Human Rights Law Commons^™

"Toward The Reformulation Of International Refugee Law" Research Report 1992-1997, James C. Hathaway

Other Publications

Discussions of the crisis in international refugee protection are frequently characterized by rhetorical excess, in which some ascribe all problems to malevolent states, while others are equally insistent that fraudulent asylum-seekers are solely to blame. This study was based, in contrast, on a recognition of the real systemic difficulties that jeopardize the viability of refugee protection. Its purpose was to devise a principled yet pragmatic way to reconcile state interests to the continued importance of access to asylum for those who need it.

The essence of our thesis is that the withdrawal of states from their legal responsibility to protect …

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 …

Home Is Where The Brute Lives: Asylum Law And Gender-Based Claims Of Persecution, Anjana Bahl

Cardozo Journal of Equal Rights & Social Justice

The article argues that gender-based persecution should be recognized as a valid ground for asylum under the refugee definition, emphasizing the need to expand the interpretation of "particular social group" to include women facing persecution due to their gender. It highlights the challenges women face in meeting the legal standards for asylum, particularly under U.S. law, and advocates for a more inclusive framework to address gender-based violence and discrimination.

Migration, Identity & The Colonial Encounter, Tayyab Mahmud

Faculty Articles

The immigrant puts at issue assumptions of inviolability of borders, territoriality of sovereignty, and exclusivity of citizenship - fundamental characteristics of the modern state. The immigrant calls into question cultural homogeneity, linguistic commonality, shared history, and security of identity - the key ideologies of the nation. This article explores these issues by locating them in spatial and temporal sites removed from the common foci of current immigration debates. Using three stories of migration from colonial and postcolonial South Asia, the first part of the article demonstrates that within the general context of empire and imperialism, the determinants and processes of …

States As International Law-Breakers: Discrimination Against Immigrants And Welfare Reform, Elizabeth Landry

Washington Law Review

As part of the current "devolution revolution," policy makers at the state and federal levels are designing proposals that would permit states to discriminate on the basis of immigration status in determining eligibility for public education, medical care, social services, and cash assistance. This Comment asserts that such proposals violate international human rights norms, by which both federal and state governments are bound. Mbreover, it maintains that legislators must consider international law when crafting proposals that would allow discrimination on the basis of alienage. If they fail to do so, courts are obliged to intervene and ensure that treaty provisions …

The Canadian Charter And Public International Law: Redefining The State's Power To Deport Aliens, Daniela Bassan

Osgoode Hall Law Journal

This article considers the relationship between international and domestic law in deportation proceedings. The argument is made that, generally, Canadian law should be interpreted consistently with Canada's obligations at international law, as reflected in conventions and custom. More specifically, the article proposes that Canada's obligation at international law to protect the family and the child be recognized in Canadian law as one of the principles of fundamental justice under section 7 of the Charter. The protection of the family is engaged by the deportation of domiciled aliens because, by definition, these deportees have been in Canada for a long period …

Race Discourse And Proposition 187, John Sw Park

Michigan Journal of Race and Law

Proposition 187 inspired a visceral public discourse. Proponents and opponents of the measure discussed several themes important to contemporary political theory, particularly themes related to sovereignty and civil rights. This Note shows how participants in that debate-including people of color-spoke of "rights" in a way that denied the possibility for undocumented aliens to have rights. When citizens spoke, they did so in a way that implicitly linked rights to citizenship; in other words, they assumed that without citizenship, persons were not entitled to rights or rights-based claims. Ironically, the debate about Proposition 187 pointed to the achievements of a "civil …

Granting Political Asylum To Potential Victims Of Female Circumcision, Gregory A. Kelson

Michigan Journal of Gender & Law

Part I of this article examines two cases. In one case, a United States immigration court allowed female circumcision as a defense to deportation. In another case, the Canadian Immigration and Refugee Board granted political asylum after recognizing female circumcision as a form of persecution. Part II assesses the extent of protections currently provided for potential victims of female circumcision under U.S. asylum law and analyzes the factors that a court should consider when making asylum determinations. Part III recommends that gender should be added to the enumerated grounds for persecution under U.S. asylum law. This section provides a hypothetical …

Discretionary Adjudicatory Rulemaking: Due Process Of Lawmaking And Immigration Law, 11 Geo. Immigr. L.J. 83 (1996), Michael G. Heyman

UIC Law Open Access Faculty Scholarship

No abstract provided.

