International Refugee Law [1 ed.] 0754628132, 9780754628132

Table of contents :
Contents
Acknowledgements
Series Preface
Introduction
Part I: Historical Perspective
1 Hannah Arendt (1999) ‘We Refugees’
2 Paul Weis (1966) ‘Territorial Asylum’
3 Bonaventure Rutinwa (2002) ‘The End of Asylum? The Changing Nature of Refugee Policies in Africa’
4 James C. Hathaway (1990) ‘A Reconsideration of the Underlying Premise of Refugee Law’
5 Corinne Lewis (2005) ‘UNHCR’s Contribution to the Development of International Refugee Law: Its Foundations and Evolution’
6 Guy S. Goodwin-Gill (2008) ‘The Politics of Refugee Protection’
Part II: The 1951 Refugee Convention: Key Provisions and Implementation
7 Andrew E. Shacknove (1985) ‘Who Is a Refugee?’
8 Walter Kälin (1986) ‘Troubled Communication: Cross-Cultural Misunderstandings in the Asylum-Hearing’
9 Guy S. Goodwin-Gill (1986) ‘Non-Refoulement and the New Asylum Seekers’
10 Joan Fitzpatrick (1996) ‘Revitalizing the 1951 Refugee Convention’
Part III: Refugee Law and its Relationship with International Human Rights Law, International Humanitarian Law and International Criminal Law
11 Deborah E. Anker (2002) ‘Refugee Law, Gender, and the Human Rights Paradigm’
12 Jane McAdam (2004) ‘Seeking Asylum under the Convention on the Rights of the Child: A Case for Complementary Protection’
13 Stephane Jaquemet (2001), ‘The Cross-Fertilization of International Humanitarian Law and International Refugee Law’
Part IV: EU Dimension of Refugee Law
14 Eispeth Guild (2006) ‘The Europeanisation of Europe’s Asylum Policy’
15 Geoff Gilbert (2004) ‘Is Europe Living Up to Its Obligations to Refugees?’
16 Rosemary Byrne, Gregor NoH and Jens Vedsted-Hansen (2004) ‘Understanding Refugee Law in an Enlarged European Union’
17 Hélène Lambert (2009) ‘Transnational Judicial Dialogue, Harmonization and the Common European Asylum System’
Part V: Challenges and Perspectives on the Future
18 B.S. Chimni (2001) ‘Reforming the International Refugee Regime: A Dialogic Model’
19 Satvinder S. lugs (2004) ‘Free Movement and the World Order’
20 Alice Edwards (2009) ‘Human Security and the Rights of Refugees: Transcending Territorial and Disciplinary Borders’
Name Index

Citation preview

International Refugee Law

The Library of Essays in International Law Series Editor: Robert McCorquodale Titles in the Series: International Law of Human Rights Michael K. Addo

Sources of International Law Martti Koskenniemi

International Law and Indigenous Peoples S. James Anaya

International Refugee Law Helene Lambert

International Law and Islamic Law Mashood A. Baderin

Space Law Francis Lyall and Paul B. Larsen

The International Criminal Court Olympia Bekou and Robert Cryer

International Dispute Settlement Mary Ellen 0 'Connell

Non-State Actors and International Law Andrea Bianchi

International Crimes Nikos Passas

Democracy and International Law Richard Burchill

International Environmental Law Volumes land n Paula M. Pevato

Law ofthe Sea Hugo Caminos The Law of Treaties Scott Davidson International Legal Personality FleurJohns International Economic Regulation Jane Kelsey International Organizations Jan Klabbers International Peacekeeping Boris Kondoch

State Responsibility in International Law Rene Provost Jurisdiction in International Law Michael Reisman Title to Territory Malcolm N. Shaw The Nature of International Law Gerry Simpson Collective Security Law Nigel D. White

International Refugee Law

Edited by

Helene Lambert University

0/ Westminster,

UK

First published 2010 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 ThirdAvenue, NewYork, NY 10017, USA

Routledge is an imprint ofthe Taylor & Francis Group, an informa business Copyright © He1ene Lambert 2010. For copyright of individual artic1es p1ease refer to the Acknow1edgements. All rights reserved. No part ofthis book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, inc1uding photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Wherever possible, these reprints are made from a copy ofthe original printing, but these can themselves be of very variable quality. Whilst the publisher has made every effort to ensure the quality ofthe reprint, some variability may inevitably remain.

British Library Cataloguing in Publication Data International refugee law. - (The library of essays in internationallaw) 1. Refugees-Legal status, laws, etc. 2. Human rights. I. Series 11. Lambert, Helene. 342'.083--dc22 Library ofCongress Control Number: 2009931629 ISBN 9780754628132

(hbk)

Contents A cknowledgements Series Preface Introduction PART I

IX XI

HISTORICAL PERSPECTIVE

3 Hannah Arendt (1999), 'We Refugees', in Mark M. Anderson (ed.), Hitler's Exiles: personal stories of theflight{rom Nazi Germany to America, NY: The New Press, pp. 253-62. 2 Paul Weis (1966), 'Territorial Asylum' , Indian Journal ofInternational Law, 6, pp. 173-94. 3 Bonaventure Rutinwa (2002), 'The End of Asylum? The Changing Nature of Refugee Policies in Africa', Refugee Survey Quarterly, 21, pp. 12-41. 4 James C. Hathaway (1990), 'A Reconsideration ofthe Underlying Premise of Refugee Law', Harvard International Law Journal, 31, pp. 129-83. 5 Corinne Lewis (2005), 'UNHCR's Contribution to the Development of International Refugee Law: Its Foundations and Evolution', International Journal o{Re{ugee Law, 17, pp. 67-90. 6 Guy S. Goodwin-Gill (2008), 'The Politics ofRefugee Protection', Re{ugee Survey Quarterly, 27, pp. 8-23. PART 11

VII

3 13 35 65

121 145

THE 1951 REFUGEE CONVENTION: KEY PROVISIONS AND IMPLEMENTATION

7 Andrew E. Shacknove (1985), 'Who Is a Refugee?', Ethics, 95, pp. 274-84. 8 Walter Kälin (1986), 'Troubled Communication: Cross-Cultural Misunderstandings in the Asylum-Hearing', International Migration Review, 20, pp. 230-41. 9 Guy S. Goodwin-Gill (1986), 'Non-Refoulement and the New Asylum Seekers', Virginia Journal o{International Law, 26, pp. 897-918. 10 Joan Fitzpatrick (1996), 'Revitalizing the 1951 Refugee Convention', Harvard Human Rights Journal, 9, pp. 229-53.

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175 187 209

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PART III REFUGEE LAW AND ITS RELATIONSHIPWITH INTERNATIONAL HUMAN RIGHTS LAW, INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL CRIMINAL LAW 11 Deborah E. Anker (2002), 'Refugee Law, Gender, and the Human Rights Paradigm', Harvard Human Rights Journal, 15, pp. 133-54. 12 Jane McAdam (2004), 'Seeking Asylum under the Convention on the Rights of the Child: A Case for Complementary Protection', International Journal o{ Children's Rights, 14, pp. 251-74. 13 Stephane Jaquemet (2001), 'The Cross-Fertilization ofInternational Humanitarian Law and International Refugee Law', International Review 01 the Red Cross, 83, pp. 651-73.

237

259

283

PART IV EU DIMENSION OF REFUGEE LAW 14 Eispeth Guild (2006), 'The Europeanisation ofEurope's Asylum Policy', International Journal olRelugee Law, 18, pp. 630-5l. 15 GeoffGilbert (2004), 'Is Europe Living Up to Its Obligations to Refugees?', European Journal 01 International Law, 15, pp. 963-87. 16 Rosemary Byrne, Gregor NoH and Jens Vedsted-Hansen (2004), 'Understanding Refugee Law in an Enlarged European Union' , European Journal 01 International Law,15,pp.355-79. 17 HelEme Lambert (2009), 'Transnational Judicial Dialogue, Harmonization and the Common European Asylum System', International and Comparative Law Quarterly, 58, pp. 519-43.

PART V

309 331

357

383

CHALLENGES AND PERSPECTIVES ON THE FUTURE

18 B.S. Chimni (200 I), 'Reforming the International Refugee Regime: A Dialogic Model', Journal olRelugee Studies, 14, pp. 151-68. 19 Satvinder S. lugs (2004), 'Free Movement and the World Order', International Journal 01 Relugee Law, 16, pp. 289-335. 20 Alice Edwards (2009), 'Human Security and the Rights of Refugees: Transcending Territorial and Disciplinary Borders', Michigan Journal 01 International Law, 30, pp. 763-807.

429

Name Index

523

411

477

Acknowledgements The editor and publishers wish to thank the following for perrnission to use copyright material. Brill for the essay: Jane McAdam (2004), 'Seeking Asylum under the Convention on the Rights of the Child: A Case for Complementary Protection', International Journal o{ Childrens Rights, 14, pp. 251-74. Cambridge University Press for the essays: Helene Lambert (2009), 'Transnational Judicial Dialogue, Harrnonization and the Common European Asylum System', International and Comparative Law Quarterly, 58, pp. 519--43. Copyright © 2009 British Institute of International and Comparative Law; Stephane Jaquemet (2001), 'The Cross-Fertilization of International Humanitarian Law and International Refugee Law', International Review of the Red Cross, 83, pp. 651-73. Copyright © 200 I International Committee ofthe Red Cross. Harvard Human Rights Journal for the essays: Joan Fitzpatrick (1996), 'Revitalizing the 1951 Refugee Convention', Harvard Human Rights Journal, 9, pp. 229-53; Deborah E. Anker (2002), 'Refugee Law, Gender, and the Human Rights Paradigm', Harvard Human Rights Journal, 15, pp. 133-54. Harvard Law School of Journals forthe essay: James C. Hathaway (1990), 'A Reconsideration of the Underlying Premise of Refugee Law', Harvard International Law Journal, 31, pp. 129-83. Indian Society ofInternational Law for the essay: Paul Weis (1966), 'Territorial Asylum' , Indian Journal o{International Law, 6, pp. 173-94. Michigan Journal of International Law for the essay: Alice Edwards (2009), 'Human Security and the Rights of Refugees: Transcending Territorial and Disciplinary Borders', Michigan Journal of International Law, 30, pp. 763-807. Oxford University Press for the essays: Bonaventure Rutinwa (2002), 'The End of Asylum? The Changing Nature ofRefugee Policies in Africa' ,Re{ugee Survey Quarterly, 21, pp. 12--41. Copyright © 2002 Oxford University Press; Corinne Lewis (2005), 'UNHCR's Contribution to the Development ofInternational Refugee Law: Its Foundations and Evolution', International Journal o{ Refugee Law, 17, pp. 67-90. Copyright © 2005 Oxford University Press; Guy S. Goodwin-Gill (2008), 'The Politics of Refugee Protection', Refugee Survey Quarterly, 27, pp. 8-23. Copyright © 2008 Oxford University Press; Elspeth Guild (2006), 'The Europeanisation of Europe's Asylum Policy', International Journal of Re{ugee Law, 18, pp. 630-5l. Copyright © 2006 Oxford University Press; GeoffGilbert (2004), 'Is Europe Living Up to Its Obligations to Refugees?', European Journal ofInternational Law, 15, pp. 963-87. Copyright © 2004 Oxford University Press; Rosemary Byrne, Gregor NoH and Jens Vedsted-

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Hansen (2004), 'Understanding Refugee Law in an Enlarged European Union', European Journalof International Law, 15, pp. 355-79. Copyright © 2004 Oxford University Press; 8.S. Chimni (2001), 'Reforming the International Refugee Regime: A Dialogic Model', Journal of Refugee Studies, 14, pp. 151-68. Copyright © 2001 Oxford University Press; Satvinder S. Juss (2004), 'Free Movement and the World Order', International Journal of Refugee Law, 16, pp. 289-335. Copyright © 2004 Oxford University Press. Wiley-Blackwell for the essay: Walter Kälin (1986), 'Troubled Communication: CrossCultural Misunderstandings in the Asylum-Hearing', International Migration Review, 20, pp. 230--41. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Series Preface Open a newspaper, listen to the radio or watch television any day ofthe week and you will read or hear of some matter concerning internationallaw. The range of matters include the extent to which issues oftrade and human rights should be linked, concerns about refugees and labour conditions, negotiations oftreaties and the settlement of disputes, and decisions by the United Nations Security Council concerning actions to ensure compliance with international law. International legal issues have impact on governments, corporations, organisations and people around the world and the process of globalisation has increased this impact. In the global legal environment, knowledge of international law is an indispensable tool for all scholars, legal practitioners, decision-makers and citizens ofthe 21st century. The Library o{ Essays in International Law is designed to provide the essential elements for the development of this knowledge. Each volume contains essays of central importance in the development of international law in a subject area. The proliferation of legal and other special ist journals, the increase in international materials and the use of the internet has meant that it is increasingly difficult for legal scholars to have access to all the relevant articles on international law and many valuable older articles are now unable to be obtained readily. These problems are addressed by this series, which makes available an extensive range of materials in a manner that is of immeasurable value for both teaching and research at all levels. Each volume is written bya leading authority in the subject area who selects the articles and provides an informative introduction, which analyses the context ofthe articles and comments on their significance within the developments in that area. The volumes complement each other to give a c1ear view of the burgeoning area of internationallaw. It is not an easy task to select, order and place in context essays from the enormous quantity of academic legal writing published in journals - in many languages - throughout the world. This task requires professional scholarly judgment and difficult choices. The editors in this series have done an excellent job, for which I thank and congratulate them. It has been a pleasure working with them. ROBERT McCORQUODALE General Series Editor School 0/ Law Univers ity 0/ N ottingham

Introduction [n the second edition of his book The Refugee in International Law ([ 996, p. xi), GoodwinGill acknow[edged the 'extraordinary growth in refugee studies, literature and case law' since the first edition of his book was published in 1983. [ndeed, international refugee law scholarship already existed at the time ofthe League ofNations but it truly exploded in recent years helped, no doubt, by the creation of several specialized journals in the field of refugee law (for example, the International Journal of Refugee Law, the Journal of Refugee Studies, and the Refugee Survey Quarterly). This volume offers a selection of the most influential essays on chosen topics in international refugee law from a range of journals. Many more excellent essays that could not be reproduced in full in this volume due to lack of space, as weil as books and chapters in books, are discussed in this [ntroduction and included in the Bibliography. Central to any study of international refugee law are the key principles and concepts of refugee protection, namely, asylum, non-refoulement, non-discrimination, family unity, solutions, and international cooperation (including burden-sharing). Refugee protection also entails the recognition of broad human rights to refugees. This volume is structured around five themes. Part [, on historical perspectives, discusses the evolution of the term 'refugee' and of the institution of asylum. [t also examines the key role of the United Nations High Commissioner for Refugees (UNHCR) in the development of international refugee law, the evolution of the international protection regime, and two alternatives to asylum as durable solutions to refugee flows: regional arrangements and burden-sharing. Part [[ discusses key provisions ofthe 195 [ Refugee Convention (that is, the refugee definition and the principle of non-refoulement) and issues of implementation at the domestic level (particularly concerning credibility assessment). [t also looks at criticism of the Refugee Convention. Part [[[ deals with complementary protection through human rights instruments and cross-fertilization with international humanitarian law and international criminal law. Part [V examines re cent EU developments in the establishment of a common European asylum system based on the full and inclusive application ofthe Refugee Convention and other human rights law obligations. [ have chosen the EU as a theme instead of other regional systems because of the predicted impact that this new European asylum legislation will have on international refugee law and human rights law. Finally, Part V looks at key challenges and perspectives on the future of international refugee law.

Historical Perspectives Refugees 'have existed as long as history' (Feiler, 2001, p. [30). For example, in 1492, unconverted Jews were expelled from Spain and soon after from Portugal; similar expulsion carried on during the sixteenth and seventeenth centuries (Zolberg, [983, p. 3 [). Equally, the French Huguenots left en masse during the forty-year war which ended with the Edict of

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Nantes in 1598. However, the international community only became aware ofits responsibility to provide protection and find solutions for refugees during the time ofthe League ofNations and the election of Fridtjof Nansen as the first High Commissioner for Russian refugees in 1921 (Goodwin-GiII, Chapter 6, p. 148). At the time, refugees were defined 'by categories' (UNHCR, 1992, para. 3), such as Armenian refugees or Turkish refugees. It was only after World War 11 that the question of international migration (including the stateless and the refugee) became recognized as one requiring an international solution. Hannah Arendt, in her essay 'We Refugees' (Chapter I), discusses her experience as a 'refugee' who, in 1941, emigrated to New York. First published in The Menorah journal in 1943, this much-cited essay illustrates a critical juncture in the discourse on 'refugees' and 'ordinary immigrants' and the changing meaning ofthe term 'refugee'. Until World War 11, the term 'refugee' had been used mostly to describe a person driven to seek asylum because of some criminal act committed or some radical political opinion held. Thus, Arendt writes: 'In the first place, we don't like to be called "refugees." We ourselves call each other "newcomers" or "immigrants" .... Before this war broke out ... We did our best to prove to other people that we were just ordinary immigrants' (1999, 253). This idea that 'refugees' are not just 'ordinary immigrants' is critical in international refugee law, and is further explored in this volume by Weis (Chapter 2), Shacknove (Chapter 7), Gilbert (Chapter 15), Juss (Chapter 19) and Edwards (Chapter 20). Directly related to the term 'refugee' is the concept of 'asylum' . Asylum is a peaceful and humanitarian act; it has been defined as 'the protection which aState grants on its territory or in some other place under the control of certain ofits organs, to a person who comes to seek it' (Institute of International Law, 1950, p. 15, article I). Asylum is not included in the main text of the 1951 Refugee Convention I or the 1967 Protocol Relating to the Status of Refugees 2 though it is mentioned in the Final Act ofthe United Nations Conference of Plenipotentiaries on the Status ofRefugees and Stateless Persons (wh ich adopted the 1951 Refugee Convention) as weil as in the Preamble to the 1951 Refugee Convention. 3 Notwithstanding, the UNHCR has advocated a generous asylum policy within the spirit of the 1948 Universal Declaration of Human Rights (UDHR) and the 1967 Declaration on Territorial Asylum (UNHCR 1992, para. 25). Most states parties to the 1951 Refugee Convention have established procedures for eligibility purposes and grant asylum to persons protected against refoulement. Traditionally, asylum existed in favour of two groups of individuals: political offenders and common criminals. But asylum as a matter of international law is relatively new (Krenz, 1966, p. 92). Article 14 ofthe UDHR proclaims: Everyone has the right to seek and enjoy in other countries asylum from persecution. This right may not be invoked in the case ofprosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles ofthe Uni ted Nations.

3

UN Convention Relating to the Status of Refugees, signed in Geneva on 28 July 1951, 189 UNTS 150. 3 UN Protocol Relating to the Status of Refugees, signed in New York on 31 January 1967, 606 UNTS 267. 3 Asylum is also not mentioned in the International Covenant on Civil and Political Rights.

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Paul Weis's 1966 essay 'Territorial Asylum' (Chapter 2) takes a historical perspective on this ancient institution. It traces the roots of asylum in the principles of state sovereignty and territorial supremacy, and discusses its evolution in the light of the development of extradition law during the nineteenth century, and the imposition of increased restrictions on the freedom ofmovement ofpolitical refugees during the twentieth century. Under traditional international law, asylum has always been a sovereign right of astate. Yet, this essay also suggests that asylum may be regarded as a right ofthe individual. The latter view has since been confirmed by Gil-Bazo to the extent that the right to be granted asylum as a subjective right ofindividuals now exists under EU law (article 18 ofthe Charter ofFundamental Rights of the European Union), as weil as in regional human rights treaties in America and Africa (Gil-Bazo, 2008). Furthermore, it has been proposed that the notion of 'responsibility to protect' should include the responsibility to grant asylum and to open borders to those f1eeing the most serious international crimes (Barbour and Gorlick, 2008; see also Edwards, Chapter 20). Yet, this is not a view shared by everyone. Thus, Goodwin-Gill and McAdam maintain that 'the individual still has no right to be granted asylum. The right itself is in the form of a discretionary power ... a correlative right ofthe individual continues to be resisted' (2007, pp. 414-15). That said, states have certain legal obligations under refugee law, human rights law and humanitarian law; in particular they have a duty of non-refoulement towards persons in need ofprotection. Hence, developments in these areas of laws are responsible for the setting of important boundaries to the discretion of states in granting (or not) asylum (see Part 111 below). An important question remains: does asylum constitute the best durable solution to refugee f1ows, or should the focus be on root causes, regional solutions and burden-sharing? The 1951 Refugee Convention does not deal with the causes of refugees' f1ows; in fact it ignores the state of origin as the source of refugees. Rather, the 1951 Refugee Convention concentrates on the persecution of individuals, the crossing of an international boundary and the lack ofprotection in the state of origin. Hence, 'early warning' was created as a process consisting in a wide range ofactivities spanning from 'data collection and analysis through to preventive diplomacy' (Gilbert, 1997, p. 209). Other solutions include regional arrangements and burden-sharing. Regional solutions to the refugee problem have existed alongside the 1951 Refugee Convention and 1967 Protocol since the 1969 OAU Convention on the Specific Aspects of Refugee Problems in Africa was adopted. 4 This has since been followed by the 1984 Cartagena Declaration in Latin America. 5 In addition, the EU recently adopted its own laws on refugee protection. 6 Bonaventure Rutinwa's essay 'The End of Asylum? The Changing

3 The Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted on 10 September 1969 in Addis Ababa, 100 I UNTS 45. 35 Cartagena Declaration on Refugees, adopted on 22 November 1984, Annual Report of the lnterAmerican Commission on Human Rights, OAS Doc. OEA/Ser.LNIIT.66/doc.lO, rev. 1, at pp. 190-93 (1984-85). 3 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (Official Journal L 326, 13/J2/2005 pp. 0013-0034); Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content ofthe protection granted (Offiäal Journal L 304, 30/09/2004 pp. 0012-0023); Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing

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Nature of Refugee Policies in Africa' (Chapter 3) iIIustrates the shift in that continent from asylum/resettlement to containment (see also Aleinikoff, 1992). At the time of its adoption, the 1969 OAU Convention was a significant advance from the 1951 Refugee Convention in two respects. First, in addition to incorporating the 1951/1967 refugee definition, it expanded the definition to include victims of violence and generalized conflicts. 7 Second, it acknowledged the security implications of refugee f10ws by adopting a more specific focus on solutions (namely, voluntary repatriation - in contrast to the integration bias of the 1951 Refugee Convention) and by promoting a burden-sharing approach to refugee assistance and protection (Feiler, 200 I, p. 133). That said, Rutinwa's essay is critical ofthe changes that have occurred since the mid-1980s, as witnessed in the move from a traditional 'open door' policy to a disengagement from commitment to asylum (see also Okoth-Obbo, 200 I). He calls for a focus on the root causes ofrefugee f10ws in Africa, amongst other solutions. James Hathaway's essay, 'A Reconsideration of the Underlying Premise of Refugee Law' (Chapter 4), provides a valuable examination of the legislative history of the 1951 Refugee Convention, and of the role of states in the process of refugee determination at the domestic level (see also Hathaway, 1984). It is critical of current refugee law for failing to meet the needs of refugees and establishes a selective approach to burden-sharing (see also, Garvey 1985). Looking back to the 1920s, Hathaway argues in Chapter 4 that the linkage between refugee law and human rights was selective during the period 1938-50, 'in a way that reinforced the economic and political hegemony of major Western states' (p. 78). He suggests instead a 'regional and interest-driven protection in tandem with a general obligation to share the burden of addressing refugee needs' (p. 70). More specifically, Hathaway calls for a solution that would accommodate the self-interest of states of potential resettlement, first refuge and countries of origin. In this and his two subsequent essays (Hathaway, 1991, p. 127, and Hathaway and Neve, 1997, pp. 198-207; see also Hathaway, 1997), Hathaway outlines a state-centric approach to refugee law. However, by suggesting a burden-sharing approach to the duty of refugee protection that is based upon 'a sufficient level of financial and material assistance' (Chapter 4, p. 118), and later on based on each state's resources and absorptive capacity, Hathaway's approach was subject to forthright legal and moral criticism for being overly state-focused (Chimni, 1998; Juss, 1998; Anker et al., 1998).

the criteria and mechanisms for determining the Member State responsible for examining an asyl um application lodged in one of the Member States by a third-country national (Offiäal Journal L 050. 0610212003 pp. 0001-0010); Council Directive 2003/91EC of 27 January 2003 laying down minimum standards far the reception of asylum seekers (Official Journal L 031. 0610212003 pp. 0018-0025); Council Regulation (EC) No. 407/2002 of 28 February 2002 laying down certain rules to implement Regulation (EC) No. 2725/2000 concerning the establishment of 'Eurodac' far the comparison of fingerprints for the effective application ofthe Dublin Convention (Official Journal L 062, 0510312002 pp. 0001-0005); and Council Directive 2001/55/EC of 20 July 2001 on minimum standards far giving temparary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (Offiäal Journal L 212, 0710812001 pp. 0012-0023). 7 Note that a similar expansion of the definition of a refugee occurred in Latin America with the 1984 Cartagena Declaration. In Europe, although the definition of a refugee was not expanded, the scope of beneficiaries of international protection was: see Part IV.

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The 1951 Refugee Convention was drafted at a time when the Cold War began, hence it was labe lied as the 'child ofthe Cold War' (Bertrand, 1993, p. 498). As its full name indicates - the Convention Relating to the Status of Refugees - the treaty concerns the definition as to who is a refugee (article I), and the rights and benefits which persons recognized as refugees are entitled to, including the guarantee against refoulement (articles 3-34). In its early days, refugee status was limited to persons who were escaping events that took place before 1951 (essentially in Europe). A 1967 Protocol Relating to the Status of Refugees extended the application ofthe Refugee Convention to all refugees. To maximize accession, both instruments 'were carefully framed to define minimum standards, without imposing obligations going beyond those that States can be reasonably be expected to assume' (UNHCR, 2001, p. 29). The definition of a refugee in article lA(2) ofthe Refugee Convention is that applied in most states in the world. There are currently (May 2009) 141 states parties to both the 1951 Refugee Convention and the 1967 Protocol (144 states parties to the Convention alone and 144 states parties to the Protocol alone). The underlying values of the Refugee Convention are stated by UNHCR as being: humanitarian, human rights and people oriented, non-political and impartial, international cooperation, and universal and general in character (UNHCR, 2001, pp. 2-3). The 1951 Refugee Convention does not deal with issues of procedures (namely, how to make adecision on eligibility to non-refoulement and/or refugee status) and these were never directly a matter of internationallaw. Refugees and displaced persons from World War 11 were, for the most part, already in their new states, and those who were still crossing borders were generally welcomed by European states if only for propaganda reasons. The implementation and interpretation of the 1951 Refugee Convention were therefore left, first and foremost, with the contracting states, helped in their task by the Office ofthe UNHCR. UNHCR was created as a subsidiary organ of the UN General Assembly in 1950. 8 It is entrusted with the primary function of ensuring international protection for refugees. This is explored in two essays in this volume. The first, by Corinne Lewis ('UNHCR's Contribution to the Development of International Refugee Law', Chapter 5), discusses a key element of the international protection function of UNHCR, namely, its contribution to the development of international refugee law, in cooperation with states (article 35, Refugee Convention). In the absence of an international body competent to monitor states' application of the Refugee Convention and to interpret its provisions (with the exception of the general function of the International Courtof Justice), UNHCR necessarilyplays acrucial role in this area. Meanwhile, scholars have called for the establishment of an international judicial body independent from states (Fitzpatrick, Chapter 10, p. 223; Chimni, Chapter 18, p. 417; Macmillan and Olsson, 2001; Hathaway, 2002b; Clark, 2004, p. 607; and North and Chia, 2008). However, it is unlikely that states will agree to transfer their decision-making power to a central agency. Lewis's examination of the development of international refugee law by UNHCR extends to treaty law, soft-Iaw and customary international law. She finds that recently international refugee law has mostly developed through customary international law and soft-Iaw. She takes the principle of non-refoulement (Goodwin-GiII, Chapter 9) and the norm oftemporary refuge (Perluss and Fitzpatrick Hartman, 1986, p. 624) as examples. In contrast to this 'a-political' picture ofthe UNHCR by Lewis, the next essay, by Guy S. Goodwin-Gill (Chapter 6), focuses on 'The Politics of Refugee Protection'. In so doing, it

8

UNGA Resolution 428 (v) of 14 December 1950 (UN Doc. A/1775 (1950)).

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looks back to the 1920s and identifies competing interests - states' v. individuals' interests - in the international protection regime. This regime indeed provides a good example of where state compliance with standards of refugee protection may be motivated by self-interest at certain points in time. That is not to say that other reasons do not also exist. Thus, the norm of providing refuge for those f1eeing persecution is arguably constitutive of modem liberal democracy (Gibney, 2004). At the same time, states have a strong interest in regulating the cross-border f10w of refugees (Hathaway and Harvey, 200 I). Historically, the refugee protection regime originated in the need to give some stability to post-war and post-colonial spurts of state building. Cronin argues that: [The] IPR [international protection regime] for refugees was not created to assist those displaced from war. Rather states constructed the system to address post-war political developments that were related to the construction ofnew states and new political orders. (2003, p. 156).

Leaders, nonetheless, shared a common sense of responsibility for the welfare of refugees (Garvey, 1985). State interest took a new twist during the Cold War, as Western states used the 1951 Refugee Convention as a political tool to embarrass the Soviet bloc and sweep up defectors (Loescher, 1986, 1993). Goodwin-GiII's essay is important because it c1early argues for a prioritization of protection over everything else, in particular solutions and assistance. In doing so, it refocuses the debate about international protection onto its core values. Thus, international protection must be humanitarian and nonpolitical in character, but, more importantIy, it also ought to be about individuals' dignity, worth and rights, in other words about entitlement to international protection. This issue is considered further by Alice Edwards within the human security framework (Chapter 20). The 1951 Refugee Convention: Key Provisions and Implementation During the drafting ofthe Refugee Convention, more time was spent on article 1 than any other ofthe 46 articles, mainly due to differences amongst states between a restrictive definition of refugee (that would be limited to events that took place in Europe before 1951) and a more general definition that could be applicable to future events. The restrictive view won, and refugee status was limited to pre-1951 events which occurred in Europe (Goodwin-Gill and McAdam, 2007, pp. 35-37). The drafters further restricted refugee status to violations of civil and political rights because these were rights that were beginning to be accepted in 1950. 9 In spite of this, the 1951 Refugee Convention is the first international treaty providing for a general definition ofrefugees. lO Article 1A(2) provides that the term 'refugee' shall apply to: any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself ofthe protection of that country.

3 310

On the exclusion clause, see Gallagher (2001). Another definition of 'refugee' is contained in the Statute of the Office of the UNHCR (Weis, 1960, pp. 936-38).

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Andrew Shacknove, in a much-cited essay, 'Who Is a Refugee?' (Chapter 7), advocates a conception of refugeehood (that is, the theoretical basis for the definition) going beyond the legal definition of a refugee in article lA(2).11 The 1951 Refugee Convention definition (which is applied in most states) is based on the existence of a bond between the citizen and the state. In the case ofthe refugee, this bond has been broken, and persecution and alienage are always the physical manifestations of this broken bond. These manifestations are the necessary and sufficient conditions for determining refugeehood. The 1969 OAU Convention is an exception: persecution is not the only criterion for refugeehood because of a different historical context; external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole ofthe country of origin or nationality, are also criteria for refugeehood. 12 Yet, Shacknove argues that both persecution and alienage are sufficient but not necessary criteria for refugeehood because both persecution and alienage are only the manifestation of a broader phenomenon: the absence of state protection of the citizen's basic needs (in the case ofpersecution) and the physical access ofthe international community to the unprotected person (in the case of alienage). In sum, the necessary conditions for refugeehood, according to Shacknove, are: persons deprived of their basic needs, with no recourse to horne government, and with access to international assistance (in or out of the country of origin). Viewed in this way, the concept of a refugee acquires a new ethical dimension. In fine, this essay introduces a useful way of thinking about 'who is a refugee?' that would accommodate new categories of people such as internally displaced persons, yet exclude others (for example, those whose basic rights are protected by the government or who are not in a position to seek international assistance). Today, many states accept that decisions on eligibility must respect basic procedural standards, such as the right to a comprehensive review of asylum decisions (Legomsky, 2000; Gorlick, 2003). But applicants often have a difficult task to convince decision-makers ofthe veracity of their stories. Credibility determination (that is, the assessment of oral testimony) rests at the core ofrefugee protection (NoII, 2005). Yet, international refugee law 'has failed to develop a body of evidentiary principles that is tailored to the unique dimensions of the testimony ofthose seeking asylum' (Byrne, 2007, p. 609). The credibility ofan asylum seeker may be seriously damaged if it transpires that the asylum seeker has lied. Because an asylum seeker has to show a well-founded fear, asylum procedures (at the early stage offirst instance decision-making) generally provide a hearing during which the asylum seeker has to narrate

11

For a full discussion of this legal definition, see Goodwin-Gill and McAdam (2007, pp. 63-

134).

12

1969 Convention on the Specific Aspects of Refugee Problems in Africa - Article 1: 1. Forthe purposes ofthis Convention, the term 'refugee' shall mean every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself ofthe protection ofthat country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it. 2. The term 'refugee' shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

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her story, in other words tell about her fear and escape away from such fear. Hearings are usually not provided in cases that are found to be manifestly unfounded. Depending on a number of factors, hearings may play to the advantage or disadvantage ofthe asylum seeker. Walter Kälin, in a groundbreaking essay 'Troubled Communication' (Chapter 8), identifies five obstacles leading to misunderstandings in asylum hearings: manner of expression, interpreter, the cultural relativity of notions and concepts, different perceptions of time, and the cultural relativity of 'Iie' and 'truth'. The same baITiers were identified in two further path-breaking empirical studies ofUS and Canadian asylum procedures (respectively, Anker, 1992; Rousseau et al., 2002). These impediments to effective determinations of credibility are 'unique' to the testimony of asylum seekers and 'they challenge the conventional legal approaches to assessing credibility in asylum adjudications' which traditionally relies on four criteria: demeanor, consistency, accuracy and cOIToboration (Byrne, 2007, p. 622). One way, therefore, of dealing with these criteria may be to look at the evidentiary principles relating to the testimony of alleged victims of human rights abuses developed by international war crimes courts (Byrne, 2007). Another key provision ofthe 1951 Refugee Convention is article 33. Article 33( I) prohibits non-refoulement, being: [T]he return of a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion.

According to article 33(2), this principle may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community ofthat country.

The principle of non-refoulement is enshrined in various other instruments 13 (for example, the 1969 OA U Convention, the American Convention on Human Rights,14 and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).15 Nonrefoulement has been described as 'a cardinal principle of refugee protection' (Lauterpacht, and Bethlehem, 2003, p. 107). Its nature, scope and relationship with other key concepts, such as asylum and burden-sharing, have given rise to extensive scholarly debate, some ofwhich is captured in Goodwin-GiII's essay 'Non-Refoulement and the New Asylum Seekers' (Chapter 9). Many ofthe arguments in this seminal essay have since been confirmed in what is today the most comprehensive study on non-refoulement, namely Lauterpacht and Bethlehem (2003; see also Goodwin-Gill and McAdam, 2007, pp. 201-84). Significantly, Goodwin-Gill argues that non-refoulement has moved beyond the confines of article 1 to encompass also moral obligations towards 'persons in distress' - that is, persons f1eeing from situations ofviolence, violations of human rights, war, civil war, famine or drought. In practice, therefore, nonrefoulement has come to apply to a broader category of refugees, such as displaced persons; 13 For a fulllist of all relevant instruments in refugee law, human rights lawf and extradition law, see Lauterpacht and Bethlehem (2003), at pp. 90-93. 14 OAS Treaty Series No. 36 (1969). 15 465 UNTS 85.

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it also applies in situations ofmass influx. Non-refoulement covers state conduct beyond state territory: for example, rejection at the border, in international and transit zones, extradition, and so on (Kneebone, 1996; Goodwin-GiII, 2003). State practice has thus broadened the scope of article 33 and non-refoulement has given rise to binding obligations under both treaty law and customary international law. However, its jus cogens nature remains more uncertain (Allain, 2001; Duffy, 2008). The 'safe country' concept has been presented as 'a new notion of non-refoulement', one that states were forced to create in order to deal 'with the emergence of the potential refugee or the asylum seeker and the subsequent burden on asylum administrations' (EI-Enany, 2007, p. 6; see also Byrne and Shacknove, 1996). Non-refoulement has also evolved in a human rights context into a fundamental component of the customary international law prohibition of torture or cruel, inhuman or degrading treatment or punishment (Goodwin-Gill and McAdam, 2007, pp. 34554; Lambert, 1999). In sum, states have been able 'to patch together a minimally adequate regime for the protection of forced migrants' through the recognition of extra-conventional norms (Fitzpatrick, Chapter 10, p. 211). Goodwin-Gill 's essay thus constitutes an important contribution to scholarship by firmly grounding the non-refoulement debate onto the risk or threat to refugees. Finally, during the 1990s, the 1951 Refugee Convention became the object of strong criticism for being badly outdated and an arte fact of a past era. In 'Revitalizing the 1951 Refugee Convention' (Chapter 10), Joan Fitzpatrick makes a powerful and convincing argument against such critique (see also Goodwin-GiII, 2001). She argues that: 'A crisis exists not because the Convention fails to meet the needs of asylum-seekers, but because it meets them so weil as to im pose burdens that are no longer politically tolerable to the States parties involved' (p. 211). She further challenges some of its key weaknesses, namely, the vagueness ofthe refugee definition, the lack of a uniform framework for refugee processing, and the lack of explicit provision on crucial substantive issues. Yet, she argues, it may not be timely to abandon the Refugee Convention foundation until states are prepared to assume new bin ding legal commitments that would address these issues. Hence, Fitzpatrick recognizes the need to do more in the area of cooperation between states in light ofrecent focus on 'comprehensive cooperative relationships among refugee-producing, first asylum and industrialized States' (p. 233). In summary, the 1951 Refugee Convention was nevermeant to provide answers to all the pressing and difficult questions posed by contemporary forced migration. By arguing that the 1951 Refugee Convention is not obsolete and that it continues to guide states' responses to the refugee problem, this essay continues to represent the common wisdom today.

