Old Rules to Fix New Problems: Counterterrorism, Refugees and Withdrawal of Nationality

Abstract

Abstract The international legal regimes for refugees and for statelessness have much in common. Both aim at mitigating an absence of State protection of individual rights, while the treaties central to each are related in substance, structure and seek to balance similar concerns. Another similarity is more recent: both face challenges amidst new concerns and new law in the area of counterterrorism. The last two decades have seen a sharp increase in international rules on counterterrorism, the impact of which can also be seen in immigration law and administrative powers. That impact is conditioned by how ‘terrorism’ itself is defined, and Section 2 of this article will highlight some consequences of domestic approaches and why the capacity of international law to impose limits on domestic definitions is often overstated. Section 3 will consider the interaction between counterterrorism law and refugee law, arguing that current difficulties arise not from the substance of the rules but from practical, resource-based challenges. Section 4 will consider legal and practical questions raised by recent practice in withdrawing nationality due to suspected involvement in terrorism, a measure applied to both dual nationals and to those at risk of statelessness. This article will argue that the new threats and responses thereto do pose important practical challenges requiring further attention and resources. But that does not mean that new substantive law is required: the ‘old rules’ adequately balance security concerns with the protection of individual rights, and are more than adequate to meet contemporary challenges.