State-Centered Refugee Law: From Resettlement to Containment
![handle is hein.journals/mjil14 and id is 130 raw text is: ESSAYS
STATE-CENTERED REFUGEE LAW: FROM
RESETTLEMENT TO CONTAINMENT
by T Alexander Aleinikoff *
In a world that abhors the presence of unadministered spaces or people,
the presence of forced migrants must be treated as abnormal. Govern-
ment authorities invariably react to refugee situations by trying first to
contain them and later to eliminate them.1
[R]efugee law as it exists today is fundamentally concerned with the pro-
tection of powerful states.2
The concept of refugee both reflects and problematizes the modem
construction of an international system of states. That system is pre-
mised upon an understanding of the world as divided into legally
equal, sovereign states, where sovereignty is taken to mean the legal
right to govern demarked portions of the territory of the globe. In
such a world, individuals need to belong to a state both to ensure their
protection and acquisition of rights and to permit the system of states
to ascertain which particular state has responsibility for (or control
over) which persons.3 In short, the modem world operates under the
motto of a state for everyone and everyone in a state.4
The idea of a system of states does not entail closed borders or
immutable memberships. States may work out rules for the transna-
tional movement of persons, the protection of citizens of one state in
another state, and even the transfer of loyalties from one state to an-
other. Indeed, these kinds of practices-issues of immigration and
* Professor of Law, University of Michigan Law School; Swarthmore College, B.A. (1974),
Yale Law School, J.D. (1977). This essay is drawn from a paper prepared for a conference on
Trust and the Refugee Experience, sponsored by the UN University/World Institute for De-
velopment Economics Research in Bergen, Norway (June 1992), and will be published in TRUST
AND THE REFUGEE EXPERIENCE (E. Valentine Daniel & John Chr. Knudsen eds., forthcoming
1993). I would like to thank the participants for comments. Howard Adelman, Jose Alvarez,
Deborah Anker, James Hathaway, Debra Livingston, David Martin, Bruno Simma, and Eric
Stein also provided careful, critical readings of an earlier draft of the essay.
1. LEON GORDENKER, REFUGEES IN INTERNATIONAL POLITICS 125 (1987).
2. James C. Hathaway, Reconceiving Refugee Law as Human Rights Protection, 4 J. REFU-
GEE STUD. 113, 113-14 (1991).
3. HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM 290-302 (2d ed. 1962).
4. This is not to say that the world lives up to its motto, but it is precisely those situations in
which the actual deviates from the ideal that present such deep problems for the international
regime (e.g., the Palestinians and the Vietnamese boat people in Hong Kong).](ViewImageLocal?handle=hein.journals/mjil14&div=10&collection=&method=preview&ext=.png&size=3)
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State-Centered Refugee Law: From Resettlement to Containment
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