Extending a Collective Human Right to Address a Global Challenge: Self-Determination for Refugees, Asylum Seekers and Internally Displaced Persons – Amy Maguire and Amy Elton

Refugees and people seeking asylum make up approximately 28.5 million of the world’s displaced population. At international law, a refugee is someone who is ‘unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.’ Asylum seekers have left their country of origin but have not had their claims for refugee status resolved. Once these individuals cross the border, they are no longer part of a national community and effectively relinquish self-determination. As self-determination forms a foundation for the exercise of other human rights, refugees and asylum seekers are especially vulnerable to continuing human rights violations. 

There are also 10 million stateless persons throughout the world. A stateless person is someone who is ‘not considered as a national by any state under the operation of its law.’ Statelessness occurs most often where a child is restricted from inheriting parents’ nationalities, or where the citizenship of a person is denied or revoked by their country of residence. Statelessness and displacement are closely linked. One in three stateless people are also forcibly displaced. According to the UNHCR, ‘the world’s…stateless live a marginalized, invisible existence. Their lives have been disrupted or destroyed with incalculable social, economic or political consequences. The Rohingya people in Rakhine, Myanmar, have a long history in that region but are denied citizenship rights on the basis of their ethnicity, leaving them vulnerable to human rights violations by the Myanmar Government.[1]

As the global displacement crisis grows in scale, states appear increasingly drawn towards policies that prioritise national security and border protection over human rights-based approaches. Indeed, there has been a global shift towards punitive treatment of asylum seekers and deterrence agendas, as exemplified through the use of physical barriers to entry and mandatory detention of people seeking asylum.[2] In such an environment, displaced persons lack political representation or avenues to voice rights concerns.[3]For some, such as those asylum seekers and refugees mandatorily and indefinitely detained by Australia on Manus Island, this has led to a sense of hopelessness, resulting in high rates of self-harm and suicide.

Self-determination has previously been raised in the context of forced migration. However, there has been only tentative scholarly analysis to date on how self-determination might guide responses to the particular circumstances of displaced peoples, including refugees. Self-determination can fairly be described as a process, rather than any single outcome of that process.[4]Indeed, it is a right with many ‘faces’, several of which have been identified by Kirgis. These include freedom from colonialism, secession, reunification of formerly divided states, limited autonomy within the state, protection as a minority group, and choice of form of government.[5]Each ‘people’ exercising self-determination must shape the manifestation of the right in their particular circumstances. All peoples may continue to aspire to a greater degree of self-determination in the future, whether through changes to borders, governments, or social and economic circumstances. In the context of internationally displaced persons, self-determination can potentially be understood as requiring an ongoing assessment of the degree to which the right might be exercised by people who no longer have a connection to a state due to their experience of displacement or statelessness. 

We are interested in the potential future operation of self-determination in its broad sense. Self-determination may be best categorised as a universal right of all ‘peoples,’ not only nations of people seeking statehood in order to separate from colonial domination.[6]Such a broad conception can take into account the position of peoples who have previously exercised self-determination through the formation of an independent nation state, but whose capacity to continue to exercise self-determination faces limitation or extinguishment due to their refugee status. Maguire and McGee have argued elsewhere for a similarly broad conception to be explored in relation to populations displaced by climate change impacts.[7]In these contemporary contexts, ideas central to self-determination – political representation, collective capacity to shape social, economic and cultural destiny, and the means to make human rights demands of nation states – may offer protection for the collective and individual rights of some of the world’s most vulnerable people.

The right to self-determination has evolved over time and can continue to adapt to new and challenging circumstances. For refugees whose long-term future is uncertain, a right to self-determination could guarantee the establishment of mechanisms to provide them with a voice in the international arena. For stateless people, the granting of self-determination would shape statelessness law and become a precursor to the realisation of other human rights. International pressure to assert the right to self-determination would place greater weight on governments to acknowledge the citizenship of habitual residents.[8]For internationally displaced stateless people, the human right to self-determination would require receiving states to build long-term and durable solutions for the appointment of a nationality which will enable access to political processes, in line with the UNHCR’s target of ending statelessness.[9]

Self-determination might also be usefully extrapolated to the asylum, refugee and statelessness contexts in order to help shape a more inclusive international legal system. As the international legal system is currently constituted, non-state actors struggle to be heard. In contrast, states typically have great discretion in their dealings with self-determination claimants. The marginalisation of refugees is even starker than that experienced by non-state actors who have some status and agency under international law. For example, the global population of Indigenous peoples now have access to international legal mechanisms and institutions to assert their rights in relation to the nation states with which they share territory. While this by no means equalises power relations between Indigenous peoples and nation states, it provides a global platform and a legal basis for rights demands. McCorquodale has argued persuasively for the development of an inclusive international legal system, in which non-state actors would be empowered to negotiate with states in order to resolve rights claims.[10]If institutions such as the United Nations Human Rights Council were enabled to examine complaints from non-state actors, these communities could communicate their needs, aspirations and demands to the international community.[11]