Refugee Law and its Relationship with International Human Rights Law, International Humanitarian Law and International Criminal Law The formal acknowledgement that international refugee law is indeed part of international human rights law has been traced back to the adoption ofthe Refugee Convention as a treaty (Goodwin-Gill and McAdam, 2007). Yet, a number offactors (such as the lack ofa subjective right ofasylum, the inclusion oftraditional concepts ofsovereignty and the Cold War) created a narrow conception ofrefugee law (Hathaway, Chapter 4), one that became 'segregated from the development of international human rights law' (Gowlland-Debbas, 1995, p. x). It was not until the 1990s before any significant references were made to rights in the Conclusions

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adopted by the Executive Committee (EXCOM) of the UNHCR (UNHCR, 2005) and for legal scholarship to articulate fully the relationship between refugee law and human rights law. Today, this relationship is weil documented and, notwithstanding some criticism, the human rights approach is currently the dominant one in refugee law (Lambert, 2009). The human rights approach explains that refugee law operates on the premise that a human rights violation has taken place or is going to take place imminently. It also takes human rights law as a benchmark for the quality ofprotection provided by states (and by the UNHCR) to refugees in countries of origin (for example, internal protection) and in countries ofrefuge (in terms ofthe rights granted to asylum seekers as weil as the rights granted upon recognition of refugee status and complementary protection (McAdam, 2007, 2008; Foster, 2007; GoodwinGiII, 2004; Hathaway, 2005; Lambert, 1999,2005,2006). Article 3 of the 195 I Refugee Convention is particularly relevant here; it guarantees the application ofthe provisions ofthe Convention 'without discrimination as to race, religion or country oforigin'. Such a principle is weil recognized in several instruments ofinternational human rights law. Finally, the human rights approach is being used to tackle issues of state's responsibilities (Gil-Bazo, 2006, p. 600) as weil as UNHCR's accountability (Pallis, 2006). Viewed from this enlarged perspective, the debate about the linkage between refugee law and human rights law has revealed a number ofissues that had remained largely unaddressed in refugee law, such as the right to leave, to return and to remain (see Juss, Chapter 19), the obligations of the receiving state to meet certain standards of treatments (concerning in particular the right to family life and the right to work (Edwards, 2005)), the obligations of UNHCR to act in accordance with international human rights law in its refugee status determination activities (Pallis, 2006; Kagan, 2006; Alexander, 1999; Wilde, 1998), and the human rights situation in the country of origin (for example, state responsibility, root causes; see Ziegler, 2002; Gilbert, 1997). Two essays were selected to iIIustrate the relationship between refugee law and human rights. Deborah Anker's essay, 'Refugee Law, Gender, and the Human Rights Paradigm' (Chapter 1 I), considers gender asylum law as paramount in the application and acceptance of the human rights paradigm, and advocates a mainstream human rights approach to interpreting key elements of the refugee definition, such as persecution. A better grounding of the interpretation of refugee law terms (for example, persecution) in human rights law, coupled with an increase in transnational dialogue mean that 'international human rights law is providing the unifying theory binding different bodies of national jurisprudence' (Chapter 11, p. 240). Looking specifically at the examples of rape and sexual violence, female genital surgery and family violence, she argues that both refugee law and human rights law have a lot to learn from each other, and that making the relationship between these two areas of law explicit 'creates opportunities for advances within both fields' (p. 250). In this regard, Edwards argues that human rights law has been found to give meaning to the right 'to enjoy' asylum (article 14 UDHR) going beyond the rights owed to refugees in articles 3-34 ofthe 1951 Refugee Convention (Edwards, 2005; see also Hathaway, 2005, p. 8). In 'Seeking Asylum under the Convention on the Rights of the Child' (Chapter 12), Jane McAdam argues that consideration of the best interests of the child ought to be added onto application of article I A(2) of the Refugee Convention. In fact, the best interests principle 'mayaiso constitute a complementary ground ofprotection in its own right' (p. 259), and thus fill the gaps in the application of the Refugee Convention to children. This is an important

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essay because it discusses a major human rights instrument, namely the 1989 Convention on the Rights ofthe Child,16 that up until then had been largely overlooked. But human rights law was not alone in playing an important role in the development and evolution of refugee law. It is indeed generally recognized that armed conflict, whether international or internal, is the most important cause offlight. So, international humanitarian law too has impacted on refugee law. More recently, refugee law scholarship has also increasingly started to look at international criminal law in its concern for the development of a fully integrated system for the protection and promotion of refugee rights. Key aspects ofthe relationship between international humanitarian law and refugee law (but also human rights law) are examined by Stephane Jaquemet in 'The Cross-Fertilization of International Humanitarian Law and International Refugee Law' (Chapter 13). This essay discusses the concurrent application of refugee law and international humanitarian law (that is, when refugees are caught up in an armed conflict) and successive application for both regimes (that is, when prisoners ofwar released at the end ofhostilities refuse to be repatriated and apply for asylum). It also points to three developments that will (or could) lead to a closer relationship between international humanitarian law and refugee law. First is the debate concerning persons forced to flee their hornes as a result of armed conflict and who remain in their state (that is, internally displaced persons (IDPs); Phuong, 2000, 2004). Second is the recent development of international criminal law concepts, principles and rules (through the establishment of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court) and which will increasingly influence refugee law through a process of 'borrowing' (Byrne, 2007; see also Smith, 2008; Gallagher, 2001). Third is the development ofrules on state responsibility for illegal acts (such as grave breaches of international humanitarian law, and the creation of refugee flows) which can entail the payment of compensation (Ziegler, 2002; Akhavan and Bergsmo, 1989).

EU Dimension of Refugee Law Since the Tampere meeting of the European Council in October 1999, the European Union (EU) has been developing as a common area of freedom, security and justice. In order to do that, the member states agreed to work towards establishing a common European asylum system by making full use of the provisions in the Amsterdam Treaty 1997 (TitIe IV).17 The new legal order in European asylum is being shaped by a number of key legislative measures, including the Asylum Procedure Directive 2005, the Qualification Directive 2004, the Reception Directive 2003, the Dublin 11 Regulation 2003, the Eurodac Regulation 2002 and the Temporary Protection Directive 200 \,18 From the perspective of international law, the Qualification Directive is undoubtedly the most important instrument in the new legal 1577 UNTS 3. The Treaty of Amsterdam, amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, signed on 2 October 1997. 1& For a full reference to these legislative acts, see footnote 6. The Commission is currently (2009) proposing further amendments to this legislation with the objective of improving protection. See S. Peers, 'Statewatch analysis - the EU's JHA Agenda for 2009', available at . 16

17

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order because 'it goes to the heart ofthe 1951 Convention Relating to the Status of Refugees' (Lambert, 2006, p. 161). This instrument combines refugee protection and subsidiaryprotection under one umbrella in one ofthe 'most ambitious attempt to combine refugee law and human rights law in this way to date' (Lambert, 2006, p. 162). Issues of procedures (that is, how to make adecision on qualification) remain outside the scope ofthe Qualification Directive but these were dealt with in aseparate Asylum Procedure Directive (Costello, 2005). Eispeth Guild's essay on 'The Europeanisation of Europe's Asylum Policy' (Chapter 14) provides a powerful critique of the protection provided by EU member states to refugees and of their responsibilities towards refugees. This essay traces the most important steps towards the protection of refugees in the EU, which Guild argues constitute a 'process of de-territorialising protection obligations' for refugees already in, or seeking to enter, the EU (p. 310). In other words, the geographical EU common territory being no longer the object of sovereign responsibilities, there is now 'space for an opportunistic exc1usion ofprotection responsibilities which are tied to sovereignty' (p. 310; see also Juss, 2005). She finds that this gap has been fi lied to some extent by human rights law, the 1950 European Convention on Human Rights (ECHR)19 in particular. Both legal orders complement each other, but they are separate. Hence, the EU member states remain accountable to the European Court of Human Rights for their protection obligations under EU law whenever these obligations involve a right or obligation under the ECHR. There can be no hiding behind notions of common territory and loss of sovereignty before the European Court of Human Rights which 'has pushed in the direction of a "collectivisation" ofresponsibility' (p. 309). Geoff Gilbert's essay' Is Europe Living Up to Its Obligations to Refugees?' (Chapter 15) complements the picture. Gilbert's fundamental criticism ofthe EU approach towards refugee protection is that it has inextricably 'fused' refugee protection and immigration control; an immigration control mentality is driving refugee policy. Consequently, EU states will continue to choose who should be protected within the EU, and currently this category of people is becoming increasingly small (see also EI-Enany, 2007). Like Guild, he points to the ECHR for complementary protection but wams the EU member states against a watering down of their legal obligations outside the states members of the Council of Europe because these states lack the same safety net as the EU member states (see also McAdam, 2005, p. 516). Finally, two essays are inc1uded in this volume to iIIustrate a shift in refugee law scholarship (in this case in Europe) from a vertical level to a horizontal or lateral level of analysis. 20 In Chapter 16, 'Understanding Refugee Law in an Enlaged European Union', Rosemary Byrne, Gregor Noll and Jens Vedsted-Hansen focus on the lateral process of refugee law formation, transformation and reform in Europe, and explore its effects on states' practice and refugee protection in the Baltic and Central European countries. They reveal a normative process of development and proliferation that is mostly bilateral and domestic-Ievel-driven, and not so dictated by Brussels. They warn against 'the myth of vertical transformation' because 'in reality, asylum norms are transformed in a constant interplay between domestic, sub-regional and regional forces' (p. 379). They conclude that 'domestic legislation as formed by subregional dynamics will remain the ultimate object of study for scholars of international ETS No. 5. For similar initiatives 'in the South' (that is, Africa, Asia, Latin America and the Middle East), see Harrell-Bond (2007). 19

20

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refugee law' (p. 357). Notwithstanding the role ofthe European Court of Justice in European asylum law, Helene Lambert's essay 'Transnational Judicial Dialogue, Harmonization and the Common European Asylum System' (Chapter 17) discusses the key role played by national judges in the member states in the creation of a common European asylum system. Based on empirical research as weil as semi-structured interviews, her research reveals a surprising lack oftransnational use ofnational jurisprudence on asylum between judges. It points to a mix of rational and cultural factors that explain this outcome and recognizes that the Europeanization of asylum law is likely to encourage transnational judicial dialogue in this area. Nonetheless, this essay highlights the need for a whole new kind of trans-state activities, which are conductive to dialogue, to occur for the new European asylum system to work.

Challenges and Perspectives on the Future International refugee law continues to face many challenges from the mass influx ofrefugees (Durieux and McAdam, 2004; Durieux and Hurwitz, 2004) to the international measures adopted against human trafficking and smuggling (Hathaway, 2008; Kneebone, 2008), the development ofrules on states' responsibility for wrongful acts which can entail the payment of compensation (Ziegler, 2002; Akhavan and Bergsmo, 1989), and issues of UNHCR's accountability under international human rights law (Alexander, 1999; Kagan, 2006; Pallis, 2006; Wilde, 1998). Three essays have been selected here for their radical and/or forward thinking in developing refugee law. The first concerns the debate on globalization and the North-South divide (Chimni, Chapter 18). The second proposes a radically new integrated approach to refugee protection and migration (Juss, Chapter 19). The third discusses the potential of the emerging human security framework for refugee rights (Edwards, Chapter 20). Most scholars sympathize with the idea that refugee law should develop through dialogue between a wide range of participants worldwide. In his essay 'Reforming the International Refugee Regime' (Chapter 18), B.S. Chimni critiques current refugee law and calls for increasing and widening dialogue between states and other actors, including refugees, in an 'emerging global state' (Chimni, Chapter 18; 2004). He had previously argued that dialogue is crucial to arrive at 'a consensus on the changes to be introduced in the post-war regime' (Chimni, 1998, p. 369). In this essay he explains that such dialogue ought to take place between scholars, lawyers, refugees, states, UNHCR, non-governmental organizations from the North but also include the South, and it should be based on the principles of deliberative democracy (that is, on the basis of good argument as opposed to one's own interest) (p. 412). Looking at the EU in particular, Chimni finds that such dialogue is absent because the EU is developing its common asylum system without entering into dialogue with other regions (such as North America) or the South, in spite ofthe influence that this regime will have on these other regions 'through redefining the relative obligations of different regions of the world to the global refugee problem' (p. 417). Satvinder Juss's essay 'Free Movement and the World Order' (Chapter 19) critically examines the framework in which refugee law operates, that is, twentieth-century restrictions on free movement rights. He describes these restrictions as a departure from what has been the historical norm in human society. In a most radical departure from general wisdom, he introduces a new way of thinking about states' control on entry, namely, legalizing free

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movement rights as a first step towards a 'rational' policy on migration that would benefit both the developing and developed countries, as weil as voluntary and involuntary migrants alike. More particularly, Juss is calling for the 'concepts of universal equal access, opportunity, and openness', that is, of a right 'to relocate', to be taken more seriously by states, globally (p. 448). Looking at the cost involved in controlling freedom of movement and the sheer impossibility of controlling all immigration, particularly in the rich developed countries in the North, Juss explains that 'political realism' is badly needed in international migration policy' (p.449). Finally, Alice Edwards, in 'Human Security and the Rights of Refugees' (Chapter 20), draws on international relations theory in exploring the relevance and usefulness ofthe human security framework for refugee protection. The premise of her analysis - which is largely uncontested - is that the legal protection framework contains gaps and limitations. Edwards notes that there are also criticisms ofthe concept ofhuman security, in particular, surrounding its lack of a precise definition, lack of a legal framework, 'securitization' problems and poor enforceability. Nonetheless, she embraces the human security approach as having the potential to transform our approach to protection. With its 'people-centred' focus on rights and needs, its support of principles of interdependence, multilateralism, international cooperation and early prevention, Edwards argues 'The human security framework already shares many of the central tenets of human rights and refugee protection' (p. 520). Crucially, with its focus on the empowerment as weil as protection of individuals, the human security approach has the potential to produce a 'conceptual shift from viewing refugees as protection-seekers' to 'persons capable of contributing positively to their host communities' (p. 519).

Conclusion The essays in this volume (selected in the summer 2008) reveal a picture of international refugee law that is dynamic and constantly evolving. From an instrument designed to protect mostly those civilians fleeing the worse excesses of World War 11, the 1951 Refugee Convention has developed into a set of principles, customary rules and values that are now firmly embedded in the human rights framework, and are applicable to a far broader range of refugees (UNHCR, 2008, para. 3). In addition, international refugee law has been affected by international humanitarian law and international criminal law (and vice versa). Thus, there is a reinforcing dynamic in the development of these complementary areas of law. At the same time, in recent decades states have shown a renewed interest in managing migration, thereby raising issues of how to reconcile such interests with refugee protection principles. Amongst these principles, the right to enjoy asylum, the right to freedom of movement and the right to an adequate standard of living are becoming increasingly important. In addition, the emergence of concepts ofparticipation (or empowerment) and responsibility (to protect) promises to have an impact on international refugee law.

Bibliography Akhavan, P. and Bergsmo, M. (1989), 'The Application of the Doctrine of State Responsibility to Refugee Creating States', Nordic Journal 01 International Law, 58, pp. 243-56.

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Aleinikoft: T.A. (1992), 'State-centered Refugee Law: From Resettlement to Containment', Michigan Journal ofInternational Law, 14, pp. 120-39. Alexander, M. (1999), 'Refugee Status Determination Conducted by UNHCR', International Journal ofRefugee Law, 11, pp. 251-89. Allain, J. (2001), 'The Jus Cogens Nature ofNon-Refoulement', International Journal ofRefugee Law, 13, pp. 533-58. Anker, D.E. (1992), 'Determining Asylum Claims in the United States: A Case Study on the Implementation ofLegal Norms in an Unstructured Adjudicatory Environment', New York University Review ofLaw and Sodal Change, 19, pp. 433-527. Anker, D.E., Fitzpatrick, J. and Shacknove, A. (1998), 'Crisis and Cure: A Reply to Hathaway/Neve and Schuck', Harvard Human Rights Journal, 11, pp. 295-309. Barbour, B. and Gorlick, B. (2008), 'Embracing the "Responsibilityto Protect": A Repertoire ofMeasures Including Asylum for Potential Victims', International Journal of Refugee Law, 20, pp. 533-66. Bertrand, P. (1993), 'An OperationalApproach to International Refugee Protection', Cornell International Law Journal, 26, pp. 495-594. Byrne, R. (2007), 'Assessing Testimonial Evidence in Asylum Proceedings: Guiding Standards from the International Criminal Tribunals', International Journal of Refugee Law, 19, pp. 609-38. Byrne, R. and Shacknove, A. (1996), 'The Safe Country Notion in European Asylum Law', Harvard Human Rights Journal, 9, pp. 185-228. Chan, P. (2006), 'The Protection ofRefugees and Internally Displaced Persons: Non-Refoulement under Customary International Law', International Journal ofHuman Rights, 10, pp. 231-39. Chimni, B.S. (1998), 'The Geopolitics of Refugee Studies: A View from the South', Journal ofRefugee Studies, 11, pp. 350-74. Chimni, B.S. (2004), 'Internationallnstitutions Today: An Imperial Global State in the Making', European Journal of International Law, 15, pp. 1-37. Clark, T. (2004), 'Rights Based Refuge, the Potential of the 1951 Convention and the Need for Authoritative Interpretation', International Journal of Refugee Law, 16, pp. 584-608. Costello, C. (2005), 'The Asylum Procedure Directive and the Proliferation of Safe Country Practices: Deterrence, Defiection and the Dismantling of International Protection', European Journal of Migration and Law, 7, pp. 35-70. Cronin, B. (2003), Institutions for the Common Good - International Protection Regimes in International Society, Cambridge: Cambridge University Press. Duffy, A. (2008), 'Expulsion to Face Torture? Non-refoulement in International Law', International Journal of Refugee Law, 20, pp. 373-90. Durieux, J .-F. and Hurwitz, A. (2004), 'How Many Is Too Many? African and European Legal Responses to Mass Infiuxes ofRefugees', German Yearbook of International Law, 47, pp. 105-58. Durieux, l-F. and McAdam, 1 (2004), 'Non-Refoulement through Time: The Case for aDerogation Clause to the Refugee Convention in Mass Infiux Emergencies', International Journal of Refugee Law, 16, pp. 4-24. Edwards, A. (2005), 'Human Rights, Refugees, and the Rightto "Enjoy" Asylum' ,International Journal of Refugee Law, 17, pp. 293-330. EI-Enany, N. (2007), 'Who Is the New European Refugee?', LSE Society and Economy Working Papers 19/2007. Feiler, E. (200 I), 'The Evolution ofthe International Refugee Protection Regime', Washington University Journal of Law and Policy, 5, pp. 129-39. Foster, M. (2007), International Refugee Law and Socio-Economic Rights - Refuge from Deprivation, Cambridge: Cambridge University Press.

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Francis, A. (2008), 'Bringing Protection Horne: Healing the Schism Between International Obligations and National Safeguards Created by Extraterritorial Processing', International Journal of Refugee Law, 20, pp. 273-313. Frelick, B. (2005), '''Abundantly Clear": Refoulement', Georgetown Immigration Law Journal, 19, pp. 245-75. Gallagher, M.S. (2001), 'Soldier Boy Bad: Child Soldiers, Culture and Bars to Asylum', International Journal ofRefilgee Law, 13, pp. 310-53. Garvey, 1 (1985), 'Toward a Reformulation ofInternational Refugee Law', Harvard International Law Journal, 26, pp. 483-500. Gibney, M.J. (2004), The Ethies and PolWes ofAsylum, Cambridge: Cambridge University Press. Gil-Bazo, M.-T. (2006), 'The Practice of Mediterranean States in the Context of the European Union's Justice and Horne Affairs External Dimension. The Safe Third Country Concept Revisited', International Journal ofRefugee Law, 18, pp. 571-600. Gil-Bazo, M.-T. (2008), 'The Charter ofFundamental Rights ofthe European Union and the Right to be GrantedAsylum in the Union's Law', Refugee Survey Quarterly, 27, pp. 33-52. Gilbert, G. (1997), 'The Best "Early Warning" is Prevention: Refugee Flows and European Responses', International Journal ofRefugee Law, 9, pp. 207-28. Goodwin-Gill, G.S. (1996), The Refilgee in International Law, 2nd edn, Oxford: Clarendon Press. Goodwin-Gill, G.S. (2001), 'Asylum 2001 - A Convention and a Purpose', International Journal of Refugee Law, 13, pp. 1-15. Goodwin-Gill, G.S. (2003), 'Refugees and Responsibility in the Twenty-First Century: More Lessons Learned from the South Pacific', Paeifie Rim Law and Poliey Journal, 12, pp. 23--47. Goodwin-Gill, G.S. (2004), 'Refugees and their Human Rights', Refugee Studies Centre Working Paper No. 17, University ofOxford, . Goodwin-Gill, G.S. and McAdam, 1 (2007), The Refilgee in International Law, 3rd edn, Oxford: Oxford University Press. Gorlick, B. (2003), 'Common Burdens and Standards: Legal Elements in Assessing Claims to Refugee Status', International Journal ofRefugee Law, 15, pp. 357-76. Gowlland-Debbas, V. (ed.) (1995), The Problem ofRefugees in the Light ofContemporary International Law Issues, The Hague: Martinus NijhotfPublishers. Harrell-Bond, B. (2007), 'Starting a Movement of Refugee Legal Aid Organizations in the South', International Journal ofRefugee Law, 19, pp. 729-46. Hathaway, J.C. (1984), 'The Evolution ofRefugee Status in International Law: 1920-1950', International and Comparative Law Quarterly, 33, pp. 348-80. Hathaway, J. C. (1991), 'Reconceiving International Refugee Law as Human Rights Protection', Journal of Refilgee Studies, 4, pp. 113-31. Hathaway, lC. (1997), Reeoneeiving International Refilgee Law, Leiden and Boston: Martinus Nijhoff Publishers. Hathaway, J.C. (2002a), 'The Causal Nexus in International Refugee Law', Miehigan Journal of International Law, 23, pp. 207-21. Hathaway, J.C. (2002b), 'Who Should Watch over Refugee Law?', Foreed Migration Review, 14, pp. 23-26. Hathaway, lC. (2005), The Rights of Refilgees Under International Law, Cambridge: Cambridge University Press. Hathaway, J.C. (2008), 'The Human Rights Quagmire of "Human Trafficking"', Virginia Journal of International Law, 49, pp. 1-59. Hathaway, J .C. and Neve, B.A. (1997), 'Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Orientated Protection', Harvard Human Rights Journal, 10, pp. 11521!.

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Hathaway, lC. and Harvey, C.l (2001), 'Framing Refugee Protection in the New World Order', Cornell International Law Journal, 24, pp. 257-320. Institute of International Law: Resolutions Adopted at its Bath Session, September, 1950, American Journal of International Law, 45, No. 2, Supplement: Official Documents (April, 1951), pp. 15-23. Juss, S. (1998), 'Towards a Morally Legitimate Reform of Refugee Law: The Uses of Cultural Jurisprudence', Harvard Human Rights Journal, 11, pp. 311-54. Juss, S. (2005), 'The Decline and Decay ofEuropean Refugee Policy', OxfordJournal ofLegal Studies, 25, pp. 749-92. Kagan, M. (2006), 'The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination', International Journal ofRefugee Law, 18, pp. 1-29. Kneebone, S. (1996), 'The Pacific Plan: The Provision of"Effective Protection"?', International Journal ofRefilgee Law, 18, pp. 696-721. Kneebone, S., with McSherry, B. (2008), 'Trafficking in Women and Forced Migration: Moving Victims Across the Border of Crime into the Domain of Human Rights', International Journal of Human Rights, 12, pp. 67-87. Krenz, F.E. (1966), 'The Refugee as a Subject of International Law', International and Comparative Law Quarterly, 15, pp. 90-116. Lambert, H. (1999), 'Protection against Refoulement from Europe: Human Rights Law Comes to the Rescue', International and Comparative Law Quarterly, 48, pp. 515-44. Lambert, H. (2005), 'The European Convention on Human Rights and the Protection of Refugees: Limits and Opportunities', Refugee Survey Quarterly, 24, pp. 39-55. Lambert, H. (2006), 'The EU Asylum Qualification Directive, lts Impact on the Jurisprudence of the United Kingdom and International Law', International and Comparative Law Quarterly, 55, pp. 161-92. Lambert, H. (2009), 'International Refugee Law: Dominant and Emerging Approaches' , in D. Armstrong (ed.), The Routledge Handbook ofInternational Law, London: Routledge, pp. 344-54. Lauterpacht, E. and Bethlehem, D. (2003), 'The Scope and Content ofthe Principle of Non-refoulement: Opinion', in E. Feiler, V. Turk and F. Nicholson (eds), Refugee Protection in International Law - UNHCR's Global Consultations on International Protection, Cambridge: Cambridge University Press, pp. 87-179. Legomsky, S. (2000), 'An Asylum Seeker's Bill of Rights in a Non-utopian World', Georgetown Immigration Law Journal, 14, pp. 619-40. Loescher, G. (1986), Calculated Kindness: Refugees and America 's Half Open Door, 1945 to Present, New York and London: The Free Press and Macmillan. Loescher, G. (1993), Beyond Charity: International Co operation and the Global Refugee Crisis, New York: Oxford University Press. Macmillan, L. and Olsson, L. (2001), 'Rights and Accountability', Forced Migration, 10, pp. 38-42. Mathew, P., Hathaway, J.c. and Foster, M. (2003), 'The Role of State Protection in Refugee Analysis', International Journal ofRefugee Law, 15, pp. 444-60. McAdam, J. (2005), 'The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime', International Journal ofRefugee Law, 17, pp. 461-516. McAdam, 1 (2007), Complementary Protection in International Refilgee Law, Oxford: Oxford University Press. McAdam, 1 (ed.) (2008), Forced Migration, Human Rights and Security, Portland, OR: Hart Publishing. Noll, G. (ed.) (2005), Proof, Evidentiary Assessment and Credibility in Asylum Law, Leiden and Boston: Martinus N ijhoff Publishers.

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North, A.M. and Chia, J. (2008), 'Towards Convergence in the Interpretation ofthe Refugee Convention: A Proposal for the Establishment of an International Judicial Commission for Refugees', in McAdam, Forced Migration, Human Rights and Security, pp. 225-62. Okoth-Obbo, G. (2001), 'Thirty Years On: A Legal Review of the 1969 OAU Refugee Convention Governing the Specific Aspects of Refugee Problems in Africa', Refugee Survey Quarterly, 20, pp. 79-138. Pallis, M. (2006), 'The Operation of UNHCR's Accountability Mechanisms', New York University Journal ofInternational Law and Politics, 37, pp. 869-918. Perluss, D. and Fitzpatrick Hartman, l. (1986), 'Temporary Refuge: Emergence ofa Customary Norm', Virginia Journal ofInternational Law, 26, pp. 551-626. Phuong, C. (2000), 'Internally Displaced Persons and Refugees: Conceptual Differences and Similarities', Netherlands Quarterly ofHuman Rights, 18, pp. 215-29. Phuong, C. (2004), The International Protection ofInternally Displaced Persons, Cambridge: Cambridge University Press. Rousseau, C., Crepeau, F., Foxen, P. and Houle, F. (2002), 'The Complexity ofDetermining Refugeehood: A Multidisciplinary Analysis of the Decision-making Process of the Canadian Immigration and Refugee Board', Journal ofRefugee Studies, 15, pp. 43-70. Shacknove, A. (1993), 'From Asylum to Containment', International Journal of Refugee Law, 5, pp. 516-33. Smith, M. (2008), 'The Relevance of the Work of the International Criminal Court to Refugee Status Determinations', International Journal of Refugee Law, 20, pp. 166-85. UNHCR (1992), Handbook on Procedures and Criteriafor Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status ofRefugees, HCRlIP/4/Eng/REY.l Reedited, Geneva, January 1992, UNHCR 1979. UNHCR (2001), 'Note on International Protection', A/AC.96/951, EXCOM Reports, 13 September 2001. UNHCR (2005),A Thematic Compilation ofExecutive Committee Conclusions (2nd edn), Geneva: Office ofthe United Nations High Commissioner for Refugees, Department of International Protection. UNHCR (2008), 'Note on International Protection', A/AC.96/l053, EXCOM Reports, 30 lune 2008. Vidal, M. (1999), 'Membership of a Particular Social Group and the Effect of Islam and Shah', International Journal ofRefugee Law, 11, pp. 528-36. Weis, P. (1960), 'The Concept ofthe Refugee in International Law', Journal du droit international, 87, pp. 928-1000. Wilde, R. (1998), 'Quis Custodiet Ipsos Custodes?: Why and How UNHCR Governance of "Development" Refugee Camps Should be Subject to International Human Rights Law', Yale Human Rights and Development Law Journal, 1, pp. 107-28. Ziegler, K.S. (2002), Causing Refilgee Flows as a Delict under International Law - International Responsibility ofthe State ofOriginfor Causing Refilgee Movements, Berlin: Duncker & Humblot. Zolberg, A. (1983), 'The Formation ofNew States as a Refugee-Generating Process', Annals ofthe American Academy ofPolitical and Social Sciences, 467, pp. 24-38.

Part I Historical Perspective

[1] WE REFUGEES Hannah Arendt

Hannah Arendt was born in Königsberg in 1906, 1906, studied philosophy in Germany during the 19205, 1920S, and jled fled to Paris in 1933, where she worked in relieforganizations helping he/ping Jews emigrate to Palestine and providing legal YOl·k in 1941, I94I, where she as~ asaid to anti-Fascists. She emigrated to New YOI'k sumed a leading role among German exiles and beeame became one 0/ the most injluential politieal political and philosophical influential philosophieal voiees voices in postwar America. Ameriea.

I

n the first place, we don't like to be called "refugees." We ourselves call each other "newcomers" or "immigrants." Our news papers are papers for "Americans of ofGerman German language"; and as far as I know there is not and never was any club founded by Hitler-persecuted people whose name indicated that its members were refugees. A refugee used to be a person driven to to seek refuge because of some act committed or some political opinion held. Weil, WeIl, it is tme we have had to seek refuge; but we committed no acts and most of us never dreamt ofhaving any radical political opinion. With us the meaning of the term "refugee" has changed. Now "refugees" are those of us who have been so unfortunate as to arrive in a new country without means and have to be helped by Refugee Committees. Before this war broke out we were even more sensitive about being called refugees. We did our best to prove to other people that we were just ordinary immigrants. We declared that we had departed of our own free will to countries of our choice, and we denied that our situation had anything to do with "so-called Jewish problems." Yes, we were "immigrants" or "newcomers" who had left our country because, one fine day, it no longer suited us to stay, for purely economic reasoflS. reasons. We wanted to rebuild our lives, that was all. In or far order to rebuild one's life one has to be strong and an optimist. So we are very optimistic. Our optimism, indeed, is admirable, even if we say so ourselves. The story of our struggle has finally become known. We lost our horne, which me ans the familiarity of daily life. We lost our occupation, which means the confidence that we are of some use in this world. worId. We lost our language, wh which ich means the

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naturalness of reactions, the simplicity of gestures, the unaffected expression of feelings feelings.. We left our relatives in the Polish ghettos and our best friends have been killed in concentration camps, and that means the rupture of our private lives. Nevertheless, as soon as we were saved-and most of us had to be saved several times-we times- we started our new lives and tried to folIowas closely as possibleall the good advice our saviors passed on to uso We were told to forget; and we forgot quicker than anybody ever could imagine. imagine. In a friendly way we were reminded that the new country would become a new home; horne; and after four weeks in France or six weeks in America, we pretended to be Frenchmen or Americans. The more optimistic among us would even add that their wh oie former life had been passed in a kind of unconscious exile and only whole I t is tme we their new country now taught them what ahorne really looks like. It sometimes raise objections when we are told to forget about our former work; and our former ideals are usually hard to throw over if our social standard is difficultiesi after a single at stake. With the language, however, we find no difficulties. weIl as their mother mather year optimists are convinced they speak English as weil tongue; and after two years they swear solemnly that they speak English better than any other language-their German is a language they hardly remember. In order to forget more efficiently we rather avoid any allusion to concentration or intemment internment camps we experienced in nearly all European countries-it might be interpreted as pessimism or lack of confidence in the new homeland. Besides, how often have we been told that nobody likes to listen to all that; hell is no longer a religious belief or a fantasy, but something as real as houses and stones and trees. Apparently Apparendy nobody wants to know that contemporary history has created a new kind ofhuman being-the kind that is put in concentration camps by its foes and in internment camps by its friends. Even among ourselves we don't speak about this past. Instead we have found our own way of mastering an uncertain future. Since everybody plans and wishes and hopes, so do we. Apart from these general human attitudes, however, we try toelear toclear up the future more scientifically. After so much bad luck we want a course as sure as a gun. Therefore, we leave the earth with all its uncertainties behind and we cast our eyes up to the sky. The stars tell usrather than the newspapers-when Hitler will be defeated and when we shall become American citizens. We think the stars more reliable advisers -than than all our friends; we learn from the stars when we should have lunch with our benefactors and on what day we have the best chances chane es of filling out one of these countless questionnaires which accompany our present Jives. lives. Sometimes we don't rely even on the stars but rather on the lines of our hand or the signs of our handwriting.Thus we leam learn less about political events but more about our own dear selves, even though somehow psychoanalysis has gone out of [254]

International Refugee Law HANNAH ARENDT

fashion. Those happier happier·times times are past when bored ladies and gentlemen of high society conversed about the genial misdemeanors of thelr early childhood. They don't want ghost stories any more; it is real experiences that make their flesh creep. There is no longer any need of bewitching the past; it is spelIbound enough in reality. Thus, in spite of our outspoken optimism, we spellbound use all sorts of magical tricks to conjure up the spirits of the future. dwell in our I don't know which memo ries and which thoughts nightly dweil dreams. I dare not ask for information, since I, too, had rather be an optimist. But sometimes I imagine that at least nightly we think of our dead or we remember the poems we once loved. I could even understand how our friends of the West Coast, during the curfew, should have had such curious notions as to believe that we are not only "prospective citizens" but present "enemy aliens--": aliens." In daylight, of course, we become only "technically" enemy aliensall refugees know this. But when technical reasons prevented you from leaving your horne during the dark hours, it certainly was not easy to avoid some dark speculations about the relation between technicality and reality. No, there is something wrong with our optimism. There are those odd optimists among us who, having made a lot of optimistic speeches, go horne and turn on the gas or make use of a skyscraper in quite an unexpected way. They seem to prove that our proclaimed cheerfulness is based on a dangerous readiness for death. Brought up in the conviction that life is the highest good and death the greatest dismay, wc:; w~ became witnesses and victims of worse terrors than death-without having been able to discover a higher ideal than life. Thus, although death lost its horror for us, we became neither willing nor capable to risk our lives for a cause. Instead of fighting-or thinking about how to become becorne able to fight back -refugees - refugees have got used to wishing death to friends or relatives; if somebody dies, we cheerfully imagine all the trouble he has been saved. Finally many of us end by wishing that we too could be saved some trouble., and act accordingly. Since 1938-since Hitler's invasion of Austria-we have seen how quickly eloquent optimism optirnism could change to speechless pessimism. As time went on, we got worse-even more optimistic and even more inclined to suicide. Austrian Jews under Schuschnigg were such a cheerful people-all impartial im partial observers admired them. It was quite wonderful how deeply convinced they were that nothing could happen to them. But when German troops invaded the country and gentile neighbors started riots at Jewish hornes, Austrian Jews began to commit suicide. Unlike other suicides; suicides, our friends leave no explanation of their deed, no indictment, indictrnent, no charge against a world that had forced a desperate man to talk and to behave cheerfully to his very last day. Letters left by them are conventional, meaningless documents. docurnents. Thus, funeral orations we make rnake at their open graves are brief, embarrassed, and very hopeful. Nobody cares about motives, they seem seern to be dear to all of uso [255 J

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*'"

*'"

*'"

