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Full-Text Articles in Law
Assigning Protection: Can Refugee Rights And State Preferences Be Reconciled?, James C. Hathaway
Assigning Protection: Can Refugee Rights And State Preferences Be Reconciled?, James C. Hathaway
Articles
The theoretically global responsibility to protect refugees is today heavily skewed, with just ten countries – predominantly very poor – hosting more than half of the world’s refugee population. Refugee protection has moreover become tantamount to warehousing for most refugees, with roughly half of the world’s refugees stuck in “protracted refugee situations” for decades with their lives on hold. Both concerns – the unprincipled allocation of responsibility based on accidents of geography and the desperate need for greater attention to resettlement as a core protection response – cry out for a global, managed system to protect refugees.
Critiquing Matter Of A-B-: An Uncertain Future In Asylum Proceedings For Women Fleeing Intimate Partner Violence, Theresa A. Vogel
Critiquing Matter Of A-B-: An Uncertain Future In Asylum Proceedings For Women Fleeing Intimate Partner Violence, Theresa A. Vogel
University of Michigan Journal of Law Reform
The #MeToo movement has brought renewed attention to the impact of gender inequality on our society’s ability to provide protection to women from physical and sexual violence, including intimate partner violence. Despite advances in legal protections and increased resources to prevent, prosecute, and bring an end to intimate partner violence, in the absence of true efforts to combat gender inequality as a whole, intimate partner violence will continue to pervade our society. The discussion of gender inequality’s impact on the treatment of intimate partner violence must expand beyond the violence that occurs in the United States to gender inequality’s impact …
The Michigan Guidelines On Refugee Freedom Of Movement
The Michigan Guidelines On Refugee Freedom Of Movement
Michigan Journal of International Law
Despite the clear legal foundation of refugee freedom of movement at international law, states are also committed to the deterrence of human smuggling and trafficking, to the maintenance of effective general border controls, to safeguarding the critical interests of receiving communities, and to effectuating safe and dignified repatriation when refugee status comes to an end. Legal obligations to respect refugee freedom of movement therefore co-exist with, and must be reconciled to, other important commitments.
Special Feature: Eighth Colloquium On Challenges In International Refugee Law, James C. Hathaway
Special Feature: Eighth Colloquium On Challenges In International Refugee Law, James C. Hathaway
Michigan Journal of International Law
It is our hope that, as in the case of earlier Michigan Guidelines on the International Protection of Refugees, these unanimously agreed standards will inspire a thoughtful and principled debate among scholars, officials, and judicial and other refugee law decision-makers committed to the legally accurate and contextually sound application of international refugee law norms.
Refugees And The Right To Freedom Of Movement: From Flight To Return, Marjoleine Zieck
Refugees And The Right To Freedom Of Movement: From Flight To Return, Marjoleine Zieck
Michigan Journal of International Law
This background study focuses on the right to freedom of movement of refugees. It reviews the law pertaining to this freedom from the perspective of the spatial journey of refugees. This focus on the law means that extralegal considerations will not be taken into consideration. The analysis will not proceed from any perceived need for limits that should be accepted as “a product of realism about the strains that migration, especially high-volume migration or sudden influxes, can bring to a society.”
The European Union's Human Rights Obligations Towards Distant Strangers, Aravind Ganesh
The European Union's Human Rights Obligations Towards Distant Strangers, Aravind Ganesh
Michigan Journal of International Law
Section I begins by setting out certain provisions added by the Lisbon Treaty requiring the European Union to promote human rights, democracy, and the rule of law in all its “relations with the wider world.” Section II then recounts a recent interpretation of these provisions, which understands them primarily as mandating compliance with international law, and thus largely denies extraterritorial human rights obligations to protect. While the fundamentals of this “compliance” reading are correct, Section III demonstrates that the notion of international law involved here entertains an expansive view of prescriptive jurisdiction, that is, a political institution’s authority to prescribe …
Toward A New Framework For Understanding Political Opinion, Catherine Dauvergne
Toward A New Framework For Understanding Political Opinion, Catherine Dauvergne
Michigan Journal of International Law
This paper was written to frame the work of the Seventh Colloquium on Challenges in International Refugee Law, held at the University of Michigan Faculty of Law, on March 27–29, 2015. To some extent, therefore, it has already served its purpose. It is somewhat tempting in the wake of the Colloquium to completely reconstruct the paper in light of the conversations and conclusions of that event. Such reconstruction, however, would be misleading. Instead, I have chosen to publish the paper in a form that is very similar to its earlier iteration, with a few corrections, clarifications, and explanatory notes about …
Non-Refoulement In A World Of Cooperative Deterrence, Thomas Gammeltoft-Hansen, James C. Hathaway
Non-Refoulement In A World Of Cooperative Deterrence, Thomas Gammeltoft-Hansen, James C. Hathaway
