Tomaselli, ‘”Forced” Refugees versus “Voluntary” Migrants’, 2025
- Category: Literature
- Source: Academic
- Subject: Sexual Orientation/Sexuality, Gender Identity, Intersex, Refugee/Asylum
- Place: International
- Year: 2025
- File: eeaf023
- URL: https://doi.org/10.1093/ijrl/eeaf023
Davide Tomaselli, ‘”Forced” Refugees versus “Voluntary” Migrants: Deconstructing a Binary through SOGIESC Claims of Asylum’, International Journal of Refugee Law, eeaf023, 2025
Abstract
This article addresses the consequences that SOGIESC claims of asylum have on international refugee law and its fundamental distinction between ‘forced’ refugees and ‘voluntary’ migrants. Namely, this research focuses on this binary (forced-refugee/voluntary-migrant) and explores how SOGIESC asylum can be deployed as a critical tool to deconstruct it.
The article proceeds in three steps. The first one is concerned with the analysis of the binary 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. It argues that while SOGIESC asylum challenges traditional interpretations of refugee law, some of the solutions adopted in the past decade reveal the absurd effects of the forced/voluntary divide and point towards the substratum of non-legal normative paradigms that are necessary for the refugee/migrant binary to work. Finally, delving into the analysis of these ‘external’ normative paradigms, the third step suggests that the concept of homonationalism helps to understand SOGIESC asylum and some of its contradictory dynamics.
This article concludes that the differentiation between ‘forced’ refugees and ‘voluntary’ migrants should not be naturalized as a ‘neutral’ legal fact: this legal differentiation is neither preordained nor indisputable nor necessary. Conversely, it should be deconstructed through the historical and political genealogies that steer its current application. To this end, SOGIESC asylum offers a privileged position to cast such a critical sight onto the binary inasmuch as it constitutes a symbolic negotiation field for the continuous redefinition of the scope of international protection and the reinforcement of the exceptionalism of Western citizenship based on discourses of human rights and sexuality.
Such a critical posture towards the current refugee system does not entail its utter refusal. Nonetheless, it is proposed that there can be no space for the imagination of new solutions if scholars, in the first place, do not start by rejecting their ‘categorical fetishism’.