I speak of unpopular facts; and it makes things worse thatin that in order to to prove my point I do not even dispose of the sole arguments which impress modern people-figures. Even those Jews who furiously deny the existence of the Jewish people give us a fair chance of survival as far as figures are concerned-how else could they prove that only a few Jews are criminals and that many Jews are being killed as good patriots in wartime? Through their effort to save the statisticallife of the Jewish people weknow we know that Jews had the lowest suicide suieide rate among all civilized nations. I am quite sure those figures are no longer correct, but I cannot prove it with new figures, though I can certainly with new experienees. experiences. This might be sufficient for those skeptical souls who never were quite convinced con vinced that the measure of one' one'ss skull gives the exact idea of its content, or that statistics of crime show the exact level of national ethics. Anyhow, wherever European Jews are living today, they no longer behave beha veaecording to statisticallaws. statistiealla ws. Suicides occur not only arnong among the pa nie-stricken people in Berlin and Vienna, in Bueharest panie-stricken Bucharest or Pal-is, Paris, but in New N ew York and Los Angeles, in Buenos Aires and Montevideo. On the other hand there has been litde little reported about suicides in the ghettoes and concentration camps eamps themselves. True, we had very few reports at all from Poland, but we have been fairly weil inforined informed about German and frorn Freneh French concentration camps. At the eamp camp ofGurs, for instanee, instance, where I had the opportunity of spending some time, I heard only on onee ce about suicide, and that was the suggestion of a collective action, apparently colleetive apparendy a kind of protest in order to vex the Freneh. French. When some of us remarked that we had been shipped there "pour crever" in any case, the general mood tur~ed turned suddenly into a violent courage oflife. The general opiniön held that one had to be abnormally asocial and unconeerned unconcerned about general events if one was still able to interpret the whole accident aecident as personal and individual bad luck and, accordingly, ended one's life personally and individually. But the same people,as soon as they returned to their own indi~iduallives, indi~idual lives, being faeed faced with seemingly individual problems, changed once more to this insane optimism wh which ich is next door to despair. We are the first nonreligious Jews persecuted-and we are the first ones who, not only in extremis, answer with suicide. Perhaps the philosophers are .right who teaeh teach that suicide is the last and supreme suprerne guarantee ofhuman freedom: not being free to create our lives or the world in which we live, we nevertheless are free to throw life away and to leave the world. Pious Jews, perceive murder in suicide, certainly, cannot realize this negative liberty; they pereeive that is, destruetion destruction of what man never is able to make, interference with the rights of the Creator. Adonai nathan veadonai lakach ("The Lord hath given and the Lord hath taken away"); and they would add: ba baruch ruch shem adonai ("blessed be the name of the Lord"). For them suicide, like murder, means me ans a [25 6 ]

International Refugee Law HANNAH ARENDT

blasphemous attack on ~reation (reation as a whole. The man who kills hirns elf asserts hirn. .that life is not worth living and the world not worth sheltering sheltering-hirn. Yet our suicides are no mad rebels who hurl defiance at life and the world, who try to kill in themselves the whole universe. Theirs is a quiet and modest way of vanishing; they seem see m to apologize for the violent solution they have found for their personal problems. In iheir their opinion, gene generally rally , political events had nothing to do with their individual fate; in good or bad times they would woulcl believe solely in their personality. Now they find some mysterious shortcomings in themselves which prevent them from getting along. Having felt entitled from their earliest childhood to a certain social standard, they are failures in their own eyes if this standard cannot be kept any longer. Their optimism is the vain attempt to keep head above water. Behind this front of cheerfulness, they constantly struggle with des pair of themselves. Finally they die of a kind of selfishness. If we are saved we feel humiliated, and if we are helped we feel degraded. We fight like madmen for private existences with individual destinies, since we are afraid ofbecoming part of that miserable lot of schnorrers whom we, . many of us former philanthropists, remember only tob too well. weIl. JJust ust as once onee we failed to understand that the so-called so-ealled schnorrer was a symbol of ofJewish Jewish destiny and not ashlemihl, so todaywe don't feel entitled to Jewish solidarity; we cannot realize that we by ourselves are not so much concerned as ~s the whole Jewish people. Sometimes this lack of comprehension has been strongly supconported by our protectors. Thus, I remember a director of a great charity cancern in Paris who, whenever he received the card of a German-Jewish intellectual with the inevitable "Dr." on it, used to exclaim at the top of his voice, "Herr Doktor, Herr Doktor, Herr Schnorrer, Herr Schnorrer!" The conclusion we drew from such unpleasant experiences was simple langer satisfied us; and we learnt that enough. To be a doctor of philosophy no longer in order to bliild build a new life, one has first to improve on the old one. A nice litde little fairy tale has been invented to describe our behavior; a forlorn emigre dachshund, in his grief, begins to speak: "Onee, "Once, when I was aSt. Bernard . . ." Our new friends, rather overwhelmed by so many stars and famous men, hardly und understand erstand that at the basis of all our descriptions of past splendors lies one human truth: once we were somebodies about whom people cared, we were loved by friends, and even known by landlords as paying our rent regularly. Once we could buy our food and ride in the subway without being told we were undesirable. We have become a little littIe hysterical hystericaI since newspapermen started detecting us and tellingus publicly to stop being disagreeable when shopping for milk and bread. We wonder how it can be done; we already are so damnably careful in every moment of our daily lives to avoid anybody guessing who we are, what kind of passport we have, where our birth certifiuso We try the best we can to cates were filled out-and that Hitler didn't like USo [257]

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fit into a world where you have to be SOft sort of politically minded when you buy your food. Under nder such circumstances St. Bernard grows bigger and bigger. I never can U forget that young man who, when expected to accept a certain kind of work, to whom you speak; I was section-manager in sighed out, "You don't know to Karstadt's [a great department store in Berlin]." But there is also the deep despair of that middle-aged man who, going through countless shifts of diffina11y exclaimed, "And nobody here he re ferent committees in order to be saved, finally him as a dignified human being, knows who I am!" Since nobody would treat hirn he began sending cables to great personalities and his big relations. He learnt quickly that in this mad world it is much easier to be accepted as a "great man" than as a human being. The less we are free to decide who we are or to live as we Iike, like, the more we try to put up a front, to hide the facts, and to play roles. We were expe11ed expelled from to Germany because we were Jews. But having hardly crossed crossecl the French borderline, we were changed into "boches." We were even told that we had to really were against Hitler's racial theories. Duraccept this designation if we rea11y ing seven years we played the ridiculous role of trying to to be Frenchmen-at Frenchmen -at least, prospective citizens; but at the beginning of the war we were interned as "boches" a11 all the same. In the meantime, however, most: most of us had indeed become such loyal Frenchmen that we could not even criticize a French governdedared it was a11 all right to be interned. We were the first mental order; thus we declared ''prisonniers "prisonniers volontaires" history has ever seen. After the Germans invaded the country, the French government had only to change the name of the firm; having been jailed because we were Germans, we were not freed because we wereJews. were Jews. It Ir is the same story all over the world, repeated again and again. In Europe the Nazis confiscated our property; but in Brazil we have to pay thirty percent of our wealth, like the most loyal member of the Bund der Auslandsdeutschen. In Paris we could not leave our hornes after eight 0' clock dock because we were Jews; but in Los Angeles we are restricted because we are "enemy aliens." Our identity is changed so frequently that nobody can find out who we actually are. Unfortunately, things don't look any better when we meet with Jews. a11 Jews coming from beyond the French Jewry was absolutely convinced that all Polaks-what German Jewry called Ostjuden. Ostjuden. Rhine were what they called Polak!-what But those Jews who really came from Eastern Europe could not agree with brethrenand and called usJaeckes. us Jaeckes. The sons of oftheseJaecke-hatersthese Jaecke-haterstheir French brethren the second generation born in Franceand already duly assimilated-shared the opinion of the French Jewish upper classes. Thus, in the very same family, you could be called a Jaecke by the father and a Polak by the son. Since the outbreak of the war and the catastrophe that has befallen Euro[25 8 ]

International Refugee Law HANNAH ARENDT

pe an Jewry, the mere pean me re factofbeing a refugee refugeehas has prevented our mingling with riative Jewish society, some exceptions only proving the rule. These unwritten native social laws, though never publicly admitted, have the great force of public opinion. And such a silent opinion and practice is more important irnportant for our daily lives than all official proclarnations proclamations ofhospitality and good will. Man is a social animal and life is not easy for hirn when social ties are cut off. Moral standards are much easier kept in the texture of a society. Very few individuals have the strength to conserve their ownintegrity if their social, political and legal status is completely confused. Lacking the courage to fight for a change of our social and legal status, we have decided instead, so many of us, to try a change of identity. And this curious behavior makes matters much worse. The confusion in wh which ich we live is partly our own work. Some day somebody will write the tme story of this Jewish emigration from Germany; and he will have to start with a description of that Mr. Cohn from Berlin who had always been alSo a 150 percent German, a German superpatriot. In 1933 that Mr. Cohn found refuge in Prague and very quickly became a convinced Czech patriot-as true and as loyal a Czech patriot as he had been a German one. Time went on and about 1937 the Czech government, und er some Nazi pressure, began to expel its Jewish refugees, disredis real ready under garding the fact that they felt so strongly as prospective Czech citizens. Our Mr. Cohn then went to Vienna; to adjust oneself there adefinite Austrian Gerrnan invasion forced Mr. Cohn out that patriotism was required. The German country. He arrived in Paris at a bad moment and he never did receive a already ready acquired a great skill in wishful regular residence permit. perrnit. Having al me re administrative measures rneasures seriously, conthinking, he refused to take mere vinced that he would spend his future life in France. Therefore, he prepared ancesceshis adjustment to the French nation by identifying hirnself with "our" an tor Vercingetorix. I think I had better not dilate on the further adventures of Mr. Cohn. As long lang as Mr. Cohn can't make up his mind to to be what he actually is, a Jew, nobody can fore tell all the mad changes he will still have to go foretell through. A man who wants to lose his self discovers, indeed, the possibilities ofhuman existence, which are infinite, as infinite as is creation. But the recovering of a new personality is as difficult-and as hopeless-as a new creation of the world. Whatever we do, whatever we pretend to be, we reveal nothing but our insane desire to be changed, not to to be Jews. All our activities are directed to attain this aim: we don't want to be refugees, since we don't want to be Jews; we pretend to to be English-speaking people, since German-speaking immigrants of recent years are marked as Jews; we don't call ourselves stateless, since the majority of stateless people in the world are Jews; we are willing to become loyal Hottentots, only to hide the fact that we are Jews. We don't [259]

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succeed sueeeed and we can't ean't succeed; sueeeed; under the cover of our "optimism" you can ean easily detect deteet the hopeless sadness of assimilationists. With us from Germany the word assimilation received reeeived a "deep" philosophical meaning. meaning. You can hardly realize how serious we were about it. Assimilation did not mean the necessary adjustment to the country where we happened to be born and to the people whose language we happened to speak. We adjust in principle prineiple to everything and everybody. This attitude became quite clear to me once by the words of one of my compatriots who, apparently, knew how to express his feelings. Having just arrived in France, Franee, he founded soeieties of adjustment in which German Jews asserted to each eaeh one of these societies other that they were already Frenchmen. In his first speech he said: "We have been good Germans in Germany and therefore we shall be good Frenchmen Frenehmen in France." The public publie applauded enthusiastically and nobody laughed; we were happy to have learnt how to prove our loyalty. practiee, we should be the most If patriotism were a matter of routine or practice, Cohn;h,e certainly has patriotic people in the world. Let us go back to our Mr. Cohn.h,e eounreeords. He is that ideal immigrant who always, and in every counbeaten all records. whieh hirn, promptly sees and loves the naich a terrible fate has driven him, try into wh tive mountains. But since patriotism is not yet believed to be a matter of practice, praetice, it is hard to convince eonvince people of the sincerity of our repeated transformations. This struggle makes our own society so intolerant; we demand full affirmation without our own group because we are not in the position to obtain it from the natives. The natives, confronted with such strange beings as we are, become suspicious; suspieious; from their point of view, as a rule, only a loyalty to our old countries is understandable. That makes life very bitter for uso We suspieion if we would explain that, being Jews, our pamight overcome this suspicion triotism in our original countries had rather a peculiar aspect. Though it was indeed sincere and deep-rooted. We wrote big volumes to prove it; paid an entire bureaucracy to explore its antiquity and to explain it statistically. statistieally. We had scholars write philosophical dissertations on the predestined harmony Frenchmen,' Jews and Germans, Jews and Hungarians, between Jews and Frenchmen, Jews and . . .. .. Our so frequently suspected suspeeted loyalty of today has a long history. It is the history of a hundred and fiftyyears of assimilated Jewry who performed an ·unprecedented unpreeedented feat: though proving all the time their nonJewishness, they succeeded in remaining Jews all the same. The desperate eonfusion of these Ulysses-wanderers who, unlike their hy their per feet great prototype, don't know who they are is easily explained by mania for refusing to keep their identity. This mania is much older than the last ten years which revealed the profound absurdity of our existence. We are like people with a fixed idea who can't help trying continually to disguise an imaginary stigma. Thus we are enthusiastically fond of every new possibility heing new, seems able ahle to work miracles. We are fascinated by every which, being new nationality in the same way as a woman of tidy size is delighted with [260 ]

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every new dress which promises to give her the desired waistline. But she likes the new dress only as long as she believes be!ieves in its miraculous qualities, and she will throw it away as soon as she discovers that it does not change her stature-or, for that matter, her status. One may be surprised that the apparent uselessness use!essness of all our odd disguises us.1f If it is true that men seldom lear~ learn. from has not yet been able to discourage uso history, it is also true that they may leam learn from personal experiences which, as in our case, are repeated time and again. But before you can cast the first stone .at us, remember that being a Jew dbes does not give any legal status in this world. wor/d. If we should start telling the truth that we are nothing but Jews, it would mean that we ex expose pose ourselves to the fate ofhuman beings who, unprotected by any specific law or political convention, are nothing but human beings. I can hardly imagine an attitude more dangerous, since we actually live in a world in which human beings as such have ceased to exist far for quite a while; since societyhas society has discovered discrimination as the great social weapon by which wh ich one passports ports or birth certificates, and may kill men without any bloodshed; since pass sometimes even income tax receipts, are no longer formal papers but matters of social distinction. It is true that most of us depend entirely upon social standards; we lose confidence in ourselves if society does not approve us; we areand always were-ready to pay any price in order to be accepted by society. But it is equally true that the very few among us who have tried to get along without al! all these tricks and jokes of adjustment and assimilation have paid a much higher price than they could afford: they jeopardized the few chances even outlaws are given in a topsy-turvy world. The attitude of these few whom, following Bernard Lazare, one may call "conscious pariahs," can as little litde be explained by recent events alone as the attitude of our Mr. Cohn who tried by every means to become an upstart. Both Eoth are sons of the nineteenth century which, not knowing legal or political outla ws, knew onl)\ laws, only, tpo weIl well social pariahs and their counterpart, social parvenus. Modern Jewish history, having started with court Jews and continuing with Jewish millionaires and philanthropists, is apt to forget about this other trend of Jewish tradition-the tradition ofHeine, Rahe! Varnhagen,Sholom Aleichem, iehem, of Bernard Lazare, Franz Kafka, or even Charlie Chaplin. It is the tradition of a minority of ofJews Jews who have not wanted to become upstarts, who preferred the status of"conscious pariah." All vaunted Jewish qualities-the "Jewish heart," humanity, humor, disinterested intelligence-are pariah qualities. All Jewish shortcomings-tactlessness, political stupidity, inferiority complexes, and money-grubbing-are characteristic of upstarts. There have always been Jews who did ~ot think it worthwhile to change their humane attitude and their natural insight into reality for the narrowness of caste spirit or the essential unreality of financial transactions. History has forced the status of outlaws upon both, upon pariahs and parvenus alike. The latter have not yet accepted the great wisdom ofBalzac's "On [261]

11

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ne parvient pas deux lais"; thus they don't und erstand the wild dreams of the

former and feel humiliated in sharing their fate. Those few refugees who ins ist upon telling the truth, even to the point of"indecency," get in exchange for their unpopularity one priceless advantage: history is no longer a closed book to them and politics is no longer the privilege of gentiles. They know that the outlawing of the Jewish people in Europe has been followed closely by the outlawing of most European nations. Refugees driven from country to country represent the vanguard of their peoples- if they keep their identity. For the first time Jewish history is not separate but tied up with that of all other nations. The comity ofEuropean peoples went to pieces when, and because, itallowed its weakest member to be excluded and persecuted.

[2] TERRITORIAL ASYLUM By P. WEIS*

The present century has seen vast movements of thousands, hundreds of thousands and sometimes millions of persons, who have left their countries due to political events, aod has been describedas the century of the homeless man. l Since tbe Second World War we have witnessed the vast movement of persons between India and Pakistan after partition; of persons of German ethnic origin from Ea5tern European countries into Germany; movements from China into Hong Kong and Macao, from Tibet into India and Nepal, from Hungary into Austria and Yugoslavia, from Cuba into the Uni ted States and other countries and the recent refugee moveme'lts on the African Continent. In this century therefore the problem of asyl um, which is as old as the history of mankind, has taken on a new significance. AsyJu m in historical perspective

Asylum comes from the Greek "Asylon" meaning a place which may not be violated, i.e., a sanctuary. Originally it was a religious institution under wh ich persons fieeing from persecution or from prosecution could find sheIter in sacred places, entry to which was barred to the secular authorities. The term later lüst its purely religious significance and was received into secular law and thereafter into internationallaw. From a topographieal term denoting a place of refuge it came to signify an institution and a legal concept. Wbile normally granted for humanitarian reasons asylum, as a legal concept, had its roots in State sovereignty and the principle of territorial supremacy. For this Jeason up to the eighteenth century "asyl um" was in fact frequently enjoyed by common criminals. A gradual change occurred with the development of the institution of extradition in the eighteenth and ruore particularly tbe nineteenth centuries, which resulted in tbe widespread practice of surrende ring persons wanted for crimes aud fugitives from justice to other States upon request. 2

*

Ph. 0., Dr. Jur., Director, Legal Division, Office of the United Nations High Co rnrnissioner for Refugees. The views expressed in this artide are those of the author ; they do not necessarily reflect the opinions of the 9ffice of the United Nations High Cornrnisioner for Refugees. 1. See Elfan Rees, "Century of the Horneless Man", International Conciliation, No 515. Nov. 1957. 2. For the history of the developrnent of the institution of Extradition see Oppenheirn ; International Law. Volurne·I, Eighth Editioil,pp. 696-698.

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At an early stage in the development of the modern law of extradition, however, it became the practice to exclude the extradition of political offenders. 3 As a result of this development, asylum came to be granted almost exc1usively to political offenders. It should be borne in mind that during this period, and up to the end of the nineteenth century, movement between States was virtually unrestricted. Tbe problem of asylum did not, therefore, normally present itself as one of admission but of whether a person within tbe territory should be surrendered to another State and therefore arose more particularly in the context of extradition. The phenomenon of the political refugee-a person who does not necessarity flee from prosecution for a political offence but seeks refuge from persecution on account of his political opinion, race, religion or origin-although existing from earliest times, has acquired greater prominence in the present century. Due to profound political and social changes and to restrictions on movements between States-which did not previously exist in the same degreepersons seeking refuge from persecution are now faced with the problem of leav· ing their country of origin and of securing admission to another country. It will thus be seen that the term asylum is used to describe a number of legal notions : the grant by States of admission into their territory to refugees, the protection of refugees against return to a country in respect of whicb they fear persecution, and non·extradition of political offellders. The Institute of International Law, at its Bath Session in 1950, defined asyl~m as "the protection which aState grants on its territory or in some other place under the control of certain of its organs, to a person who comes to seek it."4 The term "asylum" is also used to cover the grant of refuge in premises under the control of a State, outside its territory. e.g .• in embassies or legations. Tbe present artic1e does not, however, deal witb this so-called diplomatie asyl um but with territorial asylum -the asylum granted by aState within its territory.

Territorial AsyJum as an Institution of International Law According to traditional international law the right of asylum is the right of sovereign States to grant asylum within their territory at their discretion. 5 In the exercise of their sovereignty States are free to admit persons wishing to enter their territory and-in the absence of treaty obligations such as those deriving from extradition treaties-to refuse to surrender them to another country. The grant of asylum does not therefore legally constitute a wrongful act vis-a-vis other States, in particular the State of origin of the person to whom asylum is 3. The principle of the non-extradition of poJitical offenders is examined in greater detail below. 4. 1 Annuaire (1950), p. 167, Art. I. 5. Oppenheim, p. 677; F ~ Morgenstern, "The Right of Asylum", 26 B. Y./.L. (1949). pp. 327-357.

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gran ted. This view of asylum as a sovereign right of the State was not generally accepted by the Founding Fathers of international law who stressed the need of granting asylum for reasons of bumanity.6 Moreover, Grotius, Suarez and Wolfr considered, in varying degrees, that the granting of asylum was a duty of the State Or a natural right of tbe individual. This idea was based on their con· ception of tbe communily of States or civitas maxima, wbich for tbem represent~d an integrated community of States in a very genuine sense. They considered that in granting asyluffi States acted on behalf of the civitas maxima in pursuance of an international humanitarian duty. Pufendorf, while accepting the idea of a universal society, viewed this society as a less closely integrated one than tbe r.ivitas maxima of Grotius, Suarez and W oHf. He furtbermore rejected the concept of the State acting on behalf of tbe international community. His empbasis on State sovereignty led hirn to regard asyl um as a consequence thereof and to deny that asylum was a right of the individual or that States were under an obligation to grant asylum. He considered, bowever, tbat asylum sbould be granted for humanitarian reasons. Tbe view of tbe civitas maxima as an integrated cOOlmunity of States was also rejected by Vattel who, untike Pufendorf, nevertheJess regarded tbe State as an agent of tbe international society. However, he denied that the individual's general right of asyl um could be exercised vis-a·vis a particular country and in this sense he regarded it as a jus imperjectum. He also considered that sovereign States were entirely ffee as regards the conditions under which they were prepared to grant asylum. 7 The views of Pufendorf and Vattel finally prevailed and were received into positive international law, according to wh ich the right of asylum is a sovereign right of States. In more recent tirnes emphasis has again been placed, increasingly, on the hurnanitarian aspect of the grant of asyIlIm 8 and on the importance of asylurn being established as a right of the individual. 9 Cf. Article 2 (I) of the Resolution on the Right of Asylum adopted by the Institute of International Law at its Bath Session in 1950: "A State whieh, in the exerci~e orits hum:lDitarian duties grants asylum in its territory, does not thereby incur any international responsibility." 1 Annuaire (1950), p. 167. See also F. E. Krenz, "The Refugee as a Subject of Internationallaw", International and Comparative Law Quar. terly, January 1966, p. 102. 7. The views of the Founding Fathers on the fight of a~ylum and the civital maxima are set out in Garcia Mora, International Law and Asyium os a Human Riglll, Washington, 1956, pp. 23·41. See also Bolesta-Kozierbrodzki, Le Droit d'Asile, Leyden, 1962, pp. 39-42 and Professor L.C. Green, Rapporteur of the Committee on the Legal Aspects of the Problem of AsyJum of the International Law Association, Report, 1964, pp_ 251-255. 8. Th'ls according to De Visscher : "What is called the 'right of a"ylum' is nothing more than the Iiberty of every State to offer asylum 10 anyone asking it. .. , il must never· theless be observed thai the present bitterness of ideological conflict and the scope of the interests bfOUght into play by the mass exodus of hundreds of thousands of individuals have profoundly cba.nged tbe moral and material data of the problem." TheOlJ' and Reality in Pub/ie International Law, Princeton, 1957, p. 182. 9. e.g. by the late Sir H. Lauterpacht in the debate OJ] asylum of the Institute of International Law at its Bath Session in 1950, 2 Annuaire (1950), pp 200 and 204, Cf. also statement by Professor Guggenheim at pp. 204-205. 6'

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The question of territorial asylum was analysed with great lucidity and, in the present writer's view, correctly, by Miss F. Morgenstern in 1949.1° Since that date various developments as regards asylum have taken place in treaty law, judicial decisions and State practice. Moreover attitudes towards the problem of asylum have inevitably been influenced by the growing general concern for the protection of human rights. As from 1 January 1951 the Office of the United Nations High Commissoner for Refugees was establishedl l and entrusted with the function of providing international protection to refugees. The problem of asyl um has also received the attention of various United Nations organs, regional organizations and non·governmental bodies. A reappraisal of the law on asylum in the light of these recent developments and of the circumstances as they present themselves in 1966 may therefore be justified. While from the viewpoint of the evolution of international law seventeen years may be a short time, we live in a fast-moving world. The increase in the membership of the United Nations from 59 in 1949 to 117 at present in itself indicates tbe significant changes wbicb bave taken place in the composition of tbe international community during this short period. In proceeding to sucb a rea ppraisal therefore, the possible effect of these changes on tbe law-making processes of internationallaw in general should not be overlooked, aIthough tbeir precise influence on the substantive rules of internationallaw may be difficult to discern in the absence of objective criteria such as judgments of the World Court. 12 Moreover, the scope and content of a rule of internationallaw must be determined having regard to its existing stage of development and to tbe law-making processes applicable to internationallaw in general. 13 Asylum as a matter of concern to tbe international community As from the end of World War I, the view came to be accepted tbat the refugee problem was Olle calling for co-operation among States and between the two World Wars aseries of international instruments relating to refugees were adopted. These were either concerned with the issue of certificates of identity to refugees for use as travel documents 14 or were general instruments relating 10. Op. eit. 11. General Assembly Resolution 428 [V) of 14 December 1950 (to wbicb tbe Statute 01 the Office is annexed.) 12. Cf. Krenz, op. eil., p. 105. 13. CL Advisory Opinion of tbe Permanent Court of International Iustiee in tbe Nationality Decrees Case (192\): "The question wbether a certain matter is or is not solely within the j urisdiction of aState is an essentially relative quest ion ; it de;>ends upon tb~ develop;:nent of international relations. Thus in the present state of international law, questions of nationality are, in tbe opinion of tM Court, in principle within this reserved domain." P.C.I.J. Series B. No. 4, p. 24. 14. Arrangement with regard to the issue of certificates of identity to Russian refugees, 5tb July 1922 (L. o. N. Treaty Series, Vol. 13, No. 355). Plan for the Issue ofCertificates ofIdentity to Armenian Refugees (L.o.N. Doe. CL. 72 (a) 1924). Arrangement of 12 May 1926 relating (0 the issue of identity eertifieates to Russian and Armenian Refugees supplementing aad amending earlier arrangements (L.o.N. Treaty Series, Vol. 89, No. 2004).

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to the legal status of refugees. 15 At tbe same time appropriate international machinery was established to provide refugees with international protection. After World War H, the function of international protection was entrusted first to the International Refugee Organisation -which carried out its activities from 1947 to 1951-and thereafter to the Office of the United Nations High Commissioner for Refugees. Tbe most comprehensive instrumentrelating to refugees is now tbe Convention relating to the Status of Refuges of 2S July 1951,16 to which 49 States, including a number of newly independent States, are parties, while accession by further States is under active consideration. As early as 12 February 1946, the United Nations General Assembly, in Resolution No. 8 (1) laid down the principle tbat tbe refugee problem "is international in scope and nature." The Preamble to tbe 1951 Convention expressly confirms tbat asylum is a problem of concern totbe international community calling for co·operation between States : "Considering that the grant of asylum may place ullduly beavy burdens on certain countries, and that a satisfactory solution of a problem of which tbe United Nations has recognized the international scope and nature cannot therefore be acbieved witbout international co-operation .. ." Moreover in Recommendation D of its Final Act, the Conference ofPlenipotentiaries which adopted tbe Convention stated : "Considering that many persons still leave their country of origin for reasons of persecution and are entitled to special protection on account of their position, Recommends that Governments continlle (0 receive refugees in their territories and tbat they act in concert in a true spirit of international co-operation in order that tbese refugees may find asylum and the possibility of resettlement." This idea is also refiected in ArticJe 2 of the Draft DecJaration on Asylum adopted by the United Nations Human Rigbts Commission in 1960 and now before the General Assembly : "Tbe situation of persons who are forced to leave their own or anotber country because of persecution or well-founded fear of persecution is, without prejudice to the sovereignty of States and the purposes and principles of the Uni ted Nations, of concern to the international community. Where a country finds difficulty in continuing to grant asylum, States individuaJly or jointly or tbrough tbe United Nations should consider, in a spirit of international solidarity, appropriate measures to lighten the burden on the country granting asylllm."17 15. See instruments quoted in footnote 32 below. 16. United Nations Treaty Series, Vol. 189 p. 137. 17. U.N. Document E/CN.4/804, p. 17.

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The legal nature of the rigbt of asylum It has been seen that aeeording to traditional internationallaw, the right of asylum is eonsidered to be a sovereign right of States. In the exereise of their sovereignty States are free to grant asylum and the granting of asylum does not eonstitute an unlawful act vis-a-vis other State,. This principle has been confirmed in Article 2 (1) of the Resolution adopted by the Institute of International Law at its Bath Session in 195018 and has found expression in variou~ recent international instruments. Thus aeeording to Article I ofthe Convention on Territorial Asylum adopted at Caraeas on 28 March 1954 : "Every State has the right, in the exereise of its sovereignty, to admit into its territory such persons as it deerns advisable, without, through the exereise of this right, giving rise to eomplaint by any other State."19 Similarly Article 1 ofthe Draft DecIaration on Asylum as adopted by the United Nations Human Rights Commission states that : "Asylum granted by aState, in the exereise of its sovereignty, to persons entitled to invoke Article 14 of the Universal Declaration of Human Rights, shall be respected by alt other States." The question of territorial asylum has not yet reeeived the attention of the International Court of Justiee. The Asy[um Case (Colombia-Peru) was eoncerned with diplomatie asylum and the definition of asylum given by the Court in Üs Judgment of 20 November 1951 wa, related to the partieular issue under discussion. The obiter dicta, however, appeal' to be relevant also to territorial asylum. In denying that the State granting diplomatie asyl um had a right of unilateral qualifieation, the Court emphasized the prineiple of territorial supremacy from wh ich it may be eoncluded-a contrario-that the opposite holds tme for territorial asyl um, i.e. that aState may unilaterally qualify the reasons for the grant of asylum and that this may not be challenged by any other State.20 Beyond this traditional view of asylum as the sovereign right of aState to grant asylum, it has also been maintained either that States are unde; a duty to grant asylum to persons fleeing from perseeution or that asyl um is a right of the individual. It is of interest to examine the attitude to tbis question adopted by various States in conneetion with action taken in regard to asylum within the framework of the Uni ted Nations. 21 Aeeording to the earlier version of the Universal Declaration of Human Rights as drafted by the United Nations 18. Above foot note 6. 19. Pan American Union, Law an,l Treaty Series, Washington, 1954. 20. I.C.J. Reports (1950), p. 282. 21. This is dealt with in greater detail in Legal Arpects o/the Problem 01 Asylum; Statement submitted by the present writer to the Asylum Committee of the International Law Association, Tokyo Conference, 1964,Report, pp. 283 et seq.

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Human Rights Commission in 1947 : "Everyone has the right to seek and be gran ted in other countries asylum from persecution." When the final version was adopted by the General Assembly in 1948, however, the words "be gran ted" were replaced by the words "to enjoy." Thus according to tbe Declaration, everyone bas tbe rigbt to seek and to enjoy but not the right to be gran ted asylum. It was thougbt tbat the draft Article as it stood appeared to enable any persecuted person to claim the right of entry into any country he migbt cboose. In practice, however, the right of asylum was generally understood to be the right of a sovereign State to grant asylum and to refuse extradition. 22 As early as 1947, the United Nations Human Rights Commission adopted aresolution : "to examine at an early opportunity the question of the inclusion of the right of asylum of refugees from persecution in the International Bill of Human Rights or in a special convention for the purpose."23 When tbe Human Rights Commission considered the Draft International Covenants on Human Rights, it bad before it a proposal tbat these should contain a provision on asylum. While this proposal was rejected, the attitude of States to the question of including an individual right of asyl um in the Covenants was not uniform. Opposition to the inclusion of such a provision was partly based on the ground that there was no fundamental right of the individual to be granted asylum but only the right of the State to extend its protection to hirn. Moreover, it was impracticable and undesirable to impose in advance on States the obligation of opening their territory to an unasceltainable number of persons.2~ Other States, however, emphasized the importance of the right of asylum for the individual, pointing out that it had been included in the Universal Declaration of Human Rights and that to exclude it from the Draft Covenants on Human Rights would be a serious omission. 25 Since a provision on asylum was not included in the Draft Covenant on Civil and Political Rights, France proposed a Declaration on the Right of Asylum which was adopted by tbe Human Rights Commission in 1960. The comments of Governments on tbe Draft Declaration were again not uniform. A number of them considered that the right of asy1um was a sovereign right of States. 26

22. Activities 0/ the Various Organs 0/ the United Nations itl connection with the Right 0/ Asylum, U.N. Doe. E/CN.4/713, p.3. The present wording of Article 14 (1) of the Declaration has been deseribed by an eminent legal authority as a formula whieh is "artifi.iJl to the point of flippancy." (Lauterpaeht, "The Universal Deelaration of Human Rights", 25 B.Y.I.L. (1948), p. 374. 23. No. 48 of Doeument E/600. 24. Commis5ion on Human Rights, Report 0/ the 8th Session, p. 40, UN Doc. EjCN.4/ 699. 25. Actil'ities 0/ Various Organs 0/ the United Nafions in connection with the Right 0/ Asylum, UN Doe. E/CN.4/7I3, p. 8. 26. Belgium (U.N. Doe. E/CN 4/781 p.2), Czuhoslovakia (lbid.• p. 3), Peru (lbid., pp. 5-6, United Kingdom (/bid., pp. 10-12), Indio (lbid., Add. 1, p. 2).

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Others did not expressly subscribe to this view,27 while yet others supported the opposite view of asyl um as a right of the individual. 28 In the American Declaration of the Rights and Duties of Man adopted by the Ninth International Conference of American States in 1948, the idea of asyl um as a right of the individual is expressed in the following terms: "Every person has the right, in case of pursuit not resulting from ordinary crimes to seek and to receive asyl um in foreign territory in accordance with the laws of each country and with international agreements."29 It may be mentioned, finally, that provisions relating to asylum have been embodied in the Constitutions or Aliens Legislation of anumber of States, thereby in many ca ses conferring upon the individual a subjective right to asyJum under municipallaw. 30 27. e.g. Austria, Ceylon, Japan, Haiti, Morocco (E/CNA/781), Pakistan, Israel (lbid.) , Denmark and Greece (lbid. Add. 2). 28. Spaill while agreeing in principle wilh lhe draft considered that in its final form the wording should be strengthened to make it clear that States were obliged to grant asyl um (EjCN.4!78 I , pp.6-9). Sweden considered that since the proposed declaratioD would not secure the implementation of principles al ready recognised, there might be doubts as to the practical value of adopting a declaration that would not be binding on States (lbid., pp. 9·10). Netherlallds considered it desirable to take the right of the individual as a basis for the Declaration (lbid., Add. I, pA.). Yugoslavia proposed an amendment rnaking it clearer that every person fleeing from persecutioD is entitled to s'!ek asylum and that the State in which it is sought has the duty to investigate whether the conditions exist for granting asyl um (lbid., p. 13). 29. 43 A.J I.L. (1949) Supp., p. 133. 30. Albania, Constitution of 4 July 1950, Article 40. Babama IsJands, Constitulion of 20 December 1963, SecHon I. Bulgaria, Consitution of 4 December 1947, Article 84. Ceotral African Republic, Constitution of J6 February 1959, Preamble. Cbad, Constitu· tion of 31 March 1959, Article 5. Costa Rica, Constitution of 7 November 1949, Article 31. Dabomey, CODstitution of 15 February 1959, Preamble. Denmack, Act No. 224 of 7 June 1952 regarding the Admission of Foreigners to the Country, para 2. EI Sahador, Constitution of 7 September 1950, Article 153. Fcance, Constitution of 5 October 1958, Preamble. Gabon, Constitution of 19 February 1959, Preamble. Germany, Federal Repnblic of Basic law of 23 May 1949, Article 16, para 2 and AlieDs Law of 28 April 1965, Para 28. Gcatemala, Constitlltion of 1 March 1956, Article 48. Guinea, Constitution of 10 November 1958, Preamble. Haiti, Constitution of 19 December 1957, Article 36. Honduras, Constitution of 19 December 1957, Artic1e 8G. Hungary, Constitution of 20 August 1959, Article 58. para 2. Italy, Constitution of 27 December 1947, Article 10, para 3. Ivory Coast, Constitution of 26 March 1959, Pceamb!e. Jordan, Constitution of 1 January 1952, Artic1e 21 (i). Kenya,Constitution of 4 December 1963, Section 14. Madagascar. Constitution of 29 April 1959, Preamble. MaU, Constitution of 17 January 1959, Preamble. Mauritania, Coostitution of 22 March 1959, Preamble Netberlands, Alieos Act of 24 June 1965, Articlcs 6-10. Nicaragua, Constitution of 1 November 1950, Article 54. Niger, Constitution' of 12 March 1959, Preamble. Norway, Aliens Act of 27 Junel956. Section 2. Poland, Constitution of 22 July 1952, Article 75. Romania, Constitution of 24 September 1952,· Article 89. Senegal, Constitution of 24 January 1959, Pceamble. Sudan, CODstitution of 23 January 1959, Pceamble. Sweden, AlieDs Act of 30 April 1954, (Cantd. on next page)

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It will thus be seen that while the conception of asylum as a sovereign right of the State is still maintained, there is also some support for the view that asylum should be regarded as a right of the individual. Ibis development has resulted in a desire-based on humanitarian considerations-for tbe adoption of measures Oll tbe international plane c1early establishing such an individual right. Thus, at its 51st Session (Tokyo) in 1964, the International La 'V Association adopted the following Resolution on the Right of Asylum ;31 "The 51 st Conference of tbe International Law Association, meeting at Tokyo in August 1964, Desirous of establishing the right of asylum of tbe individual in international law, in the light of the current inadequate protectiotl of human rigbts, Takes note of the malters raised by the Rapporteur alld the Committee in their Report, Calls upon tbe Committee, in the light of tbe propositions embodied in the Report and of the matters raised in the debate, to prepare some draft rules on territorial and diplomatie asylum to be laid before tbe next Conference of the Association." Tbe principle of DOD-refoulement Ihe protection of refugees against expulsion or return ("refoulement") to a country where they fear perseculion constitutes one of the essential elements of asylum. Ihis protection has found expression in what has come to be known as the principle of non-refoulement, and has been embodied in treaty Jaw. The international instruments relating to refugees adopted between the two world wars already contained provisions protecting refugees against measures of expulsion or return. 32 In the aforementioned Resolution of the General Assembly of 12 February 1946, the Assembly laid down the general principle tbat (Contd. [rom previous page) Article 2. Syria, Constitution of 5 September 1950, Article 20. Switzerland, Law on the Residence and Establishment of Aliens of26 March 1931, Art. 21. United Arab Republic, Constitution of 5 March 1958, Anicle 9. UpperVolta, Constitution of 15 March 1959, Preamble.USSR, Constitution of 5 December 1936, Article 12. Yugoslavia, Constitution of 5 December 1963, Artic1e 65 and Movement and Residence of Aliens Act, 15 March 1965, Article 2. See also, P. Mertens, Le droit d'asile en Belgique a l'heure de la revision constitutiooelle," Revue Bdge de Droit Interuationaf, 1/1966, p. 227-230. 31. Report, p. 243. On the basis of a valuable report of the Committee on Legal Aspccts of the Problem of Asylum, prepared by its Rapporteur L.C. Green. Ibid., pp. 245 et seq. 32. Arrangement relating to the Legal Status of Russian and Armeniao Refugees of 30 June 1928 (paragraph 7) (League of Nations, Treat)' Series, Vol. 89, No. 2005) ; Con· vention relating 10 the International Status of Refugees of 28 October 1933, Article 3 (Ibid., Vol. 159, No. 3663), Provisional Arrangement concerning the Status of Refugees from Germany of 4 July 1936 (Artic1e 4) (/bid., Vo!. 171, No. 3952); Convention concerning the Status ofRefugee~ from Germany of 10 February 1938), Artic1e 5 (Ibid., Vol. 192, No. 4461).

