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University of New South Wales Law Journal Student Series |
MADDISON ZAHRA
One of the most notable pursuits of legal policy, scholarship and the development of legal doctrine is the concept that all should meet the law on an equal footing. That is, the law should be structured in such a way that it applies consistently to all who seek to derive benefit from it. Race is an inherently complex concept, and one that often escapes clear definition. In the context of international refugee law, it is best described as a social construct that has real impact on the way that individuals access the law, and more broadly human rights, and whether they can do so on the aforementioned ‘equal footing.’[1] By understanding the specific role that race has to play in causing international refugee law to apply to disparate groups in different ways, resulting in different outcomes, legal scholars are better able to understand these challenges, and thus, can seek to mitigate them in further development of legal policy and frameworks.
Extensive scholarship has been devoted to understanding how race manifests itself within the plight of refugees, that is, their experience from the root causes of displacement initially, to the journey to seeking asylum, and ultimately their treatment in host countries. This essay will focus largely on how race impacts access to territory specifically within this broader process. Much has been made of the role that race has to play within these experiences and how prejudice, and overt discrimination on this basis is prevalent. Broadly, the scholarship has addressed both general pervasive attitudes of white supremacy within modern legal doctrine, together with an appreciation of overt xenophobic injustices that occur within international refugee law. However, there is an absence of a comprehensive analysis of how the pervasive attitudes and colonial processes of othering have been imbued within the fabric of the law itself, and specifically, its application in practice today. This essay will examine how race intersects and influences the ability for individuals to gain access to territory during the asylum-seeking process, and thus provide broader commentary on how race impacts the functioning of the international refugee law regime. and, more generally, the way in which race manifests to define some as ‘us’ and those who are not ‘us,’ as ‘other.’ Not only will this analysis expose how race and othering exists within the application of refugee law in the lives of individuals, but furthermore, its role within the development of the law itself.[2]
Arguably, race is not only an influential actor in the ability of those seeking asylum and refugees to access basic rights, but, with its imperial roots, it is a key contributor to the creation of the legal structures and mechanisms themselves.[3] Further, this essay argues that the concept of race, and more importantly, its construction as a classifier within societies, is imbued in the law itself. As will be elucidated through the discrete literature review, the supremacy of whiteness is an assumption upon which laws were actively formulated. At the very least, this concept was very much ingrained in the public consciousness, and thus, is ever-present in an analysis of the development of the international refugee law regime. In so doing, the essay will illuminate the risk that, as refugee law continues to evolve, its inherently racialized nature will further entrench inequity in access to human rights for certain groups and individuals, and how this risk can be mitigated.
The first part of this essay situates the analysis in a review of the literature relevant to how race has historically been constructed in the context of refugee law. Specifically, it looks at the European origins of international refugee law and how these imperial roots, colonialism, and the inheritance of ideology and structures imbued with a supremacy of whiteness, continue to influence the plight of refugees. The literature review will further analyse contemporary international mobility and migration, and how otherness has correlated with a deferential treatment of individuals and groups in an international refugee law context. With this background, the essay will then turn to a comparative case study of two situations in which Europe experienced a ‘mass influx’[4] of displaced persons and consider how race and ‘otherness’ influenced the application of relevant legal frameworks.
First, the comparative study will focus on the mass influx experienced in 2015 and following years because of heightened conflict in Syria. According to the United Nations High Commissioner for Refugees (UNHCR), more than four million Syrians had fled the conflict in their country by July 2015, and a further 7.6 million were displaced within Syria.[5] That number continued to rise over the following years, reaching more than 6.8 million Syrians displaced outside their country by 2022.[6] The bulk of those fleeing sought asylum within the region, with the majority fleeing to neighbouring Turkey, Iraq and Lebanon.[7] In addition, some 1.3 million Syrians sought asylum in Europe.[8]
The second case study will be the mass displacement experienced in 2022 as a result of Russian armed aggression in Ukraine. As of July 2022, the UNHCR reported that almost 10 million border crossings from Ukraine into Europe and neighbouring countries had occurred, with 6,162,309 individual refugees from Ukraine recorded across Europe, and 3,444,935 of these six million registered for Temporary Protection or similar national protection schemes in Europe.[9] Temporary Protection is an exceptional measure to be activated in the event of a mass influx of displaced persons who are unable to return to their country of origin.[10] It provides an EU-wide model of temporary protection and is a concrete response to refugee crises that foresees an immediate group-based protection status granting residence permit to beneficiaries.[11] This will be further defined when this essay discusses the implementation of the EU’s Temporary Protection Directive (TPD) herein.