Natives, Newcomers And Nativism: A Human Rights Model For The Twenty-First Century, Berta E. Hernández-Truyol

UF Law Faculty Publications

This article undertakes a broad overview of nativist sentiment and discrimination in U.S. social and legal history. Following a powerful vignette of a personal experience encountering nativism because of her accent, the author briefly reviews the history of the New York City Human Rights Commission in Part II. Part III traces the history of U.S. immigration and the parallel legacy of nativism, while Part IV details the legal developments arising from alienage discrimination. After reviewing relevant sources of international human rights law, the author concludes in Part VI by advocating a new human rights paradigm that will promote equality and …

Women, Just Implementation Of Asylum Policy, And Our Commitment To Human Dignity And Freedom, John Linarelli

Scholarly Works

No abstract provided.

The New Slave Trade: The International Crisis Of Immigrant Smuggling, Kevin Tessier

Indiana Journal of Global Legal Studies

No abstract provided.

Proposition 187: Unfounded And Ineffective, Frank Del Olmo

Human Rights Brief

No abstract provided.

The Right To Seek Asylum: A Dwindling Right?, Fatimah Mateen, Brian Tittemore

Human Rights Brief

No abstract provided.

Proposition 187: An Important Approach To Prevent Illegal Immigration, Alan C. Nelson

Human Rights Brief

No abstract provided.

Mail-Order Brides: Gilded Prostitution And The Legal Response, Eddy Meng

University of Michigan Journal of Law Reform

This Note explores the international mail-order bride industry where women from Asia and other developing countries are trafficked to men in Western industrialized countries. The author discusses the commonalities between the mail-order bride traffic and other forms of sexual exploitation, as well as the cultural and historical forces and the gender, ethnic, and class subordination which together fuel the demand for Asian Pacific mail-order brides. In the United States, the potential for exploitation is made greater in that immigrant brides face a threat of deportation during the first two years of residence via immigration laws. Given the inequalities between consumer-husbands …

Irreconcilable Differences? Divorcing Refugee Protections From Human Rights Norms, Karen Musalo

Faculty Scholarship

No abstract provided.

Irreconcilable Differences? Divorcing Regugee Protections From Human Rights Norms, Karen Musalo

Michigan Journal of International Law

This article will discuss in greater detail the profound defects of the Court's Zacarias decision. Section I will discuss the interpretation of key provisions of the 1980 Refugee Act, and describe the case of Jairo Elias Zacarias. Section II will review the plain language and legislative intent of the Act, including the congressional purpose of conforming to the 1967 Protocol. Section III will consider issues of burden of proof, and will examine the substantive impact which Zacarias has had on refugee cases. Section IV will focus on religious persecution as a paradigm of the inadequacy of an intent-based requirement and …

Foreword (Symposium: Challenges In Immigration Law And Policy: An Agenda For The Twenty-First Century)., Carol Buckler

Articles & Chapters

No abstract provided.

Protecting The Office Of Legal Counsel From Itself, Harold Hongju Koh

Cardozo Law Review

Pardon me if I act like a black sheep at this symposium of Office of Legal Counsel ("OLC") alumni. Like most OLC alumni, I share the genuine affection and respect for the Office and its traditions that this symposium reflects. But at the same time, I cannot fully accept the undertone of self-congratulation that pervades this panel's two principal papers. My discomfort grows from the inordinate amount of time that I have spent over the last few years disagreeing with OLC positions, particularly in three areas of United States foreign policy. The first concerns the "Iran-Contra" prosecution of Oliver North …

Aiding And Abetting Persecutors: The Seizure And Return Of Haitian Refugees In Violation Of The U.N. Refugee Convention And Protocol, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

Pursuant to Executive Order 12,807 of May 23, 1992, the “Kennebunkport Order,” United States Coast Guard cutters have been intercepting boatloads of Haitian citizens in international waters off the coast of Haiti and turning them over to the Haitian authorities in Port-au-Prince. No questions are being asked to determine if any of these citizens are bona fide refugees fleeing persecution. All are simply returned.