Articles
Developed states have what might charitably be called a schizophrenic attitude towards international refugee law. Determined to remain formally engaged with refugee law and yet unwavering in their commitment to avoid assuming their fair share of practical responsibilities under that regime, wealthier countries have embraced the politics of non-entrée, comprising efforts to keep refugees away from their territories but without formally resiling from treaty obligations. As the early generation of non-entrée practices — visa controls and carrier sanctions, the establishment of “international zones,” and high seas deterrence — have proved increasingly vulnerable to practical and legal challenges, new forms of …
Toward A Legal Theory On The Responsibility To Protect, Monica Hakimi
Toward A Legal Theory On The Responsibility To Protect, Monica Hakimi
Articles
Over the past several decades, the central focus of international law has shifted from protecting only sovereign states to protecting individuals. Still, the worst imaginable human rights violations—genocides, ethnic cleansings, crimes against humanity, and systemic war crimes—occur with alarming frequency. And the international response is often slow or ineffectual. The most recent development for addressing this problem is the “responsibility to protect,” an idea that has received so much attention that it now goes simply by R2P. Almost all heads of state have endorsed R2P. The U.N. Secretary General has made R2P a top priority and issued multiple reports on …
Humanity And National Security: The Law Of Mass Atrocity Response Operations, Keith A. Petty
Humanity And National Security: The Law Of Mass Atrocity Response Operations, Keith A. Petty
Michigan Journal of International Law
Among the greatest threats to global security is the slaughter of civilians. This is due to the inconsistent reaction of the international community to genocide and other atrocity crimes. Whether it was the slaughter of hundreds of thousands of Armenians in Turkey in 1915 or Rwandan Tutsis in 1994, mass murderers act with impunity when there is not a forceful response. Contrast these situations to Vietnam’s intervention in Cambodia in 1978 that put an end to the Khmer Rouge’s nightmarish killing fields, or the North Atlantic Treaty Organization’s (NATO) intervention in Kosovo in 1999 that protected ethnic Albanians from Serb …
Human Rights Obligations To The Poor, Monica Hakimi
Human Rights Obligations To The Poor, Monica Hakimi
Book Chapters
Poverty unquestionably detracts from the human rights mission. Modern human rights law recognizes a broad range of rights - for example, "to life, liberty, and security of person" and to adequate "food, clothing, and medical care."1 Any number of those rights might go unrealized in conditions of extreme poverty. However, human rights law has always been partly aspirational. For those seeking to improve the lives of the poor, the key question is not what rights exist but how to make those rights operational. What does human rights law actually require of states? And how might its obligations benefit the poor?
Refugees And Asylum, James C. Hathaway
Refugees And Asylum, James C. Hathaway
Book Chapters
During the late nineteenth and early twentieth centuries, European governments enacted a series of immigration laws under which international migration was constrained in order to maximise advantage for States. These new, largely selfinterested laws clashed with the enormity of a series of major population displacements within Europe, including the flight of more than a million Russians between 1917 and 1922, and the exodus during the early 1920s of hundreds of thousands of Armenians from Turkey. The social crisis brought on by the de facto immigration of so many refugees - present without authorisation in countries where they enjoyed no protection …
Queer Cases Make Bad Law, James C. Hathaway, Jason Pobjoy
Queer Cases Make Bad Law, James C. Hathaway, Jason Pobjoy
Articles
The Refugee Convention, now adopted by 147 states, is the primary instrument governing refugee status under international law. The Convention sets a binding and nonamendable definition of which persons are entitled to recognition as refugees, and thus to enjoy the surrogate or substitute national protection of an asylum state. The core of the article 1A(2) definition provides that a refugee is a person who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion, or membership of a particular social group.” A person is thus a refugee, and entitled to the non-refoulement and other protections …
An Emerging Norm - Determining The Meaning And Legal Status Of The Responsibility To Protect, Jonah Eaton
An Emerging Norm - Determining The Meaning And Legal Status Of The Responsibility To Protect, Jonah Eaton
Michigan Journal of International Law
The responsibility to protect, from its recent nativity in the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS), is the latest round in an old debate pitting the principle of nonintervention in the internal affairs of states against allowing such intervention to prevent gross and systematic violations of human rights. Advocates for the concept see it as an important new commitment by the international community, injecting new meaning into the tragically threadbare promise to never again allow mass atrocities to occur unchallenged. ICISS offered the concept of responsibility to protect as a new way to confront …
Left Out In The Cold: Trafficking Victims, Gender, And Misinterpretation Of The Refugee Convention's "Nexus" Requirement, Martina Pomeroy
Left Out In The Cold: Trafficking Victims, Gender, And Misinterpretation Of The Refugee Convention's "Nexus" Requirement, Martina Pomeroy
Michigan Journal of Gender & Law