This essay will analyse how the relevant European legal frameworks were applied differently in these cases to grant or deny access to territory for people fleeing conflict and persecution. In particular it will focus on the EU’s TPD, and selected non-entrée measures which were employed, or not, in these two contexts.
Ultimately, through an understanding of the current scholarship regarding the role of race in international refugee law, and the subsequent comparative case study analysing the situations through the parameters of race and otherness, this essay will help to clarify the role that these concepts play in the operation of international refugee law today. In so doing, it is the intention of this essay to provide insight into the current state of this law and to encourage reflection by lawmakers on how they might mitigate or address these disparities which are imbued within the fabric of the law itself to improve future development of international refugee law.
A Colonialism, whiteness and modern international refugee law
There are a few fundamental concepts which must be defined, and upon which the analysis here, and the following extended analytical claims shall be based.
Firstly, it must be recognised that the focus on a European context is helpful for our purposes here, because this essay is more broadly charged with an analysis of how neocolonialism, and its classification of those who are ‘us’ and those who are ‘other,’ is perhaps the most powerful force in the development and application of international refugee law today. For the purposes of this essay, ‘neocololonialism’ is defined as both the continuing dependance of former colonies on foreign countries, but further, and more importantly, the power dynamic where developed countries are in a position to produce a colonial-like exploitation on less developed countries.[12] It should be noted that this definition is by no means exhaustive, and there is much nuance to this school of thought, however, it is helpful to set out its scope here, and in turn, assume that throughout this essay it is bound by these key parameters set forth herein.
This concept is at the crux of our analysis, because the endurance of neocolonialism is directly responsible for the allocation of whiteness as supreme, and, subsequently, colour, and more broadly, any presentation that is not what is socially constructed as ‘white,’ as being ‘other.’ Given the imperial history of the European context, and the pervasive nature of ‘white’ European empires during the colonial era (for our purposes here, this is the period from the late 15th to late 18th centuries), it is fundamental to an understanding of the role of race in refugee law to first complete a comprehensive literature review of scholarship on this subject.
21st century civilization as we know it – that is, the structures, including legal framework and doctrines, by which societies and states are formed – is still heavily influenced by the ideological and practical remnants of state building that occurred during the colonial era.[13] Since the time of colonial empires, race has been an agent for allocating rights among different groups. In imperial colonies, racism and overt xenophobia were not only present, but they were fundamental to the wielding of power within this context.[14] While efforts to decolonize have been at the forefront of the global consciousness since the turn of the 20th century, legal doctrine that was developed during the colonial era arguably persists today.[15] Much scholarship has been done in this field, specifically extrapolating that this persisting colonial legal doctrine was initially formed specifically in service of specific imperial and colonial projects. As Achiume mandates however, this is problematic today, because despite an on-the-face attempt to reconfigure these laws to be racially neutral, both in law and at a policy level, so pervasive is the social construct of race within the fabric of the law, it still acts as an exclusionary force in its application.[16] At the very least, Achiume argues that in the context of borders, which is specific here in our study of international refugee law, the default output of these borders is differential treatment and outcomes based on race, with white supremacy as an important ordering principle, albeit among others, that determines benefit or advantage.[17] This is a direct result of the imprint of colonial legal ideology and its system of ‘othering’ that has endured in the face of the decolonization process.
‘Othering’ is another fundamental concept within this essay which demands definition. Race, as defined by Achiume, in so many words, is a social construct that is centrally about the legal, social, political and economic meaning of being characterized as black, white, brown or any other racial designation.[18] Quijano further affirms that race as a construct remains the product of centuries’-long colonial intervention and exploitation, during which race became the fundamental criterion for the distribution of world population into ranks, places and roles within society’s structure of power.[19] Thus, for the purposes of this essay, race, as a construct, and otherness, and the process by which societies allocate those that are ‘other,’ are fundamentally interconnected. In the context of international refugee law, when examined through the endurance of colonial legal doctrine, and how its remnants remain influential, race and othering are similarly intertwined.
From a literature review on the subject thus far, scholarship broadly, as outlined above, operates on the following understandings:
First, colonialists, and colonial ideology, used race as a construct to allocate power and define roles within society based on the concept of the supremacy of whiteness. This was overt, and explicit in legal doctrine.
