Refugee Law and Policy: A Comparative and International Approach / Edition 4

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The fourth edition of Refugee Law and Policy, which includes all legal developments through mid-2010, provides a thoughtful scholarly analysis of refugee law, and related protections such as those available under the Convention against Torture. The book is rooted in an international law perspective, enhanced by a comparative approach. Starting with ancient precursors to asylum, the casebook portrays refugee law as dynamic across time and cultural contexts. This edition of the casebook has incorporated substantial new materials on the cutting edge area of social group claims, and their relevance to claims for protection based on gender-persecution and LGBT status. It includes an extensive discussion of the concept of "social visibility" which has become one of the most controversial interpretive issues in U.S. refugee law. Although Refugee Law and Policy is directed to students of U.S. law, it draws on the legislation, jurisprudence and guidelines of other Refugee Convention and Protocol signatories, including Canada, the United Kingdom, Germany, Australia, New Zealand and South Africa. The casebook is up to date on developments to harmonize refugee policy within the European Union, and includes discussion of relevant E.U. directives. In its treatment of both U.S. and global trends, Refugee Law and Policy examines and contrasts some of the most controversial contemporary issues in refugee law, such as the denial of access to the territory of the country of asylum, through use of expedited removal and similar "accelerated" procedures, the increased use of detention, and the ongoing debate over gender-based claims for protection. Refugee Law and Policy also compares current trends in refugee law to parallel trends in human rights and humanitarian and international criminal law, with special reference to the work of the International Criminal Tribunals for Yugoslavia and Rwanda, and the International Criminal Court. The materials Musalo, Moore and Boswell present in the book are more fully examined through the extensive use of notes and comments, which also serve to highlight essential themes and concepts of the text and to make them more accessible to the reader. Since the casebook addresses both substance and procedure, with a focus on practice as well as theory, it is an excellent text not only for students, but for practitioners and those in government agencies as well.

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Product Details

  • ISBN-13: 9781594608391
  • Publisher: Carolina Academic Press
  • Publication date: 1/28/2011
  • Edition description: Fourth Edition
  • Edition number: 4
  • Pages: 1220
  • Sales rank: 933,396
  • Product dimensions: 7.30 (w) x 10.30 (h) x 1.90 (d)

Meet the Author

Karen Musalo is a Resident Scholar at the University of California, Hastings College of the Law, where she directs The Center for Gender and Refugee Studies, and teaches refugee law and international human rights. Jennifer Moore is a professor of law at the University of New Mexico School of Law. Richard A. Boswell is a professor of law at the University of California, Hastings College of the Law.