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"no refugees or displaced persons who have .. expi'essed valid objections to returning to their country of origin ... shall be compelled to return to their country of origin ... " The principle of non-refoulement has also been embodied in the Refugee Convention of 1951. The provisions of the 1951 Convention which are of particular relevance as regards asylum are Articles 31, 32 and 33 which read as folIows:

"Article 31-Refugees unlawfully in the Country of Refuge I. The Contracting States shall not im pose peoalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or feedom was threatened in the sense of Artic1e 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 2. The Contracting States shall not apply to the movements of such refugees restrictions other than those wh ich are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all necessary facilities to obtain admission into another country."

"Article 32-Expulsion 1. Tbe Contracting States shall not expel a refugee lawfully in their territory save on grounds of nationalsecurity or public order. 2. The expulsion of sucha refugee shall be only in pursuance of adecision reached in accordance with due process of law Except where compelling reasons of national security otherwise require, the refugee sball be allowed to submit evidence to cJear hirnself, and to appeal to and be represented for the purpose before competent authority or a person or persons special1y designated by the competent authority. 3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deern necessary."

"Article 33-Prohibition of Expulsion or Return ("Refoulement") 1. No Contracting State shall expel or return (" refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a par ticular social group or political opinion.

2. The benent of the present provision may not, however, be cJaimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a

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final judgment of aparticularly serious crirne, constitutes a danger to the cornrnunity of that country." Article 31 gives recognition to tbe fact that due to the situation in which a person fleeing fwm persecution may find bimself, he may not be able to complete the necessary formalities to enable hirn to enter another country legally and for .this reason should not be penalized for his illegal entry or presence, provided he presents hirnself without delay to the competent authorities. 33 Article 32 concerns measures of expulsion against refugees lawfully in the territory of a Contracting State to any other country, and stipuJates that such rneasures may only be taken under strictly defined conditions, i.e., on grouIids of national security or public order. The travaux preparaloires indicate that these wards should be interpreted strictly and tbat measures of expulsion are only perrnissible if the circurnstauces of the case are so serious as to be incornpatible with tbe refugee's continued residence in his country of asylum. 34 Article 32 also provides for cer ta in procedural safeguards. Moreover both Articles 31 and 32 incorporate the notion of provisional asylum: in ArticJe 31 as regards refugees whose status has not been regularized after their illegal entry and in Article 32 as regards refugees in respect of whom measures witb a view to expulsion have been taken. Artic1e 33 which prohibits the return of a refugee to a cauntry where he fears persecution 35 is one of the fundamental provisions of the Convention to which no reservations may be made. The travaux preparatoires give no conelusive answer to the question whetber the prohibition of return in Article 33 is Iimited to refugees in the territory of a Contracting State or extends also to refugees who present themselves at the frontier.

It is not proposed to attempt to give a final answer to this question of interpretation. It should, howevf!r, be pointed out that if Article 33 read in conjun· ction with Artic1e 31 is not taken to prohibit tbe return of refugees who present themselves at the frontier, this would mean that tbe extent to which a refugee is proteeted-in accordance with the humanitariao aims of the Conventionagainst return to a country in which he fears persecution would depend upon 33. Cf. Article V of the Convenfion on Territorial Asylum adopted by the Tenth PanAmerican Conference, (Caracas), 1951. "The fact that a person has entered the territorial jurisdiction of a Slate surreptitiously or irregularly does not affect the provisions of this Convention,'" 34.

In a Judgment of 28 June 1956, the GCl'man Federal Administrative Court considerea that an expulsion order againsf a refugee must be, in relation 10 the object to be achieved, the most appropriate method of maintaining or re-establishing national security and public order (El1fscheidllngen des 'Bllndesl'erwUrungsgerichts, Vol. 3, Case No. 95, at p. 358).

35. Subject to the strict exceptions provided for in paragraph 2 of the Articte.

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the for tuitous circumstance whether he has succeeded in penetrating the territory of a Contracting State. 36 Tbe 1951 Convention, wh ich is mainly concerned with the status of refugees in their country of asylum, does not contain a provision dealing speci· fically with admission. As pointed out above, however, tbe Final Act of the Conference which adopted tbe Convention contains a recommendation t9at Governments continue to receive refugees witbin their territories. Furthermore there is a growing tendency on tbe part of States to use tbe definition of the term "refugee" in tbe Convention as a yardstick for the granting of asylum to persons who have not already obtained asylum elsewhere. This even apart from the Convention would seem to presuppose tbat persons requesting asylumshould be permitted to remain in tbe country for as lang as is necessary to determine whether they may be considered as refugees. States parties to the 1951 Convention haveestablished various procedures for this purpose and a considerable jllrisprudence has developed on tbis question of "eligibility"Y According to the definition contained in Article 1 of the Convention, the term "refugee" applies in general to any person who, as a result of events occurring before I January 1951 and owil1g to weIl-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country of origin and is unable or, owing to such fear, is unwilJing to return to tb at country or to avail himse1f of its protection. 38 The dateline of 1 January 1951 contained in this definition has the effect of Iimiting the scope ratione personae of the Convention, which may therefore not apply in various new refugee situations. States, however, frequently accord the treatment provided for in the Convention to persons not falIing within its terms owing to that dateline, and also grant asyl um to such persons having regard to the definition contained in the Convention apart from the dateline. In so doing they act in accordance with Recommendation E of the final Act of the Conference which adopted the Convention : "The Conference, "Expresses the hope that the Convention relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible 36.

Cf. Report on Ihe Granting of rhe Right 01 Asylum (0 Europeall Refugees, Council of Europe, Document 1986, 29 September 1965 : "Somewhat paradoxically,-although the word "return" (i.e. in Article 33) might be construed as meaning 'refuse admission'-no express mention is made of persons who present themselves at (he [rontier and ask für asylum, but who have not yet crossed the frontier. It seems illogical, apriori, that a per.;on who has succeeded in crossing the frontier illegally should enjoy greater protection than someone who presents himseif legally ... " at p. 7. 37. Cf. the present writer's: "Tbe Concept of the Refugee iil International Law" in Journal de Drolt [nt~rnational, 1960, p. 928. 38. The definition also includes persons who have been considered as refugees under the instruments relating to refugees adopted between the two World Wars and under the Constitution of tbe International Refugee Organisation.

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to persons in tbeir territories as refugees and wbo would not be covered by the terms of the Convention, tbe treatment for which it provides." Thc problem of the limitation ofthe scope of the 1951 Convention resu!tng from tbc dateJine was examined by a Colloquium on the Legal Aspects of Refugee Problems which met at Bellagio (Italy) in April 1965. The Colloquium considered that it was urgent for humanitarian reasons that refugees at present not covered by the Convention should be granted similar benefits by means of an international instrument and that this could be best acbieved by m;:ans of a Protocol to the Convention removing the dateline 39 • While the principle of non-refoulement embodied in the 1951 Convention has its origin in treaty law, it has acquired special sigoificance due to the widespread acct:ptance of the Convention as a basic international instrument relating to refugees. This results in the first place from the large number of States which bave already become parties to the Convention. Furthermore, in Resolution 1959 (XVIII) of 12 December 1963 thc United Nations General Assembly invited : "States Members of the Uni ted Nations and members of the specialized agencies to continue to lend their support to the alleviation of refugee problems ... by improving the legal status of refugees residing in their territory, particularly in new refugee situations, inter alia by aecediog as appropriate to the 1951 Convention Relating to the Status of Refugees and by treating new refugee problems in accordance with the principles and the spirit of the Convention." The basic cbaracter of the Convention has also been recognized on a regionalleveJ. Thus in Resolution 26 11I) of 24 Oetober 1965 on the Problem of Refugees in Africa, the Assembly of Heads of State and Government of the Organisation of African Unity requested Member States, if they had not aJready done so, "to ratify the United Nations Convention for Refugees and to apply meanwhile tbe provisions of the said Convention to refugees in Africa." The special signi{]cance 01' the principle of non·refouJement was expressly rccognized in tbe Final Aet ofthe Conference which adopted the Convention Oll the Status of Stateless Persons of 28 September 1954. 40 This Ccnvenlion regulates the legal status of stateless persons by provisions similar to those of tbe 1951 Convention I elating to refugees. While the Conference did not adopt an Artic1e correspooding to ArticJe 33 of the Refugee Convention, it included the followiog statement in its Final Aet: "The Conference, Being of the opinion that Artic1e 33 of the Convention relating to the Status of Refugees of 1951 is an expression of tbe generally accepted 39. The Report oft he Colloquium is reproduced in UN Docurnent, AjAC·96/INF. 40 and in Volume 5 of the present Journal, (1965), pp. 218-223. 40. United Nations Trealy Series, Vol. 360, p. 130.

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principle that no State should expel or return a person in any manner whatsoever to the fron tiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular. social group or political opinion, Has not found it necessary to include in the Convention relating to the Status of Stateless PersoDs an article equivalent to Article 33 of the Convention relating to the Status of Refugees of 1951".41 The principle of non-refoulement has been expressed in the most comprehensive terms in Article 3 of the Draft Declaration on Asylum adopted by the Human Rights Commission 42 • This Article expressly mentions-in addition to expulsion or return of refugees within the territory-rejection at the fron tier as one of the measures which should not be laken in respect of persons requesting asylum. It also incorporates the notion of provisional asylum 43 • On the level of municipaI law, it has been seen that provisions relating to asylum have been incorporated in the Constitutions or Aliens Legislation of a number of States. Such provisions expressly or by implication embody the principle of non-refoulement. In various countries where the right of asylum is not incorporated in municipal law, asyJum has frequently been the subject of solemn pronouncementA by the governments coneerned setting forth their count ries' basic asylum policies. On 26 Oetober 1955, after the conelusion of the Austrian State Treaty, the A ustrian Federal Chancellor declared in Parliament that "the right of asylum in Austria will continue to remain in force to its fuH extent".44 On 1 February 1957, the Swiss Government made a statement on its asylum policy which contains the following passage 45 : "The fight of asylum is not merely a tradition in Switzerland. It is a political prineiple and an expression of the Swiss coneeption of 4!. UNo Document, E/Conf. 17/5. Rev. 42. "No one seeking or el1joying asylum in accordance with the Universal Declaration of Human Rights should, except for overriding reasons of national security or safeguarding of the population. be subjected to rneasures &lieh as rejection at the fron tier, return or expulsion whieh would result in cornpelling hirn to return to or rernain in a territory i f Ihere is well-founded fear of persecution endangering his life, physical integrity or liberty in that territory ..••.. " "rn cases where aState decides to apply any of the above rnentioned measures, it should eonsider the possibility of the grant of provisional asylurn under such conditions as it rnay deern appropriate, to enable these persons thus endaogered to seek asylurn in another country." 43. The notion of provisional asylum has also found expression in ArticJes 31 and 32 of the 1951 Convention. Above, pp. 182-183. 44. National Counci! Verbatim Recordll, VIIth Session, 80th meeting, p. 3693. 45. Author's translation.

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freedom and independence 46 • Since our country is bound to follow an asylum practice in accordance with its tradition, we must be prepared to receive refugees on a broad basis".4' In the United Kingdom the following statement was made in the House of Commons by the Joint Under-Secretary of State for the Home Department on 8 March 1957 : "Ir, however, it is reasonable to suppose that the result of refusing admission of a foreigner would be his return to a country in which he would face danger to life or liberty, or persecution of such kind and extent as to render life unsupportable, he would normally be admitted, unless there were positive grounds for considering hirn undesirable".48 A similar statement indicating the continuity of this policy was made in the House of Commons by the Home Secretary on 21 March 1963. "The tradition of this country is that a person is granted political asylum if, in his own country, he appears to us to be in danger of life or liberty on political grounds or on grounds of religion or race" .49 The principle of non-refoulement has thus been embodied in treaty law and has received recognition on the intermtional plane apart frorn treaty obligations. It has also been incorporated in municipallegislation and has been reflected in statements of Government poliey with regard to asylum. Tbe pIinclple of tbe non-ex tradition of politica] offenders 1t has been seen that until more recent times the quest ion of asylum arose mainly in the context of extradition. As the law of extradition developed, certain principles of a more general character came to be accepted: the principle of double crirninality, the principle of specialityliO and tbe principle that political offenders sbould not be extradited. Historically the latter principle has been of particular importance as regards asylum. A provision stipulating tbat political offenders should not be extradited was first incorporated in the FrancoSwiss Treaty of 1831 and-in municipallaw-in the BeJgian Extradition Law of 1833. It has since been embodied in the extradition la\\s ofthe majority of countries and in most extradition treaties. Due to its wide acceptance, the principle of non-extradition of political offenders has been affirmed with varying 46. Report of the Federal Council of I February 1957, in La po/iliqlle praliquee par la Suisse a l'I?gard des rejugies de 1933 a nos jours, by C. Ludwig, Bäle, 1957, p. 388. 47. Ibid., p. 389. 48. Hansard, 8 March 1957, Column 747. 49. Jbid., 21 March 1963, ColUIDn 594_ 50. The principle of double criminality requires that the alleged facts on the basis of which extradition is requested should coostitute an offence in both the requesting aod the requested State. The principle of speciality requires that aState 10 wh ich a person has been extradited shall only prosecute for tbe offence for which extradition was requested.

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degrees of certainty, to be a rule of international customary law or a general principle of Jaw recognized by civilized nations 51 • The question of the meaning to be given to the term "political offence" has, however, given rise to considerable difficulty due to the existence of so-called relative politica\ offences, i.e., common law offences committed with a political motive or for a political purpose.52 A particular problem connected with the return of political offenders exists within the British Commonwealth in view of the Fugitive Offenders Act, 1881. By virtue of this Act a person in the territory of a Commonwealth country may be returned to another Commonwealth country wh ich has requested his return on the ground th1t he is accused in that country of an offence specified in the Act. Return may be refused if, inter alia, having regard to all the circumstances, it appears that this would be unjust or oppressive (Section 19). The Act does not, however, prohibit the return of politicaloffenders. This is due to the fact that the territories in relation to which the Act applies formed a single unit subject to the same sovereign at the time when it was passed. The emergence of independent States within the Commonwealth has created a new situation and the amendment of the Fugitive Offenders Act, with a view to excluding the return of political ofT'enders, is under consideration. In India the return of political offenders to another Commonwealth country has already been exc1uded by the Extradition Act of 1962.53 Special considerations arise in the case of a person who fears persecution in the requesting country irrespective of any offence for which his extradition is sought. Under the uaditionallaw of extradition, be would not be protected against return if the offence for wh ich his extradition is sought is not considered to be a "political offence", according to the meaning given to this term by the requested State or if it is a purely common la w offence. It is not clear to what extent Article 33 of the Refugee Convention of 1951 provides an a-nswer to this question. It appears from the travaux preparatories that the measures of return specified in the Article were not intended to inc1ude extradition. The view has however been expressed that the Article does cover extradition51 and its wording would be .... ideen-ough 51. Lauterpacht, "The Law of Nations and the Punishment of War Crimes", 21 B.Y.I.L., 1944, p. 88; Hambro, "Auslieferungspflicht und Asylrecht", 73, Zeitschrift fnr die gesamte Strafrechtswissenschaft, 1961, pp. 658·659; Saxena, "India-The Extradition Act 1962", 13 International and Comparative Law Quarterly, (1964), p. 125. See als:J The Oppenheim op. eil., pp. 705-707. Morgenstren, op. eil., pp. 342-344. principle of non-extradition for poIiticaloffences has been incorporated in Article 3 of Draft Article on Extradition prepared by the 3rd Session (Colombo) of the Asian-African Legal Consultative Committee in 1960 (Report o[ the Session, Vol. IV, p. 140). 52. Oppenheim, op. eit., PP. 707-709. Papadatos, P.A., Le Delit politfque, Paris 1954. 53. Saxena, op. eil., p. 138. 54. Hambro, op. eil., p. 661.

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to do so if a literal interpretation were applied. ("No Contracting State sball ... return ... a refugee in any manner wbatsoever. .. " )55. In a judgment of 29 May 1958,56 tbe Austrian Supreme Court examinedtbe question of the relationship between extradition and ArticJe 33 and considered that extradition of a refugee to his country of origin for ommon law offen ce was not permissible by virtue of an analogous application of Article 33 of tbe 1951 Convention. 57 The need to take account of the special situation of a person who may fear persecution in tbe requesting country in addition to prosecution for an alleged offence is reflected in efforts made by the courts in the 20th century, when considering extradition requests, either to give the term political offence a wider meaning or to consider tbe entire circumstances in which tbe de cujus would find himself if extradited to tbe reques6ng State in the ligbt of the political situation prevailing tbere. Tbus tbe Swiss Federal Court in rejecting an extradition request on tbe ground tbat it related to a political offence stated: "Tbis applies not only to offences directed against tbe State wbich are described as purely political offen ces but also to tbe so·called relative political offences which consist in the commission of a common offence but wbicb, by virtue of tbe circumstances and in particuJar tbe motive of their commission, acquire a po]itica] colouring. Moreover, tbere are common offences wbich are committed not for their own sake but for the purpose of preparing or ensuring the success of purely polilical offen ces and common offences which also constitute a purely political offence ... Recent practice bas been too restrictive in making the relative political offen ce dependent on its commisliion in tbe framework of a fight for power. Sucb a cbaracter must also be attributed to offences whicb were committed in order to es cape the constraint of aState which makes all opposition and, therefore, tbe figbt for power impossible."5B In a case decided in England by tbe Queen's Bench Division of the Higb Court of Justice, tbe meaning of the term "political offence" was considered and the Court stated tbat it was today necessary "if only for reasons of humanity, to give wider and more generous meaning to these words wbicb we can do witbout in any way, encouraging tbe idea that ordinary crimes which bave no political significance will thereby be excused."59 Finally, in a ca se decided by the German Federal Administrative Court, 55. See p. 182 above. 56. Oesterreichische Jurislenzeiwng (1958), p. 495. 57. lt may be mentioned in this connection that according to Article 1 F (h) of the 1951 Convention "the Convention shall not apply to any person with respect 10 whom there are serious reasons for .considering that... he has committed a serious non-political crime outside the ccuntry of re fuge prior to his admission to that country as a refugee." To the exlenl to which an extraditable offen ce constitutes a serious nonpolitical crime for the purpose of Article 1 F (b), the person to be extradited would be excluded from the application of the Convention. 58. In re Karie, Bjelanovic, and Arsen,'evic, International Law Reporls, (1952), pp. 371-374. 59. Ex parte Kolezynski, (1955) 1 All E.R., p. 31.

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an appeal against an order for extradition was upheld on the ground that the order was in confiict with Article 16, paragraph 2, of the German Bas:c Law, according to which "the politically persecuted shall enjoy the right of asylum." The Court in its judgment stated inter aUa : "An extensive interpretation of Article l6(2) of the Constitution is consonant not only with thc spirit in which it was conceived, but also with 'the situation with which it was intended to deal. It is conditioned by the profound social and philosopbical differences existing between States which have developed fundamentally different systems ... The obligations of the Federal Republic of Germany, which derive from the general mIes of international law, do not precIude the interpretation here referred to. There is no rule of international law limiting tbe grant of asylum to political offenders or persons whose crime is connected with a political offence. The promise to observe the rule of speciality in a prosecution wbich at olle time constituted an important and usually adequate guarantee against tbe political persecution of an extradited person, is no Ion ger effective today".60 The special position of the refugee in rela tion to extradition bas been taken fuUy into account in the European Convention on Extradition of 13 December 1957. According to Article 3 of this Convention, extradition shaU not be granted for political offences nor if "the requested Party has substaiitial grounds for believing tbat arequest for extradition for an ördinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person's position may be prejudiced for any of these reasons"61. This provision has been used as a model for similar provisions in other extradition agreements: the Belgian-German Extradition Agreement of 17 January 19586~ and the Austrian-German Extradition Agreement of 22 September 1958 63 .

It mayaiso be mentioned that the Euro;:>ean Commission on Human Rights, established under the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 19:0 6( has expressed the view that extradition might under certain circumstances involve "inhuman treatment" in the sense of Artic1e 3 of the Convention.65 60. Judgment of 4 February 1959, 28 International Law ReDorts (1963), p.347 at pp. 349-50. 61. United Natiom, Treaty Series, Vol. 359, p. 273. 62. lbid., Vol. 328, p. 173. 63. Bundesgesetzblatt of the Federal Republic of Germany (1960), Part 11, No. 50, p. 1341. 64. European Treaty Series, No. 5. 65. "No one shall be subjected to inhuman or degrading treatment or punishmeIit." The circumstances in which the Commission considered that extradition might involve "inhuman treatment" were: "When a person is extradited to a particular country in which, due to the very nature or the regime of the country or to a particular situation in that country basic human ri"hts, such as are guaranteed by the Convention, might be either grossly viola ted or entirely suppressed." It did not, however,consider that these conditions were fulfilled in the parlicular case berore it, (App-licatiQn"No. 1802/62. Decision of 26 March 1963 in Yearbook 0/ the European. Convenr;on on Human Rights, 1963, Vol. 6, pp. 462 et seq.

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In the field of extradition there is thus a growing tendency to have regard to the special position of the refugee and to consider that extradition should be excJuded if, apart from prosecution for the alleged offen ce, persecution is feared in the requesting country. Stated in other terms, there is a tendency to introduce tbe principle of non-refoulement into the Jaw of extradition. CODclusioDS

What conclusions may be drawn regarding tbe effect ofthese various developments on tbe Jaw on asyJum in present internationallaw? Before attempting to answer tbis question, some general remarks may be permitted_ It is difficult to dissociate the development of the law relating to asyl um from certain general present-day trends in the development of international law. Of special importance in tbe present context is tbe increasing emphasis placed on the buman rights and fundamental freedoms of the individual. Traditionally, internationallaw has been regarded as a law applying exclusively between States with tbe result that the individual can at best be an object of international law_ One of the few apparent exceptions to this view is to be found in tbe so-ca lIed minimum standards of internationallaw for tbe treatment of aliens. If international law is considered to be exclusively a law between States, tbe question arises whetber these standards are absolute or wbether they only apply to aliens enjoying the diplomatie protection of aState, i.e , to aliens baving an effective nationality, but not to refugees and stateless persons. But sucb a narrow view can bardly be upbeld considering the new emphasis on the rights of the individual and more particularly the fact tbat the Cbarter of tbe United Nations declares tbe promotion and encouragement of respect for human rigbts and fundamental freedoms for all as one of tbe purposes of the United Nations and that its provisions contain frequent references to human rights and fundamental freedoms. Secondly, increasing importance is attached by States to acts which, on their face, are not of a legally binding cbaracteL Tbe first and foremost example is the Universal Declaration of Human Rights, adopted by a Resolution of tbe General Assembly on 10 December 1948. While from a legal poiot of view tbe Dec1aration is merely a recommendation to States, its influence on law and its development have been far-reacbing 66 _ The General Assembly has to an increasing degree resorted to tbe practice of adopting declarations when it wishes to stress the universal significance and applicability of its pronouncements. In the field of Human Rights, tbe Dec1aration on the Rights of tbe Cbild,61 tbe Declaration on the Granting of Independence to Colonial Countries 66_ E. SCbwelb, "Tbe Infiuence of tbe Uuiversal Dec1aration of Human Rigbts on International and National Law", Proceedingl> 0/ the American Society 0/ International Law, 53rd meeting, Washington, 1959, p_ 217. 67. General Assembly Resolution 1386 (XIV) of 20 November 1959_

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and Peoples 68 and the DecIaration on the Elimination of all Forms of Racial Discrimination69 are examples. The Draft Declaration on the Elimination of all Forms of Religious Intolerance7o and the Draft Declaration on the Right of Asylum as adopted by the Hun::an Rights Commission would, if adopted by the General Assembly, also be of this nature. It is of special significanee that in the ease of the Dedaration on Colonialism, the General Assembly established a special committee to examine its application and to make suggestions and recommendations for its implementation. In the case of Declaration on Raeial Diserimination the Afsembly has also asked the Human Rights Commission to devise means for its implementation. These are novel techniques which are important from the point of view of legal development and may lead to decIarations of tbis type acquiring a greater legal signifieance than that of mere non-binding instruments 71 • These general trends cannot be disregarded when evaluating the signifieance of reeent developments eoncerning asylum from the point of view of international Iaw. It has been seen that historically territorial asylum-the "right of asylum" a term widely but loosely used without distinguishing between the right of States to grant and the right of individuals to receive asylum-mainly concerned the non-extradition of political offenders. It has now come to be generaIly recognized as including the protection-expressed in the principle of "nonrefoulement"-of persons fleeing from persecution on grounds of race, religion, ethnic origin or political opinion. The law of extradition itself, i.e. that part of the law of asylum in which certain rules have most clearly evolved, appears to be affected by this development, as is shown by the tendency not to extradite persons who would fear persecution in the requesting country. As regards the principle of non-refoulement of a person to a country where he fears persecution, this principle has been incorporated into treaties and is applied in State practice on the basis of municipal law. Ir appeaTs-to be widely, if not universally, recognized by States today and has been formally described as a "generally accepted principle".72 While the principle of non-refoulement clearly exc1udes the return of a person already within the territory to a country in wh ich he fears perseeution, there has been greater reluctance on the part of States to recognize a duty to admit persons seeking asylum. This may be due to the understandable fear of 68_ General Assembly Resolution 1514 (XV) of 14 December 1960_ 69_ G~neral Assembly Resolution 1904 (XVIII) of 20 November 1963. 70 Commission on Human Rights Resolution 1 (XXI) of 7 April 1965. 71. Cf. E. Schwelb, Human Rights and the International Community, Chicago, 1964, passim. 72. See pages 185-186 above.

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States that they alone might have to shoulder the burden of an influx-and more particularly a sud den mass influx-of refugees. On the other hand, thefe has been a growin.g tendency to emphasize the humanitarian aspect of asylum and to view asylum from the standpoint of the individual in need of protection.73 The view has also come to be widely accepted that asylum is of concern to the international community. This view recalls the idea of some of the Founding Fathers of internationallaw that in granting asylum States act on behalf of the civitas maxima in pursuance of an international humanitarian duty. As the international community is not at present in a position to accord asylum, any right of the individual deriving from such an international humanitarian dt:ity would be a jus imperfectum. However, growing emphasis on the humanitarian -aspecLoL.asylUID_and on the need for international cooperation with regard to asylum-in particular by relieving the resulting burden on other States-are positive factors which may lead the way to the recognition by States of a duty to admit persons ßeeing from persecution. It is notewothy that in the refugee situations which have recently arisen-more especially in Africa-newIy independent States, frequently in accordance with age-Iong traditions of hospitality, have been no less generous in admitting refugees than oId States having a IGng history of granting asylum. It may indeed be said that asylum is normally granted nowadays and that, when States da not grant asyl um, they normally base their refusal not on their sovereignty but on their opinion that the persons concerned da not qualify or are not "eligible" for asylum. It should also be added that individual cases of denial of asylum have received wide publicity indicating the importance attached by public opinion to questions connected witb the grant of asylum. This is demonstrated, for example, by the emergency debates in the British Hause of Commons in the case of a Spanish sailor 74 and in the Enahoro case 75 and by the three attempts to bring the latter ca se before the House of 73. In the Corfu Clzannel Case the International Court of lustice considered that legal obligations could be based on "elementary considerations of humanity." ICJ Reports (1949), p. 22. 74. Perez-Selles Case, Hansard, 6th March 1958, Columns 1409-68. In this ca se, tbe Speaker of the House of Cornmons on 6th March 1958 permitted an emergency debate on the question of the possible deportation to Spain of a Spanish national who had left his country to avoid military service to wh ich he objected for political reasons. The Horne Secretary had decided to deport hirn because he did not consider that a request for pOlitical asylum was justified in his case. As a result of the debate, the Horne Secretary agreed to a stay of exe.:ution of the deportation order. This made it possible for Perez-Selles to find an alternative country to which to proceed. 75. Hansard, 14th March 1963, Colurnns 1541-56., This case concerned the Vice·Ptesident of the Action Group of Nigeria whose surrender under the Fugitive Offenders Act was requested by that country while he was in the Uni ted Kingdom for prosecution for various offences including treasonable felony involving a plan, to whicb he had been a paity, to overthrow the Federal Clovernment. The Horne Secretary decided to accede to this request but every conceivable legal and political argument and procedure was invoked to prevent surrender. After rnuch discussion of the problem in Parliament surrender eventually to:>~( place, since the British authorities considered that it could not be stated that H would not be just to return hirn to Nigeria.

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Lords, which were fully reported aod freely commeoted Press.

throughout tbe

00

While the right to grant asylum is still the sovereign right of States, the question must be asked whether, in the light of tbe trends described, the sovereign right of States to refuse asylum is any longer unlimited. A negative principle appears to emerge according to which States should not act in such manner as to compel a person to remain in or return to a territory where he would be in danger of persecution on account of his race, religion, ethnic origin or polilical opinion. In other words, States should admit such persons at least temporarily in order to remove them from the danger in which they find themselves. Tbis limitation of tbe rigbt to refuse admission to persons in danger of persecution may not yet be a rule of international customary law but appears to have acquired the complexion of a usage.'6 In considering tbe evolution of international law on territorial asylum, it should be realized that both here and as regards international law in general we live in aperiod of transition; it is difficult to see the end of the road. Some of the basic doctrines of traditional international law which were formulated to regulate tbe conduct of a sm all number of independent States can hardly hold teue today wben the composition of the international community bas changed so substantiallv and its rules and law-making processes are in astate of flux. Both on the regional and on the universal level witbin the United Nations, the tendency to provide more effective safeguards for the rigbts of the individual is apparent. The development of the law on asylum is inextricably bound up with tbe general development towards the greater recognition and protection of the human rights and fundamental freedoms of the individual by internationallaw.

76. Cf. also by the present author, "Legal Aspects of the Convention of 28 July 1951 relating to the Status of Refugees", 30 B.Y.tL. (1953), pp.478-489, at pp. 481-483; "The International Protection of Refugees", 48 A.J.I.L. (1954) pp. 193-221, at pp. 198-199.

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[3] THE END OF ASYLUM? THE CHANGING NATURE OF REFUGEE POLICIES IN AFRICA Bonaventure Rutinwal Introduction The evolution of refugee policies in post independence Africa may be classified into two periods. The first is the period between early 1960s and 1990, and the second is the period thereafter. In the first period, African countries, both individua11y and co11ectively, exhibited a very generous attitude towards refugees. Through the 1969 Organization of African Unity (OAU) Convention Governing Specific Aspects of Refugee Problems in Africa, African states implemented what became known as an "open door policy". African countries readily admitted a11 those in search of security and safety, and refugees were hardly ever rejected at the frontier or returned to countries where they might face persecution or serious harm. Even though refugees were norma11y required to remain in camps, the standards of treatment of refugees were adequate and refugees enjoyed security rights, basic dignity rights as weIl as self-sufficiency rights. There was also a strong commitment to durable solutions. A number of refugees were locally integrated and legally naturalized. In collaboration with the United Nations High Commissioner for Refugees (UNHCR), African host countries worked to find protection in third countries for refugees for whom this was the best solution. Wherever there were fundamental changes in the circumstances in the country of origin, states assisted refugees who voluntarily chose to repatriate. Since the late 1980s, there has been a marked shift in refugee policies in Africa, which became particularly pronounced in the 1990s. While the refugee problem has on the whole increased, African states have become less committed to asylum. Instead of opening their doors to persons fearing harm in their own states, African countries now prefer refugees to receive protection in "safe zones" or similar areas within their countries of origin. African states now routinely reject refugees at the frontier or return them to their countries of origin even if the conditions from which they have fled still persist. Refugees who manage to enter and remain in host countries receive "pseudoasylum". Their physical security, dignity and 1 Lecturer, Department of Criminal and Civil Law, University of Dar es Salaam, Tanzania.

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material safety are not guaranteed. As for solutions, African states are less inclined to grant local settlement or resettlement opportunities to refugees. What they seem to prefer is repatriation at the earliest opportunity, regardless of the situation in the countries of origin. There are several reasons that have led to this change of policy. The fIrst is the magnitude of the refugee problem. While elsewhere in the world the number of refugees has decreased, in Africa, the refugee problem has grown both in magnitude and complexity. The second reason is insecurity both external and internal. Some refugee hosting countries have encountered serious external relations problems with the countries of origin, which in some cases have led to armed conflagration. Internally, some criminal elements among refugees have caused a multitude of problems to host populations including armed banditry, poaching and other crimes. The third reason is the impact ofrefugees on host cOlliltries, which include damage to the environment, ecology and infrastructure, and depletion of stocks. African countries have also resented the absence of meaningful burden-sharing for a problem which they perceive neither as theirs nor as one they are able to bear alone. The restrictive policies currently employed in the industrialized countries to keep out refugees, such as interdiction of refugees on the high seas and re-admission agreements, have also emboldened African states to take steps within their means to achieve the sanle ends. Finally, there is a glowing xenophobia in many African countries. This is because today's refugees come from independent African countries and local populations do not have the same sympathy for them as they had for asylum seekers in the 1960s and 1970s who fled from armed struggles against colonialism, racial domination and apartheid. Also, economic hardship and the austerity programmes imposed by the International Monetary Fund (IMF) and the World Bank, which have forced governments to curtail free services to their populations, have made it diffIcult for tlle people to accept the same services being provided free to refugees, whether by their governments or other bodies. Coincidentally, these xenophobie sentiments have emerged at a time when most of Africa is democratizing and governments are compelled to take into account public opinion in formulating various policies. The result has been the adoption of anti-refugee platforms by political parties which result in anti-refugee policies and actions by governments. Despite the recent optimism, Africa remains a fragile continent, economically, socially and politically. The Great Lakes region and the Horn of Africa, the traditional main refugee generating areas, remain politically volatile. Even though there has been some repatriation of refugees back to some of these countries, there is still a substantial out flow of refugees within and beyond these regions. Political instability in Guinea- Bissau, the continued killings in Liberia, the recurrence of civil wars in Sierra Leone have threatened to compound the already critical refugee situation in West Africa. The attempted coups in Zambia and Lesotho, and the breakdown of the disintegration of the Lusaka Peace Accord in Angola have demonstrated the fragility of many states in the Southern Africa region. Consequently there is still a need for asylum in Africa.

