#9117 - Refugee Law - Refugee Law

Hathaway - Reconceiving Refugee Law as Human Rights Protection

• Refugee law as it exists today is fundamentally concerned with the protection of powerful states: HR is a guise

• International human rights law is a means of delimiting state sovereignty.

• Problem in refugee law is that industrialized states are retrenching from their obligations (measures to prevent asylum seekers from claiming within their borders):

• selective burden sharing is occurring in which countries can turn away persons bc of host countries national interests

• Current decentralized regime has been unable to address issues like fair allocation of asylum-seekers bw 1^st and 3^rd worlds

• To address the issue of states retrenching from their obligations in refugee law –proposes that we take a pragmatic approach more rooted in international law as opposed to HR law and prioritize state sovereignty; we should reframe refugee law as a remedial regime for human rights protection.

• Proposes reform to international refugee law whereby we do away with national interdiction schemes, involve an international supervisory agency directly in provision of first asylum (and designation of appropriate protection pending safe return to state of origin). This involves the following: unequivocal granting of first asylum (non-refoulement), legally binding international system of resource sharing, the new international agency must be effective representation of international community as a whole (not just a creature of states alone), and system for sharing duty of protection should be formulated based on each state’s resources and absorptive capacity.

• Broader reforms: need to address root causes of migration

Aleinikoff - From Refugee Law to the Law of Coerced Migration

• Argues to reposition refugee law to coerced migration law as this will allow it to include IDPs, who arguably are indistinguishable from refugees

• refugee status is a privileged category vis-à-vis other involuntary migrants

• Need to address reasons why there is migration and inequality

• Three approaches to refugee law: statelessness model, human rights model, and coerced migration model

• Statelessness: refugee status is a response to anomalies in state system. Too much emphasis on state sovereignty, excludes IDPs and doesn’t respond to humanitarian interests at stake.

• Human Rights: field of inquiry is in terms of providing remedies for violations. Includes IDPs and non-fleers but doesn’t consider resettlement and integration policies in receiving states, too much focus on country of origin

• Coerced Migration: key underlying idea responding to is the flight from harm. Embraces IDPs and border crossers, also recognizes that there are reasons for flight which merit protection beyond the 5 protected convention grounds. Offers support for resettlement policies and diverse forms of relief.

Criticisms of Hathaway’s approach: normative assumptions of state sovereignty; may result in giving too much power to govts (will close borders and write cheques); doesn’t create incentives to address root causes of migration

-both authors express:

-concern that the definition of a refugee is too narrow

- a lack of faith in the current legal framework to fulfill the goals of refugee law: to protect vulnerable persons

-that current approach fails to address root causes of migration

-both address inequality (although in different ways, see below)

-differences:

-Hathaway: reform is in supporting state sovereignty (addresses inequality re state ability to support)

-Alienkoff: loss of community needs to be addressed- potentially problematic in terms of sovereignty (addresses inequality re triggers migration)

UNHCR 2010: Global Trends

• countries that can least afford to provide services are the ones that are hosting refugees

• major source countries incl Afghanistan, Iraq, Somalia, DRC, Myanmar, Colombia, Sudan, Viet Nam, Eritrea, China.

• main destination country by a long-shot is South Africa (economic pull, geographically closer, easier to enter unlawfully)

• although Canada is a major host state, it bears far less of the “burden” than many other countries

• high amounts of protracted refugees (those in situation for more than 5 yrs)

• highest no. of IDPs in 15 yrs

Article 1A, Convention (as qualified by 1967 Convention):

• Must be outside of country of origin

• Well-founded fear of persecution on a convention ground

Analysis

• context: definition was heavily negotiated- doesn’t protect all stateless people (link to Aleinkoff’s critique)

• It is forward looking, doesn’t remedy for past violations

Interpretive Principles

-signing up makes Canada obligated to interpret them broadly and remedially

-only an interpretive tool, although some parts reflected in IRPA, not enforceable by domestic courts

Article 1A, Convention (as qualified by 1967 Convention):

The term “refugee” shall apply to any person who… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion, it outside his country of nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.

Article 31, Unlawful Entry

-cannot control the entry of refugees by finding them guilty of an offence:

(1): no penalties for those coming directly from a state where threatened as per article 1 (f), provided they present themselves to authorities without delay, show good cause…

(2): no restrictions on movement unless necessary, and only apply until status is regularized