The Rights of Refugees under International Law

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Excellent, clean condition, tiny cut in the cover - cloth bound, no dust jacket, "The Rights of Refugees under International Law", Author: James C. Hathaway; Cambridge University ... Press 2005 Read more Show Less

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Overview

This book presents the first comprehensive analysis of the human rights of refugees as set by the UN Refugee Convention. In an era where States are increasingly challenging the logic of simply assimilating refugees to their own citizens, questions are now being raised about whether refugees should be allowed to enjoy freedom of movement, to work, to access public welfare programs, or to be reunited with family members. Doubts have been expressed about the propriety of exempting refugees from visa and other immigration rules, and whether there is a duty to admit refugees at all. Hathaway links the standards of the UN Refugee Convention to key norms of international human rights law, and applies his analysis to the world's most difficult protection challenges. This is a critical resource for advocates, judges, and policymakers. It will also be a pioneering scholarly work for graduate students of international and human rights law.
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Editorial Reviews

From the Publisher
"Jim Hathaway is indisputably one of the most interesting and provocative scholars working on international refugee law today. Any book he writes in this field is of major importance."
--Philip Alston, Professor of Law, New York University

"This is a remarkable study. As he did in his earlier seminal text, The Law of Refugee Status (1991), Professor Hathaway charts the way forward to a dynamic and purposive interpretation of the Refugee Convention while remaining true to its text, object and purpose. No government official, refugee decision-maker or refugee advocate can conscientiously approach the Refugee Convention without this landmark text on refugee rights."
Rodger Haines, QC Deputy Chair, New Zealand Refugee Status Appeals Authority

"James Hathaway undoubtedly stands as the intellectual architect of contemporary refugee law... He is a scholar of unparalleled depth, rigor, clarity and integrity. Professor Hathaway's writings, linking refugee and human rights law have already, and no doubt will continue to, transform both fields."
--Deborah Anker, Harvard Law School

"Professor Hathaway's scholarly new work builds upon, and vindicates, his world-wide authority. It is encyclopedic in its scope. Propositional statements are supported by extensive footnote references to authoritative sources. Hathaway's analysis is likely to be a necessary point of reference in any serious exposition, or development, of the law relating to refugees."
--The Australian Bar Review

"A well-researched comprehensive study of international refugee rights...Hathaway not only describes and interprets the convention the Convention in the jurisprudence and an overview of customary government practices. The global breadth of this book combined with its detailed analysis of legal texts and practices make it a truly unique scholarly publication...This book promises to become a leading treatise on refugee rights and should have a place on the shelves of all those who are concerned with human rights."
--Tugba Basaran, Human Rights and Human Welfare

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Product Details

  • ISBN-13: 9780521834940
  • Publisher: Cambridge University Press
  • Publication date: 9/30/2005
  • Pages: 1200
  • Product dimensions: 6.85 (w) x 9.72 (h) x 2.17 (d)

Meet the Author

James E. and Sarah A. Degan Professor of Law, University of Michigan.
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Read an Excerpt

Cambridge University Press
0521834945 - The Rights of Refugees under International Law - by James C. Hathaway
Excerpt


INTRODUCTION

The greatest challenge facing refugees arriving in the developed world has traditionally been to convince authorities that they are, in fact, entitled to recognition of their refugee status.1 What level of risk is required by the "well-founded fear" standard? What sorts of harm are encompassed by the notion of "being persecuted"? Is there a duty to seek an internal remedy within one's own country before seeking refugee protection abroad? What is the meaning of the five grounds for protection, and what causal connection is required between those grounds and the risk of being persecuted? Most recently, significant attention has also been paid to the nature of the circumstances under which a person may be excluded from, or deemed no longer to require, protection as a refugee.

While debate continues on these and other requirements for qualification as a Convention refugee,2 there is no denying that the decade of the 1990s gave rise to a marked increase in both the extent and depth of judicial efforts to resolve the most vexing definitional controversies. Senior appellate courts now routinely engage in an ongoing and quite extraordinary transnational judicial conversation3 about the scope of the refugee definition,4 and have increasingly committed themselves to find common ground.5 Indeed, the House of Lords has suggested that courts have a legal responsibility to interpret the Refugee Convention in a way that ensures a common understanding across states of the standard of entitlement to protection:

[A]s in the case of other multilateral treaties, the Refugee Convention must be given an independent meaning ... without taking colour from distinctive features of the legal system of any individual contracting state. In principle therefore there can only be one true interpretation of a treaty ...

