Refugee Law and Legal Double Consciousness

Asma Rahimyar, Yale University

This paper probes the historical development of what is an abiding paradox within refugee law: while a universal refugee definition was codified by the United Nations in 1967, it falls far short of accounting for the drivers of displacement that prevail within the Global South. This paradox emerged from Cold War era-politics that shaped the refugee into a decidedly European figure, chiefly through the inclusion of a “colonial applicability clause” that limited the applicability of the Refugee Convention to Europeans fleeing the events of World War II. Decades after the clause was lifted, both the legal architecture of asylum and the rhetoric employed by leaders within the Global North remains seeped within this colonial legacy. I argue, however, that historical analysis reveals more than just the perpetuation of colonial meaning-making. Rather, as meeting transcripts from the Convention drafting process illuminate, delegates’ support of, and opposition towards, the clause revolved around either justifying or laying bare the aforementioned paradox respectively. I posit “legal double consciousness” as a framework through which resistance to the clause by Southern delegates can be understood; ultimately, from this framework can be gleaned the distinctive epistemic clarity that those excluded by refugee law have into its workings—thereby rendering their knowledge production integral to conceptualizing truly universal refugee protection in the present.

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 Presented in Session 60. Crime, Justice and the Law