“Constitutional Approaches to Forced Displacement” Seminar Series

Research Group on International Studies in Forced Migration Newcastle University
Convened by Dr María-Teresa Gil-Bazo and Dr Simon Philpott

Asylum is the institution for protection which protects individuals whose bond with the State of nationality has been severed. Asylum and citizenship (understood as membership and participation in a political community) are therefore very closely intertwined. In 1793, article 120 of the French Constitution, born after the French Revolution, recognised for the first time in a bill of rights the right to asylum to ‘foreigners forced to leave their country as a result for their fight for freedom’. Still today, this provision constitutes a reference on which constitutions around the world continue to formulate asylum in their bill of rights as an essential element of liberal-democratic states. The embedment of asylum in the constitutive instruments of political communities suggests that this institution aims at protecting the higher values on which the State itself is founded: national liberation, justice, democracy, and human rights. This series of seminars will bring together legal and political approaches to protection, the impact of forced migration in defining political communities, and the challenges for the effective implementation of restoring mechanisms on which the relationship between individuals and States can be rebuilt.

Wednesday 31st January 1-2 pm, Seminar Room 5, Newcastle Law School (tbc)
Dr Mollie Gerver (Department of Politics, Newcastle University) – “Repatriation, Restitution and Redistribution”

This paper considers whether post-conflict governments have a moral obligation to redistribute refugees’ former property to those most in need, rather than returning this property to its original owners. It first considers three common arguments in defense of returning property to its original owners. It rejects each one in turn, before raising a fourth and more promising argument: Restitution avoids wrongful discrimination. Were the government to refuse to return property to refugees, and instead redistribute this property to those most in need, the government would be disadvantaging refugees compared to those who never fled. To avoid such discrimination, governments ought to return to refugees their former property, or also redistribute non-refugees’ property at the same rate.

Wednesday 7th February 1-2 pm, Seminar Room 5, Newcastle Law School
Professor Stephen Meili (University of Minnesota Law School) – “The Constitutional Right to Asylum: The Wave of the Future in International Refugee Law?” (Fordham International Law Journal, forthcoming)

This seminar will argue for the increased utilization of an often ignored legal protection for refugees: constitutional asylum. The right to asylum has proliferated in national constitutions over the past two decades, a microcosm of the trend toward constitutionalized human rights law more generally. While usually nothing more than words on paper, these provisions have sometimes been used by lawyers, particularly in Latin America, to expand protections for refugees beyond the scope of the Refugee Convention. Such strategies might also provide greater protection for refugees in the Global North, particularly Europe, where nearly half of the national constitutions contain a right to asylum.

Wednesday 28th February 1-2 pm, Seminar Room 5, Newcastle Law School
Dr Una McGahern (Department of Politics, Newcastle University) – “Protesting at the crossroads: the ‘in-between places’ of Palestinian protest in Israel” (Political Geography)

The right to protest is fundamentally shaped by (uneven) geographies of power. Critiquing city-centred analyses of protest within scholarship on contentious politics and urban studies, this paper draws on insights from Palestinian social movements in Israel in order to illustrate the role and significance of alternative sites of contention outside the city in achieving the political goals of a marginalised community. Bridging anthropological understandings of “non- place” (Augé, 1995) with insights on the “in-between city” (Sieverts, 2003), it advances the concept of in-between place as a useful heuristic device through which to examine spaces of contention outside the city. Focusing on a single protest organised in Wadi Ara in the summer of 2013, it uses frame analysis to interrogate the power of roads, particularly the nodal power of inter-urban crossroads, in enabling Palestinian protest to take place. In so doing, this paper seeks not only to address the creative efforts to be seen and heard on the margins of an ethnocratic regime, but to contribute to a wider decentring research agenda that would move beyond the city in concrete and analytical terms.