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The continued availability of asylllffi in Africa will depend on the problems that are cunently constraining refugee policy formation being addressed. Tackling the issue of the magnitude of the refugee problem requires that the root causes offorced migration be addressed. These include poverty, conflicts, arms trade, violations of hllffian rights and lack of accOlmtability on the part of those who make it impossible for others to remain in their own countries. Refugee policy and protection practices should take into account security concerns. In this regard, host countries should avoid placing refugees in areas where they could be a source of tension with the countries of origin. Refugees should be disarmed and protection areas designed in such a way as to ensure that security can easily be maintained. Security issues are primarily the responsibility of host countries. However, given the lack of capacity of many African countries in this regard, UNHCR and the international community should take seriously the question of security assistance, particularly in complex emergencies. Most of the major refugee hosting countries in Africa are poor. They therefore should be given international assistance if they are to be able to continue to provide asylum to refugees. The assistance should be timely and adequate to meet the entitlements of refugees, particularly those relating to physical and material security including food, shelter, clothing and medical supplies. Furthermore, international assistance should be made available to host countries to deal with the negative consequences of playing host to refugees. Achievement ofthese measures requires the institutionalization of enhanced and coHectivized mechanisms for global burden sharing. Considering the impact of public opinion on government policies in open and democratic societies as most of African has now become, as weH as the need to foster a more positive attitude towards refugees by the general public and counter xenophobic sentiments, efforts at public education and awareness should be stepped up to educate the population about the special status of refugees and why, unlike other aliens, refugees need and deserve international protection. Such education and information campaigns should target aH segments of the society including parliamentarians, senior government officials, academics, students at aH levels, the media, non-governmental organizations (NGOs) and civil society. FinaHy, it is important other states outside Africa also deal with refugees in a humane and principled mann er. This will encourage other states, including those in Africa, to treat refugees in the same way.

Refugees in Africa Africa is one of the main refugee generating and hosting continents in the world. There are four major refugee generating and hosting regions in Africa. The first is the Great Lakes region where the political and ethnic conflicts in Burundi, the Democratic Republic of Congo and Rwanda have generated millions of refugees over the past four decades. Most of these refugees have been hosted in the region, mainly in Tanzania, Uganda and Kenya, as weH as in the refugee generating countries themselves.

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The second major refugee region is the Horn of Africa, where a succession of armed conflicts resulted in the flight of millions of people in search of safety. These have included the war between Ethiopia and Somalia for control of the Ogaden region in 1977-1978, the struggle for Eritrean independence from Ethiopia, which began in the 1950s and was finally achieved in 1993, and the conflict between government and rebel forces in southern Sudan. Most of these refugees found protection within the countries of the Horn itself, as weIl as in the neighbouring states of Egypt and Kenya (UNHCR, 1997, pp. 74-6). The third refugee region is Southern Africa, where states still play host to thousands of refugees who had to leave their countries during the struggle against colonialism, racism and apartheid. Some countries such as Mozambique and Angola are also having to deal with hundreds of thousands of returnees, demobilized soldiers and internally displaced persons. Southern Africa is also beginning to experience the phenomenon of urban refugees. The fourth major refugee region is West Africa, where the civil wars in Liberia and Sierra Leone have left thousands of citizens of those countries displaced both internally and externaIly. Several other countries outside those regions are also generating as weIl as hosting refugees. As of 1997, there were about 21 African refugee-generating states (IFRCRCS, 1997, p. 127) while 37 African countries were refugee-hosting countries (ibid, pp. 129-30). In total there were 3,684,000 documented refugees and asylum seekers in Africa, or about one quarter of the world's documented refugees and asylum seekers (US Committee for Refugees, 1997, pp. 4-5). Even though the present figure for the number of refugees in Africa represents a substantial drop from the peak of 5,824,700 refugees in 1994, (IFRCRCS, 1997, p. 129) it does not necessarily mean a reduction of the refugee problem in the continent. The sharp reduction was largely due to the forced repatriation of millions of Rwandese refugees from Tanzania and the then Zaire. The situation in Rwanda, where those refugees went, remains volatile and already refugees are trickling back to Tanzania. This means the need for asylum in Africa is as great today as it has been at any time in recent history. Unfortunately, African countries are becoming less and less committed to the institution of asylum. This paper examines the evolution of refugee policies in Africa from the period when the continent pursued an open door policy until 1998, by which time most countries had become less committed to asylum. It attempts to identify reasons for the policy shift and to make recommendations as to what measures could be taken to enable African countries to continue to deal with the refugee problem in a principled way. The era of the "Open Door" policy

The evolution of refugee policy in Africa may be divided into two periods. The first is the period between early 1960s and the mid- to late 1980s. The second is the period between the late 1980s to today. The period between

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the early 1960s and 1990 may be described as the "golden age" of asylum in Africa. The attitude adopted by many states during this period has been described as an "open door policy". The policy and legal framework was outlined in the 1969 OAU Refugee Convention, which was specifically intended to meet the security concerns of states and to prevent the refugee problem from becoming a source of subversive, inter-state dispute. At the same time however, the Convention made provisions which, when read together with the 1951 UN Convention Relating to the Status of Refugees, resulted in an enhanced regime of refugee protection, particularly with respect to the recognition of refugee status, the grant of asylum, respect for the norms of non r({[onlement and non-discrimination, and the provision of durable solutions.

A liberal rejlIgee

dej~nition

The first element of the open door policy was the extension of the definition of persons entitled to refugee status. The 1951 Refugee Convention and its 1967 Protocol restricts the definition of a refugee to a person who is outside his own country, who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and who as a result of that fear is unable or unwilling to return to this country or to avail himself of its protection 2 • The 1969 OAU Refugee Convention extends this definition to cover "every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality"'l. This provision was observed throughout the continent. In the 1960s and 1970s, virtually all independent countries in Southern Africa received waves of refugees from countries which were still struggling against racism, colonialism and apartheid. As a result of this open door policy, the refugee population in some countries such as Malawi rose up to over 10 per cent of the entire population of the country (UNHCR, 1997, p. 62). In Central Africa, hundreds of thousands of refugees who fled from the political conflicts in Rwanda and Burundi in the 1960s and 1970s were readily received in neighbouring states - mainly Tanzania and Uganda and the then Zaire. Similar generosity was extended to thousands of victims of the political conflicts in the Horn of Africa. It is this liberal attitude towards the admission of refugees which led Africa's refugee policy in this era to be called an "open door policy".

2 J

1951 Rcfugcc Convcntion, Articlc 11\(2). 1969 OAU Convention, Artiele 1(2).

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Commitment to asylum and non-refoulement The second element of Africa's traditional policy towards refugees was commitment to asylum and the principle of non-refoulement. Article 2 of the 1969 OAU Convention made provisions for the institution of asylum as well as how to deal with situations that could undermine it. Under Article 2(1), member states of the OAU are enjoined to "use their best endeavours consistent with their respective legislations to receive refugees and to secure the settlement of those refugees who, for wellfounded reasons, are unable or unwilling to return to their country of origin or nationality". To ensure that states were not compelled by considerations of their relations with the countries of origin to deny asylum to refugees, Article 2(2) provides further: "The grant of asylum to refugees is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any Member State." The principle of non-refoulement enshrined in Article 2(3) reads: "No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel hirn to return to or remain in the territory where his life, physical integrity or liberty would be threatened ... " Thus, the OAU Refugee Convention, unlike the 1951 Refugee Convention, provides expressly that the norm of non-refoulement covers both non-rejection at the frontier and non-return and applies even to persons who are still inside places where they fear harm. State practice with respect to non-reföulement during this period was mixed. While some states such as Tanzania remained committed to this norm even under extreme pressure from countries of origin of refugees, other states violated this norm for one reason or another. In Southern Africa, some states, under intolerable economic and military pressure from South Africa, did expel some refugees to South Africa, a situation for which, as Maluwa rightly notes, apartheid South Africa alone was to blame (Maluwa, 1991, p. 30). In some states, refugees were expelled simply as a matter of government policy. For example, in the early 1980s, Uganda under Milton Obote displaced a large number of Banyarwanda, including some 40,000 people who claimed Ugandan citizenship and 31,000 people registered with UNHCR as refugees, forcing most of them to seek refuge in Rwanda (Pirouet, 1988, p. 243). The displacement was actually enforced by the youth wing of the ruling Uganda People's Congress (UPC), but at the instigation and with the blessing of the U gandan Government at alllevels. The evictions were preceded by threats and inflammatory speeches by Obote and others against Banyarwanda in the affected areas. After the displacement, the Chairman of the Mbarara District Council addressed a meeting of councillors, county and sub-county chiefs, saying: I summoned you to inform you that the battle to collect and return the refugees to their places is over, and to thank you for the work you have done. ... What remains now is to scrutinise

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refugees that might have stayed behind and rid villages of refugees. I am glad to tell you that our exercise was performed perfectly weH even if there were sporadic incidents which did not please us, e.g. our two youths and one policemen were killed. This is not negligible. The good thing is that we won the battle through the blood of our friends above. Let us observe aminute of silence in their remembrance. Go and preach the gospel and inform people that we have won the battle. Let them foHow as we know our destination and we have already started seeing sunshine there. I am warning everyone to avoid the property of the Banyarwanda. Be patient and the District Council will determine a way for you to share these properties. To dispel all rumours and loose talk, the President's speech from tlle start to the end does not anywhere state that refugees and aliens should return to the lands they occupied (ibid.). The treatment of Rwandese refugees in Uganda around this period was one of the factors that gave impetus to the formation of the Rwandan Patriotic Front (RPF), the main objectives of which included securing the repatriation of Rwandese refugees to Rwanda.

Inter-African bv.rden-sharing The distribution of the refugee burden depends on the accident of geography (Hathaway & Neve, 1997, p. 141). This uneven distribution of the refugees can result in some countries bearing a disproportionate share of the refugee burden, while others bear little or none of these responsibilities. In recognition of this fact, the OAU Convention provides in Article 2(4): "Where a Member State finds difficulty in continuing to grant asylum to refugees, such Member State may appeal directly to other Member States and through the OAU, and such other Member States shall in the spirit of African solidarity and international co-operation take appropriate measures to lighten the burden ofthe Member State granting asylum." Article 2(5) provides further: "Where a refugee has not received the right to reside in any country of asylum, he may be granted temporary residence in any country of asylum in which he frrst presented himself as a refugee pending arrangement for his resettlement in accordance with [Article 2(4)]." In the 1970s and early 1980s, Botswana, Lesotho and Swaziland resorted to these provisions when, under intense pressure from South Africa, they had to evacuate South African refugees from their territories. These refugees were resettled in other African countries, mainly Tanzania, Zimbabwe, Zambia and, to a lesser extent, Kenya and Uganda (Rwelamira & Buberwa, 1990, pp. 67-8). In the early 1960s, UNHCR airlifted hundreds of Rwandese refugees from the then Congo Kinshasa for resettlement in Tanzania after the refugees had experienced serious insecurity in their first country of asyl um.

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A further provision intended to ensure the feasibility of the institution of asylum was Article 2(6) which provides: "For reasons of security, countries of asylum shaB, as far as possible, settle refugees at a reasonable distance from the frontier of their country of origin." This provision was included in appreciation of the fact that most refugees in Africa were fleeing on-going conflicts and thus were likely to be treated with suspicion by regimes in countries of origin.

Refugeerigläs In addition to the rights to be recognized as a refugee and not to be subjected to refol1.lement refugees are also entitled under internationallaw to certain standards of treatment which include security rights, including protection from physical attack, and assistance to meet basic human needs; basic dignity rights, including protection against discrimination, family unity, freedom of movement and association, and freedom of religion and self-sufficiency rights, including rights to work and education (Hathaway & Neve, 1997, pp. 158-66). These rights were not enshrined in the 1969 OAU Convention as such, but they derive from the 1951 Refugee Convention and a number of human rights instruments. During the "open door" era, refugees in Africa were generally given favourable treatment with respect of the above rights. Refugee camps and settlements were designated far from border areas to ensure that refugees did not come under attack from regimes in the countries of origin. In collaboration with UNHCR and the international community, host countries ensured that the basic needs of refugees were met. Refugees generally enjoyed basic rights upholding their dignity. Group admission of refugees guaranteed the maintenance of unity of members of the same family as long as they were able to flee together to the same country. It is tme that refugees were mostly protected in camps. However, these camps were sufficiently large to enable refugees to acquire land and engage in economic activities which earned them a dignified living. In addition, mIes regarding refugees' stay in the camps were not rigid, as refugees could leave tlle camps temporarily or permanently and settle in other parts of the host country. As to self-sufficiency rights, refugees in Africa were allowed to till land and keep animals, even in countries like Tanzania and Uganda where the law permitted the confiscation and slaughter of animals brought in by refugees. Refugees were allowed equal access to the health and education services as weB as thejob market, both in the private and public sectors. Both Uganda and Tanzania allowed refugees fuB access to social welfare, the education system, as weB as the job market. Many former refugees went on to rise to very high positions in the civil as weH as the diplomatie services of Tanzania and Uganda.

Dumble solutüms The 1969 OAU Convention also addressed itself to durable solutions albeit in an indirect way. Article 2 subparagraphs 1 and 5 noted above aBude to local settlement and resettlement respectively. Under Article 5, the

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Convention makes detailed provisions for voluntary repatriation. Article 5(1) provides: "The essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will." Countries of origin are enjoined, in collaboration with the countries of origin, to make arrangements for the safe return of refugees who request repatriation (Article 5(2)). Article 5(3) requires the country of origin, on receiving refugees, to facilitate their resettlement and grant them the full rights and privileges of nationals of the country, and subject them to the same obligations. Returning refugees were not to suffer any penalties for having fled their countries (Article 5(4)). All members ofthe international community including countries of origin, asylum, voluntary agencies and international and intergovernmental organizations were exhorted to give assistance to refugees to facilitate their return (Article 5(5)). Many experts have interpreted the 1969 OAU Convention as being oriented towards temporary protection and eventual repatriation (Kälin, 1996, p. 6; van Selm- Thorburn, 1997, p. 120). Many host states in Africa have nevertheless allowed refugees to remain on their territory for as long as the problems which prompted their flight persisted and some have allowed refugees to settle locally and to integrate into the new communities. In Tanzania, some refugees were offered land and naturalization. Even though Botswana, Lesotho and Swaziland saw themselves as essentially countries of temporary refuge, they did offer limited opportunities for local integration (Rwelamira & Buberwa, 1990, pp. 65-70). African host countries also worked with UNHCR to seek re settlement opportunities for some refugees for whom this was the best solution.

A retreat from fundamental principles of asylum A remarkable shift is noticeable in refugee policies on the African continent from the mid-1980s, when states began to retreat from the fundamental principles of international refugee law. The hallmarks of this shift were a preference for containment of refugees in countries of origin over the grant of asylum, the refoulement of refugees, a disregard of basic rights of refugees, and a retreat from durable solutions other than repatriation.

Prom a,sylum to conta,in:ment One of the major signs of the shift in refugee protection practice in Africa is the preference of African countries for containing the protecting refugees in their countries of origin instead of granting them external asylum. This practice is best exemplified by the decision of the governments of states in the Great Lakes region after the refugee crisis that followed the genocide in Rwanda, to call for the creation of "safe zones" in Rwanda and Burundi, within which civilian populations could be protected, and to which refugees already outside those countries could be repatriated.

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This idea was discussed at the meeting between the Presidents of what was then Zaire and Tanzania in Gbadolite, Zaire, on 22 and 23 December 1994 and the Nairobi Summit in Januaxy 1995 involving all countries of the Great Lakes region. At both meetings, it was agreed that the international community should assist Rwanda and Burundi to create conditions within their countries which were conducive for the safe return of their refugees. It was also agreed that "safe zones" inside Rwanda and Burundi be created under protection of the United Nations (Government of Tanzania, 1995, para. 116). The idea of creating safe zones was incorporated in the Plan of Action for Voluntary Repatriation of Refugees in the Great Lakes Region adopted at the Intergovernmental Regional Conference held in Bujumbura on 12-17 February 1995. According to the policy paper issued by the Government of Tanzania in November 1995, the creation of safe zones had several advantages over the granting of asylum in neighbouring countries: Firstly, it serves as a constant reminder to their Governments that the refugees are in fact their citizens and therefore, they have a natural duty towards them. Secondly, it relieves the refugees' host countries of a problem which is not of their own making. Thirdly, "safe zones" make it easy for the refugees to return to their homes when the situation stabilizes. Fourthly, "safe zones" serve as a confidence building measure because the situation in their countries would be gauged on a first hand basis. Lastly, it causes least disruption on the part of refugees in terms of language, culture, weather etc. (Government of Tanzania, 1995, para. 12). As I have argued elsewhere, these reasons are neither sound, particularly in the context of the Great Lakes, nor practicable. They also hang on a questionable legal peg. (Rutinwa, 1996b, pp. 313-16). An attempt to create a safe zone in the Great Lakes region was made through Operation Turquoise, the controversial operation by the French forces in Rwanda during the genocide. The operation was authorized by the Security Council in Resolution 929 of 22 June 1994, after the Council had determined "that the magnitude of the humanitarian crisis in Rwanda constitute[dl a threat to peace and security in the region". Acting under Chapter VII of the United Nations Charter, the Security Council decided to authorize the member states to use "all necessaxy means"4 to "cooperate with the Secretaxy-General in order to achieve the objectives of the United Nations in Rwanda through the establishment of a temporaxy operation under national command and control aimed at contributing, in an inlpartial way, to the security and proteetion of displaced persons, refugees and civilians at risk in Rwanda"G.

1

5

SIRES/929 (1994), 22 June 1994, para. 3. Ibid, para. 2.

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At the height of the conflict in the former Zaire, the Security Council passed aseries of Resolutions calling for measures to ensure protection of the victims of the conflict within the country itself. In Resolution 1078 of 1996, the Security Council, "[p]articularly concerned at the humanitarian situation and the large-scale movements of refugees and internally displaced persons" and at "the obstacles to the efforts of all international humanitarian agencies to provide relief and assistance to those in need", determined that the humanitarian crisis in eastern Zaire constituted a threat to peace and security in the region. The substantive part of the resolution was divided into four parts, all of which were organized around measures required to be taken to address the refugee dimension of the crisis with Zaire itself. In part A(3), the Security Council "[r]eaffirmed its commitment to the establishment of conditions conducive to the voluntary repatriation of refugees to their country of origin as a crucial element for the stability of the region"". The substance of this Resolution reiterated in Resolution 1080 (1996) which, among other things: (3) Wekome[d] the offers made by Member States, in consultation with the States concerned in the region, concerning the establishment for humanitarian purposes of a temporary multinational force to facilitate the immediate return of humanitarian organizations and the effective delivery by civilian relief organizations of humanitarian aid to alleviate the immediate suffering of displaced persons, refugees and civilians at risk in eastern Zaire, and to facilitate the voluntary, orderly repatriation of refugees by the United Nations High Commissioner for Refugees as weIl as the voluntary return of displaced persons, and invite[ d] other interested States to offer to participate in these efforts'. Similarly in Resolution 954 of 4 November 1994 concerning Somalia, the Security Council, " {rJecognising ... the impact that the situation in Somalia has had on neighbouring countries including, in particular, flows of refugees", went on to characterize the situation there as a "threat to peace and security" anel to authorize a seconel Uniteel Nations Operation in Somalia (UNOSOM 11), to take measures to enable humanitarian organizations to continue to proviele relief to the victims of the conflict within Somalia anel to facilitate political reconciliation among the warring factions 8 • In West Africa, the 1990 intervention by the military forces of the Economic Community of West African States (ECOWAS) in the civil war in Liberia was justifieel on similar grouncls. In a statement to the UN SeCllrity Council, the Nigerian representative, Ibrahim Gambari, eleclared that ECOWAS acteel in a way that promoteel the purposes of the UN

" SIRES/1078 (1996), 9 November 1996. 7 SIRES/1080 (1996),15 November 1996. 8 SIRES/954 (1994), 4 November 1994.

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Charter by "stepping in to prevent the situation in Liberia degenerating into a situation likely to constitute areal threat to international peace and security and that the goals of the Community had received endorsement from aB the leaders of the West African sub-region as weB as from the OAU"'. The initiatives of ECOWAS eventuaBy received the blessing of the UN Security Council lO • Two points need to be noted about the above incidents. First, all the above interventions had prior or received subsequent authorization of the Security Council. As such, these measures, with perhaps the exception of ECOWAS's action, could not be solely attributed to African states. However, there is no doubt that what the Security Council ordained in these instances is also what the countries in the relevant regions wanted. Indeed, many Security Council Resolutions refer to the close cooperation of the countries in the region in implementing the recommended measures. Second, in aB the above cases, the Security Council authorized action after characterising the situation as constituting a threat to regional peace and security. This was very important, for the existence of a threat to international or regional peace and security is a precondition to the legality of intervention under the United Nations Charter. However, in situations such as those in Somalia and Zaire in 1996, the only "threat" to the relevant regions was the actual or potential flow of refugees into neighbouring countries. These cases therefore confirm UNHCR's observation that, "[t]he recent emphasis on multilateral action in countries of origin is potentiaBy positive ... Unfortunately, however, this approach towards the protection of threatened populations has also in some instances been used as apretext to obstruct the flight of people whose lives are in dang er, to limit their right to asylum and to return them prematurely to conditions of danger" (UNHCR, 1997, p. 69).

Rejection at the jrontier and expulsion oj rejugees Recently, there has been a growing trend, particularly in the Great Lakes region, of refusing entry to asylum seekers or returning refugees to their countries of origin before the situation that caused their flight has abated. A good example is Tanzania's closure of its border with Burundi in 1993 and with Rwanda after the 1994 genocide in order to prevent further influxes of refugees. In 1996, having admitted very large numbers of refugees from Rwanda, Zaire too closed its borders to uprooted Hutu refugees from Burundi (UNHCR, 1997, p. 65). There have been even more serious instances of states expelling refugees to whom they had previously granted asylum. Since the early 1990s, Kenya has occasionaBy threatened forcibly to repatriate refugees on various grounds ranging from a perceived threat to security, immorality, environmental degradation to the "UN Doc. SIPY.2974, 22 January 1991, p. 8. 10 S/RES1788 (1992), 19 November 1992.

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cost of protection (Rutinwa & Kathina, 1996). In 1993, Kenya actually asked UNHCR to repatriate all Somali, Ethiopian and Sudanese refugees in the country on the ground that their presence had compromised the security of the country (Rutinwa, 1996a, p. 12). In the aftermath of the 1994 Rwanda emergency, hundreds of thousands of refugees fled into Tanzania. The refugees were allowed to enter and remain in Tanzania. Later Tanzania closed her border with Rwanda and Burundi, and in July 1995, the then Minister for Foreign Affairs declared openly that "we are saying enough is enough. Let refugees go horne and no more should come" (The Gunrdia.n (Tanzania), 19 July 1995, p. 1). On 6 December 1996, the Government of Tanzania and UNHCR issued a joint statement requiring all Rwandese refugees to leave for Rwanda within three weeks, an order which was eventually carried out with assistance of the military. More recently, as will be seen below, Tanzania has rounded up people of Rwandese and Burundian origin who came to Tanzania years ago as refugees and has sent them back to their respective countries. More recently, the expulsion of refugees has become rampant throughout the Great Lakes region including Rwanda and the Democratic Republic of Congo (former Zaire). A few extracts from the prillt and electronic media in October and November 1997 alone suffice to prove this point. On 4 October 1997, Dianna Cahn of Vm:ce (~lAmerica. reported: Rwandan officials say Congolese authorities have forcefully repatriated about one thousand Rwandan Hutu refugees who crossed the border last week from Northwestern Rwanda. The move comes at the same time that the Congolese Government ordered the United Nations refugee agency to halt operations and leave northeastern Congo ... 11 '!\vo days later, on 6 October 1997, the same reporter wrote: Tanzania has ev$icted 181 Rwandan refugees who, Rwandan officials say, were given no advance warning or time to collect their belongings before leaving. The Governor of Rwanda's Southern Kibungo region says he too had (no)advance notice of the evictions and is concerned more may follow ... 12 On 14 November 1997, the following Reuter" news was posted: The Tanzanian army has arrested or expelled more than 28,000 illegal aliens since September in a security crackdown along its western border regions, the UN refugee agency said on Friday. 11 D. Cahn, Correspondent Report for Voice of America, 4 October 1997, 2:42 PM EDT (1842 UTC). 12 D. Cahn, COlTespondent Report for Voice of America, 6 October 1997 2:42 PM EDT (1848 UCT).

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Vincent Parker, spokesman for UNHCR in Tanzania, told reporters that most of those arrested were Burundians or Congolese. He said since 21 September, so me 18,000 had been arrested in the Kigoma region. Another 8,000 had been arrested in the northwest Ngara region while 2,000 Rwandan Tutsis were expelled from Kagera region to Rwanda u . On 18 November the following was reported in the East African section of Features Africa Network News Bulletin: Humanitarian sources report that Burundian and Rwandan armies, with the backing of the DRC [Democratic Republic of Congo 1authorities, have begun a sweep to expel Hutus settled around Uvira and Bukavu. More than 2,000 people have been rounded up in the past two weeks and taken across either the Burundian or Rwandan border". The same source also posted the following story on 19 November 1997: Jerome Ndiho, the Brussels spokesman for the Conseil rwtional pour la d~fense de la denwcmt'i,e (CNDD) has said 2,000 Burundian Hutus have been expelled by the Democratic Republic of Congo anny, assisted by the Burundian and Rwandan armies, in the Uvira region'''. Southem African states too have been involved in the rf{toulement of refugees. In the mid-1980s, Botswana is reported to have handed over political refugees to Zimbabwe (Lawyers' Committee for Human Rights, 1995, p. 84) Around the same time, thousands of Mozambican refugees were "pushed back" from Zimbabwe. In 1988, a further 8,000-9,000 Mozambican refugees were expelled from Zimbabwe to Mozambique (ibid, pp. 84-5). In South Africa, the late 1980s and 1990s witnessed massive waves of deportation of "illegal aliens" who included refugees. In 1986, for example, Pretoria is said to have admitted to deporting 1,500 Mozambicans a month. "In 1992, the South African authorities deported 61,000 Mozambicans, according to official figures, but neither estimate makes any distinction between refugees and other migrants" (ibid, p. 46). A further 80,926 Mozambicans were forcibly deported by the South African National Defence Forces and South African Police in 1993, followed by 71,279 in 1994 (Dolan, 1997, p. 3), even though at that point the South African H. Awori, EditoriPublisher, "Tanzanina Holds Thousands of Illegal Aliens", Features Africa Netwark, hLtp://www.africaoruine.com/AfricaOnline/eovernews.htrnl. Accessed on 14 November 1997. 11 H. Awori, EditorlPublisher, "Congo Kinshasa: AmW Expels Hutus to Rwanda, Burundi", Features Africa Netwark, http://www.aflicaonline.com/AfrieaOnline!eovernews.htrnl. Accessed on 18 November 1997. l' lbid.

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Govemment had already signed a Tripartite Agreement with UNHCR and Mozambique, which granted "group refugee status" to the Mozambican population in South Africa and which committed the Govemment to respect the principle of voluntary repatriation. Nor have refugees in West Africa been spared of this wave of antirefugee sentiment which is sweeping Africa. In May 1996, millions of television viewers around the world witnessed r~toulement in action when, a ship aptly named the Bulk Challenge, brimming with Liberian refugees, was tumed away by one West African Govemment after another. (Frelick, 1997 p. 14-15). These stories are a sufficient proof that the non-r~toulement norm is virtually a dead letter Africa. As non-r-efoulernent is the foundation of refugee protection, it is not far fetched therefore to say that the end asylum in Africa is nigh if not here already.

Disregnr'd for the basic rights of r~flLgees The 1990s have also witnessed a marked decline in the standards of protection. This is particularly so in the Great Lakes region. Perhaps the most disregarded rights are those relating to security. In Kenya, research by the Lawyers' Committee for Human Rights completed in 1995 revealed horrific details of physical attacks against refugees including killings and rapes which were perpetrated by armed bandits as well as some elements of the security forces. Kenyan security forces as weH as aid workers were also victims of raids by armed bands (Lawyers' Committee for Human Rights, 1995, pp. 64-71). Refugee settlements in Northem Uganda have also come under frequent assault by rebel groups claiming the lives of refugees and Ugandan refugee protection officers as weH (Anonymous, 1996, p. 19). The refugees who have suffered most from insecurity are the Rwandese refugees who sought refuge in the then Zaire (now the Democratic Republic of Congo) after the genocide in Rwanda. These refugees were first held as hostages in camps in Zaire by the ex-Forces armees nvandaises and Interahamwe militia as human shields to prevent the latter from being arrested and sent to Rwanda where they feared prosecution for the heinous crimes they had perpetrated. These camps were eventually dismantled by what were then the rebel forces of Laurent Kabila, Alliance des forces democratiques pour la liberation du CongoZaire (AFDL) , assisted by elements of the Rwandan army and in the process some refugees lost their lives. Some refugees repatriated but others, numbering a few hundred thousands, remained in eastem Zaire. Those who remained were caught up in the fighting between the AFDL forces and the then Zairean army, and it has now emerged that some tens of thousands of refugees may have suffered deliberate mass extemünation. It is not entirely clear how those deaths occurred, although it is strongly suspected that they were carried out by Kabila's AFDL forces and the elements of the Rwandan army which assisted them in ousting Gen.

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Sese Seko Mobutu from power in Zaire. These allegations remain to be proved and the UN appointed team of investigators has not been able to do its work due to disagreements with the Government of the Democratic Republic of Congo over several aspects of the mission. Whatever the outcome of the investigation, if it is ever carried out, the fact remains that the security rights of refugees from Rwanda in the Democratic Republic of Congo were not protected. The large size of modem refugee camps and the way refugee settlements are maintained has also resulted in significant erosion of basic rights to human dignity, as well as self-sufficiency rights. In the case of the Rwandese refugees who fled after the genocide, so me refugee camps in Zaire and Tanzania held up to a million refugees. Such an environment makes it impossible for refugees to be secure and to enjoy basic rights, such as the right to privacy, or to obtain land and engage in activities that could bring them a measure of self-sufficiency. The degree to which the basic rights of refugees have been eroded in the Great Lakes region warrants Frelick's observation that "to use the world 'asylum' to describe the situation of [these refugees] is to bastardize the word. What we saw here was something else - 'pseudo-asylum'" (Frelick, 1997, p. 15).

Retreat from durable solutions States in Africa are also becoming increasingly reluctant to provide refugees with opportunities for local integration or resettlement. The current policy is to repatriate all refugees at the earliest opportunity, whether or not there have been fundamental and irreversible changes in the situation in the countries of origin as required by international refugee law. In the Great Lakes region, this attitude is evidenced by the Plan of Action for Voluntary Repatriation of Refugees in the Great Lakes Region of February 1995, which has already been mentioned, as well as the forced repatriation of Rwandese refugees from Tanzania and the fonner Zaire in 1996 under less than ideal conditions. In the Horn of Africa, the policy of states is laid down in the Declaration, Framework of Cooperation and Action Programme adopted at the Summit on Humanitarian Issues in Addis Ababa on 9 April 1992. In Paragraph 4(d) the heads of state solemnly declared: We are convinced that the ideal solution to refugee problems is voluntary repatriation in accordance with the existing regional and international instruments. It is to the credit of the region that there has always been full support for voluntary repatriation when conditions allow (Horn of Africa Summit on Humanitarian Issues, 1992, para. 4(d)). In Southern Africa, meanwhile, states are focusing on repatriation as the only solution to refugee problems. For example, South Africa, an influential country in this region gazetted a Green Paper on International

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Migration in 1997, which proposes "rights-regarding, solution-oriented temporary protection" for refugees. The Green Paper recommends mandated repatriation after refugees have received protection for some five years (South African Government, 1997). Factors influencing the new refugee policy and practice

The reasons for Africa's abandonment of the open door policy may be summarized as the pressure exerted on them by the sheer magnitude of the refugee problem, the impact ofrefugees on host communities, security concerns, the economic crisis and the impact of IMF/World Bank prescriptions on national refugee policy, and the failure of the international community to provide adequate assistance to refugee hosting countries to enable them meet their international obligations. Another reason is the growing xenophobia in some countries coinciding, as it does, with the democratization process in Africa which compels governments to take public opinion into account in the formulation of their refugee policies. These factors are analysed in greater depth below.

The magnitude of the rejugee problem For decades, Africa has been horne to millions of refugees. Today, refugee flows from one African country to another continue and in some regions the problem has assumed unprecedented proportions. In the Great Lakes, for example, the influx of some 250,000 Rwandese refugees into Tanzania within 24 hours from 28 April 1994, was a movement described by UNHCR as the largest and fastest exodus it had ever witnessed. Over the foHowing two months, the number of refugees fleeing from Rwanda to Tanzania rose to nearly a million people, with a further almost two million fleeing to Zaire. Such large influxes of refugees in such a short space of time make it difficult for states to meet their obligations under the international refugee instruments. The continued flow of refugees has also led some governments to conclude that their past policies of receiving and settling refugees were probably wrong. For example, the Tanzanian Minister for Foreign Affairs at the time of the Rwanda emergency once observed: In the past Tanzania has always approached the refugee crisis with the seriousness it deserves by receiving aH those who had fled their countries and providing them with shelter. The Government even gave them land and several were granted citizenship, for which Tanzania was praised. Experience has proved that such measures as granting of permanent refugee status, permanent settlement are not a formula for a permanent solution to the refugee crisis. The solution indeed lies in the countries of origin rather than in the countries of asylum which are burdened with obligations on [sic] the refugees (Rwegasira, 1995, p. 5).

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The minister also regarded an open door policy as rewarding countries of origin for their "deliberate policy of off-loading onto other countries of the region their unwanted extrapopulation, ... a bad practice which perpetuated [the refugee] crisis" (ibid.). Refusal to admit the refugees is seen as one way of stopping this practice.

The impact of hosting n3fugees on inter-state relations The second factor that has influenced recent refugee policies in Africa is to be found in the implications which granting refuge has on national se curity and inter-state relations. Even though the 1969 OAU Convention provides, as stated above, that the granting of asylum to refugees is a peaceful and humanitarian act not to be regarded as an unfriendly act by other states, in reality, granting asylum is resented by countries of origin. It tends to lead to deteriorating relations between the countries of origin and host states. A good example is the relationship between the new regime in Rwanda after the genocide and the then Zaire which had hosted hundreds of Rwandese refugees including those suspected of having participated in the genocide. A more recent example is the ongoing acrimonious bickering between Burundi and Tanzania which arises out of Tanzania's decision to grant refuge to Burundi refugees fleeing from political violen ce. In both cases, the tensions have resulted in clashes between the amled forces of the countries of origin and the host states. In the former case, it resulted in the overthrow of the Mobutu regime. In the 1960s and 1970s, most refugees fled from colonial, racist and apartheid regimes, or from countries with which host states had ideological differences. Accordingly, host countries were prepared to grant asylum to the refugees irrespective of the feelings of the countries of origin. Today, refugees come from one independent African country to another and host countries see no reason to expend excessive political and diplomatie capital on their protection. Thus, for example, on 20 March 1998, the Deputy Minister for Horne Affairs in Tanzania is quoted as telling a press conference that Tanzania was fed up with accusations by Rwanda that refugees had been crossing the Tanzanian border with Burundi and Rwanda on raids. He went on to say: "The Tanzanian Govemment told the UNHCR head [who had visited Tanzania in February 1998] that if the accusations went from bad to worse, it would definitely close the camps and repatriate the refugees back to their horne lands"H'. The Tanzanian Govemment simply does not see any reason why relations with Burundi and Rwanda should be strained because of refugees. This attitude contrasts sharply with Tanzania's policy in the 1960s, when not even military incursions by Portuguese forces into southem Tanzania could stop the country from granting refuge to Mozambican refugees. 16 Xinhua, 20 March 1998. Quoted in Awori, H., Editor/Publisher, East Aj1'ica.n News, 22 March 1998 at http://africaonline.eornlFeaturesAfricaNetworkNewsBulletinlEastAfrican News. Accessed on 22 March 1998.

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Host communit'ies Refugee policy fonnulation is also influenced by the negative impact of hosting refugees on local communities. The first such effect is internal insecurity. In the Great Lakes region and the Horn of Africa, re fuge es come from civil war situations and bring their weaponry with them. Some refugees use the weapons to commit crimes, including arnled robbery and poaching in which many lives are lost (Rutinwa, 1996a, pp. 11-14). In addition, because of their sheer numbers, refugees strain the environment, social infrastructure and other resources severely (Rutinwa, 1996c, pp. 296-8). Explaining why the Government of Tanzania decided in July 1995 that it was time for refugees to go horne, the then Minister for Foreign Affairs and International Cooperation stated: The influx of such large numbers of refugees has brought population pressures in the border districts sheltering the refugees, environmental and ecological destruction, depletion of stocks, havoc to the social services and infrastructure, insecurity and instability in the border areas (Rwegasira, 1995, p.4).

