Human Rights Law Commons^™

Reaffirming Rights: Human Rights Protections Of Migrants, Asylum Seekers, And Refugees In Immigration Detention, Eleanor Acer, Jake Goodman

International Migrants Bill of Rights Symposium

The International Migrants Bill of Rights (IMBR) addresses migrants’ rights in a variety of contexts, and this paper looks closely at some of the most crucial rights that apply to migrants, refugees, and asylum seekers who are held in immigration detention.

Migrants, refugees and asylum seekers are entitled to a broad range of rights protections. These protections are spelled out in the provisions of core human rights treaties and regional human rights conventions that apply to all people, as well as in the specific conventions relating to refugees and migrants. While States have the authority to regulate migration, their immigration …

Welcoming Women: Recent Changes In U.S. Asylum Law, Jillian Blake

Michigan Law Review First Impressions

The Statue of Liberty, which has been called the "Mother of Exiles," stands as a reminder of one of the foundational ideals of U.S. immigration policy-providing refuge to the vulnerable. Women worldwide have new reason to believe in this promise, because victims of domestic violence may now have a better chance of being granted asylum in a U.S. immigration court.

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 …

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.

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.

Leveraging Asylum, James C. Hathaway

Articles

I believe that the analysis underlying the leveraged right to asylum is conceptually flawed. As I will show, there is no duty of non-refoulement that binds all states as a matter of customary international law and it is not the case that all persons entitled to claim protection against refoulement of some kind are ipso facto entitled to refugee rights. These claims are unsound precisely because the critical bedrock of a real international legal obligation-namely, the consent of states evinced by either formal commitments or legally relevant actions -does not yet exist.

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.

Revisiting Germany's Residenzpflicht In Light Of Modern E.U. Asylum Law, Paul Mcdonough

Michigan Journal of International Law

This Note explores whether the E.C. treaties, nonetheless, provide the European Court of Justice (ECJ) sufficient competence to use the Reception Directive as a vehicle to assess the Residenzpflicht in relation to the Refugee Convention. It concludes that, through the Residenzpflicht, Germany denies refugees lawfully present their Convention right to free movement within its territory, and that the ECJ can order the restoration of this right.

The Human Rights Quagmire Of 'Human Trafficking', James C. Hathaway

Articles

Support for the international fight against "human trafficking" evolved quickly and comprehensively. The campaign launched by the UN General Assembly in December 19981 led to adoption just two years later of the Trafficking Protocol to the UN Convention against Organized Crime.2 U.S. President George W. Bush was among those particularly committed to the cause, calling for collective effort to eradicate the "special evil" of human trafficking, said by him to have become a "humanitarian crisis."3 One hundred and twenty-two countries have now ratified the Trafficking Protocol, agreeing in particular to criminalize trafficking and to cooperate in investigating and prosecuting allegations …

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

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 …

Why Refugee Law Still Matters, James C. Hathaway

Articles

I am concerned that the singular importance of international refugee law is profoundly misunderstood. My more specific worry is that erroneous and competing claims by governments and the refugee advocacy community about the structure and purpose of refugee law threaten its continuing ability to play a truly unique human rights role at a time when no meaningful alternative is in sight.

More Than Mere Semantics: The Case For An Expansive Definition Of Persecution In Sexual Minority Asylum Claims, Monica Saxena

Michigan Journal of Gender & Law

This Article asserts that the requirement in U.S. asylum law that requires an asylee to make a showing of persecutory intent is overly and especially restrictive in claims made by sexual minorities. This Article proposes that the U.S. adopt the asylum standards of New Zealand and Canada, where the focus is on the failure of government protection as opposed to a focus on persecutory intent. Such standards are consistent with both the realities of persecution that sexual minorities encounter and the original impetus behind the Refugee Convention. Part I examines the different forms of persecution against sexual minorities. Part II …

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

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 Michigan Guidelines On Well-Founded Fear, Colloquium On Challenges In International Refugee Law

Other Publications

An individual qualifies as a Convention refugee only if he or she has a "well-founded fear" of being persecuted. While it is generally agreed that the "well-founded fear" requirement limits refugee status to persons who face an actual, forward-looking risk of being persecuted (the "objective element"), linguistic ambiguity has resulted in a divergence of views regarding whether the test also involves assessment of the state of mind of the person seeking recognition of refugee status (the "subjective element").