Second, despite the movement to facially race-neutral legal institutions and doctrine, neocolonialism still pervades as the dominant cultural influence, which in turn, affirms whiteness as the status quo and thus, defines, on ‘racial’ lines, any construction other than this as different, and as other. Thus, the literature points to the conclusion that legal theory in this context, cannot be complete without some accounting for the extent to which the remnants of the empire shape borders and migration,[20] and this is something that can be lacking in some areas of literature on this subject.
B International Mobility and Otherness
Thus, we come to the second aspect of a discrete literature review. International migration, mobility, and specifically, international refugee law has been the subject of a robust body of liberal legal and political scholarship.[21] An analysis of this scholarship elucidates that it can be classified into two broad categories.
The first is what Debra Thompson termed ‘racial aphasia’ – that is, a calculated forgetting and unwillingness to confront the persisting and imperial operation of race within society.[22] This, on its face, is clearly problematic. As outlined in the first part of this literature review, scholarship, both legal and more broadly in the political sphere, has exposed the enduring nature of colonial doctrine, at least from a race perspective, as it is imbued in modern legal doctrine and institutions. Thus, an absence of consideration as to how race operates in the context of international refugee law specifically provides a substantial gap in the capacity to unmask and explain the role race must play in the injustices faced by individuals who meet international refugee legal frameworks and structures.[23]
There has been some attempt to address this gap in the scholarship, largely through the work of Achiume and others in the last ten years. This brings us to the second category of scholarship, which looks to focus on how migration, mobility and asylum regimes continue to deploy facially neutral legal processes to sustain racialized inclusion.[24] As a consequence of this scholarship, and broader social trends (specifically in the wake of movements such as Black Lives Matter in the US in 2020), global attention including that of the UNHCR, which is arguably the most influential refugee protection actor in the world, have recognised that xenophobic discrimination is among the greatest challenges to refugees globally.[25]
However, much of this scholarship has focused on explicit, prejudice based discrimination.[26] Thus, the response of organisations such as the UNHCR is largely inadequate, as it fail to account for the full extent of discrimination based on othering. While it is important to note that xenophobia has slightly different definitive parameters than race, this literature review, and essay more broadly is centrally concerned with the ways in which a classification of ‘other,’ with whiteness as the status quo, is fundamentally imbued within international refugee law. Achiume to some extent has attempted to address this in her analysis of how structural xenophobic discrimination also exists. This manifests itself in the harm to refugees that results from the disparate effects of various measures on groups classified as ‘other,’ even in the absence of explicit prejudice.
This part will undertake a comparative study of the disparate responses to the mass influx of persons seeking asylum in Europe in 2015 and 2022 from largely the Middle East, and Ukraine respectively. At the outset, it should be established that it has long been asserted that the attitude of most nations and the European Union (EU) in respect to international refugee law is a determination to remain formally engaged with the broad frameworks, but simultaneously an unwavering commitment to avoid assuming their fair share of practical responsibilities under that regime.[27]
By way of this comparison, this part will understand how the concept of what, or who is European, that is, how a proximity to whiteness, is perhaps the defining factor as to the functioning of international refugee law. By extension, I propose to expose that the concept of whiteness is so entrenched in the fabric of the law itself, that these responses are not only unexpected, but will continue unless affirmative, positive action is taken to mitigate these inequities.
