Law Commons^™

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.

International Legal Protection For Climate Refugees: Where Lies The Haven For The Maldivian People?, Simran Dolla

Student Works

Climate change and sea level rise are not just mere words for the Maldivian people; they are a grim reality that is consuming their nation. Sea level rise presents one of the gravest dangers for the Maldives because of its already low-lying characteristics. As the levels continue to rise, the nation is sinking into extinction. Some 300,000 people of the Maldives are on the brink of losing their homes and becoming climate change refugees. The existing international laws are not only ill-equipped to provide protections or the much-needed relief, they also make no mention of climate change refugees. Therefore, as …

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

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 …

Indigenous Peoples’ Right Of Free Prior Informed Consent With Respect To Indigenous Lands, Territories And Resources (United Nations Workshop, 17-19 January 2005), Indian Law Resource Center

Free, Prior and Informed Consent: Pathways for a New Millennium (November 1)

3 pages.

U.N. Doc PFII/2004/WS.2/6

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?

Surviving Castle Rock: The Human Rights Of Domestic Violence, Max D. Siegel

Student Articles and Papers

In 2005, the Supreme Court of the United States decided Town of Castle Rock v. Gonzales and held that Jessica Gonzales did not have a constitutional right to police enforcement of a restraining order. The decision highlighted the Court’s reluctance to recognize citizens’ affirmative rights, fortifying a deeply ingrained conceptualization of the Constitution of the United States as a “Negative Constitution” that creates a government with restraints on its actions and extremely limited obligations to its citizens. In August 2011, the Inter-American Commission on Human Rights released a report publicizing its finding that by failing to take affirmative measures to …

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 …

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 …

We Live In A Country Of Unhcr: The Un Surrogate State And Refugee Policy In The Middle East, Michael Kagan

Scholarly Works

Many gaps in the protection of refugees can be connected to a de facto transfer of responsibility for managing refugee policy from sovereign states to United Nations agencies. This phenomenon can be seen in dozens of countries in the Middle East, Africa and Asia, where the UN High Commissioner for Refugees (UNHCR) or the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) manage refugee camps, register newly arrived asylum-seekers, carry out refugee status determination, and administer education, health, livelihood and other social welfare programs.

In carrying out these functions, the UN acts to a great …

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 …

Slides: Environmental Justice: Comprehensive Approach, Nicholas Targ

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Nicholas Targ, Holland & Knight, former Associate Director for Environmental Justice Integration, Office of Environmental Justice, U.S. Environmental Protection Agency

16 slides

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 …

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 …

The Beleaguered Gatekeeper: Protection Challenges Posed By Unhcr Refugee Status Determination, Michael Kagan

Scholarly Works

The number of individual Refugee Status Determination (RSD) applications received by United Nations High Commissioner for Refugees (UNHCR) offices worldwide nearly doubled from 1997 to 2001, while UNHCR’s RSD operations have been criticized for failing to implement basic standards of procedural fairness. Yet, although there is some literature critiquing how UNHCR determines refugee status, there is little literature examining whether UNHCR should do so, and if it should, when, where, and under what conditions.

UNHCR performance of RSD poses protection challenges because it is founded on a basic contradiction. On the one hand, government action is essential for effective refugee …

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.

Book Review, Michael Kagan

Scholarly Works

There is a frequent critique of the UN High Commissioner for Refugees’ protection role, which goes like this: as UNHCR has grown as a humanitarian aid delivery agency, law and human rights have lost currency. In Rights in Exile: Janus-Faced Humanitarianism, Guglielmo Verdirame and Barbara Harrell-Bond (with Zachary Lomo and Hannah Garry) take this as a starting point from which to reach a far more searing conclusion: UNHCR itself directly violates the human rights of the people it is supposed to protect. Detailed, direct and at times passionate, this book should be required reading for anyone who wants to …

International Human Rights Standards In International Organizations: The Case Of International Criminal Courts, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.

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.

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 …

Is Truth In The Eye Of The Beholder? Objective Credibility Assessment In Refugee Status Determination, Michael Kagan

Scholarly Works

Credibility assessment is often the single most important step in determining whether people seeking protection as refugees can be returned to countries where they say they are in danger of serious human rights violations. Despite its importance, credibility-based decisions in refugee and asylum cases are frequently based on personal judgment that is inconsistent from one adjudicator to the next, unreviewable on appeal, and potentially influenced by cultural misunderstandings. Some of the people who need protection most are especially likely to have trouble convincing decision-makers that they should be believed.

This article sets out principles, standards, and criteria drawn from international …

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 …

Who Should Watch Over Refugee Law?, James C. Hathaway

Articles

We simply cannot afford to sell out the future of refugee protection in a hasty bid to establish something that looks, more or less, like an oversight mechanism for the Refugee Convention.

Who Should Watch Over Refugee Law?, James C. Hathaway

Articles

We simply cannot afford to sell out the future of refugee protection in a hasty bid to establish something that looks, more or less, like an oversight mechanism for the Refugee Convention.

America's Apostasy, James C. Hathaway

Articles

It has often struck me that the prominence of the Restatement of the Foreign Relations Law of the United States epitomizes the plight of international law in this country. The title of this standard reference on international law does not even refer to international law, but instead to foreign relations law. That is, it is meant to set out the standards by which we may legitimately judge the conduct of others. The clear, if unintended, message is that the Restatement is not really a codification of laws that bind us. And indeed, it is explicitly not just a codification, but …

Can International Refugee Law Be Made Relevant Again?, James C. Hathaway

Articles

Ironic though it may seem, I believe that the present breakdown in the authority of international refugee law is attributable to its failure explicitly to accommodate the reasonable preoccupations of governments in the countries to which refugees flee. International refugee law is part of a system of state self-regulation. It will therefore be respected only to the extent that receiving states believe that it fairly reconciles humanitarian objectives to their national interests. In contrast, refugee law arbitrarily assigns full legal responsibility for protection to whatever state asylum-seekers are able to reach. It is a peremptory regime. Apart from the right …

Making International Refugee Law Relevant Again: A Proposal For Collectivized And Solution-Oriented Protection, James C. Hathaway, R. Alexander Neve

Articles

International refugee law is in crisis. Even as armed conflict and human rights abuse continue to force individuals and groups to flee their home countries, many governments are withdrawing from the legal duty to provide refugees with the protection they require. While governments proclaim a willingness to assist refugees as a matter of political discretion or humanitarian goodwill, they 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 for enhanced operational flexibility in the face of changed …