In practice it is left to national courts, faced with the material disagreement on an issue of interpretation, to resolve it. But in doing so, [they] must search, untrammelled by notions of [their] national legal culture, for the true autonomous and international meaning of the treaty.6

In contrast to the progress achieved by courts in conceiving a shared understanding of the Convention refugee definition, there has been only minimal judicial engagement with the meaning of the various rights which follow from recognition of Convention refugee status. Although most of the Refugee Convention is in fact devoted to elaborating these entitlements, there is only a smattering of judicial guidance on a small minority of the rights set by the treaty. Even in the academic literature, only the core duty of non-refoulement and, to a lesser extent, the duties of non-expulsion and non-penalization, have received any serious attention.7 This analytical gap is no doubt largely the result of the tradition of most developed states simply to admit refugees, formally or in practice, as long-term or permanent residents. While not required by the Refugee Convention,8 this approach has led de facto to respect for most Convention rights (and usually more). Because refugee rights were not at risk, there was little perceived need to elaborate their meaning.

In recent years, however, governments throughout the industrialized world have begun to question the logic of routinely assimilating refugees, and have therefore sought to limit their access to a variety of rights.9 Most commonly, questions are now raised about whether refugees should be allowed to enjoy freedom of movement, to work, to access public welfare programs, or to be reunited with family members. In a minority of states, doubts have been expressed about the propriety of exempting refugees from compliance with visa and other immigration rules, and even about whether there is really a duty to admit refugees at all. There is also a marked interest in the authority of states to repatriate refugees to their countries of origin, or otherwise to divest themselves of even such duties of protection as are initially recognized.

This movement towards a less robust form of refugee protection mirrors the traditional approach in much of the less developed world. For reasons born of both pragmatism and principle, poorer countries - which host the overwhelming majority of the world's refugees10 - have rarely contested the eligibility for refugee status of those arriving at their borders.11 Yet this conceptual generosity has not always been matched by efforts to treat the refugees admitted in line with duties set by the Refugee Convention. In far too many cases, refugees in less developed states have been detained, socially marginalized, left physically at risk, or effectively denied the ability to meet even their most basic needs. The imperative clearly to define the rights which follow from refugee status, while of comparatively recent origin in most industrialized states, is of long-standing duration in much of the less developed world.

The goal of this book is therefore to give renewed life to a too-long neglected source of vital, internationally agreed human rights for refugees. More specifically, the analysis here seeks to elaborate an understanding of refugee law which is firmly anchored in legal obligation, and which is accordingly detached from momentary considerations of policy and preference. The essential premise is that refugees are entitled to claim the benefit of a deliberate and coherent system of rights.

It will be clear from this formulation that the Refugee Convention and its Protocol are conceived here not as accords about immigration, or even migration, but as part and parcel of international human rights law. This view is fully in line with the positions adopted by senior courts which have analyzed the object and purpose of the Refugee Convention. In perhaps the earliest formulation, the Supreme Court of Canada embraced the view that the essential purpose of the Refugee Convention is to identify persons who no longer enjoy the most basic forms of protection which a state is obliged to provide. In such circumstances, refugee law provides surrogate or substitute protection of basic human rights:

International refugee law was formulated to serve as a back-up to the protection one expects from the State of which an individual is a national. It was meant to come into play only when that protection is unavailable, and then only in certain situations.12

Complementing this analysis, the House of Lords more recently affirmed that the fundamental goal of refugee law is to restore refugees to affirmative protection:

The general purpose of the Convention is to enable the person who no longer has the benefit of protection against persecution for a convention reason in his own country to turn for protection to the international community.13

Justice Kirby of the High Court of Australia has moreover linked the goals of refugee law directly to the more general human rights project:

[The Refugee Convention's] meaning should be ascertained having regard to its object, bearing in mind that the Convention is one of several important international treaties designed to redress "violation[s] of basic human rights, demonstrative of a failure of state protection" ... It is the recognition of the failure of state protection, so often repeated in the history of the past hundred years, that led to the exceptional involvement of international law in matters concerning individual human rights.14

As these formulations make clear, refugee law is a remedial or palliative branch of human rights law. Its specific purpose is to ensure that those whose basic rights are not protected (for a Convention reason) in their own country are, if able to reach an asylum state, entitled to invoke rights of substitute protection in any state party to the Refugee Convention. As such, the right of entry which is undoubtedly the most visible consequence of refugee law is, in fact, fundamentally consequential in nature, and of a duration limited by the persistence of risk in the refugee's state of origin.15 It is no more than a necessary means to a human rights end, that being the preservation of the human dignity of an involuntary migrant when his or her country of origin cannot or will not meet that responsibility. In pith and substance, refugee law is not immigration law at all, but is rather a system for the surrogate or substitute protection of human rights.