A Activation of the TPD
1 What is the TPD?
The Council Directive 2001/55/EC on temporary protection is a mechanism by which standards for the temporary protection of persons displaced by armed conflict or human rights violations are outlined.[28] The European Union describes it as an exceptional measure to be activated in the event of a mass influx of displaced persons who are unable to return to their country of origin.[29] It is designed to “promote a balance of efforts between the Member States” and “offer an adequate level of protection” for those seeking refuge.[30] It provides an EU-wide model of temporary protection, and is a concrete response to refugee crises that foresees an immediate group-based protection status granting residence permit to beneficiaries.[31] A situation of mass influx must be established by the Council,[32] on a proposal from the Commission. In contrast to the 1951 Convention, which is implemented, and predominantly focused on individualized status determination, temporary protection is group-based protection.[33] This is in particular if the ‘mass influx’ entails a risk that the standard asylum system is struggling to cope with demand stemming from the arrivals of displaced persons, thus risking a negative impact on the efficient operation of the asylum system.[34] Crucially, the status of temporary protection is broader than the ordinarily narrow understanding of ‘refugee’ as per the Convention.[35] However, it is, in contrast to refugee status, only a temporary protection, initially for a period of one year, but can be extended to up to three years.[36]
2 Historical Implementation and Efficacy
The TPD was created against the background of the conflicts related to the disintegration of the former Socialists Republic of Yugoslavia in the 1990s. At the time of its adoption, the Directive was seen as a powerful tool for the EU to respond to refugee crises.[37] Since 2001 when it was developed, the EU has faced several humanitarian crises, namely, Libya (2011), Tunisia (2011), and Syria (2011 and ongoing to 2015-16).[38] In each of these so-called ‘crises,’ displaced persons arrived in Europe en-masse, particularly the mass movement of Syrian refugees in 2015, which put huge pressures on EU institutions and front line member states.[39] The TPD was not activated in any of these cases. However, in March 2022, it was activated in response to the Russian invasion of Ukraine. An analysis of the commentary as to why it had not been implemented prior to this, as well as the reasons it was implemented in this specific case will allow for a nuanced understanding of the role that race has to play in the exercise of the discretion of the EU Council in activating the TPD.
3 Implementation of the TPD
As outlined above, the TPD had never previously been activated before March 2022.[40] Much scholarship has been undertaken as to the apparent obsolescence of the TPD itself, looking in isolation as to the reasons it had not been previously adopted by the European Council.[41] Especially in the wake of the 2015 ‘crisis,’ scholars were interested in finding reasons why one of, in theory, the EU’s most powerful tools to cope with mass displaced persons was not a discretionary response.
Activating the TPD involves complicated legal assessment, together with lengthy, strenuous political process needed to reach agreement between Member States on the decision to activate. These, specifically the high threshold of a two-thirds majority required to trigger activation, were seen to be a key impediment to its activation.[42] The activation process itself was also seen as unacceptably time consuming to properly respond to refugee crises, and thus, provided a rationale for inactivation.[43] There have also been questions as to the ambiguity of definition of ‘mass influx,’ and what it entails. Further, not only was there a requirement of consensus of a high majority of Member States, but an inability to find consensus was further exacerbated by the highly politicized nature of ‘refugees,’ and the broader politics concerning the ‘West’ and the ‘Middle East’ in the early 21st century and ongoing. Among the political reasons, the fear of TPD attracting more refugees to Europe, and subsequent concerns about burden-sharing were prominent following the 2015 mass influx.[44]
In mainstream media, this mass influx was referred to as a ‘crisis.’[45] Throughout this essay, a conscious effort has been made to quote this word – ‘crisis,’ and rather elect to refer to the situation as one of mass influx or mass displacement. However, it is worth discussion of semantics here. Mass influx or displacement is directly relevant to the legal language of the TPD, and not politicized. The use of the word crisis in mainstream media points to the broader aspect that the scholarship has identified. That is, politically, Europe was unwilling, or even fearful of attracting more refugees, and the burdens this would place on EU Member States. These fears were frequently expressed in documents, dating from as early as 2006, where burden-sharing was at the forefront of policy debate among Commission publications, debate which is still ongoing.[46]
This led to a conclusion that the burden-sharing fears were in fact an indicator of a much deeper problem of solidarity and confidence among Member States in the EU.[47] Ultimately, it was concluded that the key legal barrier to the activation of the TPD was an inability of States to find solidarity in their willingness to activate the mechanism.[48]
The consensus among scholars was that, because of these legal issues, the TPD was likely to, or already had, become obsolete. In fact, in 2020, the Commission concluded that the TPD no longer responded to the current reality of Member States and needed to be repealed.[49] Thus, the fundamental question here is what was different in the 2022 activation of the TPD and why were these legal barriers overcome? What changed in the space of two years?
In terms of the reasons outlined above as to the inefficacy of the TPD and its inability to be activated, the legal problems have not dissipated in the case of the Ukraine situation in 2022. There remains the complicated legal assessment, and lengthy, strenuous political processes. The number of displaced persons was higher than in the mass displacement referred to in 2015,[50] and so potentially, it was more likely to sufficiently meet the definition of ‘mass influx’ as is required to activate the directive. However, this fails to mitigate the key concern of Member States in the past that has impeded activation – the potential burden on the receiving states. If anything, given the higher numbers, the problem of burden sharing is likely higher.
