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Law without Nations$
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Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey

Print publication date: 2010

Print ISBN-13: 9780804771696

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804771696.001.0001

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Ethnic Cleansing, Genocide, and Gross Violations of Human Rights: The State versus Humanitarian Law

Ethnic Cleansing, Genocide, and Gross Violations of Human Rights: The State versus Humanitarian Law

(p.157) Ethnic Cleansing, Genocide, and Gross Violations of Human Rights: The State versus Humanitarian Law
Law without Nations

Elazar Barkan

Stanford University Press

This chapter begins by describing the state of expulsion, followed by a short review of the various legal instruments that reject population transfers and ethnic cleansing, and the use of these instruments by advocates to assert that population transfers have always been illegal despite the widespread practice of such displacements. Based on these assertions, advocates and international organizations (including the UNHCR) further assert that the remedy for expulsion is repatriation, although this contradicts the international practice. There has been great dissonance between the declarations and practice of refugee politics throughout the twentieth century and a disturbing relationship between the rhetoric of human rights and the practice of expulsion. The present historical investigation explores the continued displacement of refugees as a result of failed repatriation and the lack of alternative policies. It underscores first the almost total lack of examples of minority return as a result of implementing the right to repatriation, with few exceptions that are a result of politics and force, not implementation of rights. This predicament between rhetorical emphasis on rights and lack of action is explored as a particularity of the legal limbo of refugees, who are not citizens of the state that is supposed to protect them. But perhaps the predicament is even wider and applies to rights more generally: the chapter ends with a discussion of Arendt's emphasis on the refugee and the violation of the rights of refugees as an emblem of the limitation of the notion of rights.

Keywords:   international law, human rights, ethnic cleansing, expulsion, refugees, population transfer

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