Wednesday 7th March 1-2 pm, Seminar Room 5, Newcastle Law School
Dr María-Teresa Gil-Bazo (Newcastle Law School) – “Asylum as a General Principle of International Law” (International Journal of Refugee Law)

Asylum is a well-known institution in international law and its historical roots in state practice are well established. This paper explores the nature of asylum as a general principle of international law. It analyses the normative nature of asylum through its historical practice, paying particular attention to the practice of states as reflected in their constitutional traditions. This constitutional focus responds to the normative character of constitutions. As asylum features in a significant number of constitutional texts across the world, the value of this institution as one of the underlying principles in legal orders worldwide is clear and, as such, it informs international law itself. The article shows that the long historical tradition of asylum as an expression of sovereignty has now been coupled with a right of individuals to be granted asylum of constitutional rank, which in turn is recognised by international human rights instruments of regional scope. This, and its continuous historical presence across civilizations and over time, suggests that asylum constitutes a general principle of international law that is legally binding when it comes to the interpretation of the nature and scope of states’ obligations towards individuals seeking protection.

Wednesday 14th March 1-2 pm, Seminar Room 5, Newcastle Law School
Dr Bilal Dewansyah (tbc) (University of Padjadjaran, Indonesia) – “‘We Respect, But Take The Risk Alone’: Constitutional Right to Asylum and Immigration Law in Indonesia”

Asylum seekers in Indonesia face the problem of uncertainty related to their existence as well as protection. Since Indonesia is not party of 1951 Refugee Convention and 1967 Protocol, there is no international legal obligation binding to Indonesia, particularly to take durable solutions for asylum seekers and refugee. But, however, Indonesia’s Amended 1945 Constitution, guarantee one of related fundamental human rights, so-called “the right to obtain asylum.” In practice, despite that Indonesia known as tolerable country for asylum seekers, but the reception and protection to forced migrants perceive as humanitarian assistance effort, not constitutional obligation taking human rights down to earth. In this sense, government often uses Immigration Law and policy approach rather than constitutional – human rights based approach. At the end of 2016, Indonesian government enacted the only legislation that specify regulate asylum seekers and refugee, namely Presidential Regulation No. 126/2016 regarding Refugee from Overseas. Although based on this regulation, the asylum seekers distinguished from illegal migrants, but, unsurprisingly, the humanitarian assistance approach still appear dominantly. This regulation, mainly focus on procedure to handling the asylum seekers, without any rights based mechanism and transferring the obligation to non-state actors, particularly UNHCR and IOM, without any government support and protection. This paper argues that problem of asylum seekers and refugee rights protections in Indonesia, involve the issues of contesting constitutional framework and lower-legal framework that ignore rights based approach.

Wednesday 18th April 1-2 pm, Seminar Room 5, Newcastle Law School
Dr Sarah Liu (Department of Politics, Newcastle University) – “Chinese Migrant Brides in Taiwan: Tangible, Differentiated, and Rejected Citizenship”

Since the 1990s, a considerable number of Chinese women have migrated to Taiwan through marriage. Although the demographics of these marriage migrants have transformed throughout the years, a misunderstanding still exists in seeing migrant brides as purchased and Taiwanese citizenship as their ultimate goal. Using in-depth interviews with Chinese migrant brides in Taiwan, this paper explains how they negotiate the politics of citizenship as they confront harsher immigration restrictions than immigrants of other origins because of their Chinese identity. This research challenges the myth that all Chinese immigrants desire Taiwanese citizenship. It also suggests that that immigrants’ intersectional identities shape their conceptualization of Taiwanese citizenship. My findings illustrate that some Chinese migrant brides actively reject Taiwanese citizenship. The refusal to naturalize also equates with rejection to participate in the democratic process and institution, leaving Chinese migrant brides underrepresented and preventing Taiwan from progressing as a representative democracy. Thus, my findings raise important implications for the impact Chinese immigrants who remain citizens of a Communist regime make on the political development of Taiwan, a newly emerged democracy.

For further information, please get in touch with the Co-Convenors: Dr María-Teresa Gil-Bazo: maria-teresa.gil-bazo@ncl.ac.uk
Dr Simon Philpott: simon.philpott@newcastle.ac.uk

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