Thus, and as was exposed in the literature review herein, the key difference, broadly speaking between the groups is one of racial designation. Individuals from Ukraine are, albeit not exclusively, generally regarded as European, and ‘white.’ In contrast, most refugees in 2015 were from Syria, and the broad stereotype, together with enduring political tensions categorized them firmly as ‘other’ than European.[51]
Furthermore, it is important to make note of the widespread acclaim of the Council’s decision to activate the TPD, and the decision was welcomed throughout the world. On its merits alone, there is little to dispute the fact that the activation was appropriate in this discrete case. Because, as Bulgarian Prime Minister Kiril Petkov said recently about people from Ukraine: “These are not the refugees we are used to. ... These people are Europeans. ...These people are intelligent; ... This is not the refugee wave we are used to, people we were not sure about their identity, people with unclear pasts, who could have been even terrorists.”[52]
This is not a politics essay, but one concerned with the operation of international refugee law. In this context however, the law, and its discretionary application is heavily politicised. Thus, the comments of politicians, and the political rhetoric remains influential, and important to consider.
The law is problematic when it affects different groups, or individuals disparately. Based on this evidence here, together with the conclusion that European legal doctrine remains influenced by the racially charged ideologies of colonialism, it at least warrants discussion, and critical analysis of this nature.
The Ukraine situation in isolation provides further evidence of the ways in which race and otherness influence the application, and in turn broader efficacy in terms of allowing protection, of the TPD. Despite the widespread acceptance of Ukrainian refugees across Europe by even the most right-wing conservative leaders, including Orban of Hungary who stated he was “welcom[ing] them by friends in Hungary,[53] there have been many and varied reports of nationals of other nations who were residing in Ukraine, being the subject of overtly prejudicial, racist and xenophobic treatment. Reports of such discrimination, including a statement by the UN Working Group of Experts on People of African Descent,[54] extended to not only acts of violence, but a barring of access to the rights afforded them under the TPD. This example is a microcosm of the broader influence that race has within a European context in terms of the application of, and access to the rights afforded individuals under international refugee law.
B Non-Entrée Measures
In a European context, there has long been an apparent disconnect between the international legal obligations of the refugee law, principally the non-refoulement obligation which is central to the doctrine,[55] and the ability for Member states to adopt policy that allow them to meet these obligations. In response to mass influx of displaced persons in 2015, particularly since 9/11 and amid anti-Islamic and Middle Eastern rhetoric, States largely adopted a policy of deterrence and containment. This ranged from several overt non-entrée measures, including barriers being built at borders to prevent entry, push back and aggressive militarization of borders throughout the region. Additionally, the European Union, in their State of Play document, outlined that the actions taken in response to the crisis were all concerned with deterrence, and a desire to quickly facilitate a ‘return to the normally functioning Schengen system’.[56] Notably, there was no Union-wide response to the situation, and this inconsistency further exacerbated the inability of individuals to access asylum and safety, as nation states did indeed amend asylum legislation, but in most cases, this resulted in a tightening of these laws, with a subsequent limitation on rights of asylum seekers as a result.[57]
What is important to note is the political discourse that dominated at the time of these legal mechanisms being altered, and responses being made by states to the situation. Throughout this time, anti-IS and Muslim rhetoric dominated political debate, with public debate about terrorism and migration being further fueled by the terrorist attack in Paris in December 2015, despite there being no link to the Syrian refugee situation. Numerous legal and humanitarian organisations have criticized the European response to the situation.