The Right Of States To Repatriate Former Refugees, James C. Hathaway

Articles

Armed conflict often results in the large-scale exodus of refugees into politically and economically fragile neighboring states. The burdens on asylum countries can be extreme, and may only be partly offset by the arrival of international aid and protection resources. Moreover, difficulties inherent in the provision of asylum have been exacerbated in recent years by the increasing disinclination of the wealthier countries that fund the United Nations High Commissioner for Refugees (UNHCR) and most other assistance agencies to meet the real costs of protection. In such circumstances, it is unsurprising that as conflicts wind down, host countries ordinarily seek to …

Is There A Subjective Element In The Refugee Convention's Requirement Of 'Well-Founded Fear'?, James C. Hathaway, William S. Hicks

Articles

Linguistic ambiguity in the refugee definition's requirement of "well-founded fear" of being persecuted has given rise to a wide range of interpretations. There is general agreement that a fear is "well-founded" only if the refugee claimant faces an actual, forward-looking risk of being persecuted in her country of origin (the "objective element"). But it is less clear whether the well-founded "fear" standard also requires a showing that the applicant is not only genuinely at risk, but also stands in trepidation of being persecuted. Beyond vague references to the subjective quality of "fear," few courts or commentators have undertaken the task …

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.)

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.

The Qualities Of Mercy: Maximizing The Impact Of U.S. Refugee Resettlement, Daniel J. Steinbock

University of Michigan Journal of Law Reform

Resettlement in the US. bestows a life changing benefit on thousands of overseas refugees. Because American refugee acceptance can never reach more than a tiny fraction of the world's millions of persecuted or oppressed, however, allocating this bounty requires the US. to choose the lucky few from the worthy many. Since the creation in 1980 of a permanent program of refugee resettlement, three different, and often conflicting, purposes have contended for its trove of immigration-like admissions slots. These are the removal of people from danger or hardship, the furtherance of a cluster of foreign policy objectives, and the facilitation of …

Asylum, Social Group Membership And The Non-State Actor: The Challenge Of Domestic Violence, Michael G. Heyman

University of Michigan Journal of Law Reform

This Article argues that the current approaches to asylum claims based on "social group" membership under the U.N. convention Relation to the Status of Refugees are deeply flawed. The Refugee Convention confers asylum on persons persecuted for their membership in a particular social group. Courts have struggled with the boundaries of the social group definition, and there appears to be no coherent way to reconcile all of the court decisions on what groups qualify as social groups under the Refugee Convention.

This Article suggests that courts adopt a consistent definition of what constitutes a social group. The definition proposed in …

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

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 …

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

Articles

On 13 December 2001, states committed themselves" ... to consider ways that may be required to strengthen the implementation of the 1951 Convention and/or 1967 Protocol". It is wonderful that after half a century we may finally be on the verge of taking oversight of the treaty seriously.

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.

Temporary Protection Of Refugees: Threat Or Solution?, James C. Hathaway

Book Chapters

While many of us in the refugee protection community have traditionally seen temporary protection as something to be resisted, I believe that temporary protection could, in contrast, be a profoundly important part of a solution to the international refugee protection crisis. To make my argument that the right kind of temporary protection could be an important means to give new life to international refugee protection, I will briefly address three issues. First, I would like to suggest why it is that states around the world, in the North and increasingly in the South as well, are refusing the live up …

Framing Refugee Protection In The New World Disorder, James C. Hathaway, Colin J. Harvey

Articles

A number of jurisdictions have fastened onto a "solution" that appears to reconcile respect for refugee law with the determination of states to rid themselves quickly of potentially violent asylum seekers. Courts in these states have been persuaded that a person who has committed or facilitated acts of violence may lawfully be denied a refugee status hearing under a clause of the Refugee Convention that authorizes the automatic exclusion of persons whom the government reasonably believes are international or extraditable criminals. Refugee law so interpreted is reconcilable with even fairly blunt measures for the exclusion of violent asylum seekers. In …

Why Supervise The Refugee Convention?, James C. Hathaway

Articles

The Refugee Convention is the only major human rights treaty that is not externally supervised. Under all of the other key UN human rights accords — on the rights of women and children, against torture and racial discrimination, and to promote civil and political, as well as economic, social, and cultural rights — there is at least some effort made to ensure that States are held accountable for what they have signed onto.