Despite its obvious relevance and widespread ratification,16 the Refugee Convention has only rarely been understood to be the primary point of reference when the well-being of refugees is threatened. In particular, there has too often been a tendency simply to invoke non-binding UNHCR or other institutional policy positions. When legal standards are brought to bear, there appears to have been a tacit assumption that whatever concerns refugees face can (and should) be addressed by reliance on the more recently evolved general system for the international protection of human rights.17

It is, of course, true that all persons are today understood to possess legally defined human rights worthy of official validation across time and societies. States acknowledge in principle that they may not invoke raw power, sovereign political authority, or cultural diversity to rationalize failure to ensure the basic rights of persons subject to their jurisdiction - including refugees.18 The range of international human rights instruments is moreover indisputably vast, and growing. Yet, more than half a century after inauguration of the United Nations system of international human rights law, we must concede that there are only minimal legal tools for the imposition of genuine and truly universal state accountability. The adjustment to an understanding of human rights law conceived outside the political processes of individual nation-states has required a painstaking process of reconciling divergent values and political priorities, which is far from complete. Instead of a universal and comprehensive system of human rights law, the present reality is instead a patchwork of standards of varying reach, implemented through mechanisms that range from the purely facilitative to the modestly coercive.19 Despite all of its successes, the human rights undertaking is very much a work in progress, with real achievements in some areas, and comparatively little in others.

This fragmentary quality of international human rights law has too often been ignored by scholars and advocates. In a perhaps unconscious drive to will the universal human rights project to early completion, there has been a propensity to overstate the authentic reach of legal norms by downplaying, or even recasting, the often demanding standards which govern the recognition of principles as matters of international law. In the result, there is now a troubling disjuncture between law as declared and law recognized as a meaningful constraint on the exercise of state authority.

The view advanced here, in contrast, is that the protection of refugees is better pursued by the invocation of standards of indisputable legal authority, and in particular by reliance on widely ratified treaty law. This study therefore seeks clearly to adumbrate, in both theoretical and applied terms, the authentic scope of the international legal rights which refugees can bring to bear in states of asylum. This approach is based on a firm belief that the creative synthesis of imperfect norms and mechanisms is the best means of pursuing meaningful state accountability in the present legal context, and that the international refugee rights regime provides an important, and thus far insufficiently exploited, opportunity to advance this goal.

In light of this purpose, this book does not address other than incidentally a variety of related issues. Most obviously, it is not a study of the refugee definition.20 Neither does it seek to explain the work of the institutions charged with the protection of refugees at the domestic or international levels,21 or the ways in which the refugee protection regime as a whole could be more effectively configured.22

Nor does this book present a detailed analysis of the full range of highly specialized human rights treaties established by the United Nations and regional bodies. This decision to avoid canvassing all potentially pertinent international human rights was not taken lightly, since it is clearly correct that particular refugees also benefit incidentally from the protection of specialized branches of international human rights law. Refugees who are members of other internationally protected groups, such as racial minorities, women, and children, may avail themselves of specialized treaty rights in most states.23 Other refugees will be entitled to claim rights and remedies in consequence of their reasons for flight, a matter of particular importance to those who have escaped from war.24 Still other refugees will be received in parts of the world that have adopted regional human rights conventions now clearly understood to embrace non-nationals, in particular the European Convention for the Protection of Human Rights and Fundamental Freedoms,25 or in which there is a transnational human rights regime specifically designed to assist refugees, as in the case of the regional refugee convention adopted in 1969 by the Organization of African Unity.26

The decision not to engage in depth with the full range of regional and specialized human rights norms in no way reflects a view that these standards are not of real importance to refugees. They are not, however, standards that apply universally to all refugees: only a subset of refugees are women, or children, or members of racial minorities. An even smaller percentage of refugees can claim the protection of any one of the regional human rights or refugee treaties. Because of the specialized nature of these accords, they cannot reasonably be invoked in aid of the goal of this study, that being to define the common core of human rights entitlements that inhere in all refugees, in all parts of the world, simply by virtue of being refugees. This more foundational, and hence more limited, enterprise is designed to elaborate the common corpus of refugee rights which can be asserted by refugees in any state party to the Refugee Convention or Protocol, whatever the refugee's specific identity or circumstances. The hope is that others will build upon this basic analysis to define the entitlements of sub-groups of the refugee population entitled to claim additional protections.