Again, this is not a politics essay, but the contrast between the non-entrée measures employed, and policy of deterrence which was employed by the EU is in stark contrast to the response to the Ukraine situation in 2022. Even before the TPD was activated, Ukrainians were, both in a political rhetorical sense welcomed with open arms, but also, in more concrete ways that allowed for access to safety and asylum. For example, free public transport[58] and phone service[59] was provided for refugees, and the initial press releases and response from the EU exposed an intention to simplify border controls and entry conditions for people fleeing Ukraine.[60]
For our purposes here, the analysis of the responses of the EU to the mass influx of persons in 2015 and 2022 respectively provides the following understanding: the scope of international refugee law is broad, and, most significantly, enshrined with the principle of discretion. Hathaway and Gammeltoft-Hansen in 2015 aptly described the attitude of most nations and the EU, which is a determination to remain formally engaged with international refugee law, but simultaneously an unwavering commitment to avoid assuming their fair share of practical responsibilities under that regime.[61] However, the response in 2022 seems at odds with this. On this basis, one would like to propose an amendment to this assertion. That is, international refugee law is a regime that, despite seemingly having a facially neutral and objective application, remains fundamentally discretionary in nature. Scholarship has long accepted that race can, at times, be a factor through which individuals are treated differently, but only to the extent that this was either at odds with the law, or that the law simply was unable to account for this in its present state, and thus, with regulation, could be mitigated. However, throughout the conduction of research and analysis in this essay, it becomes clear that race, specifically the supremacy of whiteness, and othering of all else, is an ideology fundamentally built into the fabric of modern European society. As a product of this, and developed initially from a Eurocentric perspective, international refugee law as a regime is similarly imbued with this ideology. Despite then being facially race-neutral, in practice the law is discretionary in nature, and it is unable to account for the enshrined classifications as to race that exist within the consciousness of European societal structures and mechanisms. This can then explain that it is not, as Hathaway and Gammeltoft-Hansen asserted, a strong desire to simply avoid responsibility of the obligations of international refugee law, but a desire only to do so when those seeking to benefit from the regime are classified as ‘other,’ to Europeans. It is important to note that the demographic of those who seek asylum, or are classified as refugees, often do not fall within the European designation of ‘whiteness.’ Thus, ultimately, the fact that race has a part to play in the very fabric of international refugee law is highly problematic, and one must recognise this, to investigate ways in which affirmative, proactive action can be taken to account for these deficiencies and mitigate them in the further development of the law.
[1] Achiume, E. Tendayi, ‘Race, Refugees and International Law.’ In Costello, Cathryn, Michelle Foster and Jane McAdam (eds), The Oxford Handbook of International Refugee Law (Oxford University Press, 2021) 43-60
[2] Achiume, E. Tendayi, 'Beyond Prejudice: Structural Xenophobic Discrimination against Refugees' (2014) 45(2) Georgetown Journal of International Law 323
[3] Achiume, E. Tendayi, and Asli Bali, 'Race and Empire: Legal Theory within, through, and across National Borders' (2021) 67(6) UCLA Law Review 1386
[4] Insert definition
[5] UNHCR, ‘Total number of Syrian refugees exceeds four million for first time’ (Press Release, 9 July 2015)
[6] World Vision, Syrian Refugee Crisis: Facts, FAQs, and how to help (2022) <https://www.worldvision.org/refugees-news-stories/syrian-refugee-crisis facts>
[7] Pew Research Centre, Number of Refugees to Europe Surges to Record 1.3 million in 2015 (2016)
[8] Ibid.
[9] UNHCR Regional Bureau for Europe. ‘Ukraine Situation Flash Update #23’ (Media Release, 29 July 2022)
[10] European Commission: Migration and Home Affairs, Temporary Protection (2022) <https://home-affairs.ec.europa.eu/policies/migration-and-asylum/common-european-asylum-system/temporary-protection_en>
[11] See no. 28.
[12] Sartre, Jean-Paul, Azzedine Haddour, Steve Brewer and Terry McWilliams, Colonialism and Neocolonialism (Routledge, 1st ed, 2001)
[13] See no. 3.
[14] Rodríguez, Encarnacion Gutiérrez, ‘The Coloniality of Migration and the “Refugee Crisis”: On the Asylum-Migration Nexus, the Transatlantic White European Settler Colonialism-Migration and Racial Capitalism’ (2018) 34(1) Refuge Canada’s Journal on Refugees 16-28
[15] See no. 9.
[16] Achiume, E. Tendayi, 'Racial Borders' (2022) 110(3) Georgetown Law Journal 445
[17] Ibid.
[18] Ibid, pg 453.
[19] Quijano, Anibal, ‘Coloniality of Power, Eurocentrism, and Latin America’ (2000) 1(3) NEPANTLA 533, 535
[20] See no. 13, pg 463.
[21] See no. 1.
[22] Thompson, Debra, ‘Through, Against and Beyond the Racial State: The Transnational Stratum of Race’ (2013) 26(1) Cambridge Review of International Affairs 133, 135
[23] See no. 13.
[24] Ibid.
[25] See no. 2.
[26] Ibid.