Victims of human trafficking who seek international protection in their country of destination face a steep uphill battle. Special visa programs designed to regularize their status are often riddled with conditions that make them inaccessible to all but a very few victims. Despite widespread international agreement that the manifold harms inflicted upon the majority of trafficked persons generally rise to the level of persecution, and therefore that victims should be eligible to apply for asylum, many national courts misinterpret international refugee law standards and routinely deny refugee status to deserving applicants. Courts often refuse to recognize persecution on the basis …
State Bystander Responsibility, Monica Hakimi
State Bystander Responsibility, Monica Hakimi
Articles
International human rights law requires states to protect people from abuses committed by third parties. Decision-makers widely agree that states have such obligations, but no framework exists for identifying when states have them or what they require. The practice is to varying degrees splintered, inconsistent, and conceptually confused. This article presents a generalized framework to fill that void. The article argues that whether a state must protect someone from third-party harm depends on the state's relationship with the third party and on the kind of harm caused. A duty-holding state must take reasonable measures to restrain the abuser. That framework …
Fifth Colloquium On Challenges In International Refugee Law. The Michigan Guidelines On The Right To Work., Penelope Mathew
Fifth Colloquium On Challenges In International Refugee Law. The Michigan Guidelines On The Right To Work., Penelope Mathew
Michigan Journal of International Law
An Explanatory Note covering the Fifth Michigan Colloquium on Challenges in International Refugee Law and the Right to Work.
The Michigan Guidelines On The Right To Work
The Michigan Guidelines On The Right To Work
Michigan Journal of International Law
The right to work is fundamental to human dignity. It is central to survival and development of the human personality. According to the International Labour Organization (ILO), decent work "sums up the aspirations of people in their working lives-for opportunity and income; rights, voice and recognition ..." Work is interrelated, interdependent with, and indivisible from the rights to life, equality, the highest attainable standard of physical and mental health, an adequate standard of living, the right to social security and/or social assistance, freedom of movement, freedom of association, and the rights to privacy and family life, among others.
Human Security And The Rights Of Refugees: Transcending Territorial And Disciplinary Borders, Alice Edwards
Human Security And The Rights Of Refugees: Transcending Territorial And Disciplinary Borders, Alice Edwards
Michigan Journal of International Law
This Essay examines the concept of human security through the lens of refugee protection. In particular, the author asks whether the concept of human security could add anything to the international protection regime for refugees and asylum seekers under international law. Before international lawyers can reject the notion of human security on the basis of its non-legal, and therefore nonbinding, character, it is necessary to examine the gaps in the existing legal framework, into which policy discourse, including security discourse, may step in as an important player.
The Michigan Guidelines On Protection Elsewhere, Colloquium On Challenges In International Refugee Law
The Michigan Guidelines On Protection Elsewhere, Colloquium On Challenges In International Refugee Law
Other Publications
Refugees increasingly encounter laws and policies which provide that their protection needs will be considered or addressed somewhere other than in the territory of the state where they have sought, or intend to seek, protection. Such policies-including "country of first arrival," "safe third country," and extraterritorial processing rules and practices-raise both opportunities and challenges for international refugee law. They have the potential to respond to the Refugee Convention's concern "that the grant of asylum may place unduly heavy burdens on certain countries" by more fairly allocating protection responsibilities among states. But insistence that protection be provided elsewhere may also result …
Protection Elsewhere: The Legal Implications Of Requiring Refugees To Seek Protection In Another State, Michelle Foster
Protection Elsewhere: The Legal Implications Of Requiring Refugees To Seek Protection In Another State, Michelle Foster
Michigan Journal of International Law
This Article first questions the legitimacy of protection elsewhere practices. It then considers the circumstances in which the transfer of refugees might take place. It should be emphasized that the Michigan Guidelines set out the minimum requirements and constraints imposed by international law when a state wishes to implement a protection elsewhere policy. In addition, in some instances the Michigan Guidelines engage in "progressive development" of the law by suggesting safeguards that, while not strictly required by international law, should be respected in order to ensure the implementation of such policies in a way that protects and ensures the rights …
The False Panacea Of Offshore Deterrence, James C. Hathaway
The False Panacea Of Offshore Deterrence, James C. Hathaway
Articles
Governments take often shockingly blunt action to deter refugees and other migrants found on the high seas, in their island territories and in overseas enclaves. There is a pervasive belief that when deterrence is conducted at arms-length from the homeland it is either legitimate or, at the very least, immune from legal accountability.
