Reconsidering the Refugee Regime: A TWAIL Approach

The inadequacy of responses to the increasing numbers of refugees over the last decade has resulted in refugee protection crises and the questioning of the 1951 Convention Relating to the Status of Refugees, which is widely accepted as the basis of refugee law. At the time of the creation of the 1951 Convention, Third World states could not effectively participate in the process since they had not yet completed their state formation. In addition, the European refugee regime adopted regulations that took advantage of the systemic deficiencies of international refugee law, taking the burden off of European states and placing it on the countries that were neighboring the refugees’ country of origin, which had visible socioeconomic problems. Thus, the violation of the principle of nonrefoulement within the 1951 Convention and the subsequent regulations formulated by the European Union (EU) provide insights into initiating a discussion on the foundational aspects of the 1951 Convention and its 1967 Protocol. This chapter aims to reassess the refugee regime rooted in the 1951 Convention and its 1967 Protocol from a Third World perspective, focusing on how the historical origins of the Convention and the Protocol have contributed to contemporary refugee crises. To study the existing systemic deficiencies regarding the protection of refugees, this chapter will adopt Third World Approaches to International Law (TWAIL) as the conceptual framework. To this end, the chapter first provides brief critiques of the implementation of the regime by European states. The chapter provides a general analysis of this system to identify persisting issues and reveals the arbitrariness of Europe’s protection practices. It also examines the unequal origins of international and regional refugee law, and argues that the underlying problem of the refugee system is the systematic exclusion of refugees from the Third World.