Inequitable distribution of the refugee burden The 1969 OAU Convention, the legal anchor of Africa's open door policy, was premised on the assumption that refugee-hosting states would receive assistance fmm other states, both fmm within and outside Africa. Between the 1960s and 1970s the amount of assistance which host countries received, mainly fmm outside Africa, was generally adequate. With the refugee crises of the 1990s, however, the assistance given to refugee hosting countries though significant, has not been adequate. For example, during the Burundi and Rwanda emergencies, Tanzania appealed to the international community to deal with mass influxes of refugees from both countries. The initial response to the appeals was good. Basic relief supphes arrived in time. However, as time went by, relief assistance deliveries fell below the amounts required by refugees. Tanzania continued to make appeals to the international community with httle success. It then decided to close its borders with both Burundi and Rwanda to prevent more refugees fmm entering the country. As the UNHCR Resident Representative, K. Doherty, later admitted, there was a lack of co operation on the part of the international community in providing services on a scale required for the number of refugees in Kagera and Kigoma region prior to Tanzania's drastic action (The Gum·d'ian (Tanzania), 21 June 1994, p. 1). According to the Tanzanian Minister for Foreign Affairs, the failure of the international community to give adequate assistance to Tanzania was the main reason for the closure of the borders (ibid.).

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Xenophobia Refugee policy formation in Mrica is also constrained by the changing attitudes of local populations towards refugees. In the 1960s, local populations were particularly sympathetic towards refugees. This was due to a number of factors. First, most refugees came from Southem Mrica, fleeing from racist, colonial and apartheid regimes. They were therefore readily accepted by the local populations who were in total solidarity with their govemments in standing up against colonial and racial domination in Mrica. In fact, these refugees were not perceived as refugees in the classical sense but as freedom fighters, who were retreating to mobilize themselves in order to fight for their right to self-detennination and the worth and dignity of the Mrican race. In Tanzania, asylum seekers from Southem Mrica were actually called wapiganiiauhu.ru (freedom fighters), not wakimbizi (refugees). Thus, local populations were made to perceive refugees in political rather than hu.manitarian terms. With virtually aB of today's refugees coming from independent Mrican countries, the justification for granting them asylum is, in the eyes of many local populations, entirely absent. In the 1960s and 1970s, the economic situation and domestic political dispensations in Mrica encouraged the positive disposition of local populations towards re fuge es. Mrican economies were expanding and were thus able to absorb refugees without impacting govemment programmes for local populations. Mrican govemments of all political shades established extensive welfare programmes, providing free education, health care and subsidized social services to their populations. More recently, however, the economic decline, and the austerity measures imposed by the IMF and the World Bank as a condition for economic aid, have forced govemments to withdraw all free services and to abandon welfare programmes. Under these circumstances, local populations find it difficult to understand why their govemments should extend to refugees goods and services for which they themselves have to pay. The above factors, and the social, economic and ecological impact of refugees on host communities noted above, have resulted in a negative attitude among local populations in major refugee hosting countries. The Deputy Minister for Horne Mfairs of South Mrica, Lindiwe Sisulu, might have been speaking for the whole of Mrica when she said: The social and economic mobility of large numbers of foreign nationals when many citizens remain impoverished, criminal activity on the part of some, and the presence of refugees has resulted in little differentiation between immigrants, economic migrants and refugees, by our citizens ... prejudice and intolerance towards foreign nationals are rampant, with refugees being the most vulnerable. Foreign nationals are perceived as a "problem" that must be "dealt with". (Sisulu, 1998, pp. 2-3).

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The democmüzat'ion ]JTocess

The growth of xenophobia is happening at the time when virtually an Mrican countries have adopted democratic forn1s of government. As UNHCR has observed, "because of the democratization process, governments increasingly accountable to the public opinion may be tempted to tighten their refugee policies in response to these negative perceptions ... " (UNHCR Southern Mrica, 1997a , p. 2). This is not only because being accountable to public opinion is the essence of democracy; failure to do so may come at a political cost. Indeed, another major reason which influenced the decision of Tanzania to tighten its refugee policy in 1995 was the then impending general election. Because of the impact which the refugee inflow had had on local communities, the mood of the people in Tanzania was anti-refugee. Politicians of an parties were aware of this and decided to play to the sentiments of the people by promising to send an refugees back if elected. The ruling party then took advantage of being in power to demonstrate that they could do this immediately. In May 1997, South Mrica published a Green Paper on International Migration, which proposed the replacement of the present racially-motivated immigration/migration system with a rights-based migration policy. Assessing the possibility of this Green Paper being translated into law in the light of growing xenophobia among the South Mrican population and the impending general election in 1999, Human Rights Watch had this to say: Unfortunately, with the 1999 general elections beginning to appear on the political horizon in South Africa, the window of opportunity for migration and refugee legislative reform is becoming increasingly smaller. In the current xenophobie climate, politicians may feel that rights-based arguments in favour of immigration reform means lost votes. And antiimmigrant sentiments within the ruling Mrican National Congress are becoming stronger, according to some sourees. Opposition political parties such as the National Party and the Freedom Front are increasingly clamouring for a crackdown on undocumented migration, not for more a rights-based approach. Thus, there is a risk that South Mrica, at least until after the crucial general elections of 1999, will continue to govern its immigration practices under legislation that is widely seen as inconsistent with international and constitutional obligations (Human Rights Watch, 1998, p. 139). South Mrica and Tanzania are not the only countries where public opinion has negatively influenced refugee policy. UNHCR Southern Mrica has recently noted that "with the growing trend towards democracy experienced throughout Southern Mrica ... governments are increasingly sensitive to pressure from the local population to implement domestic programs in favour of the local population rather than assistance to 'foreigners'" (UNHCR Southern Mrica, 1997b, p. 14).

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Restrictive rejugee policies in the west The erosion of the principle of asylum, as Frelick rightly observes, did not start in Africa. It started in Europe and the United States where, following the collapse ofthe Berlin Wall, "the prosperous, Western democracies realized that the new-found freedom to leave once-enclosed countries raised the spectre that millions would seek to enter the western countries" (Frelick, 1997, p. 12). In western Europe, states quickly re-erected the Berlin Wall not with cement but with legal barriers, visa restrictions and fast track procedures designed to keep out the unwanted (ibid.). In North America, the United States took the even more blunt step of interdicting on the high seas Haitian and later Cuban boat people, to prevent them from seeking asylum. These developments set bad examples for the rest of the world. Indeed, after closing its borders with Burundi and Rwanda to prevent further influxes of refugees, the Government of Tanzania cited the interdiction by United States of the Haitian and Cuban refugees to justify its action. The then Minister for Foreign Affairs said that it was a double standard to expect weaker countries to live up to their humanitarian obligations when major powers did not do so when their national rights and interests were at stake (Rwegasira, 1995, p. 4). The Great Lakes Action Plan for Voluntary Repatriation of Refugees, which proposed among other things safe zones and in-country protection, used a language remarkably similar to that used in instruments and documents generated in Europe in response to the refugee crisis that followed the collapse of former Yugoslavia. Similarly, the decision of the West African states to intervene militarily in Liberia in order, among other things, to address the humanitarian consequences of the civil war within Liberia itself, was emboldened by similar measures taken by the western powers in Bosnia-Herzegovina. Many countries in Africa now apply the "third safe country" rule, a rule whereby an asylum seeker is refused refugee status if he passed through another safe country and failed to apply for asylum there. This rule too was borrowed from European practice. Reinvigorating refugee protection in Africa It is thus fair to conclude that the institution of asylum is on the decline in Africa. Yet perhaps the need for it is as great if not greater than it was during the open door era. Despite the talk about economic and political renaissance in Africa, many states remain politically, socially and economically fragile. The political situation in the Great Lakes region and the Horn of Africa, which are Africa's major refugee generating regions, remains bleak. Southern Africa may be enjoying relative stability following the end of apartheid and the nonnalization of relations between all states of the region. However, the occasional rise in political temperatures in countries like Lesotho, Swaziland, Zambia and Angola over the past three years serves as a warning against complacency and of the need to be prepared to address potential emergencies in the region.

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Similarly, in West Africa, it remains to be seen whether the uneasy peace in Liberia and Sierra Leone, brought about by a pa.:x: Nigeriana., will hold in the long term. Nigeria itself, with its internal political squabbles, is not beyond implosion. As is always the case, every conflict is likely to send masses of victims searching for safety outside their own countries. This suggests that whatever the current developments, it is still important to safeguard the institution of asylum in Africa.

Addressing nmt cau.ses The most natural and logical way of dealing with a problem is to try to prevent it in the first place. The present regime of refugee protection did not concern itself with the question of prevention because it was an e.x post facta arrangement to deal with the two million or so persons who had already been displaced by the Second World War. During the Cold War, serious examination of the root causes of refugee problems was a taboo subject (Franco, 1996, p. 201). However, it is now recognized that given its nature and magnitude, the contemporary refugee problem cannot be resolved without addressing the causes of forced migration. As noted in the 1994 Addis Ababa Document, adopted by the symposium marking the 25th anniversary of the 1969 OAU Convention, armed conflicts and civil strife are the principal causes of refugee flows in Africa (Okoth-Obbo, George, 1995). Other factors which playapart in forcing people to flee their nornlal places of residence were pointed out as "ethnic intolerance; the abuse of human rights on a massive scale; the monopolization of political and economic power; refusal to respect democracy or the results of free and fair elections; resistance to popular participation in governance; and poor management of public affairs" (Addis Ababa Document, 1994, paras. 8-9). The symposium also observed that external factors contribute to forcible population displacement in Africa, particularly the inequitable international economic system which has left many African states very poor. Addressing the above problems requires a political and economic agenda aimed at eliminating ethnic strife and conflict; curtailing the arms trade; establishing a firm foundation for democratic institutions and governance; respect for human rights; and the promotion of economic development and social progress (Addis Ababa Document, 1994, Recommendation 1; UNHCR, 1997, pp. 268-75). Refugee flows are not a consequence of anonymous or abstract historical forces (UNHCR, 1997, p. 274). They are a result of deliberate actions taken by states and individuals, which sometimes have population displacement as their very purpose. The only way to deal with this cause of forced migration is to hold those states and individuals accountable for their actions under the doctrine of state responsibility and the emerging principles of individual criminal responsibility under international law.

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The articulation of such legal responsibilities could not only relieve the asperities of refugee flow, it could also "serve as a deterrent by rendering the expelling State accountable for damage to other States and the international community" (Garvey, 1985, p. 498).

Resolving security problems In order to address the problems of insecurity noted above, host states should, wherever possible, adhere to Artide 2(6) of the 1969 OAU Convention which provides: "For reasons of security, countries of asylum shall, as far as possible, settle refugees at a reasonable distance from the frontier of their country of origin." This will minimize, if not prevent altogether, cross-border raids by bandits into refugee camps. It will also make it difficult for camps to be used as base for launching attacks to countries of origin, thus removing the possibility of potential conflict between them and the host countries. Host states should also refrain from providing bases for refugees to launch attacks on their countries of origin. In many instances such attacks have the tacit and even military support of the host state. They violate basic norms which are designed to ensure stability in relations among states and are particularly well-developed in African regional international law (Rutinwa, 1997). It is true that the invasion by refugees of their horne countries is sometimes in pursuit of legitimate rights such as securing the right to return to one's own country. However, even legitimate goals must be pursued by appropriate means compatible with the system of internationallegal order. The above proposals have been applied before and seemed to work. In 1972 refugees, who had fled genocidal killings in Burundi, sought to use Tanzania's territory to fight the regime in power in Bujumbura (the capital of Burundi). Burundi reacted by bombing Tanzanian villages, prompting the Government in Tanzania to remove the refugees to designated places further inside the country to restrict their political activities. Gasarasi described this act as calculated to convey a dear message of goodwill to the country of origin (Gasarasi, 1988, p. 166). Nevertheless, this measure also enabled refugees from Burundi to continue to enjoy asylum in Tanzania. Further, host countries should disarm refugees and, wherever possible, avoid putting them in camps by allowing them freedom to choose where to live until such time as they are able to repatriate in safety and dignity. Where this is not possible, host countries should endeavour to ensure that refugee camps are small enough to be properly managed and to maintain a satisfactory level of law and order. Host countries are sometimes willing to take the necessary steps to address the security problems that arise in the course of refugee protection. However, the problem is a lack of resources. Therefore, as Recommendation 8 of the Addis Ababa Document states:

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The international community, the United Nations, the United Nations High Commissioner for Refugees, and other relevant organizations, should support and assist host Governments in fulfilling their responsibilities towards refugees in a manner consistent with the principles of refugee law on the one hand, and legitimate national security, social and economic interests on the other hand. In particular, financial, material and technical assistance should be made available to enable Governments to respond effectively to situations which may contribute to a deterioration in security, law and order in the refugee-hosting areas. In this regard, priority should be placed on isolating and disarming individuals or groups among the refugee populations who may be armed and threatening the lives of innocent refugees, local citizens, and humanitarian personneI, or engaging in other criminal acts (Addis Ababa Document, 1994, Recommendation 8(iv)). Specifically, host governments should be assisted to trace and impound for safe custody or destruction, dangerous weapons illegally circulating or hidden in refugee-hosting areas (Addis Ababa Document, 1994, Recommendation 8(v)) Enhancing 'international burden-sha,ring As recommended in the Addis Ababa Document, genuine international

solidarity and burden-sharing must be brought back to the centre of the refugee problem (Addis Ababa Document, 1994, Recommendation 11). "Donor countries, relevant inter-governmental and non-governmental organizations, should provide financial, material and technical assistance to the African asylum countries hosting refugee populations. In the case of large-scale influxes, such assistance should necessarily be provided on a timely basis in order that lives are not lost" and to ensure that host countries are not forced to dose their borders to prevent further influxes of refugees (ibid, pp. 8-9). Burden sharing should also extend to redressing the negative impact of refugees on host communities. All costs and damage which host countries would not have suffered but for refugees should appropriately be seen as a joint responsibility of the international community. This is not only just, it is essential if public opinion towards refugees is to remain positive. Endi.ng xenophobia.

Apart from the impact of refugees on host communities, other reasons for the growth of xenophobia in Africa arise primarily out of the failure of the public to appreciate the special situation of refugees. Accordingly, the best way to tackle the problem of xenophobia is through public awareness campaigns and education at all levels of society. In this regard, the

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following recommendations by the Southem Africa Regional Proteetion Meeting in Maputo in June 1997 may be instructive: Considering the impact of public opinion on govemment policies in open and democratic societies in Southern Africa, as well as the need to foster a more positive attitude towards refugees by the general public and to counter xenophobie sentiments, efforts at public education and awareness should be stepped up, and the relationship between UNHCR, governments, NGOs and civil society at large should be strengthened. To this end, the following activities should be pursued: (a) Lobbying of Members of Parliament. (b) Sensitization of senior government officials, politicians, judges, lawyers, legal organizations, law enforcement and military personneI, church groups, academics, trade unions and all other influential groups in civil society. (c) Training of human rights NGOs on refugee law and protection. (d) Designation of good-will ambassadors to increase public awareness of refugee issues and further UNHCR's goals with governments and the media. (e) Formulation of a public information strategy for dissemination and awareness building campaigns, including the written media, radio and television. (f) In close cooperation with UNESCO, include a "Culture of Peace and Tolerance" curriculum in primary and secondary schools throughout the sub-region. (g) Introduction of refugee law courses at university level and promotion of academic research on refugee-related issues relevant to the sub-region (UNHCR, Southern Africa, 1997b, pp. 14-15).

Reaffirmati.on of asylum wOTldwide Africa will not commit itself to asylum if other regions of the world, particularly the more affluent ones, are retreating from it. As Bill Frelick notes "if the United States land other affluent countries] treat refugees and asylum seekers without regard to fundamental refugee principles, rest assured that other countries will cite that as a justification for their own misbehavior." (Frelick, 1997, p. 14). If states treat refugees in a principled manner, this will give them a moral ground to call upon other states to live up to their obligations under international refugee law. Conclusion In recent years, Africa's approach to the refugee problem has changed from a traditional "open door" policy to a retreat from commitment to the institution of asylum. This change is evident in restrictive admission polieies, expulsion of refugees to places where they face harm, disregard of the rights of refugees, and a retreat from durable solutions.

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The principal factors which have influenced Africa's new policy are the magnitude ofthe refugee problem and its impact on host countries, the limited capacity of host countries, the absence of equitable burden sharing, and the adoption of similar restrictive policies elsewhere in the world. To some extent, therefore, the reasons for the present restrictive refugee policies in Africa are beyond the continent's control. Accordingly, safeguarding the institution of asylum in Africa requires ajoint and concerted action at the international level to avert or overcome the problems currently experienced by host countries. The measures to be taken include addressing the root causes of forcible population displacement in Africa, mobilization of resources to enable Africa to cope with refugee flows, and a worldwide commitment to a principled approach to the refugee problem. The sooner these measures are taken, the more likely we will be to see a new commitment to asylum in Africa.

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REFERENCES Books Erikson, John (1996). The International Response to Conjlict and GenoC'ide: Lessons from the Rwainda, E::cperience: Synthes'is Report. Copenhagen: Steering Committee of the Joint Evaluation of Emergency Assistance to Rwanda. Human Rights Watch (1998). Prohibited Persons, Abuse of Undocumented Migrants, Asylum-Seekers, and R~rugees in South Africa. New York: Human Rights Watch. International Federation of Red Cross and Red Crescent Societies (IFRCRCS) (1997). World Disaster Report 1997. Oxford: Oxford University Press. Rutinwa, Bonaventure (1997). Intenwt'ional Law and Anned Acti:uities oj Cum:rnuiniil'ies 'in EX'ile ÜL Cenl;ml Africa,. (Occasional Paper No 1). London: International Alert. Lawyers' Committee far Human Rights (1995). African &codus. New York: Lawyers' Committee for Human Rights. van Selm-Thorburn, Joanne (1997), R~r/.lgee Protection in Eumpe: Lessons oj the Yugoslav Crisis. The Hague: Martinus Nijhoff. South African Government (1997). Green Paper on International Migmtion. Pretoria: South African Ministry of Horne Affairs. UNHCR (1997). The State University Press.

(~r

the Worlds

R~f/.lgees.

Oxford: Oxford

US Committee for Refugees (1997). World Rejugee Sw'Vey 1997. Washington DC: US Committee for Refugees.

Articles in books Franc 0, Leonardo (1996). "Protection of Refugees and Solutions to the Refugee Problem: A Human Rights Perspective" in Schimid, Alex (ed.). Wither R~rugee - The R~rugee Crisis: Problems and Solutions. Leiden: Interdisciplinary Research Programme on Root Causes of Human Rights Violation (PIOOM), pp. 201-7. Frelick, Bill (1997). "The Year in Review" in World R~rugee Survey 1997. Washington DC: US Committee far Refugees. pp. 14-19.

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Documents

Pirouet, L. (1988). "Refugees in and from Uganda in the Post Colonial Period" in Hansen, Hart. R. and Twaddle, Mark (eds.). Uganda Now: Between Deca~JJ a,nd Development. London, James Currey, pp. 239-53. Articles in journals

Anonymous, "News from RPN Readers in Arua Uganda." Refugee Participation Network. Vol. 22, September 1996. p. 19. Garvey, J.I. (1985). "Toward a Reformulation of International Refugee Law." Ha,rvard Human Rights Journal. Vol. 26, No. 2. pp. 483-99. Hathaway, Janles and Neve, Alex (1997). "Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection." Harvard Human Right,s Journal, Vol. 10, Spring 1997. pp. 115-211. Okoth-Obbo, George (1995). "The Addis Ababa Document on Refugees and Forced Population Displacement in Africa." International Journal of Refugee Law. Vol. 7, Special Issue, July 1995. pp. 301-19. Rutinwa, Bonaventure (1996a). "Refugee Protection and Security in East Africa." R4ugee Participation Network. Vol. 22, September 1996. pp. 11-14. Rutinwa, Bonaventure (1996b). "Beyond Durable Solutions: An Appraisal of the New Proposals for Prevention and Solution of Refugee Crises in the Great Lakes Region." Journal ofRefugee Studies. Vol. 9, No. 3 (September). pp. 312-25. Rutinwa, Bonaventure (1996c). "The Tanzanian Government's Response to the Rwandan Emergency." J0l1ir1Lal of Rejugee Stud·ies. Vol. 9, No. 3 (September). pp. 291- 302. Rutinwa, Bonaventure and Kathina, Monica (1996). "Refugees; MPs' Demands for Repatriation 'Unnacceptable'." Da,il:y Nation (Kenya). 4 May. p. 4.

The Guardian (Tanzania), 21 June 1994:1. "Appeal: Open Borders to Save Dying Souls." The (}ua:rdiam (Tanzania), 19 July 1995:1. "Border Closure Triggers Debate." Unpublished material

Dolan, Chris (1997). The Changing Status of Mozambicans in South Africa. and the Impact of this on Repa,triation to and Re-'integra,tionin Mozambique. Final report to the Norwegian Refugee Council, Febmary.

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Gasarasi, Charles (1988). The Effect of Africa's Exiles/Refugees upon Inter-Africa.n State Relat'ions: Cor~tlict a:nd Coopemtion 1958-1988, Ph.D thesis (politics). Tulane University. Government of Tanzania (1995). The Tanzania Refugee Policy, Implementations Record and the Tanzan:ia. Pos'ition on the Rwanda a:nd Burundi Re.fugee Related Pmblems. Dar es Salaam: Tanzania Ministry of Foreign Affairs. Horn of Africa Summit on Humanitarian Issues (1992). Decla:ra.tion, Framework of Cooperation, and Acti.on Programme, Addis Ababa, Ethiopia. 9 April. Kälin, Walter (1996). Towards o. Concept of Tempo·ra.ry Protection. Study commissioned by UNHCR, Division of International Protection. Maluwa, Tiyanjana (1991). The Goncepl 0/ Asylum and lhe Prolecl'ion of Refugees in Botswana: Sorne Legal and Political Aspects. Paper presented at the 2nd International Refugee Advisory Panel (IRAP) Conference, Oxford, 1991. Rwegasira, Joseph (1995), Key Note Address delivered by the Honourable Minister of Foreign Affairs and International Cooperation, J. Rwegasira MP, at the International Workshop on the Refugee Crisis in the Great Lakes Region, Arusha, Tanzania. 16-19 August 1995. Rwelamira, M., and Buberwa, L.G. (1990). Refugees 'in Botswana, Lesotho and Swaziland: Some Preliminary Notes on their Magnitude, Ghara.cteristics and Sodal Support Systems. Paper presented at the Africa refugee seminar, organized by the African Refugee Centre, University of Dar es Salaam, Arusha, Tanzania. 30 July-3 August 1990. Sisulu, Lindiwe (1998). Key Note Address delivered by the Honourable Deputy Minister of Horne Affairs, L.N. Sisulu, at the International Conference "Refugees in the New South Africa". Pretoria, 27-29 March 1998. UNHCR Southern Africa Operations (1997a). Briej~ng Notes jör the Meeting wUh Heads qf UN Agencies. UNHCR Regional Strategy and Cooperation with Southern African Development Community (SADC). Pretoria. UNHCR Southern Africa Operations (1997b). Reporl on So'/.uhern Africa Regional Pmtection Meeting. Maputo, June 1997.

[4] A Reconsideration of the U nderlying Premise of Refugee Law James C. Hathaway*

Table

0/ Contents

0/ Law to Govern Refugee Movements and .. 134 Statlls. A. 1920-1938: Humanitarianism Qllalified..... ........ 137 B. 1938-1950: Human Rights Proteetion Qllalified. . . . . .. 139 C. 1950 and Beyond: Se/f-Interested Control . . . . . . . . . . . .. 143 The Rejeetion 0/ Comprehensive Protection .. . . . . . . .. . . . . ... 144 A. Strategie Limitations. 145 B. Promotion 0/ Western PolitiealObjectives . . . . . . . . . .... . 148 The Establishment 0/ Seleetive Burden-Sharing . . . . . . . . . . . .. 151 A. Euroeentrie Conventional Foeus. . . . . . . . . . . . . . . . . . . . .. 151 B. Institutional Policies of Containment in the Third World 157 C. Formal, Bllt Not SlIbstantive Universalization . . . . . . . .. 162 Minimal International Intervention in Proteetion Decisions. . .. 165 A. State Control 0/ Refugee Determination. . .. . . . . . . . . . . .. 166 B. Politieally Mal/eable Definitional Framework . . . . . . . . .. 168 C. Screening Based on Domestie Interests . . . . . . . . . . . . . . .. . 171 D. Limited Dllty .. . . . ... . . . . . . . .. .. .. .. . . . .. . . . . ... 172 T oward a Critieal Appraisal 0/ Refllgee Law. . . . . . . . . ... . 174 .

1. Thc Emergenee

1I. 1II.

IV.

V.

• Assodate Professor, Osgoode Hall Law School of Yark University, Toronto. Submitted in partial fulfillment of the requirements for ehe degree of Dactor of Science of Law in the Faculty of Law, Columbia University. The author is fully responsible for the views expressed, but is grateful for the critiques of Gervase Coles, John Evans, Richard Gardner, Lisa Gilad, Harry Glasbeek, Guy Gaodwin-Gill, Anhur Murphy, and Oscar Schachter; and the contributions of his srudents past and present, in particular Suzanne Egan, Kaci Liao, Jeffrey Meade, David Pccrasek, Steve Smart, Maureen Smith, and Steven Tress.

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Refugee law is often thought of as a means of institutionalizing societal concern for the well-being of those forced to flee their countries, grounded in the concept of humanitarianism 1 and in basic principles of human rights. 2 In practice, however, international refugee law seems to be of marginal value in meeting the needs of the forcibly displaced3 and, in fact, increasingly affords a basis for rationalizing the decisions of states tO refuse proteetion. 4 This Anicle is an inquiry into the underlying premise of international refugee law, with a view toward critically assessing its actual and potential relevance in meeting the needs of refugees in a universal context. Ir is my argument that neither a humanitarian nor a human rights vision can account for refug!!e law as codified in the United Nations Convention Relating to the Status of Refugees 5 and the Protoco16 adopted under its authority. 7 If conceived of in humanitarian terms, refugee law would be a politically neutral response to the needs of suffering persons who have in some way been forced to leave their homes. 8 The law would not focus on the "how" or "why" of the need for protecdon, but rather would inquire only into the extent of the 1. International proteetion is gran ted tO refugees for reasons of humanity. The founding fathcrs of internationallaw-Grodus, Suarcz, and Wolff-vicwed asylum as a natural right of the individual.and a duty of the State. They bclieved ebat, in pursuanee of an international humanitarian duty, States which granted asylum were aeting on behalf of the ciri/aJ maxima or thc eommunity of Srates. Today, we translare thc iden of universal sociccy into thc humanitarian duty of international protection of refugees, and the individual right of thc refugee co seek internarional protection. Puno, The Baris and RPtionale of International Re/ugee Law, 7 PHIUPPINES Y.B. INT'L L. 143, 144 (1981); see also Hofmann, Re/ugee-Gmerating Policies and the Law 0/ Stale Responsibility, 45 ZEITSCHRIFT FOR AUSLÄNDISCHES ÖFFENTUCHES RECHT UND VÖLKERRECHT 694 (1985); Tsamenyi, The Boat People: Are They Re/ugm?, 5 HUM. RTS. Q. 348, 364 (1983). 2. Garvey, Toward a Re/rmnulation ojIn/ernational Re/Ilgte Law, 26 HARV. INT'L L.J. 483,483 (1985). 3. See, e.g., Stein, The Nature 0/ the Re/ugee Problw, in HUMAN RIGHTS AND THE PROTECTION 01' REI'UGEES UNOER INTERNATIONAL LAw 47, 52 (A. Nash cd. 1988). 4. U.S. COMM. FOR REI'UGEES, THE ASYLUM CHALLENGE TO WESTERN NATIONS 8 (1984) ("Sorely pressed by the size of immigrant 1I0ws generally and responding to their own population und economic preSliures, many nndond governments have applied a rigoraus staodard in judging whether they should grant an individual refugee stams."). 5. Convcntion Relaring to the Stams ofRcfugees, July 28, 1951, 189 U.N.T.S. 137(entered into force April 22, 1954) {hereinafter Convention}. 6. Protocol Relating tO the Status ofRefugees, Jan. 31, 1%7,606 U.N.T.S. 267 (entered into force Oetober 4, 1967) {hcreinafrer ProtoeoIl. The primary objective of the PIOtocol was to remove the temporal limitation of the Convention, which restricted refugee status to persons whose fear of persecudon stemmed from an event that occurred before January 1, 1951. 7. See, t.g., Goodwin-GiII, Re/ugees: Tht Flint/ions and Limits of thc Existing Protc(/ion System, in A. Nash 00., supra note 3, at 165-66. 8. "Humanitarian acdviry seeks to alleviate suffering without concern as tO how or why it occurred or as tO the cause of which the victim may be either partisan or opponenr. Striet neutraliry' is an absolute necessity of international humanitarian acriviry •••. " Crabb, Thc Definition of Re/ugte as Be/onging 10 International HUl1lallitarian Law, 21 AllAHABflD WKLY. REP. BULL. 36, 37 (1983).

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denial of physical security or liberty leading tO and consequent upon departure. The essence of a refugee law inspired by humanitarianism would be the establishment of a general commitment to, at the least, meeting the basic human needs of refugees" whether by the provision of temporary material assistance, the facilitation of return to their country, or the grant of asylum abroad. Humanitarian principles would require states to make a meaningful and needs-based contribution co the human welfare of all involuntary migrants, whatever ~he cause for their fIight. 9 Alternatively, a foundation in notions ofhuman rights proteqion would dictate a form of refugee law in which, at least the-most basic elements of human liberty and need would be protected.,10 While cultural, political, and economic factors have thus far preduded international consensus on what constitutes the fundamental·elements of human rights law,.u there isagreement that some ,rU€ianingful, albeit not fuHy comprehensive, level of international, proteetion is appropriate. 12 As traditionally stated, the human rights paradigm for refugee law would not hold every involuntary migrant to be a refugee, 13 but would focus instead on the cause for Hight. 14 Relevant qqestions would thus inc1ude: Was the putative refugee denied one of the

9. Puno, Jupra note I, at 149 ("If the weI/äre of the refugee is of Concern to the international community, then the rationale of refugee Iaw is the civitaI maxima, or the community of states, and ehe provisions of refugee law consdtute a humanitarian duty. "). 10. See, e.g., Meron, Teaching Human RightJ: An Overview, in HUMAN RIGHTS IN INTERNATIONAL LAw: LEGAL AND FOLIa ISSUES I, 16-17 (T. Meron ed. 1984). The linkage between the denial of human rights and refugee- Starus has been expressly positeel by rhe Council of Europe. Themas, Re/ugees: A New Dimemion in International Human Right!, 70 AM. SOC'Y INT'L L. PROC. 58, 69 (1976). The Cartagena Dec1aracion of ten Latin American States, approved by the General Assembly of the Organization of American States in 1985, recognizes a human fights rationale for refugee law. United Nations High Commissioner for Refugees, (UNHCR), O.A.S. Genera/ AJJembty: An Inter-American II/itiative on Rejugees, 27 REFUGEES 5 (986). 11. See, e.g., Sinha, Humal/ RighIJ: A Non-Western Viewpoint, 67 ARCHN POR RECHTS UND SOZIAL PHILOSOPHIE 76, 88(981). 12. As long as there are different sodal, economie, cultural and ideological circumsrances in the wodd, so long as there are different religious traditions, there will be different concepts of human rights. In a pluraliscic wotId we must accept pluraIism also in ehe field of human rights. Bur there will be always one basic eore of human fights, [al few irreducible humanitarian principles determined by human dignity which have [0 be respected under all circumsranees. Pahr, Human RighIJ in a Plura/hti, World, in LECTURES OF THE INTERNATIONAL INSTITUTE OF HUMAN RIGHTS SIXTEENTH STUDY SESSION 4-6 (1985). 13. See gmerally G. Coles, The Human Rigbts Approach ro the Solution of the Refugee Problem: A Theoretical and Praccical Enquity (Mac. 1988) (unpublished manuseript, available at the Rcfugce Law Research Unie, Osgo04e Hall Law School, Oneario, Canada). 14. See, t.g., Melander, Thc Protection 0/ Refngees, 18 SCAND. STUD. J. 153, 158 (1974) ("(11here must be a plausible danger of pecsecution for political reasons, a danger of arbitrary measures againsr a person's life or liberry. Consequently, it,is necessaty to make an objeccive appraisal of the circumstances which have been invoked. ").

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fundamental human rights guaranteed by international law?15 How serious was the infringernent of that right? To what extent was an effeetive remedy short of flight available? In essence, was the decision to seek proteetion in another state reasonable in view of the prevailing norrns of international human rights law?16 To codify a standard of conduct in international human rights law is to remove it from the realm of pure discretion, to constrain somewhat the scope for the exercise of power politics, and to provide a basis upon which states may be called upon to account for their behavior. 17 While law provides no guarantee of complianee in a world of sovereign nation states in whicl). coercive authority is denied tO the international community,18 it nonetheless creates a context in whieh respeet for basic human rights can be addressed and at least occasionally promoted. Current refugee law does not fully ernbody either humanitarian or human rights principles. This Artide will demonstrate that modern refugee.law in fact rejects the goal of comprehensive proteetion for all involuntary migrants and imposes only a limited duty on states, far short of meeting the needs of refugees in a comprehensive way. SimHarly, even in relation tO the arguably narrower principles of human rights,. refugee law falls shore, with the foeus of rights proteetion limited to civil and political liberties, and with definitional and procedural frameworks which favor attainment of political goals at the 15. Je has been argued that the foeus on govemmental miseonduet inherent in the human righes foundation of refugee law may seriously undermine eonstmetive response to the problems of refugees. See Garvey, !upra nOte 2, at 484 ("When labelled as perseeutors, [stares] reaet as governmencs always reaet. They assert theit sovereigney and castigate as polirically motivated the human rights claims made against ehern. To censure these governmems as persecurors is often the surest route co exaeerbating a refugee crisis beeause it diminisbes tbe opportunity tO gain tbeir necessary eooperation."). 16. The eore meaning of perseeution readily includes the ehrene of deprivation of life or physieal freedom. In irs braader sense, however, ie remains veey mueb a question of degree and proportion; less Overt measures may suffice, such as the imposition of serious economic disadvantage, denial of access to employment, tO tbe professions, or tO eclueation, or otbet restrietions on the freedoms traditionally guaranteed in a democrat,ic society, such as speecb, assembly, worship, or freedom of mo\'ement. G. GoODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAw 38-39 (983). 17. To the extent of [imernational human rights] obligations, the striet doccrine of national sovereigney bas been eut down in !Wo cmeial respeets. First, how aState treats its own subjeets is now the legitimate concern of internationallaw. Secondly, rhere is now a superior international standard, established by COmmOn consent, which may bc used for judging the domestic laws and the acrual conduct of sovereign States within their own territories and in the exercise of their internal jurisdictions, and may tberefore be regarded as ranking in the hierarcby of laws even above national eonstitutions. P. SIEGHART, THE INTERNATIONAL LAw OF HUMAN RIGHTS 15 (984). 18. See, e.g., Watson, Legal Throry, Effoacy and Validity ;11 the Dntlopment 0/ Humall RighlJ N()T1I11 i1l11ltematiol1al Law, 3 U. ILL. L.F. 609, 635 (1979) ("Since there is no organized superior sanetion, the system ultimately relies for ics implementation on autolimitation and restrainr on the part of states. This self-restraint resuhs from the continuacion of an individual and eollectivc state of opinion that the prevailing practices ought in the main co eontinue to be observed. ").

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expense of an even-handed assessment of risk to human dignity. Refugee law is unresponsive to the needs of mOst refugees, who must accept whatever emergency assistance is voluntarily provided for them through official or nongovernmentaI initiatives. 19 The explanation for these shortfalls in refugee law can be found in the fact that the pursuit by states of their own well-being has been the greatest factor shaping the international legal reponse to refugees since World War H. eurrent refugee law can be thought of as a compromise between the sovereign, prerogative of states to control immigration and the reality of coerced movements of persons at risk. 20 lts purpose is not specificaIly to meet the needs of the refugees themselves (as both the humanitarian and human rights paradigms would suggest), but rather is to govern disruptions of regulated international migration in accordance with the interests of states. The resulting state of compromise in the international proteetion of refugees is problematic for twO principal reasons. First, it represents a weak international commitment to refugees. While laudable efforrs are made by a variety of agencies to attend tO the immediate needs of refugees often unmet by the narrow scope of legal proteetion, both emergency assistance and durable solutions are beyond their exclusive control and can be frustrated by the exercise of negative state discretion. 21 Second, the cuerent trend of dealing with most involuntary migrants on an extralegal basis results in the differential treatment of persons similarly at risk. Although the few refugees who fall within the scope of the formal legal protection system enjoy less than fuHy adequate rights,22 they may at least invoke protection against return to their state of origin23 and are entitled to enjoy secure conditions of

19. INDEP. COMlli'N ON INT'L HUMANITARIAN ISSUES, REFUGEES: THE DYNAMICS OF DISPLACEMENT 49 (1986).

20. Refugee law ... developed alongside immigration control and the rise, or entrenehment, of the nation-state. Coerced and other uncontrolled population movements challenge that aspecr of sovereignty subsumed within the principle of communiry and self-determination. Refugee law-the identification and selection of a limited dass of persons in need who are tO be considered worthy of proteetion and assisrance---meets halfway or less ehe challenge of the inevitable. Goodwin-GilJ, supra note 7, at 168. 21. [U]NHCR's effeceiveness is necessarily condieioned by ehe face of ehe sovereignry of States. Thus, no assisrance program can be initiated unless by invitation and agreement of the Stare in which it will be run. Likewise, no State is bound to admit UNHCR personneJ. The protection that can be provided without presence i5 likely to be less than usually effective. ld. ar 166. Moreover, as is discussed later in the ArticJe, ehe availabiJity of funding and nature of the assistance tO be rendered, if an)', is wholl)' within the discretion of donor states and organizations. 22. See Adelman, Obligation and Re/ugm, in A. Nash ed., Iupra note 3, at 82. 23. Convention, supra note 5, at art. 33( 1).

