Tomaselli, ‘Deconstructing the binary between “forced” refugees and “voluntary” migrants’, 2023

Davide Tomaselli, ‘Deconstructing the binary between “forced” refugees and “voluntary” migrants: The example of SOGIESC claims of asylum’, University of Amsterdam, 2023

Abstract

This contribution aims at addressing a literature gap concerning the analysis of the consequences of the evolution of SOGIESC asylum on international refugee law and especially the differentiation between ‘forced’ refugees and ‘voluntary’ migrants. Namely, this research takes into account the divide upon which international refugee law is founded in order to assess if and how SOGIESC asylum can be used as a critical tool to deconstruct it.

The research proceeds in three steps. The first one is concerned with the analysis of the refugee/migrant binary, its intersection with the forced/voluntary divide and existing literature on both the consequences of the use of legal categories and the historical and political origin of this differentiation in international refugee law. The second one proposes an internal critique of refugee law through the lens of SOGIESC asylum. More specifically, it is argued that while SOGIESC asylum claims pose numerous challenges to traditional interpretations of refugee law, some of the solutions adopted in the last decades, such as discretion and disbelief, reveal the absurd effects of the attempt to reconcile the paradoxical consequences of the forced/voluntary divide and unveil the substratum of external normative paradigms that are necessary in order for the refugee/migrant binary to work.

Finally, the third step delves into the analysis of some of these external normative paradigms and on their links with the legal tenets of refugee law. In this sense, it is suggested that the conceptual framework of homonationalism is particularly helpful in understanding SOGIESC asylum and some of its contradictory dynamics.

In its conclusions, this research argues that the differentiation between ‘forced’ refugees and ‘voluntary’ migrants should not be naturalized as a neutral legal fact. Conversely, it is suggested that it should be deconstructed through its historical and political genealogy, both driving its current application. To this end, it is claimed that SOGIESC asylum offers a privileged position to cast such a critical sight onto the binary, inasmuch as it constitutes a symbolic negotiation field for broader dynamics such as the continuous redefinition of the shifting borders of international protection and the reinforcement of a self-proclaimed exceptionalism of Western citizenship based on discourses of human rights and sexuality.

Eventually, it is suggested that adopting such a critical posture towards the current refugee system does not have to entail its refusal. On the contrary, any imagination of new ways forward should acknowledge that the Refugee Convention is just one of the instruments that offer protection and that even scholars in this field should start by rejecting and deconstructing their ‘categorical fetishism’.