One critical deviation from the commitment to this fairly strictly defined analytical focus has, however, been made. The rights regime presented here is the result of an effort to synthesize the entitlements derived from conventional refugee law with those rights codified in the two foundational treaties of the international human rights system, the International Covenant on Civil and Political Rights and its companion International Covenant on Economic, Social and Cultural Rights.27 The specificity of analysis has been compromised in this way partly because it is clear that a treatment of refugee law which takes no account whatever of more general human rights norms would clearly present an artificially narrow view of the human rights of refugees. More specifically, though, this analytical synthesis was necessary in order to present an interpretation of the Refugee Convention which complies with the view, set out below, that the alignment of refugee law with international human rights law is required by the duty to interpret the Refugee Convention in context, and taking real account of its object and purpose.28

The specific decision to present a merged analysis of refugees' rights and of rights grounded in the two Human Rights Covenants is moreover defensible in view of the unique interrelationships between these particular treaties and refugee law.29 At a formal level, more than 95 percent of the state parties to the Refugee Convention or Protocol have also signed or ratified both of the Human Rights Covenants.30 Even more important, about 86 percent of the world's refugees reside in states which have signed or ratified the two Covenants on Human Rights, more even than the 68 percent who reside in a state party to the Refugee Convention or Protocol.31 As such, both in principle and in practice, refugee rights will in the overwhelming majority of cases consist of an amalgam of principles drawn from both refugee law and the Covenants. Second, and of particular importance, the Covenants and the Refugee Convention aspire to comparable breadth of protection, and set consistently overlapping guarantees. As will be clear from the analysis below, even when refugee law is the source of a stronger or more contextualized form of protection on a given issue, it is usually the case that the Covenants contribute in some way to the clarification of the relevant responsibilities of states.

In conceiving this work, an effort has been made to be attentive to the central importance of facts. Because a work of scholarship on refugee law seems more likely to be of value if it does not restrict itself simply to the elucidation of legal norms in abstract terms, the treatment of each right in this book begins with an overview of relevant protection challenges in different parts of the world. Some cases present the current reality faced by refugees; others highlight important protection challenges in the recent past. An effort has also been made to include examples from all parts of the world, and impacting diverse refugee populations. The analysis that follows seeks to engage with these practical dilemmas, and to suggest how refugee law should guide their resolution. This approach reflects a strong commitment to the importance of testing the theoretical analysis of human rights standards against the hard facts of protection dilemmas on the ground. The hope is that by taking this approach, the reliability of the analysis presented here is strengthened, and the normative implications of the study are made more clear.

The opening chapter of the book presents an analysis of the fundamental background question of the sources of international law, with a focus on how principles about the sources of law should be applied to identify human rights of genuinely universal authority. This analysis is based upon a theory of modern positivism, which accepts that international law is most sensibly understood as a system of rules agreed to by states, intended to govern the conduct of states, and ultimately enforced in line with the will of states. The theory of international law embraced here is thus in a very real sense a conservative one, predicated on a rigorous construction of the sources of law. Drawing on this theoretical approach, the study identifies those universal rights of particular value to refugees, even as it explains why the rights of refugees are for the most part best defended not by reference to universal custom or general principles of law, but rather by reliance on clear duties codified in treaty law.

Because of this study's primary commitment to reliance on treaty law, chapter 1 concludes with an overview of the approach taken throughout the study to the interpretation of treaties, with specific reference to the construction of the treaties at the heart of this study, the Refugee Convention and Protocol, and the two Human Rights Covenants. It is suggested that there are powerful reasons to defer neither to literalism nor to state practice in discerning the true meaning of these accords. To the contrary, it is both legally correct and more substantively productive to construe the text of refugee and other human rights treaties in the light of their context, objects and purposes as discerned, in particular, from careful study of their drafting history. Equally important, the interpretations of cognate rights rendered by United

© Cambridge University Press

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Table of Contents

Preface; Acknowledgements; Table of cases; Abbreviations for courts and tribunals cited; Articles of key treaties cited; 1. International law as a source of refugee rights; 2. The evolution of the refugee rights regime; 3. The structure of entitlement under the refugee convention; 4. Rights of refugees physically present; 5. Rights of refugees lawfully present; 6. Rights of refugees lawfully staying; 7. Rights of solution; Epilogue; Appendices; Select bibliography; Index.
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