Our developing research in this area raises a question that calls for considerable further inquiry. We are proposing the extrapolation of self-determination from its anti-colonial context into the challenging contemporary contexts of refugee, asylum seeker and stateless peoples’ rights. Such an effort would challenge the traditional understanding of self-determination as requiring a claim within or against a state. Instead, self-determination could operate as a value or principle empowering marginalised and vulnerable peoples. Refugees, asylum seekers and stateless persons asserting self-determination in new contexts could identify themselves as rights claimants, so promoting the greater alignment of the needs-based refugee and statelessness law model with a human rights-based model more focused on human experiences.

*Associate Professor Amy Maguire, University of Newcastle Law School, Australia. Author contact: Amy.Maguire@newcastle.edu.au

*Amy Elton, PhD candidate, Faculty of Business and Law, University of Newcastle. Amy is a recipient of an Australian Government Research Training Scholarship.

This research was presented at the 2018 Biennial Conference of the International Law Association, Sydney.

[1]Shatti Hoque, ‘Myanmar’s Democratic Transition: Opportunity for Transitional Justice to Address the Persecution of the Rohingya’ (2018) 32(4) Emory International Law Review551, 552; Morton Pederson, ‘The Roots of the Rohingya Refugee Crisis’ (2018) 22(2) Human Rights Defender16, 17.

[2]Brian Wilson, ‘Human Rights and Maritime Law Enforcement’ (2016) 52(2) Stanford Journal of International Law243; 288; Andreas Schloenhardt and Colin Craig, ‘“Turning Back the Boats”: Australia’s Interdiction of Irregular Migrants at Sea’ (2016) 28(2) International Journal of Refugee Law536; Barbara Miltner, ‘The Mediterranean Migration Crisis: A Clash of Titans Obligations’ (2015) 22(1) Brown Journal of World Affairs213.

[3]We note that the United Nations High Commissioner for Refugees (‘UNHCR’) is designed to provide assistance to refugees. However, the limited capacity of the UNHCR and its focus on resettlement and the temporary provision of housing and services means that it is ill-equipped to represent the concerns of the world-wide refugee population. For example, the UNHCR has not acted out against injustices committed against Rohingya refugees who live beyond its camps. See Nasir Uddin, ‘State of Stateless People: The Plight of Rohingya Refugees in Bangladesh’ in Rhoda E Howard-Hassmann and Margaret Walton-Roberts, Pennsylvania Studies in Human Rights: The Human Right to Citizenship – A Slippery Concept (University of Pennsylvania Press, 2015) 65.

[4]Michla Pomerance, Self-Determination in Law and Practice: The New Doctrine in the United Nations(Martinus Nijhoff Publishers, 1982), 119. 

[5]Frederic L Kirgis, Jr, ‘The Degrees of Self-determination in the United Nations Era’ (1994) 88 American Journal of International Law304, 307. 

[6]Amy Maguire, ‘The UN Declaration on the Rights of Indigenous Peoples and Self-Determination in Australia: Using a Human Rights Approach to Promote Accountability’ (2014) 14 New Zealand Yearbook of International Law105.

[7]Amy Maguire and Jeffrey McGee, ‘A Universal Human Right to Shape Responses to a Global Problem? The role of self-determination in guiding the international legal response to climate change’ (2017) 26 Review of European, Comparative and International Environmental Law(forthcoming).

[8]Kathleen McVay, ‘Self-Determination in New Contexts: The Self-Determination of Refugees and Forced Migrants in International Law’ (2012) 28(75) Utrecht Journal of International and European Law36, 48.

[9]See, eg, the suggestion for a statelessness determination procedure in Australia to grant humanitarian visas for stateless persons: Michelle Foster, Jane McAdam and Davina Wadley, ‘Part One: The Protection of Stateless Persons in Australian Law – The Rationale for a Statelessness Determination Procedure’ (2016) 40 Melbourne University Law Review401.

[10]Robert McCorquodale, ‘An Inclusive International Legal System’ (2004) 17 Leiden Journal of International Law477, 485. 

[11]Robert McCorquodale, ‘The Right of Self-Determination’ in David Harris and Sarah Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law(1995) 91, 92.