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exile until they may safely return,24 The numerous refugees who do not qualify must make do with whatever proteetion and assistanee states and international institutions are prepared to offer, Beeause state response tO refugees should be based on their predicament rather than on the basis of value-Iaden distinetions, the seleetive foeus of refugee law is invidious. It is therefore neeessary tO consider the reformulation of the international legal response to the needs of refugees. Beeause international law must be agreed to by, rather than imposed upon, states, and beeause states have proved assiduously resistant to assuming obligations viewed as ineonsistent with their own national interests, it appears that the most viable approach to a renegotiation of international refugee law would be to dispense with a formal universal eommitment tO the provision of seeure conditions of exile. We should instead emphasize regional and interest-driven proteetion in tandem with a general obligation tO share the burden of addressing refugee needs. This kind of regime would be eapable of revitalizing the role of international law in the protection of refugees and of moving it in a more eomprehensive and needs-based direetion. I. THE EMERGENCE OF LAW TO GOVERN REFUGEE MOVEMENTS AND STATUS

Refugee law, with its predominant emphasis on the establishment of secure conditions of exile, is fundamentally a product of European political culture. The first international legal standards governing the proteetion of refugees were designed by European states after World War I for the protection of European refugees;25 therefore, the role of refugee law reflected the politieal norms of European society.26 In particular, the evolution of the nation-state system dramatically affected the nature of the collective response to the needs of involuntary migranrs. In the medieval era,27 the mlers of Europe were motivatcd by universalist politieal philosophy tO open thei! doors to many groups forced by various cireumstances to seek sanetuary away from their hornes. The practice of sheltering those compelled to flee was eontin24. Rcfugees are, for example, encided co juridical StaCUS, access co gainful employmenr, and welfare. Id. arcs. 12.-14. 25. All of ehe refugee accords in force beeween 1922 and 1950 embraced only European refugees. See A. GRAHL-MADSEN, THE STATUS OF REFUGEES IN INTERNATIONAL LAw 9-16 (1966). 26. See, t.g., Harhaway, The Evolution of Re/ugee SWUJ in In/ernational Law: 1920-1950, 33 IN.T'L & CoMP. L.Q. 348, 352 (1984); Jee a/Jo]. VERNANT, THE REFUGEE IN THE POST-WAa WORLD (1953); Holbom, The Legal StaflJJ of Politkal Refugm, 1920-1938, 32 AM, J, INT'L L. 680 (1938). 27. See generally H. KOHN, NATIONALISM: ITS MEhNING AND HISTORY 12-13 (1965); W. ULLMANN, PRINCIPLES OF POLITICS AND GOVERNMENT IN THE MIDDLE AGES 19 (1961).

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ued during the era of liberalism, both as an acknowledgment of individual liberties and as a· means of promoting communal enriehment. 28 By the beginning of the twentieth century, however, the view in Europe of the state as an instrument for carrying out a spiritually inspired mandate had been discarded in favor of a conceptualization of the state as an independent political apparatus dedicated to advancing the general good of its own population. 29 This shift away from a commitment to the effectuation of a higher law and the emergent narrow focus on perceived self-interest led to ,two rypes of restrictionist poliey that closed borders to many would-be migrants. 3o First, a belief emerged that national sovereignty was best' assured by a linkage between cultural similarities and political organization.3~ The spirit of the American and French revolutions had imbued states with the conviction that a "people" should be entitled to political selfdetermination within a defined territory and that the legitimacy of the state was in some sense contingent on the extent to which its actions promoted a common cultural consciousness. 32 States thus came to use control over immigration as a means of excluding those persons whose backgrounds differentiated them from the national norm 33 and who might as a result constitute threats to ehe unity of the nationstate. 34 28. See generally M. MARRUS, THE UNWANTED: EUROPEAN REFUGEES IN THE TwENTlETH CENTURY 6-7 (1985) ("'Central governments pursued their own interests by fitcilitating immigration and discouraging or even forbidding emigration. Whether ro be roxed, to comribure tO the growth of manumerureS and commetCe, tO offer specialized knowledge, or tO join the military, talemed or afBuenc foreigners were frequently deemed useful co society and welcomed wich open arms by European monarehs or municipalities."); R. NATHAN-CW.POTOT, LA QUAUFlCATION INTERNATIONALE DES REFUGIEs ET PERSONNES DEPLAcEES DANS LE CADRE .DES NATIONS UNIES 33-47 (1949). 29. See H. KOHN, slIpra note 27, at 188 ("mhe state emancipated itself by secularization and found a ncw basis for its actions in the rational principles of the raison d'etat, the reason of the state. "). 30. See G. GoODWIN-GIU, INTERNATIONAL LAw AND THE MOVEMENT OF PERSONS .BETWEEN STATES 96 (1978). 31. Karnenka, Po/ilieal Nationalism-The Evoilltion 01 the ldea, in NATIONALISM, THE NATURE AND EVOLUTION OF AN IDEA 8 (E. Karnenka ed. 1973) ("Nationalism (I'amour national) rook the place of the love of mankind in general (l'amour general). "); see also A. SMITH, THEORlES OF NATJONALISM 16 (1971). 32. See, •. g., H. KOHN, slIpra note 27, at 23. 33. Nationalism cominues tO playa role in exclusion of refugees. 'Tl1he lines of sovereignty ... have berome even more sharply drawn. One convenient means of delineating such boundaries has been the encouragement of national and racial homogeneity reinforced by immigration restrietions in areas where freedom of movement has long been unimpeded." Fowler, The DtwlopingJllrisdiction olth~ United Nations High Commissioner Jor Refllgees, 7 HUM. RTS. J. 119, 120 (1974). 34. The view has been expressed that there is some legitimacy tO concerns arising from the immigration of significant numbers of cultural!y dissimitar persons: The problems of cross-cultural Bows need careful exarninadon. These problems can be of a quice different kind from chose encountered in intra-culrural Bows. Ic can be one kind. of problem to have a mass Bow within an area which is a region in a broad culrural sense; it

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Second, the emergence of systems of national economics led states to be more concerned with promoting the general economic weH-belng of their Own populations. 35 The vantage point of state interest permitted, and arguably required, the subjugation of humanitarian instincts to the attainment of national economic goals. 36 Immigration came to be seen less as a means of addressing the needs of fieeing individuals or of recognizing their right to self-determination, and more as a vehicle for facilitating the selection by states of new inhabitants who could contribute in some tangible way (such as skills or wealth) to the national weH-being,37 International migration was nO longer to be a function of the particularized needs or ambitions of the would-be immigrants, but was instead tO be closely controlled tO maximize the interests of sovereign nation-states. 38 This desire by European states to establish normative standards and control mechanisms to stern the arrival of less desirable immigrants coindded with aseries of major population displacements within Europe during the earIy part of the twentieth century.39 The most prominent migrations were the fiight of some one to two million Russians between 1917 and 1922 and the exodus during the earIy 1920's of hundreds of thousands of Armenians from Turkey.40 Due to the social crisis engendered by the forced emigration of huge numbers of refugees, policies of se1ecting immigrants on the basis of national advantage alone were obliged to yield. 41

can be quite another co have a mass How across regions whieh are distinccively different in respecr of civilizations and hiscory. G. COLES, PROBLEMS AruSING FROM URGE NUMBERS 01' ASYLUM-SEEKERS: A SruOY OF PROTECrION ASPECTS 9 (1981). 35. H. KOHN, THE 10E" 0" N"TION"L1Sld 198-99 (1944). 36. Fowler, sflpra note 33, at 120 ("Governments suffering from one of the warst economic depressions of all times [during the 1930'5] '\'Iere increasingly apathctic tO the need for taking in more people who might become wards of ehe state."). 37. In the U.S., for example, "qualitative contrals were a way of ensuring that only the best, ehe brighecse, and the most producrive immigrants were admitred .•.. " Scanlan, IfI1t1Jigralion Law and the I11l1Sion olNflnurica! Contro!, U. MIAl>1I L. REV. 819, 823 (982). 38. See Krenz, The Rejflgee aI a Sflbject 01 International Law, 15 INT'L & COMP. L.Q. 90, 95

(966). 39. Grahl-Madsen, The Leagfle olNations and thc Rejllgees, 20 AllAHABAD WKLY. REP. BULL. 86, 86 (l982) ("[O]ne of the really pressing problems which arose in the wake of' the First

WorId War and the ensuing great revolutions, was the exodus of the great masses of human beings seeking refuge in foreign countries. "). 40. Memorandf1m Sflr /a qflestion dts rifflgi& rosses, Conference des organisations russes 4 (1921); sec also J. SIMPSON, REFUGEES: PRELlM1N"RY REPORT OF" SURVEY 21-22 (1938). 41. Chamberiain, The MaJs Migration of Rejflgees amllnternatiolldl Law, 7 FLETCHER F. 93, 102 (1983) ("In situations of mass migration, the faCt is that those states wishing to control their own borders are often those most complerely unable tO da so .•.. Evcn though asylum is tecognized in cusromary law as st ehe discrceion of nation srares, discretion can seldom be used when one is faced wüh thousands of people encamped on onc's borders. ").

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A. 1920-1938: Humanitarianism Qualified

In this historieal eontext, refugee law originated as an attempt to aceommodate the reality of a largely unstOppable flow of involuntary migrants across European borders within the broader poliey of restrieting immigration. 42 In its initial form, refugee law thus constituted a largely humanitarian exeeption to the proteetionist norm,43 with the screening of immigrants eliminated for large groups of fleeing persons. 44 The first refugee aecords emerged between 1922 and 1926 to address the influx of Russian and Armenian refugees. 45 These agreements were extended to several similarly situated refugee groups in 192846 and to politieal and religious dissidents from the Saar in 1935. 47 In the wake of National SociaÜsm, those victims of the Nazi regime able to escape their homelands were similarly proteeted.48 Administrative responsibility was entrusted to several international agencies 49 authorized tO issue identity and travel documents to refugees as a means of faeilitating their entry into eountries of asylum. 50 There was no attempt co stop or even to eontrol the movements of refugees, but rather only an efforr tO regularize their status in the state of reception or resettle42. See M. MARRUS, supra note 28, ae 51-8l. 43. The exclusive jurisdiction oE stares ro control ehe entry of persons into their territory is now constrained byan increased recognition of proteetion as a humanitarian dury. G. GoODWINGILL, supra nore 30, ac 138. 44. For example, in the case of Russian refugees, "[o]n presentation of the certificate (which identifies the bearer as a Russian refugee), the refugee may in cerrain circumstanees be admiued inro the State which he wished ro enter . . . . "Arrangement with Regard tO the Issue of Certificates ofIdcntity ro Russian Refugees, July 5, 1922, para. 5, 355 L.N.T.S. 238. 45. These are the Arrangemenc wich Regard to the Issue of Ccrtifieares of Identity tO Russian Refugees, supra nOte 44, and the Arrangement Relating to ehe Issue of Ccrtificates of Identity tO Russian and Armenian Refugees, May 12, 1926, 2004 L.N.T.S. 48. 46. Specifically contemplated were Assyrian, Assyro-Chaldaean and assimilated rcfugees, and eerrain Turkish refugees. Arrangement Concerning the Extension ro Other Catcgories ofRcfugces of Ccrrain Measures Taken in Favour of Russian and Armenian Refugees, June 30, 1928, 2006 L.N.T.S. 65. 47. 16 LEAGUE OF NATIONS O.J. 1681 (1935). 48. Additional Protocol Coneerning the Status of Refugecs Coming from Germany, Sept. 14, 1939, 4634 L.N.T.S. 142; Convention Concerning the Status of Refugees Coming from Germany, Feb. 10, 1938, 4461 L.N.T.S. 61; Provisional Arrangement Coneerning the Status of Refugees Coming from Germany, July 4, 1936, 3952 L.N. T.S. 77. 49. Thc responsible organizations during this period inc1uded the League of Nations High Commissioner for Refugees (1921-1930), the Nansen International Office (1930-1938), the High Commissioner's Office for Refugees from Germany (1933-1938), and the High Commissioner's Office far All Refugees (1938-1946). Melander, supra note 14, at 153 n.2. 50. The first refugee definitions were formulated in response tO the international legal dilemma caused by the denial of Stare protection . . . The . refugee definitions were designed co eorreet this breakdown in the international order and aeeordingly embraecd persons who wished co have the freedom of international movement but found themselves in the anomalous situation of not enjoying the legal proteerion of any State. Hathaway, s/lpra note 26, at 358.

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ment. States furcher agreed to guarantee certain basic rights co refugee immigrants by international convention. 51 Yet even in this largely humanitarian phase of refugee law, the nation-state philosophy and promotion of national economic goals restricted its application. First, only those persons who had succeeded in leaving their country were assisted;52 states were reluctant to recognize even the most compelling humanitarian claims of persons still within their state of origin. Second, the international agencies 53 which were entrusted with control over the protection of refugees were not guaranteed any funds tO provide relief aid to refugees. Rather, they were merely entitled to seek out and coordinate the spending of externally financed contributions. 54 Third, the refugees, Once admitted to a contracting state, enjoyed no guarantee of nationalization,55 hut rather were able to invoke only the more limited range of rights established by either domestic law On aliens or applicahle international conventions. 56 Fourth, and perhaps most importantly, refugee law at this time evinced a willingness to assist only some, hut not all, personS forced to live outside their state of origin. When the High Commissioner of the League of Nations sought leave in 1927 to extend protection to several categories of European refugees "who hitherto have had nO means of subsistence and are unable in their present position to obtain any,"57 he was met with the reply that "the mere fact that certain classes of persans are without the protection of any national government is not sufficient to make them refugees . . . . "58 Assistance was explicitly limited to only those persons whose displacement could ,be attributed to World War I, although the High Commissioner's report made it clear that the degree of humanitarian need 51. The Convention "secured freedom of aeeess to the law courts, and the most favourable treatment in respect tO we1fiue, relief, and ta.'i3.tion; it exempted the refugees from the reciprocity principle; ie provided for the optional institution of refugee eommittees in every eountry, and it foresaw eerrain modifications of the measures restricting employment." Holbom, supra note 26, at 690. 52. Repbrl by the High Commissioner, League ofNations Doc. 1927.XIII.3, at 13 (1927). 53. See supra note 49. 54. Holborn, sl/pra note 26, at 687. 55. For both legal and eeonomie reasons, the states were unwilling co take the obvious and easiest way of settling the statuS of the refugees; that is, by naturalization .••• From the economie side, there was the fear that the refugee, if nationalized, might more casily become a charge on public assistance. Holborn, supra note 26, at 682. 56. It is noteworthy [hat while 54 and 38 stareS initially agreed to collaborate in the rccognition of ccrrificates of identiry for Russian and Armcnian rcfugccs, rcspcctivcly, L. HOLBORN, REFUGEES: A PROBLEM 01' OUR TIME 9 (1975), only eight states went on to tatify the first international convention (in 1933) that placed speci6c obligations on states in terms of their treatment of these refugees. P. ROHN, WORLD TREATY INDEX 259 (2d cd. 1983). 57. Report by the High Commissioner, supra note 52, at 7. 58. 8 LEAGUE 01' NATIONS O.J. 1137 (1927).

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of the rejected groups was at least as great as that of the refugees to whom protection had been extended. 59 In these various ways, the humanitarianism of the early European refugee laws was significandy attenuated. Through a combination of refusal to embrace internal refugees, an unwillingness to roake legally binding commitments to refugee relief, the provision to refugee immigrants of less than fuH rights, and discrimination in refugee definition, states demonstrated adetermination to limit the scope of the altruistic humanitarian exception to existing immigration norms.

B. 1938-1950: Human Rigpts Proteetion Qualified The movement of refugee law away from principles of humanitarianism intensified between 1938 and 1950. In particular, the determination of refugee status on the basis of a broadly defined lack of protection came to an end. No longer was it enough co be a member of a group of displaced or stateless persons; rather, a particularized analysis of each claimant's motives for Hight was requisite to recognition as a refugee. With the assumption of international responsibility for refugee protection by the Intergovernmental Committee on Refugees in 1938,60 only those individuals forced-to emigrateUon account of their political opinions, religious beUefs (or) racial origin"61 qualified for assistance. Similarly, the United Nations Relief and Rehabilitation Administration (UNRRA)62 insisted on concrete evidence63 of persecution; the successor International Refugee Organization (IRO)64 required the demonstration of "valid objections"65 to return to the state of origin. 59. The exc1uded groups included 9000 Rmhenians unable co migrare from Ausrri" and Czechoslovakia; some 16,000 Jews living in Bukowina, Bessarabia, and Transylvania who were unable to secure citizensbip; and approximately 110,000 refugees in Central Europe, mosdy former Hungarians, many of whom were desicous of emigrating, but were unable co do so because they lacked passports. Report by the High Commiuioner, supra note 52, at 14. 60. See generally J. SIMPSON, REFUGEES: A REVIEW OF THE SITUATION SINCE SEPTEMBER 1938, at 2-3 (1939). 61. Resolution of the Committee, I.C.R. Doc., July 14, 1938. 62. While tbe Uni ted Nations Relief and Rehabilitation Administration (UNRRA) was not established in order tO provide assistance tO refugees, there were many individuals among those for wbom UNRRA was responsible who feared persecution were ebey tO be repatriated. J. VERNANT, supra note 26, at 30-31. UNRRA Resolution 71, passed in August 1945, resulted in an explicit shift of the organization's mandate tO inc1ude refugee protection. UNRRAJoURNAL 152 (1945). 63. No concrete evidence of persecution was, bowever, required of victims of "discriminatory Nazi legislacion." UNRRA European Region Order 40(1), July 3, 1946. 64. Tbe International Refugee Organization (IRO) was established by the United Nations in December 1946 as successor tO the Intergovernmental Committee on Refugees and UNRRA. 1 U.N. GAOR (67th plen. mtg.) at 1454, U.N. Doc. N265 (1946). 65. Constirution of the International Refugee Organization, part I(C)(1), opened /or signature Dec. 15, 1946, 18 U.N.T.S. 3.

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The move to a more individuated conception of refugeehood signalled the shift from a refugee law based on general humanitarian concern to provide en bloc proteetion, to a more selective focus on assisting persons whose basic human rights were jeopardized. 66 This evolution is traditionally explained in two ways. First, the massive nature of the refugee problem during and immediately after World War II67 arguably made it necessary to reserve limited international resources to assist the "most deserving" among the multitude of displaced and suffering persons. As already noted, the human rights perspective on refugee law provides an enhanced ability to fine-tune the refugee determination process, thus offering the assurance that refugee recognition is fair within the context of an inability tO meet the full range of human needs. 68 Second, the choice of a human rights framework was consistent with the more general political response to the atrocities of Nazi Germany.69 The recognition that some constraints on a state's authority over its citizens are necessary70 led to the indusion of human rights proteetion as a cornerstone of the Charter of the United Nations in 1945,71 followed by the elaboration of a detailed International Bill of Rights commencing in 1948. 72 lt was contextually logical that refugee 66. The Western states that advocated the individuated definition argued the imporrance of faciLitating the right of individuals tO migtate in search of personal freedom and !iberey. 1 U.N. GAOR C.3 (8th mtg.) at 23, U.N. Doc. NC.3/22 (1946). 67. Throughout the last year of ehe war, a1l the liberating armies in Europe found masscs of refugees under foot, whom few tried tO differentiate •... At the end cf September [1945]. the Western AlIies cared for nearly seven million displaced persons; the Sovicts c1aimed they cook charge of an equal number. The largest group, in both cases, werc Soviet citizens, ove! 7.2 million forced laborers and prisoners of war who had survived the ordeni of wardme Germany. M. MARRUS, supra note 28, at 298-99. 68. See supra notes 10-16 and accompanying text. 69. P. SIEGHART, supra note 17, at 14-15 ("When the Second World War .•. ended, thc victorious nations determined co introduce into international law new conecpts designed tO outlaw such events for the future, in order to make their reeurrence at least less probable. Thc means adopted were ehe establishment of new intergovernmental agencies • . . and the development within these fora of a new branch of international law, specifically concerned with the relations between governments and their own subjects. "). 70. Id. 71. The Preamble tO the Charter of ehe Vnited Nations, dcclares lhat: "We thc Pcoplcs of the United Nations Determined ••• to reaffirm faith in fundamental human rights, in the dignity and worth of ehe human person, in the equal rights of men and women and of nations large and small ... do hereby establish an international organization tO be known as the Vnited Nations.· UNITED NATIONS CHARTER, preamble. 72. This indudes the Universal Dedaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A (111). U.N. Doc. A/81O at 71 (948); the International Covenant on Economic, Social and Culrural Rights, tttkJpud Oec. 16, 1966, enlered inlo !me Jan. 3, 1976, G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 49. U.N. Doc. A/6316 (966); and the International Covenant on Civil and Political Rights, at/Qpud Dec. 16, 1966. enleret/ed infO force Mar. 23, 1976, G.A. Res. 2200 (XXI), 21 V.N. CAOR Supp. (No. 16), 3t 52, V.N. Doc. A/6316 (1966).

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law should follow the more general pattern of achieving some measure of basic proteetion from abusive national authority through the adoption of a human rights strategy. Yet, much as the humanitarian premise was not completely adhered to during the first phase of refugee law,73 so was the inB.uence of the human rights paradigm mitigated during this second period. On the one hand, refugee law suffered from the general conceptual narrowness of human rights during this era. 74 The prevailing notion of human rights only addressed a narrow aspect of human dignity: the civil and political rights firmly rooted in Western political thought and consistent with Western political goals. 75 The economic, social, and cultural goals promoted by the socialise bloc were not regarded as rights enforceable by law76 and ehe developmental needs of the Third World were largely excluded from the scope of human rights protection. 77 73. See SHpra notes 52-59 and accompanying text. 74. See Sinha, supra note 11, at 88:

Id,

[l1he Universal Declaration of Human Rights, ehe Covenant on Civil and Political Rights, and the Covenant on Economic, Sodal, and CuItutal Rights ... have, by and large, issued from one patticuJar concept of sociaJ order. The inspiration for this approach has come from such suceessful doruments as the English Bill of Rights, or the American Plantation Deelarations and the Deelaration of Independence, or the French DeeIaration des Droits de I"Homme er du Citoyen. However, the roasOn for the suecess of thc single-catalog approach in any of these particular socieries has been due to the existenee of a set of conditions there, narnely, rhat the sodery was held together by one dominant eultore defining its vaJues, thar it cntcrrained one dominant ideology . . . .

75. A. ChSSESE, INTERNhTIONhI. I.t..w IN h DIVIDEO WORLD 148 (1986); see also Pahr, supra note 12, ar 5. A broader vision of whar eonsitotes human rights 'is offered by Schachter: "[f]ew will dispute that a person in abject eondition, deprived of adequate means of subsistence, or denied the oppormniry to work, suffers a profound affront tO his sense of digniry and intrinsic woerh. Economic and sodal arrangements cannot therefore be exeluded from a consideration of the demands of digniry." Schachter, Human Dignity as a Nrnmative Conetpt, 77 AM. J. INT'L 1. 848, 851 (1983). Throughout this ArricJe the e>.-pression "dvil and poIitical rights" incJudes proteerion based on race, colour, sex, language, religion, politicaJ or other opinion, national or sodalorigin, properry, birrh or other status, and is used to distinguish these aspeets of human digniry recognized in the International Covenant on Civil and Politienl Rights, supra note 72, from the socio-economic fights guaranteed by the International Covenant on Economic, SodaI, and Culmtal Rights, supra note 72. 76. Trubek, Eeonomic, Socia/, and Cuttural Rights in the Third War/d: Human Rights Lawand Human Neds Programs in T. Meron ed., supra note 10, ae 213. As one author queries, "The socalled economic and sodal rights, insofar as they are intelligible ae a11, impose no ... universal dury •.•• When the authors of the Uni ted Nations Covenant on Economic and Social Rights asseer that 'everyone has the right tO sodal securiry,' are they saying that everyone ought tO subscribe to some form of world-wide social securiry system from which each in turn rnay benefit in case of need? If something of this kind is meant, why do the United Nations Covenants make no provision for instituting such a system? And if no such system exists, where is the obligation, and where the right?" M. CRANSTON, WHhT ARE HUMAN RIGHTS? 69 (1973). 77. Aericle 28 of the Universal Declaration of Human Rights is perhaps the ooIy standard of the era ro address this issue, at least in genetal terms: "Everyone is entitled tO a sodal and international order in which the rights and fteedoms set foerh in chis Declaration can be fuIl y reaJized." Universal DecIaration of Human Rights, supra note 72. "[Alt the United Nations the enundation and reiteration of an inseparable link berween human rights and development are

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The preoccupation of this period's refugee agreements with the pro· teetion of persons whose civil and political rights were endangered, to the exclusion of others whose human dignity was offended in some different way, is eoneededly understandable in historical eontext. Nonetheless, it must be reeognized that the linkage between refugee law and human rights was seleetive in a way that reinforeed the eeonomic and politieal hegemony of major Western states during this time. 78 Moreover, the civil and politieal rights framework ineorporated in the refugee accords of the immediate post·war years was suseepti. ble to ideologicaUy inspired interpretation. In particular, an early UNRRA definition79 and the IRO definition,80 both adopted in 1946, were applied by some states to include politieal dissidents within the seope of refugee proteetion. 81 No demonstrable evidence of humani· tarian need, no plea of past or anticipated persecution was required: the mere assertion of ideological ineompatibility between the refugee claimant and the state of origin was treated as proof of refugee status. 82 This approach refleets the Cold War polities of the Western states that dominated the refugee agencies83 and caused mueh resentment on the part of East BIoe states, which argued that they were being saddled of recent vintage . . . . " Nanda, Di:lJelopment and Human Righu: The Rote o/InlUoIE, REPORT OF THE FORTY-FIFTH SESSION OF THE EXECUTIVE COr.UoIlTTEE OF THE HIGH Cor.UonSSIONER'S PROGRAMblE, '\I 19(d), U.N. Doc. NAC.96/839, (1994) [hereinafter RI!PORT OF THI! FORTY-FIFTH SESSION] (weIcoming ehe accessions and successions of Dominica, the formet Yugoslav Republic of Macedonia, and Tajiklstan). 5. Id. '\I 19(c). 6. Addend11m, slIpra note 3, '\I 19(b).

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inadequate because present-day forced migration frequently is driven by violence lacking a petsecutory focus.1 These scholats generally support an expansion of the criteria for international protection and the adoption of approaches more appropriate for the evolving needs of forced migtants.8 The second group of critics is comprised of policy analysts who assert that a dramatic inctease in numbers of asylum-seekers has made the Refugee Convention too costly for governments in both social and economic terms;9 and who contend that changes in tefugee Hows ftom East-West to South-North justify restrictions in access to durable asylum. lO

7. For example, Arisride R. Zalberg, Astei Suhrke, and Sergio Aguayo have distinguished among "acrivists," "targets," and "victims," all of whom require international proteetion. Yet thc CODvention proteets only ehe fiese ewo caeegories of refugees. They have proposed a reformulation of the refugee definition co embrace all those "victims" whose asylum needs are attribntable to a well-founded fear of violenee. ARISTIDE R. ZOJ.BERG ET AL., ESCAPB FROM VIOLENCE: CoNFLICT AND REFUGBE CRISIS IN THE DEVELOPING WORLD 30-31 (1989). 8. For example, Gervase Coles seaeed in his inBuential article, Appro:1(hillg Iha RC/Jlge') Proh/tm Todey, ill REFUGEES AND INTERNATIONAL RELATIONS 373 (Gil Loeseher & Laila Monahan, eds., 1989) that "[ulpdating ehe approach eo refugee problems co eake imo account the new political dynarnics and problems is now an urgent task." Reviewing ehe post-1951 history of refugec protection, Coles has assencd ehae, by the laee 19705, "the UNHCR Seatute began co show its age badly and the 1951 Convention beeame largely irrelevant in many refugee 5ituations, particularly in the Third World." Id. ae 383. Coles is panicularly critical of the "exile bias" of the 1951 Convention and suggests chat the dominant objecrive of the refugee regime should bc proteerion of the right to reside safely in one's eountry of origin. [d. at 387, 392-97. While latgely agreeing wirh Coles' assessment, other refugee scholars caution that his focus on pteventive strategies and long-term solutions might tempe govemments to "seize on the Coles framework in order co diven attention from their failure tO provide meaningful proteetion to refugees." James C. Hathaway, Retonceipillg Refi'gee Law a1 Hllman Rigbl1 Prolcaioll, 4 J. REFUGBE Smo. 113, 117 (1991). As the ride of Hachaway's anicle suggests, he also supports a fundamental reconceprualizarion of refugee law. He favors hroadening the basis for proteetion to inc1ude nll persons who lack meaningful protection of their basic human rights, generally graming them not durable asylum but rather temporary proteerion under a binding international system of burdensharing. Id. at 124-28. 9. Kay Hailbronner, for example, finds ie "apparent thae the Geneva system •.• was not fit to cope with large refugee movements." Kay Hai!bronner, TwplJrary and fAtal Responses 10 Fom-d Migrations: A Commenl, 35 VA. J.INT·L L 81, 92-93 (1994). Charles B. Keely and Sharon Stnnton Russell describe the "increasing skepticism" of industrializcd Stares toward asylum-seekers and estimate the financial cost of asylum adjudication and accommodarion of asylum-seekers nr $8-10 billion per year. CharIes B. Keely & Sharon Stanton RusselI, RespwJeJ o/ImlllJlrial Coulliries 10 Ar)'lum-Seekers, 47 J. INTL AFF. 399, 402 (1994). They find a new tendency to delinc asylum-seekers as "major securiry challenges," id. at 413, and predict that "developed count ries will seek alternatives tO asylum ehat provide refuge within the developing world, including within safe areas of [the refugeesl own councries." ld. at 417. 10. See gmcrally David Manin, The New Aryl11m Scckcrs, in THB NBW ASYLUM SEEKBRS: REFUGEE LAw IN THE 1980s (David Manin, ed. 1988) (suggesting that changes in the cuuses of Bighe and the demographie (harneter of refugee Jlows inco the developed world were pladn,!; unanticipaeed Strains on ehe Geneva Convention regime); Michiel den Hond, 'Je/-Aga Rc/llgc;s": 111 Sean:h qf Balallte and Coopcratio71, in 'DIE NEW ASYLUM SEEKERS: REFUGEE LAw IN TIUl 19805, supra, at 49.

International Refugee Law

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231

In addition, pragmatie refugee advocates, reeognizing the erosion in support for the Convention among traditional asylum States, somedmes join in the eall for a new regime. I I By the Convention's fortieth anniversary in 1991, the eombined voices of its erities had become so damorous that T. Alexander Aleinikoff eould refer co it as a "Convention Emeritus."12 This Article will set forth an argument that the Refugee Convention is not obsolete, but that it is ineomplete, as it has been from the outset. lts drafters included those provisions that were politieally feasible whieh did not amount to all that was required to ereate a workable, eomprehensive international system of refugee proteetion. Gnly by progressive interpretation of the Convention and by recognition of extra-eonventional norms has the international eommunity been able to pateh together a minimally adequate regime for the proteetion of foreed migrants.13 This fragile regime, built upon the foundadon of the Refugee Convention, is imperiled by the inereasing insistenee of poliey makers that the Convention is an artifaet of a past era. Yet the Refugee Convention is no more ill-suited to this age than to the one in whieh it was founded. The end of the Cold War has done less to alter the nature of refugee flows than to transform the politieal eontext within whieh the Convention is applied. 14 A erisis exists not beeause the Convention fails to meet the needs of asylum-seekers, but beeause it meets them so weH as to impose burdens that are no longer politically tolerable to the States parties involved. The ehallenge for poliey makers and refugee advoeates is to eure those ßaws in the Convention frarnework that impede effeetive proteetion of today's vast number and variety of foreed rnigrants, without eliminating the Convention's greatest assets, its binding legal status 11. Anhur Helton eoncludes [hat "[t]he international refugee regime that currendy seeks to proteet and assist refugees is not able in many instantes tO assuage the cooeerns of States or ensure respeet for the basic; human rightS of those foreed [0 move . . . . A new international regime coneerning foreed migration is needed." Anhur C. Helton, Thc Rofe 01 International Law in the TWUnd t.he applicatjon to he inadmissihle. Deeision as 10 Ihe ildmissibilitiJ 0/ ,1pplication No. 43844/98 l>iJ T.I. a[Jainst Ihe U.K .. ECtHR (Third Chamber). 7 March 2000 (unpublished) 16.

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courts 14 acknowlcdgc that its implcmcntation potcntially may brcach thc prohibitions 01' refoulemcnt in international law, limited powers 01' judieial review and a reticent and delayed stand on the issue by UNHCR have rendered the safe third country practice one 01' the most successful 01' the controversial practices adopted in the formative stage, 1 ö Some 20 years after its inception, it is about to enter the domain 01' supranational hard law,16 illustrative 01' how the proliferation 01' eore asylum notions spread from the bottom-up, rather than from the top-down, The London Rcsolution of 1992 on Host Third Countries is convenicntly thought of as the starting point for the notion 01' safe third country, thus moving the focus onto a regional level dominated by 'soft' policy-making. The Danish dause demonstrates that its story starts six years earlier and illustrates the need for an expanded method of inquiry. Although the adaptation 01' legislation was often motivated with a reference to the acquis - and thus to the regional proeess - in national poliey debates, the dire necessity to adapt domestic law then and there was rather a result of concrete sub-regional pressures. The impact of German legislative changes on its neighbours provides a powerful illustration ofthis point. In Germany, the formative stage peaked in 1993 with the comprehensive limitation of the right to asylum in the German Constitution,17 incorporating a 'hard' version 01' the safe third country concept lacking suspensive efIeet, introducing the notion of safe eountry of origin and launehing an aeeelerated airport determination procedure. The repercussions of these amendments and their 1996 affirmation by the Federal Constitutional Coures were again amplified sub-regionally and rippled through a number of neighbouring states in the following years. In Poland, the parliament incorporated safe country notions into the 1997 Aliens Aet. Notably, the Polish safe third country criteria directly mirror those employed by the Germanlegislature and the German Federal Constitutional Court. 1Y In Hungary, the German moves were closely followed and 'seen as a eonfirmatory

14

15

15

17

18

19

In the landmark ease of Adan ami ,1itscquer. the lIK Housc of Lords heId that the true interpretation ofthe 1951 Convenlion musl be laken as a slandard j(w assessing lhe legalily or removal under lhe Dublin Convcntion. Regina v Secre/,ary o(Sl,aiej()r {he Home ])eparlmenl, Hx Parle futon. Reqina v Secretary o{S/,ale !öl' the Horne Department. Ex Parte Aitseguer, UK Rouse of Lords, Judgments of 19 Dec. 2000. available al hUp://www.parliamcnLthe-slationery-oflkc.eo.uk/pa/ld200001/ldjudgmtljdOO 121 9/adan-l.hlm (aeeessed on 1 January 2(01). For an overview o[,how ['ar Ihe nolion 0[' sa['e Ihird counlry had spread already by Ihe end 0[' Ihe 1990s, see N. Lassen, S'{~fe TIJird Cmmtry Poficies in European Countries (1997). For a more rcC(~nt ovcrvicw, sec S. Egan and K. Cosle]]o, Re(uyee Law, A ComparaUve SLud!l, ReporL COl11missioned b!l Lhe Depal'LmenL oJ ]ustiee, Equality ami IAI IV Re!i".,n (1999), See COIlunlsslon ur the European COllullunities, 'Arnended Proposal rUf a Council Dlreclive oIl .MlnünurIl Standards on I'rocedures in Membcr Stales IClr Granling and Withdrawing RcI'ugce Stalus', Ilrusscls, 18,6.2002, COM(2002) 326 final, Arts 27-28 and Annex l. For abrief prescntaIion, sec Noll, 'Thc Non-admission and Return 01' I'rolccIion Seckcrs in Ccrmany', 9 International JOHrnal o( R(fHgce La\\! (1997) 415. with [urlher refcrenecs in note 128, HVerj'nE 94. 49. See also, ibid. For an extensive commentary on the judgment, see R..Marx, Urteilt> de..;; Hlle~fG vom 14, IVlai 1996 mit Erhlutenmgen, Ergänzungsband zum Kommentar zum i\sylveljährensgesetz (1996), Micolajczyk, 'Poland', in Byrnc ct 01. supra note 3, at 68-71.