[27] Hathaway, James C., and Thomas Gammeltoft-Hansen, ‘Non-Refoulement in a World of Cooperative Deterrence’ (2015) 53(2) Columbia Journal of Transnational Law 235-284
[28] Gluns, Danielle and Janna Wessels, ‘Waste of Paper or Useful Tool? The Potential of the Temporary Protection Directive in the Current “Refugee Crisis”’ (2017) 36(2) Refugee Survey Quarterly 57-83
[29] European Commission: Migration and Home Affairs, Temporary Protection (2022) <https://home-affairs.ec.europa.eu/policies/migration-and-asylum/common-european-asylum-system/temporary-protection_en>
[30] Council Directive 2001/55/EC of 7 August 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L J 212/12–23
[31] See no. 28.
[32] See no. 29, Art 5.
[33] Beirens, Hanne, Sheila Maas, Salvatore Petronella and Maurice van der Velden, European Commission., & ICF. Study on the Temporary Protection Directive: Final report (2016)
[34] See no. 13.
[35] See no. 32.
[36] See no. 28.
[37] Genç, Deniz, and Nedime Şirin, ‘Why not Activated? The Temporary Protection Directive and the Mystery of Temporary Protection in the European Union’ (2019) 7(1) International Journal of Political Science & Urban Studies 1-18
[38] Ibid.
[39] Ibid.
[40] Akkaya, K. “Why is the Temporary Protection Directive Missing from the European Refugee Crisis Debate?” (2015) http://atha.se/blog/why-temporary-protection-directive-missing-european-refugee-crisis-debate.
[41] Ibid.
[42] See no. 37.
[43] Notarbartolo di Sciara, M. “Temporary Protection Directive, Dead Letter or Still Option for the Future? An Overview on the Reasons Behind its Lack of Implementation.” (2016) Eurojus.it, http://rivista. eurojus.it/temporary-protection-directive-dead-letter-or-still-option-for-the-future-an-overview-on-the-reasons-behind-its-lack-of-implementation/?print=pdf
[44] Selo Sabic, S., “The Relocation of Refugees in the European Union: Implementation of Solidarity and Fear,” (2017) Friedrich Ebert Stiftung Zagreb, Analysis
[45] Orchard, C., and A. Miller Protection in Europe for Refugees from Syria. (2014) Oxford: Refugee Studies Center.
[46] See no. 37.
[47] See no 44.
[48] See no 37.
[49] European Commission, Proposal for a Regulation of the European Parliament and of the Council addressing situations of crisis and force majeure in the field of migration and asylum (2020) <https://ec.europa.eu/info/sites/default/files/proposal_for_a_regulation_of_the_european_parliament_and_of_the_council_addressing_situations_of_crisis_and_force_majeure_in_the_field_of_migration_and_asylum.pdf>
[50] See no. 9.
[51] See no. 45.
[52] The Associated Press, 'Not the Refugees We're Used To': Europe Opens the Door for Ukrainians – Others, Less So’, Haaretz, (online, 1 March 2022), <https://www.haaretz.com/world-news/europe/2022-03-01/ty-article/not-the-refugees-were-used-to-europe-welcomes-ukrainians-others-less-so/0000017f-dc3e-db5a-a57f-dc7e5b700000>
[53] Global Detention Project, The Ukraine Crisis Double Standards: Has Europe’s Response to Refugees Changed? (2022)
[54] UN Working Group of Experts on People of African Descent, the Special Rapporteur, ‘Ukraine: UN experts concerned by reports of discrimination against the people of African descent at border’ (Press Release, 3 March 2022) < https://www.ohchr.org/en/press-releases/2022/03/ukraine-un-experts-concerned-reports-discrimination-against-people-african>
[55] See no. 24, Art 31.
[56] European Commission, Press release: Back to Schengen: Commission proposes Roadmap for restoring fully functioning Schengen system (2016) <https://ec.europa.eu/commission/presscorner/detail/en/IP_16_585 >
[57] See no. 45.
[58] Carroll, Sean Goulding, ‘EU Rail Companies Offer Fleeing Ukrainians Free Rail Travel’, Euractiv (online, 28 February 2022) <https://www.euractiv.com/section/railways/news/eu-rail-companies-offer-fleeing-ukrainians-free-travel/>
[59] Symanska, Zuzanna, Nadine Schimroszik and Riham Alkousaa, ‘Deutsche Telekom introduces free-of-charge calls to Ukraine’, Reuters, (online, 25 February 2022) <https://www.reuters.com/business/media-telecom/deutsche-telekom-introduces-free-of-charge-calls-ukraine-2022-02-25/>
[60] See no. 45.
[61] See no. 4.
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