Does the Protocol relating to the Status of Refugees (Protocol), to which the United States is a party, permit the U.S. government to do this? That question is now before the United States Supreme Court. Regarding …

The Haitian Refugee Crisis: A Quest For Human Rights, Thomas David Jones

Michigan Journal of International Law

On June 14, 1993, the Vienna Conference on Human Rights, sponsored by the United Nations, commenced its opening session mired in controversy over the validity of a universal human rights doctrine. Many Third World or developing nations contended that Western norms of justice and fairness were not applicable to their societies. Thus, the developing nations articulated a culture-bound or relativistic concept of fundamental human rights. The developing nations' particularistic position was championed by such nations as China, Iran, Cuba, and Vietnam, signatories to the Bangkok Declaration of 1993. The Bangkok Declaration provides, inter alia, that though human rights are …

Reactionary Constitutional Identity, Ruti G. Teitel

Cardozo Law Review

No abstract provided.

Expanding Our Vision Of Legal Services Representation:The Hermanas Unidas Project, Stacy Brustin

Scholarly Articles

No abstract provided.

The United States Supreme Court And The Protection Of Refugees, Lung-Chu Chen

Articles & Chapters

No abstract provided.

The Eichmann Trial, The Jewish Question, And The American-Jewish Intelligentsia, Pnina Lahav

Faculty Scholarship

The abduction, trial, and execution of Adolf Karl Eichmann by the state of Israel, fifteen years after the shutdown of the crematoria at Auschwitz, challenged the American Jewish intelligentsia to confront the Jewish question.4 What does it mean to be a Jew in America and who is an American Jew? Is the Jewish history of anti-Semitism and the Holocaust also a part of American-Jewish history? Is there a lesson in the destruction of European Jewry-the triumph of anti-Semitism, the failure of assimilation-relevant to American Jews? Is there a national component to being Jewish? Are Jews a people? If so, is …

State-Centered Refugee Law: From Resettlement To Containment, T. Alexander Aleinikoff

Michigan Journal of International Law

This paper will explore the international regime of refugee law, seeking to show how legal "solutions" to the "refugee problem" are profoundly state-centered. I will argue that discussions of "solutions" in refugee law and policy have taken a dramatic turn in recent years, replacing an exilic bias with a source-control bias. This new orientation focuses attention on countries of origin, supporting repatriation and human rights monitoring before and after return. I suggest that the shift in emphasis, albeit grounded in part in humanitarian concerns, presents real risks when realized within a system committed to the protection of human rights …

Can International Law Provide Extra-Constitutional Protection For Excludable Aliens?, Louis B. Sohn

Scholarly Works

This paper focuses on the problems of those who do not qualify for a regular admission as refugees, but are detained at the entrance point, or are detained in the United States after being released on temporary parole or pending repatriation. The thesis I shall try to defend is that these persons must be treated according to basic rules of humanitarian law; that they are entitled to be treated as human beings, regardless of any particular legislation or administrative regulations depriving them of basic legal protection granted to citizens and regular residents of the country.

Restricting The Flow Of Asylum-Seekers In Belgium, Denmark, The Federal Republic Of Germany, And The Netherlands: New Challenges To The Geneva Convention Relating To The Status Of Refugees And The European Convention On Human Rights, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Indefinite Detention Of Cuban Aliens: Is The End In Sight?, Francis G. Troyan

Penn State International Law Review (1982 - 2011)

In spite of the fact that international law dictates that a sovereign should be able to protect its borders, international law also dictates that every human being has the right to be free from unnecessary detention. For nearly eight years the United States has indefinitely detained Cuban aliens who arrived in the Mariel boatlift of 1980. This comment examines this policy and offers alternatives to improve the plight of the Cubans without sacrificing the safety of Americans in general.