Catherine Dauvergne

Refugee law scholarship is largely focused on the application of refugee law and the refugee status determination processes of Western host countries. This geographical focus of the majority of scholarly work stands in stark contrast to the global distribution of refugees, the majority of whom are hosted by countries of the Global South. This dissertation exposes this imbalanced knowledge production in refugee law, specifically the way in which the unacknowledged bias in the study of refugee law as applied only in select Western countries, limits and indeed distorts our understanding of international refugee law. This distortion has particular consequences for some of the most vulnerable and least mobile refugees residing in host countries of the Global South. This dissertation is based on a qualitative data analysis of interviews I conducted with refugee service providers and refugees in South Africa, supported by a study of the existing literature and legislation. This dissertation presents an alternatively located, feminist study of the understanding of especially ostracized women; polygynous and sexual minority refugee women, within the South African asylum system. I conclude that a variety of factors contribute to the invisibility of these women to service providers, factors which are influenced by and familiar to Western refugee law studies; stereotypical expectations of the refugee figure and of polygynous families and of queer identity, compounded by the socio-economic isolation of these women refugees. I identify particularly relevant distortions in the current study of refugee law, including the neglect of the nexus between economics and experiences of persecution, especially of continuing persecution within host states. I also problematize the reliance on an identity-politics framing of persecuted identities in the study and application of refugee law, which especially disadvantages refugees with intersectional vulnerabilities. The refugees most impacted by these systemic problems in our understanding of refugee law; the economically disadvantaged and those with intersectional vulnerabilities (including, and amplified by, economic disadvantage), are similarly those whose very disadvantage and vulnerability limit mobility. They are thus those most likely to be underrepresented in the distant and expensive states whose asylum systems form the predominant focus of refugee law studies.

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Using the Nansen Initiative on Disaster-Induced Cross-Border Displacement (the “Nansen Initiative”) as a case study, this dissertation applies a synthesis of the theories of international norm development to the decades of international efforts for the recognition and protection of cross-border disaster-displaced persons leading to the establishment of the Nansen Initiative in 2012. The dissertation examines the range of guideposts in the international norms literature for identifying a successful new norm. Relying on judicial precedents and some notable literature on international norms, this dissertation argues that there are diverse forms of contemporary international law. Thus, the dissertation concludes that the Protection Agenda, which is the final product of the work of the Nansen Initiative, is a normative soft law instrument. The dissertation further examines international norm compliance theories as they might relate to states’ disposition towards the Protection Agenda. Based on the endorsement of the Protection Agenda by 109 states in Geneva in 2015, the calibre of states that made the endorsement, and the enthusiasm with which they did so, the dissertation argues that states are likely to implement it. This is so, given that the establishment of the Platform on Disaster Displacement as a post-Nansen Initiative process for the Agenda’s dissemination, interpretation and implementation purposes is a core requirement in the literature for achieving international norm compliance.

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In processes of refugee status determination, the applicant’s first person testimonyplays a critical role. The applicant’s own testimony is often the only evidenceavailable to support the claim being made. This thesis examines the presentation andassessment of refugee applicants’ oral testimony before the Canadian Immigrationand Refugee Board (IRB) and the Australian Refugee Review Tribunal (RRT). Inaddressing the conduct of the oral hearing, a central event within refugee statusdetermination processes, it focuses on the critical role played by the form of refugeeapplicants’ oral testimony. Its central question is how does the form of refugeetestimony shape assessments of refugee applicants’ evidence as credible and thus,influence who may access protection and on what terms. These questions are exploredthrough the close reading of 14 refugee applicants’ oral hearings, which took place inAustralia and Canada between 2012 and 2014.In analysing the hearings, this thesis argues that the law’s requirement for evidencethat is plausible and credible within refugee status determination involves anexpectation that applicants present evidence in a compelling narrative form. Using theframeworks of ‘law and literature’ and narrative theory, with attention to questions oftemporality, causation and plot, this thesis demonstrates that a demand for narrativestructured the oral hearings. The demand encompassed expectations that applicantspresent evidence marked by linearity; direct and explicable causal connections; andsome sense of both ‘plot’ and closure. The hearings woven through this thesis tracehow decision-makers articulated such demands and explore the extent to which thedemand for narrative represents the State’s requirement that refugees to narratethemselves as particular kinds of subjects, whose complex histories and experiencesof fear or harm resolve in the decision to seek refugee status.

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The diversity represented by group difference in liberal democracies is the source of significant philosophical and legal concern. This thesis examines how the law encounters and tolerates this evident diversity. It argues that law responds to group difference as a matter of course by sorting and ordering the group into ostensibly obvious categories. The concept of jurisdiction — understood as the moment in which law speaks to itself about the limits of its authority — grounds the inquiry. It opens the vista onto a broader theoretical understanding of law’s attachments and it provides a lens through which to interpret law’s acts of ordering. Drawing together jurisdictional and geographical insights, the thesis explores territorial manifestations of group difference in three legal orders: international law, national law, and sub-national law. Each of these scalar orders prescribes a distinct jurisdictional logic which governs the group. The optic of jurisdiction permits attention to the circumstances in which law reaches group difference and the scope and content it assumes once there. The nature and extent of this competence is examined through consideration of how group difference is scaled and adjudicated in the jurisprudence. The scrutiny of jurisdictional theory reveals the discontinuities between jurisdiction as a technicality in legal theory and jurisdiction as a mode of governance in social theory. This thesis unites these jurisdictional modes of analysis by clarifying the pervasive political character of jurisdiction. This politicized concept of jurisdiction is then placed in conversation with the scalar governance of group difference. The motif of governance is important because it is the potential ungovernability of the group, specifically the enclave, which underlies liberal anxiety about group difference. Jurisdiction ultimately casts a long shadow over diversity. It is beholden to sovereignty and established legal forms of constituting the group, including statehood, constitutional federalism, and liberal individualism. Attention to the legal threshold reveals that one way that law treats groups is by not grouping them. Jurisdiction reinscribes the boundaries of each legal order, forging different legal objects — nation-states, minorities, cultures — in such a way that these manifestations are not perceived to be part of the same category at all.

