Guy Goodwin-Gill's reflections on The Refugee in International Law: Then and now

Since the first edition appeared in 1983, The Refugee in International Law has seen many changes, even as the overall approach remains the same – to provide insight into the refugee, the meaning of persecution, and the scope of the principle of non-return (non-refoulement). 1983 was a year of crisis – but when isn’t it? – and refugees from Indochina, Latin America and Africa were even then dominating the headlines and making new demands on governments to meet the challenges of protection, resettlement and local integration. Then as now, the major obstacles were mostly at the political level for, like today, there was much broader public support for admission and protection than among governments.

By today’s standards, the text of the first edition was rather compressed – just 234 pages – and there was little refugee case law. Membership of a particular social group, for example, was covered in just two paragraphs, but the relevant criteria of ‘shared interests, values, or background – a combination of matters of choice with other matters over which members of the group have no control’ have held up, as has the fact that the identity of the group may well be ‘in direct proportion to the notice taken of it by others’. Today, the coverage goes to 20 pages, with copious citation to jurisprudential developments and to what has become contested – whether the ‘notice’ taken by others should be counted as an element requiring proof, and if so, of what exactly.

At first glance, the fourth edition may not appear much more extensive than the third edition (2007), or even the second (1996). Jane McAdam, Emma Dunlop and I nevertheless had to accept that our coverage was driven by a complex subject developed across multiple jurisdictions, and that something would have to change and something would have to go. We first considered reducing the number of annexes, but settled finally on cutting them entirely, and what remains is a list of States party to the principal treaties on refugees and stateless persons, and members of the UNHCR Executive Committee and the EU. The loss of the annexes, particularly the treaty text, is compensated to an extent by their being readily available in the electronic version on the website of Oxford University Press. Cutting the annexes freed up 180 pages or so which, together with some ‘re-formatting’, allowed for two new chapters on disaster and climate-change related displacement and on nationality and statelessness. It also offered us the opportunity to dig deeply into case law and practice in a thorough-going revision, in which we updated and analysed afresh every issue, old and new – the substantive coverage is now more than three times that of the original edition.

Apart from the length, what else has changed? The process of development of international law is undoubtedly slow, depending on political circumstances and countervailing pressures and processes. There is no new treaty, no updated UNHCR Statute, even as times have undoubtedly changed and the Covid–19 pandemic has brought in opportunities to control the movements of people between States, irrespective of their needs. Add to that an awareness of the increasingly protracted and unresolved nature of refugee problems in the world and increasing movements of refugees to where they might find better protection for themselves and their children, and you have the hallmarks of intensified confrontation in matters on which States are unwilling to commit themselves.

One can end up having a certain sympathy with the quandary in which States find themselves, uncertain how to react and unwilling in general to be seen to cooperate, equitably and meaningfully, with others. On the one hand, they continue to place barriers in the way of refugee movement, while on the other, their own and international jurisdictions insist that a small but important measure of protection – non-refoulement – is available to all who are touched by the agents of the State and who are at risk of return to harm. Somewhere in all of this stands UNHCR, the Office of the UN High Commissioner for Refugees, which States have formally mandated to provide protection and to seek solutions.

We have tried to capture this broad picture in the fourth edition. Essential as it is to the preservation of life and liberty, the right to seek asylum from persecution and other serious relevant harm is no substitute for the fullest protection of human rights at home – everyone ought to be free to enjoy their rights in the territory with which they are connected by the internationally relevant social fact of attachment, where local democratic and representative government, civil society and the rule of law flourish. But international refugee law exists and thrives because so many are denied so much by just a few governments

For that reason, we have looked a little more into the legal and institutional history, and examined closely the application of the refugee definition, the grounds for recognition of status and for its denial. Here, we can see the international impact of ‘local’ case law which considers and develops the meaning of persecution, or applies the principle of non-penalisation, and of the jurisprudence of human rights bodies for whom the return to risk of harm of those seeking protection is to be avoided at all costs. Faced with the strengthening endorsement of basic principles, States seek ways and means to prevent arrival, by physical obstacles and by visas, carrier sanctions, denial of disembarkation, or by often spurious arguments that someone else is surely responsible.