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Table of Contents

Table of Cases
Ch. 1 The International Origins of Refugee Law 3
The Ancient Roots of Refugee Protection 4
Twentieth Century Ultra-Nationalism and the Creation of the "New Refugees" 11
The Crystallization of an International Refugee Protection Regime (1921-1951) 18
The Evolution of the Modern International Law Definition of the Refugee (1920-1951) 23
The U.N. Relief and Works Agency for Palestine Refugees 36
The Fundamental Challenges of Refugee Protection 40
Contemporary and Expanded Notions of the Refugee 46
Ch. 2 International Norms and State Practice 57
U.S. Law and International Norms 58
Selected Issues: U.S. Compliance with International Norms 79
Asylum Policy in the European Union 135
South Africa's Emerging Refugee Protection System 140
Ch. 3 Degrees of Risk: The Standard of Proof in Claims for Protection 147
I.N.S. v. Stevic: The Standard of Proof for Non-refoulement; Not all Refugees are Entitled to Non-refoulement 148
The Standard of Proof for Refugee Status 160
The Interpretation of the Well-Founded Fear Standard 186
Garcia-Ramos - The U.S. Courts Distinguish the Asylum and Withholding/Restriction Standards 196
The Standard in Expedited Removal - A "Credible Fear of Persecution" 200
The Relationship Between the Standard of Proof for Likelihood of Harm and The Burden of Proof/Burden of Persuasion 202
Past Persecution and its Relevance to Claims for Protection 204
The Relationship Between Countrywide Persecution and a Well-Founded Fear 208
The Role of Discretion in the Refugee Determination Process 210
Ch. 4 The Definition of Persecution - Its Forms and Sources 219
The Relationship Between Human Rights Norms and Persecution 219
The Forms of Persecution 223
The Origin of Perspecution 270
Ch. 5 The Nexus Requirement 275
United States Jurisprudence 276
International and Comparative Practice on the Requirement of Nexus 313
Protection Under the Torture Convention 324
Ch. 6 Persecution on Account of Political Opinion 341
Persecution on Account of Political Opinion: When are Activities & Opinions Political? 342
Selected Issues - Prosecution vs. Persecution, Refusal to Serve in the Military and Coercive Population Control 383
Ch. 7 Persecution on Account of Religion 435
Freedom of Religion in International Practice and its Relationship to Refugee Norms 436
Different Degrees of Consistency with International Norms: United States, United Kingdom and Australia 439
U.S. Constitutional Law Principles: First Amendment Free Exercise of Religion 460
Overlapping Grounds of Persecution 465
Ch. 8 Persecution Based on Race or Nationality 481
Basic Concepts 483
Historical Perspective on Nationalism and Persecution 487
An Analysis of Asylum Claims Based Upon Race or Nationality from the Perspective of the UNHCR Handbook 491
Treatment of Race and Nationality Claims in U.S. Courts 493
International Treaties Relating to Crimes Against Humanity 528
Contemporary Case Studies of Ethnic Persecution and the Establishment of International Criminal Tribunals 531
Humanism in the Face of "Organized Ethnic Hatred:" A Further Commentary 541
Ch. 9 Persecution Based on Membership in a Particular Social Group 547
Conceptual Background 549
Nexus and Social Group 552
Treatment of Social Group Claims in U.S. Courts 554
Comparative Law Analysis of Social Group Claims 604
Ch. 10 Gender-Related Claims to Refugee Status 621
Conceptual Background: the Women's Human Rights Movement and the Challenge of International Protection for Refugee Women 624
An Analysis of Gender-related Grounds and Forms of Persecution from the Perspective of the UNHCR 638
The Treatment of Refugee Women's Claims in U.S. Courts: The Still-Exceptional Character of Gender Asylum Jurisprudence 645
Comparative Law Analysis of Gender-Related Claims 673
Some Concluding Remarks About "Gender-Related" Claims 697
Ch. 11 Qualifications Upon Protection 699
The Exclusion Clauses of Article 1.F 699
Article 33.2 - Particularly Serious Crimes and "Danger to the Security" of the Host Country 741
Applying the Exclusion Clauses 748
The Cessation Clauses of Article 1.C 749
Comparative Charts of Refugee Convention and INA Qualifications on Protection 761
Ch. 12 The Process and Rights of Asylum Seekers 771
An International Perspective on Procedures 771
Realpolitik Constraints 774
Limits on Constitutional Protections for Asylum Seekers in the United States 780
Selected Issues in State Practice 786
Ch. 13 Proving the Claim 841
International Perspectives 842
Establishing the Facts - Selected Issues 845
Credibility Determinations from the Perspective of the Examiner 906
App. A American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 914
Ch. 14 Current and Future Challenges in Refugee Protection 919
UNHCR: The United Nations Refugee Agency Renews its Commitment to Refugee Protection in the Twenty-first Century 921
Temporary Protection and Complementary Protection: a Retreat from Asylum or an Overture to Protection? 925
Non-Refoulement to Human Rights Emergencies: Harbinger of a Customary Norm? 937
Responding to the Internally Displaced: The Problem of Failed States and the Concept of Effective Protection 942
Resolving the Problem of Exile: the Seamless Web of Prevention, Protection and Solutions 948
Refugees as Survivors of Cnflicts and Healers of Communities 956
H Conclusion 977
Index 979
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