets of issues: the appointment and renewal of Board members; the relationships between Board members within the IRB; the evaluation of the evidence by Board members. All issues relate mainly to the principles of independence and impartiality of the IRB, as an expert administrative tribunal. In particular, using the idea of ‘critical space’ as a conceptual framework, this study tries to ascertain more precisely how critical spaces within the IRB were being used in order to foster a common culture of independence and impartiality within the institution, or not. This study covers the period 1989-2002: it signals reforms accomplished since and suggests more means for improvement.
Protection of the Marine Environment: The International and National Regulation of Deep Seabed Mining Activities
This chapter provides an overview of the international and national regulatory framework pertaining to deep seabed mining activities. It begins by discussing the UN Convention on the Law of the Sea, the backdrop for all marine activities – be they national or international – and examines the obligations of states to protect the marine environment from the harmful effects arising from deep seabed mining. Next, the chapter examines the international regime for deep seabed mining (i.e. “activities in the Area”), explaining the “common heritage of mankind” status of the Area (i.e. the international seabed); the functions of the International Seabed Authority (ISA), the international organization established to govern deep seabed mining in the Area; and the concept of state sponsorship of non-state entities (i.e. private actors) for deep seabed mining in the Area. The chapter follows with a discussion of the development of national legislation to regulate deep seabed mining, examining efforts in the Pacific region where many prospective deep-sea mining sites are located. This includes a look at the legislative regimes of several Pacific Island nations, namely, Papua New Guinea, Tonga and the Cook Islands, for whom deep seabed mining may soon become a reality – as well as New Zealand and Japan, countries with comparatively developed rule of law and legislative regimes that have undertaken or considered deep seabed mining in their national waters. Overall, the chapter critically describes and evaluates the current regulatory status in the international and national seabed areas and highlights some salient gaps that require urgent attention in order to ensure marine environmental protection and mitigate impacts on humans.