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This dissertation looks at the development and operation of the Canadian refugee resettlement program. It queries how law influences the non-legal act of resettlement and conversely how resettlement contorts the law of asylum. Refugee resettlement is a voluntary act by states in which they bring refugees to their territories who have fled elsewhere but who have not received adequate protection. The voluntary nature of resettlement is in contrast to the legal obligation of non-refoulement that states take on with the promise not to send back refugees who reach their territory and claim asylum. Canada is one of the three leading resettlement countries in the world. It has a long-standing resettlement program and employs diverse and creative resettlement models. It is also a program in political and legal flux. Each Canadian resettlement model – government-assisted, private sponsorship, source country, and group processing – is the basis for an analysis of the intersection of rights, responsibility and obligation in the absence of a legal scheme for refugee resettlement. This analysis is supported by an examination of the historical development of the international refugee regime and the United Nations High Commissioner for Refugee’s challenge in fulfilling a mandate tenuously connected to human rights and comprised of both legal obligations and voluntary burden-sharing. A comparative review of the programs in Australia and the United States, which lead in global resettlement alongside Canada, is undertaken to point out and contrast respective differences, weaknesses, and strengths. This analysis shows how differing models affect the law’s place and influence. With these frameworks, the dissertation offers a comprehensive picture and examination of resettlement in Canada, and contributes to a holistic understanding of international resettlement. Beyond this, the project explores the law’s influence on refugees, from outside of the law, and what this does to their access to protection. Refugee law is approached not from the border or at the point of an asylum claim, but further afield in the operation of the non-legal act of resettlement. Thus the project moves past traditional conceptions of law to consider the multitude of legal influences in both refugee law and policy.

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The number of people with less than permanent migration status in Canada has increased in recent decades. While such people often have social and economic ties to Canada, and live and work within its territory, they do not have legal permanent membership by way of permanent residence or citizenship, and experience differential access to legal rights and entitlements. This dissertation examines the role of migration status in the lives of people who identify themselves as having “uncertain” migration status. In this study, I draw on interviews with migrants and representatives of migrant-serving agencies as well as legal and policy texts, deploying Dorothy Smith’s institutional ethnography as a methodology to ground the dissertation both analytically and structurally in the interview data. This study enlarges the understanding of the nature and effects of migration status as it is enacted in local institutional sites. Using the construct of “precarious migration status” as a theoretical frame, I focus specifically on the nature and effects of precarious migration status. I explore the effect of precarious migration status on working life and on migrants’ interactions with state institutions governing health care, education, and income security. I conclude that precarious migration status has a deleterious effect on the employment relationship itself as well as access to worker protections, even though the law creates no formal barrier to such protections on the basis of status. With regard to social state, individuals with precarious status are often formally excluded in the text of the law as well as through various exclusionary policies and practices within local institutional sites. I conclude that institutional sites in which precarious migration status functions to exclude should be understood as forms of enforcement. I further conclude that human rights and anti-discrimination strategies through Charter and provincial human rights statutes, while valuable, are unlikely to improve inclusion for precarious migrants, while contestation of membership at the level of local institutions has greater potential to do so.

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This study investigated the anomaly between the claims that international human trafficking is wide spread in Canada versus the paucity of international trafficking prosecutions that have been achieved in this country following almost a decade of anti-trafficking enforcement. It relied upon a research approach that was anchored by Pierre Bourdieu’s ‘field’ theory in order to unite the disparate issues that were examined in this project into a cohesive explanation for why there have been so few international human trafficking prosecutions in Canada. This thesis examines how moral reform and radical feminism have come to dominate the trafficking discourse and how that dominance has resulted in a general understanding of the crime where the victims are vulnerable foreign women and children trafficked for the sex trade. The study traces the interaction that has taken place between the international anti-trafficking social movement and the Canadian government in order to demonstrate the influence that this social construction of international trafficking has had upon the government’s anti-trafficking policy, law and enforcement strategies. Through an analysis of government documents, statistical enforcement results, study research interviews, and alternative explanations that have been offered to account for the lack of international trafficking prosecutions, this thesis establishes that the most plausible explanation for so few international trafficking prosecutions in Canada is that the international trafficking of foreign women and girls into Canada for prostitution is not as systemic in this country as many have claimed. The examination of the lone international trafficking prosecution reveals that the victim formation which underpins the understanding of international trafficking can appreciably affect prosecutions because it dismisses from consideration as victims those persons who exist beyond the parameters of the accepted international human trafficking victim indicia.

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This doctoral thesis focuses on collective bargaining and temporary migrant workers within Canada participating in the Seasonal Agricultural Workers Program (SAWP). The intent is to analyze the range and efficacy of legal responses to the problems encountered by this community within Canada, focusing on the unionization of SAWP participants. The dissertation addresses the fundamentally legal relationship between unionization and SAWP workers in Canada. It takes an approach that considers both historical and legal considerations leading to the use of SAWP workers in Canada, and the eventual attempts at unionization. Recent legal developments in several Canadian provinces involving SAWP workers and efforts collective bargaining are analyzed. There is a comparison with similar efforts to unionize migrant workers in the United States, and of efforts to address violations of collective bargaining rights through international complaints as well as within the broader framework of international law. The conclusion reached is that within the current framework of provincial labour legislation and the current structure of the SAWP, collective bargaining alone represents an inadequate response to violations of SAWP workers’ workplace rights in Canada.

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