Refugees' Human Rights And The Challenge Of Political Will, James C. Hathaway
Refugees' Human Rights And The Challenge Of Political Will, James C. Hathaway
Articles
Governments in all parts of the world are withdrawing in practice from meeting the legal duty to provide refugees with the protection they require. While states continue to proclaim a willingness to assist refugees as a matter of political discretion or humanitarian goodwill, many appear committed to a pattern of defensive strategies designed to avoid international legal responsibility toward involuntary migrants. Some see this shift away from a legal paradigm of refugee protection as a source of enhanced operational flexibility in the face of changed political circumstances. For refugees themselves, however, the increasingly marginal relevance of international refugee law has …
Global Sex Trafficking And The Trafficking Victims Protection Act Of 2000: Legislative Responses To The Problem Of Modern Slavery, Rosy Kandathil
Global Sex Trafficking And The Trafficking Victims Protection Act Of 2000: Legislative Responses To The Problem Of Modern Slavery, Rosy Kandathil
Michigan Journal of Gender & Law
Human trafficking is becoming the fastest growing criminal activity in the world. Generally, trafficking is defined as the transportation of persons across international borders for labor purposes, by means of force, fraud, or coercion. Commerce directly related to human slavery yields approximately $7-$10 billion a year, trailing only behind drugs and weapons trade for international profit. According to recent congressional findings, over 700,000 human beings are trafficked across international borders each year, including approximately 50,000 women and children into the United States. Women and girl children are the primary targets for sexual exploitation into prostitution, pornography, sex tourism, and other …
Refugee Protection In International Law: Unhcr's Global Consultations On International Protection, Taylor H. Garrett
Refugee Protection In International Law: Unhcr's Global Consultations On International Protection, Taylor H. Garrett
Michigan Journal of International Law
Review of Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Erika Feller, Volker Türk & Frances Nicholson eds.)
Beyond State Sovereignty: The Protection Of Cultural Heritage As A Shared Interest Of Humanity, Francesco Francioni
Beyond State Sovereignty: The Protection Of Cultural Heritage As A Shared Interest Of Humanity, Francesco Francioni
Michigan Journal of International Law
In this paper the author will try to explore the topic from a different perspective: i.e. the emergence of cultural heritage as part of the shared interest of humanity, with the consequent need for international law to safeguard it in its material and living manifestations, including the cultural communities that create, perform and maintain it. Culture in itself is not extraneous to the formation of the modern nation State. Especially in the history of nineteenth century Europe, culture as language, religion, literary and artistic traditions provided the cement and the legitimizing element to support the claim to independent statehood.
Commentary To Professor Guibernau, Annika Tahvanainen
Commentary To Professor Guibernau, Annika Tahvanainen
Michigan Journal of International Law
Commentary on Professor Montserrat Guibernau's Nations Without States: Political Communities in the Global Age
Review Of Rethinking Refugee Law, By N. Nathwani. , James C. Hathaway
Review Of Rethinking Refugee Law, By N. Nathwani. , James C. Hathaway
Reviews
It is a wonderful thing when a work of scholarship is published just as policymakers are struggling with the issues that it seeks to address.
Internal Protection/Relocation/Flight Alternative As An Aspect Of Refugee Status Determination, James C. Hathaway, Michelle Foster
Internal Protection/Relocation/Flight Alternative As An Aspect Of Refugee Status Determination, James C. Hathaway, Michelle Foster
Book Chapters
In many jurisdictions around the world, the possibility of an ‘internal flight alternative’(IFA) (often referred to as ‘internal relocation alternative’) is invoked to deny refugee status to persons at risk of being persecuted for a Convention reason in part, but not all, of their country of origin. In this, as in so many areas of refugee lawand policy, the viability of a universal commitment to protection is challenged by divergence in State practice. The goals of this paper are therefore, first, briefly to review the origins and development of the practice of considering IFA as an aspect of the refugee …
What's In A Label?, James C. Hathaway
What's In A Label?, James C. Hathaway
Articles
One of the most striking features of the international refugee regime as it has evolved over the last quarter century is the proliferation of labels. Rather than simply assessing the circumstances of applicants against the Convention refugee definition, the governments of most developed states have instead invented a seemingly endless list of alternative statuses - "B" status, humanitarian admission, temporary protected status, special leave to remain, Duldung, and the like. Persons assigned one of these labels have generally been protected against refoulement in line with Article 33 of the Refugee Convention. But in a variety of other ways, they have …