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licence to intro du ce safe country rules' .10 Ey contrast, '[t]he Union as such (as distinct from its Member States) had little direct impact on the Hungarian refugee policy. No serious negotiations on Justice and Horne Affairs were held until 1996, and even afterwards attention was focused on prevention of illegal border crossings, cooperation against organized crime and harmonization of visa policies.'21 Most strikingly, ihe Hungarian regulation of the safe third couniry notion cannoi be explained merely with resort to the London Resolution on Host Third Countries of 1992, which does not list accession to the ECHR as a criterion for safety. The Hungarian regulation does, and is emulating German and Austrian practice rather than the abstract and imprecise formulations in the acquis. 22 Since 1993, there have been no radically new norms or practices conceived by domestic law-makers. A testament, perhaps, to the fact that the development of new resiricUve concepis had reached a point of saturation. The curreni practice is for siaies to amend their asylum practices by experimenting with various formulations of existing concepts,23 or by simply importing those already implemented by their neighbours.

B TransjcJrmaiion: From BilaLeral Prolijc~raiion Lo Regional Harmonization AUempis by European immigration minisiers io harmoniz:e asylum law ushered in the trans formative phase in regional asylum policy. The product of this was the range of piecemeal agreements, and instruments, most of them soft law, that comprised the asylum acquis commzmautaire that candidate countries are compelled to implement in order to fulfil the criteria tor admission to the European Union. 24 It is this period that transformed controversial state practices, as weIl as important minimum guarantees, from national refugee law into a regionalized body of instruments. The initial developments ofthe transformaüve siage overlapped in Urne wiih ihe formative stage and, significantly, with the pre-accession process. From thc signing of thc Dublin and Schcngcn Convcntions in 1990,25 until 1999 when the Treaty of Amsterdam entered into force, the creation of regional 20 11 22 J)

24 Ji

Nagy, 'Hungary'. in R. llyrne el. al.. supra note 3, 138, al 165. Ibill.. at 164. For details, sec ibid .. at 182.

Thc so-callcd Pacific Solution. ilnplcmcntcd by Australia. is an extreme form of migration control through proxy slales. sharing lhe ideology 01' 'remoie conlro]' descrihed in lhis article. It aims at lhe redircction of all boat arrivals from AustralhIn mainland to otfshorc proccssing locations. Thc UK proposals ol'Spring 2DD) represenl an allempllo imporllhis model inlo lhe European lhealre. Wilh lhe political support of Dcnmark and thc Nethcrlands, thc UK aims to launeh otl'shorc Transit l'roeessing Centres and Protection Zones, and to redireet spontaneously arriving asylum seekers there. Supra note 4. Convention applying the Schengen Agreement of 14 June 1985 between the Governments ofthe States 01' the Benelux Eeonomic Union. the Federal Republie 01' Cermany and the French Republic on lhe Graduall\bolition of Checks at their Common Bordcrs, 19 June 1990. Convention Determining the Statc Responsihle I'nr Examining f\pplicalions !(,r /\sylum T"dged in One nl' lhe Memher St.ales 01' lhe Community, Dublin, 15 june 1990 Lhercinatter Dublin Cnnventionj. Entcred into töree 1 September 1997.0J 1997 C 254/l.

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instruments was earried out in intergovernmental fora and largely behind elosed doors. The bulk 01' this regional frameworlc was eonstrueted as 'soft law'. It eneompassed a sub-stratum ofwidely implemented European praetiees whieh seek to deter and defleet the arrival of asylum seekers, provide guidelines for minimum guarantees tor those asylum claimants who aetually sueeeed in entering Western Europe. and establish meehanisms tor expediting the proeessing oftheir applications. While progress towards a harmonized asylum poliey was slow. staggered and widely eritiqued. a hard eore of the European asylum acquis started to emerge. By means of Chapter VII 01' the Sehengen Convention. later to be replaeed by the Dublin Convention, binding legal obligations were assumed by Member States in order to ereate an effeetive system for alloeating responsibility among Member States for determining a claim tor refugee status. These two treaties established systems that operated upon the assumption that all Member States otlered equivalent levels 01' protection from refaulement under the 1951 Convention; an assumption left largely unchallenged until court decisions from the House ofLords and the European Court of Human Rights. 26 In the transformative stage, the objective of harmonization was to bring about a convergence 01' national asylumpractices. The European Commission and the Council of Ministers recognized that by the late 1990s etIective harmonization to create a common asylum system had not been successful. 27 The greatest obstacle to the effectiveness of the rudimentary steps undertaken towards harmonization in this period was the fact that both binding and non-binding norms were fraught with idiosyncrasies 28 and thus invited application in a different manner and to a varying degree by Member States. 29 The failure to effectively standardize practices to ensure equitable treatment 01' asylum seekers throughout the current membership of the European Union has created one of the most signiticant challenges to refugee protection in the region. The intergovernmental efforts at harmonizing European asylum law failed to pro du ce the legal norms and mechanisms to ensure a comprehensive and coherent 26

~7

Sec supra noles 14 and 13 rcspeetively. This was explicitly acknowledged by the European Commis~;ion in 2000: 'Substantive asylum law and

asylum proccdurcs havc not

28

29

yCL

bccn approximatcd and thc rccogniUon rates f'or ccrtain nationalitics

ean vary signifieantly from one Member State to another. so it is understandable that people in need of international proleclion may Ilnd one Member Stale a more aUraetive destination than another'. Enropcan Commission, Commission Staff\Norking Paper. 'Hcvisiting thc Dubltn Convcntion: Dcvcloping Community Legislalion for Determining whieh Member Stale is Responsible ]"r Considering an Application for Asylum Submitted in One ofthe Member States'. SEC (2000) 522, 21 \1arch 2000, para. 30. Sec, c.g .. llank, 'The Emergent ElIl'oliey on Asylum and Rel'ugecs. The Ncw Framcwork Set by thc Trcaty of Amsterdam: Landmark or Standstill?'. 68 NJIL (1999) 8.

Thc most striking cxamplc is pcrhaps Lhe persistent. variation in domcstic lcgislation on {he !lotion 01' safe third country, aeknowledged in a study carried out by thc Couneil of Ministers. These differcnccs remained. although t\lVO sollla\l\/ instruments had emharked on 'harmoni,.ation'. See Cnulleil 01' the Enropcan Union, 'Monitoring thc lmplemcntation of Instruments Adopted concerning Asylum Summary Reporl orthe Member States' Replies to the Queslionnaire Launched in 1997'. 17 july 1998, Doc. No. 8886/98, ASIM 139, at 23-31.

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regional approach to asylum. Yet during this period the restrictive notions and devices reflected in the non-binding instruments of the acquis became entrenched into state practice across Europe, The steady wave of national legislative reforms may be attributed to the adoption of instruments which attempted to harmonize these practices within the European Community, and later, the European Union, As indicaied above, i1 is iempting Lo crediL ehe spread of safe ihird couniry prac1ices during this period to the abstract and non-binding 1992 London Resolution on Host Third Countries. The tangibility of the Brussels dictate offered by the London Resolution made it a ready point of reference for analysts tracing regional asylum policy, and an attractive justification for politicians introducing national safe third country practices. 30 Although the political justifications for asylum reforms during this period pointed to Lhe need io bring domesLic policy inline wiLh European iniLiaLives, ihis overL reference to the emerging acquis deceptively masks the role of sub-regional dynamics in shaping state practice. As policy analysts examining asylum in Europe in this period observe, restrictive policies were legitimated in public political discourse by the need to participate in the EU asylum and migration regime, creating 'strange bedfellows' in political terms. 31 Ministers and civil servants were able to draft instruments that reflected their own domestic immigration and asylum agendas behind closed doors. They ihen were able io uiili:.::e ihese insirumenis as a Lool in advancing Lheir positions in domestic political fora. 32 In Hungary, 'the shadows of the Union and its acquis loomed large after prospects for accession became realistic' ,33 with government officials and MPs referring to 'EU practice' as if it contained a tangible and precise standard with which Hungarian legislation must conform. Reflective of the general perception in the ßaltics, the adoption of the acquis was perceived as an entry ticket writ large to '!\Testern integration and a new security framework. J4 Faced with such exisiential argumenis, who would argue ihae Lhe couniry engaged in an excessively

)0

1\.ccording to Thie1emann, the ' emerging EU migration regime was userul to those in the Kohl govcrmncnt who had Jung sought domcstic rcfoml and who 1l0W started tu justify thcir rcstrictivc policy

H

proposal by arguing that Germany's participation in the European regime required constitutional amendmenL This argumenl was repealedly made by respective Ministers 01' the [nterior from I'riedrieh Zimmermann (CSU) to Wolfgang Sehäuble and Rudolf Seiters in the late 1980s and early 1990s'Thielemann, 'The "Soft" Europeanisation 01' Migration I'oliey: European Integration and [)omestie I'oliey Change', Paper prescntcd at thc 2002 ECPR Joint Session of Workshops, Turin, 22-27 :\1arch, avail· ahle at. hltp://www.essex.ac.uk/eepr/events/jointsessions/paperarehivellurin/wsVLthielemann.pdf (acccssed on 25 August 20(3), at 20. 1\.s (;uiraudon observes againsllhe baekdrop 01" specHic examples [rom the early 1990s. liberal pro-EU politicians could not disapprovc uf calls for Europcan migration control harmoni:zation cOlning frum

J2

15 15 H

anti-EU restrictionist politicians. (;uiraudon, supra note 6, at 261. For a Ihcoretically in((Jrmed analysis ofthis form of'venue shopping' and its manipulative use by inlerior and justice ministries, see Guiraudon, supra note 6. See also Thielemann, 'The Europeanisation of Asylum I'olicy: Overeoming [nlernational and [)omcstic [nstilutional Conslrainls', Journal oI Et.hnic and Migration Studies (forthcoming): Lavenex, '''Passing thc Buck": Europcan Union Rcfugcc Policics towards Central and r\3stern Europe', 11 JOllrl1,,1 orRfjitwl' Swdies (1998), al 1 iH. Nagy. supra note 20, at 165. quoting an cxample from parliamcntary procccdings. Potisepp, 'Estonia', in Byrne el a1.. supra note 3. at 282.

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zealous adaptation of European practice, the eosts of which were to be paid by refugees? Looking beneath the level of the multilateral agreements that emerged from Brussels during the transformation stage, there were two overlapping legal proeesses underway in Europe: sub-regional transformation, which was most marked since 1993 onwards, and regional transformation, which started to gain momentum in the mid-1990s with the successive entry into force of the Schengen and Dublin Conventions in 1995 and 1997 respectively.JS Yet in spite of these two separate processes, analysis remained focused on regional instruments, mistakenly collapsing the two processes into one. The consequence is that the EU multilateral agreements and resolutions are identified as the cause of the transformation of asylum in Europe. In reality, they are merely the symptoms of a broader sub-regional spread phenomenon which generated the dissemination of policies such as 'safe third country' and procedures for 'manifestly unfounded claims'. There are two casualties resulting from a perspective that is focused on the vertical interaction between national and regional law. The first casualty is academic discourse whereby the development of regional state practice is misunderstood. The second casualty is democratic process, whereby the perception of a Brussels dictate, when it may not yet exist in fact, serves as a mechanism tor domestic policy-makers to legitimate asylum practices that were inspired by sub-regional incentives and pressures rather than by claimed regional principles.

C Reform: Reconstructing the Framework for Asylum in Europe The transformative period produced a first acquis, stillleaving much leeway for policy divergences amongst Member States. A second acquis is now in the making, said to create a Common European Asylum System (CEAS) throughout the European Union. This will be the first body of asylum instruments of its kind, and will create binding and enforceable obligations for states - which may some day number 27 - in the European Union. Its preparation has been mainly undertaken by the European Commission, which was equipped with the right to initiative under the Amsterdam Treaty.16 The proposals originally tabled by the Commission generally reflect a more protection-minded approach than the first Maastricht acquis. Some ofthe more robust safeguards of the Commission's proposal have already been amended and diluted: hence, the protection concerns in the East created by the weaknesses ofthe first acquis

J5 lG

See the impact on Austria, supra note 11 abovc. Por the time bcing. this right is shared with thc Mcmbcr Statcs, as stipulatcd in Art. 67 TEe. As a notablc excepUon from fhe st.andard pracUce nf Commission initiatives. France prnposed ('nur controversial meaSl1rcs bl1i1ding fllrther on the Sehen gen aC(luis dllring its 2000 presidency (carrier sanctions, mutua I recognition ur expulsion decisions. the criminalization ur facilitating illegal entry. residence and movcmcnt, and thc exploitation 01' pcrsons).

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may remain with the introduction of its successor und er the Amsterdam Treaty,37 lronically, the current misperception of a binding Brussels dictate may very weil be an adequate framework of analysis once the second Amsterdam acquis is negotiated and in force. At present. domestic legislation is sending norms to, rather than receiving them from. the asylum acquis. With the Common European Asylum System moving into a more ambitious phase. 1he opposi1e may be 1he case. However. the creation ofthe CEAS does not stop with the battery ofinstruments to be adopted until 2004. Even before all building blocks are in place, thinking on reconstructing the whole edifice has started. With a 'second phase' of the CEAS now envisaged there will be a lurther intrusion on the residual competency of Member States. A number of factors will afl'ect the negotiations of 'second phase' instruments; the most prominent ofwhich will be the out co me ofthe 2003/2004 IGC. Since the Trea1y of Nice, 1he spectre of transition 10 Qualified Majority Voting and 1he co-decision procedure under Article 251 TEC also looms large. However, an automatic transition will take place only in limited areas, and lurther political decisions by a unanimous Council are required to subject core competencies for the development of the CEAS to the co-decision procedure. 38 In particular, a transition in core areas would presuppose that 'the common rules and basic principles governing

15

38

The most striking example is the dilution 01' procedural sal'eguards lör protection seekers by the Commission. See 'Amended Proposal for a CouncilDjrcctive on Minimum Standards on Proccdurcs in Memher States "Jr Granting and Withdrawing Refugee Status', COM (2002) 326. This proposalreplaced a more protection-minded one presented in 2000. At the time ofwriting, lurthcr dilution had taken plaee in the leglslalive process in the Council 01' Ministers. Only one suhjcct matter is certain to move I'rom consensus 10 Qualilled Majority Voting: on 1 May 2004, administrative eooperation aecording to Art. 66 TEC will be deeided through Qualified Majority Voting aller consultation 01' the European Parliament (i'rotocol on Article 6701' the Trealy Establishing the European Community, 24 Deeember 2002, 0) C 3251184).As provided in Article 67(4), measures on the issuing 01' visas under Art. 62(2)(b)(ii) and (iv) shall be automat.ically transferred to the co-decision proccdl1rc. as alrcady stipulatcd in thc Trcaty 01' Amstcrdam. W"ith all rcspcct duc to thc importancc 01' visas and administrative cooperation, neilher area is at the heart of the Common European Asylum System and changes in decision-making v\,Till havc Inarginal ctTcct. Thc transition of the important competencies to Qualified Majority Voting or co-decision is, however, contingent on political agreement on several levels: • Regarding all measures under Art. 63 (1) and (2)(al TEC, a preeondition for transition to the co-decision procedure is that the Council has prcviously adopted Community legislation 'del1ning the common rules and basic principles governing these issucs' (Art. 67(5), 1st indent TEC). Ohviously, it is open to argument when the "e,!uis has reached that qualitative threshold. • Rcgarding measurcs relating to external border control undcr Art. 62(2)(a) TEC, the eo-decision procedure shall be triggered by a Council decision 1'rOln the date on \I",hich agreelnent is reaehed on the scopc of thc mcasurcs conccrning thc crossing by pcrsons of thc cxtcrnal borders of the Member States (Art. 67(2) TEC; Declaration on Article 67 ofthe Treaty Establishing the European Community, 1Cl March 2001. Oj C 80/78). • Aecording to a rather vague statement ofinten!, the Council will, moreover, 'endeavour to make the procedure rclcrred to in Article 2 S 1 applicable I'rom 1 May 2004 or as soon as possible thereaftcr to the other areas eovercd by Title IV or to parts of thcm'. It should be noted that the more commilJing statement. 01' in/ent in the I1rs1, inden/ 01' the declaration does not relate 1,0 eore arcas of asylum harmonization (Dcclaration on Articlc 67 ofthe Treaty Establishing thc European Community, 10 March 2001, 0) C 80/78).

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these issues']9 have been defined, which ean arguably be understood to imply that the first phase 01' the CEAS has to be complete. At the time 01' writing, this is not the case. To the extent that the co-decision procedure is activated in the future, the European Parliament will rise from a mere consultative body to an actor with considerable power, with the voting behaviour ofthe new MEPs remaining an open question. No matter what the precise outcome of this transition process is going to be, the new members will be on board when it takes etIect. Forging a qualified majority in an enlarged club may prove as diffieult as reaehing consensus in the eircle of old Members. Reasonably, the CEAS has a chance to emancipate itself from the heritage of sub-regional norms and move from a state-eentrist perspeetive towards an institutionalist-unionist one only when it has shif"ted into the second phase. H, and only if, that stage is reached, lateral proliferation will turn into a verticallegislative proces, in the proper sense of the term, and the current misperception of the 'Brussels dictate' will bccome an accurate metaphor. Not neccssarily for long, however. To the cxtcnt that the European Parliament is allowed to engage in legislation, there will be a need for a new conceptual frameworlc for understanding the development of regional asylum policy.

3 Accession and Asylum The prc-cminence of thc acql1is in this transformation phase is highlighted in the parallel process of accession. The candidate countries were anticipating, and then formally applying for, membership to the EU in the aftermath of the fall of the Berlin Wall. Ofthe Visegrad Group,40 Hungary and Poland applied for membership in 1994, Iollowed by Slovakia in 1995 and the C)lech Republic in 1996. 41 Each ofLhe states oI the Baltic Sea Region, Estonia, Latvia and Lithuania, submitted their applications in 1995. 42 Admission criteria require that the Associated States engage in extensive political, judicial, legislative and institutional rcforms. Evcn prior to thcir formal applications for membership into the European Union, applicant states undertook to approximate their legislation to that of the European Union in the bilateral European Agreement (EA) with the European Communities as part ofthe pre-accession process. Although the body oI ehe asylum acquis was predominanUy composed oI 'solllaw' and therefore largely non-binding for the current Members, admission criteria transformed the content of the collection of resolutions and conclusions into de facta

;y

40

41

"

Art. 67 (5) 1st inuent TEe. Thc Viscgrad Group eonsists ofHungary. I'oland and thc C"eeh and Slovak Republies. I'rcviously known as the Visegrad Triangle. prior to the break-up of Czechoslovakia, it derives its name from a meeting ofits mcmber states to eoordinatc their positions wilh respeet to thc then, European Community, held in 1991 in Visegrad, Hungary, Bull. Eur. Communities, Apr. 1994, point 1.1.18; point 1.1.19: Bull. Eur. llnion. June 1995, point 1.4.58: llull. Eur. Union, jan.-Fcb. 1996, point 1.4.75. BuH. Eur. Union. Nov.1995, poinl1.4.60; BuH. Eur. Union, Oet. 1995, poinl1.4.42; BuH. Eur. Union, I)ee. 1995. point 1.4.60.

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obligations for the applicant states. 43 In the early 1990s the newly democratized states were confronted with having to provide legal and policy responses to the growing transit migration of asylum seekers aiming to enter Western Europe. Yet while current Member States in Western Europe engaged in this process during the formative stage of asylum developments from the middle ofthe 1980s and onwards, 1he accession process 1rumped the p01ential [or applicant s1ates 10 progress 1hrough an independent formative stage. With an eye to membership. their respective asylum legislation was to be designed in line with the blueprint ofthe first acquis. Soon into the accession process. refugee policy emerged as an increasingly significant area for co operation given its links to broader issues of external border control and security issues. Regional acknowledgement of the need to have a coherent strategy with respect to asylum and the accession process was recognized by the 1994 European Council in Essen. 44 This call was me1 by limiied exchanges between EU Minis1ers o[ Justice and Horne AfIairs with their counterparts in applicant states. which dealt with a range of issues such as visa policies. cross-border crime. human trafficking, as weil as asylum. 45 Explicit criteria for applicant states in asylum and refugee matters were set forth by the European Commission in its 1997 communication, 'Agenda 2000: For aStronger and Wider Europe'.46 These are: 1. 2. 3.

adoption in new Member States of the Ceneva Convention and its necessary implementing machinery; adoption of the Dublin Convention; adoption ofrelated measures in the EU acquis to approximate asylum measures. 47

While this transfer of the regional asylum system to the East has centred upon the first acquis, fulfilling the 'obligations ofmembership' entails the implementation ofthe entire EU acquis as it evolves. This is particularly relevant in the area of asylum policy as in the absence of a full-fledged acquis in the area of asylum. narrowly. and justice and horne afIairs, more generally, applicant states are committed in principle to implementing a yet to be constructed comprehensive framework for refugee proteetion. The applicant states have played no formal role in the creation of the second acquis which is likely to be in force by the time of the admission of the first round of states in 2004. Unlike their Western European counterparts, candidate countries had no opportunity to inscribe their own domestic norms on refugees and migration into the first and second acquis. Most clearly expressed in the EU accession process, the development of asylum policy in the applicant countries occurred with significant constraints upon their 4' This is a standard observation by researchers looking at the enlargement process. See, e.g., Potisepp, supra note 34, at 300, observing that theacquis docs not oblige the eurrent Membcrs to 'do mueh'. yct it is 44

4.5 4G 47

a 'take it or leave it' condition I(Jr aspiring members. Conc1usions 01" the l'rcsidcney (Essen Summit Conclusions) reprinted in Bull. Eur. Communities. J)ee. 1994, point 1.13. See Lavenex. 'Passing the Buck', supra note S. at 114-L17. COM (97) 20()() finaill. Ibid.

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sovereignty as they underwent the proeess of demoeratie transition. The quest for membership in the European Union entails a dependeney on Western neighbours and requires that applieant states adopt and implement the asylum acquis. This dependeney is ehannelled into specifie organizational struetures for asylum system development. Central is a proeess known as Phare Horizontal Asylum (PHA). eonsisting of five phases of round tables. and bringing together seven Member States. ten eandidates. the Commission and UNHCR. 4s The aeeession proeess largely has been underway during the transformative stage. which has a significant impact on refugee protection in the Bast. 'l'he period is eharaeterized by the failure to produee a eomprehensive and eoherent eommon asylum system. In spite of the endemie shortcomings of existing soft law that made it particularly unsuitable for export to candidate countries, both the Commission and a group of engaged Member States exercised considerable efforts for its wholesale transfer to the candidate states. 49 This situation gives rise to the current paradox, where one Directorate of the European Commission is addressing the weaknesses of ihe asyl um acquis in ihe process 01' reconstructing Europe's rel'ugee protec1ion framework, while another Directorate is mandating the comprehensive adoption of the very same acquis by Eastern candidate states in the process of accession. The accession process, however, has encouraged significant advances in refugee protection in the frontier states to the European Union. There have undoubtedly been protection benefits derived from converging the process of accession with that of harmonization. 50 By transferring elements of the EU asylum acquis commwzautaire to applicant states, asylum determination systems have been introduced in these jurisdictions which are accompanied by some ofthe fundamental safeguards common to aspects of Western Buropean practices. Yet there the transfer of minimum standards from the regional instruments in Western Europe has highlighted the challenge of protecting refugee rights under treaties and instruments when they are transposed across divergent legal systems. In the newly democratized states the asylum acquis is implemented in a difIerent legal and political environment than in Member States, where it was created. The negotiations for accession themselves reveal an official recognition of sharp divides between East and West in the advancement of legal and administrative systems, infrastructure and resources, experience of civil society in monitoring state practice

48

49

5U

Por a dctailcd dcscription, sec Anagnost (2001), supra note S; l'ctersen. 'Recent Devc10pmcnts in CentnIl Europe and the Baltie States in the Asylum Pield: A View Irom l:NHCR and the Strategies or the High Commissioner ['or Enhaneing the Asylum Systems 0[' the Region'. in Ilyrne et. a1., supra note 3, 3S 1. The PHA was funded by the Community budget and cost EUR 3 million. The C;erman Pederal Office for the Reeognition 0[' Rdugees aeted as a lead ageney. whieh relleets the interest by threshold counteies such as Cermany. ror further details on the PHi\, see Anagnost (20tH), supra note 5, at 31. The accession 10 fhe 19S1 Convention and fhe introduction of'domestic asylum legislation are tangihle advantages. on "\t\'hich all further developmcnts will comc to rest. Considcr thc 1998 rcvocation ofthc geographieallimitation to the 1951 Convention by Hungary, whieh ean be read as aresponse to mainly Western Europcan pressures.

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and advocacy etIorts for reform, and the social services and political stability to cope with the added pressures of integrating an increasing population of non-nationals, Implementing the asylum acquis in the less developed asylum systems of the candidate countries raises protection problems. The integrity of bord er procedures and the quality of first and second instance decision-taking are cases in point. The most serious issue wiLh respecL Lo transferring Lhe aC(juis during Lhe transformaLive stage rests with the assessment ofthe gaps in protection that it allows. The re formative stage provided the EU institutions. the United Nations High Commissioner for Refugees (UNHCR). commentators and advocates, the opportunity to acknowledge otficially that there are fault lines in the regional protection system constructed through the process of harmonizing asylum law in Western Europe. 51 This recognition has greater significance when considering that the acquis is Lransferred [rom the advanced asylum systems in Lhe West to Lhe nascenL strucLures in the East. The risk of compromised protection standards undoubtedly increases when the acquis is applied in the applicant states. This is illustrated by looking at three types ofpractices set forth in the acquis, safe third country practices and procedures for claims submitted at borders, and those für claims deemed to be 'manifestly unfounded' . First, it is and will be ditficult within the near future to envisage Belarus, Russia or Ukraine as safe third countries in Lhe formal sense. Hence, for candidate countries, the enactment of safe third country norms would seem a useless exercise at best. Yet, they invite abuse. The conclusion ofreadmission agreements between candidate states and their Eastern neighbours opens 'windows of opportunity', with no attendant safeguards für protection seekers. Border claims appear to represent a grey zone in many of the emergent asylum systems, with border guards enjoying considerable margins for rejecting persons. This replicates lacunae in the acquis, which does not propose sa[eguards in readmission agreemenLs, and cannot compensate lacking legal infrastructure and training of border guards. Sccond, admission to tcrritory docs not ncccssarily mcan admissibility to thc asylum procedure. By way of example. persons could be denied access to the asylum procedure on grounds related to excludability. public security or lacking credibility under the Lithuanian legislation and practice of the late 1990s,52 Writing in his personal capacity, Michael Petersen has voiced concerns on the 'channelling of asylum applications into admissibility procedures on formal grounds' such as 'lack of documentation' and 'exceeding oftime limits für filing claims', 53 UNHCR has formally voiccd conccrn about thc collapsing of safc third country cascs into a catcgory of

51

:;2

15

Although there is a considerable range 01' views about thc nature 01' the shortcomings 01' the eurrent acquis and their signifieanee with respect to proteetion, oflicial statements and publications from all 01' these partics rellcet agreement on thc nccd ror thc current. \ivcakncsscs in harmoni~cd asylum system 01' thc Europcan Union to be remedied through the proees, of rc!clrm mandated under the j\msterdam Treaty. Scsickas, Siniovas, Urbelis and Vysockicnc. 'Uthuania', in Hyrnc ct al" supra note 3. at 236. Petersen, supra nole 48, al 370.

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abusivc or manifcstly unfoundcd claims, mixing formal aspccts of admissibility with material issues 01' protection need. 54 The emerging European system requires confidence that it is capable 01' imposing uniform standards of protection across the varied legal systems of Western Europe. This is apre-requisite for implementing the migration policies 01' the collective and individual Member States. As stated above, the European Court 01' Human Rights and the British House 01' Lords have both cast doubt on the sustainability of that assumption, which is thc bcdrock of thc Dublin Convcntion and its succcssor regulation. This does not even consider the diversity of standards that is a feature of the asylum systems in the new asylum states, the very states that are compelled to become part of the Dublin regime as a condition of membership of the European Union. The Commission identifies one 01' the primary objectives in requiring the implementation 01' the first acquis for candidate states seeking membership as the enlargement of the pool of potential third countries to which asylum seekers can be rcturncd to havc thcir claims considcrcd. Tfthc Mcmbcrs ofthc Ruropcan Union arc to benefit from this expanded pool 01' host third countries that are the new asylum states, and avoid responsibility for breaches of the 1951 Convention, one would have to accept that the first acquis and sub-regional policies have already succeeded in constructing a regional refugee system that can guarantee protection in the West and East. When this regime from the West is transferred to the transition al legal and administrativc infrastructurcs in thc ncwly dcmocratizcd statcs in thc Rast, thc strains on the fault lines 01' this transposed regional asylum system further widen the gaps in proteetion, creating genuine risks in certain circumstances that re fuge es may be directly, or indirectly, subject to refoulement. The asylum agenda for the applicant countries under the formal accession process is directed by a tunnel vision which is focused on the transfer of the asylum acquis. There is a notable absence in any official communications from the European Union concerning accession offering consideration 01' the shortcomings of the asylum acquis. Yet it is these deficiencies that are so pronounced as to have mandated that the system be reconstructed by the European Commission pursuant to the Amsterdam Treaty. As a Common European Asylum System is about to be introduced, the outcome of the reformative stage will have ramifications for the newly joined members or the European Union. DifIerent from the older Member States, they will have implemented the first version ofthe acquis in the course ofthe accession process. This will invariably make them unwilling to remodel their domestic legislation again. This process will take place when enlargement has begun, and the complexity of decision-making will grow exponentially, unless qualified majority voting has been introduced. Thus, after enlargement, any attempts to develop the acquis in a more liberal direction will need to overcome the new Member States' atlinity to the first version or the acquis. To be sure,

54

UNHCR, Background Paper no. 2. 'The i\.pplicalion ol'the "Safe Third Country" Nolion and its Impact on the Management of Flows and on the l'rotcction of Rcfugees' (2DD I). at 2.

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the present Member States will lose mueh of their bargaining power vis-a-vis the eandidate states, onee they have been admitted to the club, The regional foeus on the development of state praetiee in applieant states centres on formal instruments and programmes of the European Union. It demonstrates the dynamics of refugee poliey formation between the European Union and its future members, revealing differenees beLween the West and East in Lhe means by whieh asylum systems have been created, and the cffccts that this has on refugee protection in the new asylum states. This, in and of itself, raises interesting issues about the advancement of democraey and the value ofthe political process in the formulation of human rights-related policies, It also challenges deeper assumptions about the capacity of eertain norms and standards to guar an tee fundamental human rights when applied across a varied range of jurisdictions.

4 The Implications of Sub-regional Transformation So far, we have identified different processes impacting on how asylum and migration norms were eoneeived in Central and Eastern Europe as weil as the Balties. We claim that these processes at times pushed in the same direetion, yet also brought about incoherence and contradiction. The following section tracks the implications of sub-regional faetors that influence law and poliey prior, and parallel, to the aecession process, and argues that the outcomes in some areas, by necessity, were ineoherent and even contradictory to the stated motive of 'harmonization', Unlike the vertieal interactions between regional and domestic asylum law that eharaeterizes the analysis above, the transformation of asylum law sub-regionally centres upon the transfer of policies - and the influence of their implementation laterally, A feature of the formative and transformative stages in Western Europe, it nonetheless has been overshadowed by the vertieal interactions between domestie and regional norms. This analysis is not only circumscribed by its vertical perspective, but limits our view to the states within the formal European Union framework of Member and Associated States. An examination of the sub-regional transformation of asylum poliey requires a review of poliey development that is lcss easily identifiable than that offered by the harmonizing instruments on the European level. By 2000, all of the states in the Southern, the Central and the Northern sub-regions either introduced or amended laws and policies affecting asylum seekers and refugees. 55 Independent of the formal eriteria laid down by the aceession proeess, there were three sub-regional faetors that were strang determinants in shaping the emerging asylum regimes in the newly democratized states. These are the dialectical process of restrictive measures and counter-measures, the conditionalities imposed by individual Member States, and the eontagious and politieally persuasive imagery ofthe 'soft touch' and the 'closed sack'. SS

Thc Northcrn sub-region compriscs thc Nordic and Baltic statcs, thc ccntral sub-region includcs (;ermany, Poland and Ihe Czech Repuhlic, and Ihe Soulhern suh-region is composed 01' /\uslria and Hungary, Por details on legislative devc1opments, sec the ehapters on the Czeeh Republic, Estonia, Lalvia, Lilhuania, Poland and Hungary in Byrne 1'1 u1., supra nole 3.

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The dialectical process ofrestrictive measures and counter-measures is a prevailing dynamic in the evolution 01' asylum policies in all 01' the three sub-regions. Yet the distinetive features within a sub-region explain different directions in state praetice aimed at deterring and deflecting asylum seekers. While a regional analysis would traee the selected mechanisms tor non-arrival policies and pre-proeedure exclusions to the instruments 01' the acquis. it is unable to explain why in Germany. Poland and Czeehoslovakia, in the Centrallink, and Austria and Hungary in the Southern link, the pu]] was towards pre-procedure exclusions, while in Scandinavia and the Raltics, in the Northern link, state practice moved towards non-arrival policies. As argued above, the candidates in the Central and the Southern sub-regions including, at an earlier stage of history, Austria - were significantly affected by restrictive policy changes in neighbouring destination countries, and particularly by those introduced by Germany. Such restrictions almost inevitably inspired poliey changes in the Eastern transit countries, as in Western states, inspired by the fear of a closed sack effeet. This fear was eaused by the inereasing diffieulty for asylum seekers to move on westwards, eombined with the inability for these states to return third country nationals eastwards upon readmission from Western neighbours. This was further complicated by parallel mechanisms of cOLlllter-strategies adopted by individual asylum seekers. When primary destination states in the West erected new barriers, asylum seekers responded by adapting their own migration patterns and practices in order to evade these new obstacles to entry. Take, for instance, the dynamics between Germany and Poland and Czeehoslovakia in the Central Link. Here the strategies of host states, as weil as the responding counter-strategies adopted by asylum seekers, proliferated eastward, and the circumvention strategies by applicants followed them. In particular, persons readmitted from Germany registered as asylum seekers in Poland, to then 'defect' from the procedure, apparently to make new attempts to 'go west'. This explains the high numbers 01' eases closed due to the absence of the applicant in Poland (89 per cent of all filed cases in 1997).50 There are refugee protection ramifications for all 01' the deflective measures that have been implemented by Western European states. Additionally, they have had repercussions on the application of the Refugee Convention in Central European countries acceding to the Convention. The counter-strategies operated by asylum seekers against pre-procedure returns have oUen been inappropriately utilized by authorities in the new asylum states to discredit the credibility 01' their claims tor protection against return to the country of origin. The scenario was quite dilIerent tor the Northern Link, between the Baltic and Scandinavian states. Distinguished from the dynamics of the Central Link by the variables of geography and legal principle, the counter-strategies evolved differently. Without the green borders 01' the Central and Southern links, and the barrier 01' the Baltic Sea, it is difficult and risky for asylum seekers to cross borders illegally. Consequently, the Nm"dic countries were able to implement successfully alternative 56

Mikolajczyk. 'Poland', supra nole 19, al 51-54: Noll, 'Proleclion in a Spiril o[Solidarily", in Byrne el "I.. supra note 3, at 323. LNHCR. supra note 54, at 1.

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deflection measures, such as donating equipment tor sea border contro!, in order to prevent asylum seekers from moving westwards from the three Baltic states,57 Geographical constraints were abetted by the lack of protection structures in these states in the early 1990s, as this alternative became more attractive because it was legally impossible to return asylum seekers to a Baltic transit country if they arrived irregularly at the barders of Nordic countries, Hence, ihe straiegy of deileciion from the West in this sub-region gave priority to non-arrival policies, rather than the pre-procedure returns on safe third country grounds that were practised along the Central and Southern Links, It also led to various containment mechanisms in the Baltic states, implemented through assistance programmes and other forms of dependency at the bilateralleve!, yet coordinated multilaterally within the group of Nordic states, As in ihe Central and Southern links, ihere are less direc1 ramifications of ihe restrictive measures adopted by the Scandinavian states, With l1on-arrival policies implemented in the Northern Link there may have been a contributing force to reducing the effective operation of the Convention, For these policies adopted by the Nordic states affirm the perception held by officials in the Baltic states that asylum seekers are essentially illegal migrants. Another determining force for the asylum systems in the candidate states is the imposiiion of conditionalities by the old Member Staies in the Narthern, Central and Southern sub-regions, These bilateral mechanisms are likely to have been at least as etIective as other factors in motivating Baltic and Central European states to establish migration control systems and arrangements for dealing with asylum seekers and refugees, As illustrated by the Northern and the Centrallink, this kind of dependency may have been less transparent, primarily because it was often based on a mixture of conditionalities from donor states that were providing assistance to the new democracies far capacity-building in a variety of areas, In the interaciion between Nordic Member States and the Baltic candidates, there was a clear emphasis on exit contral by the latter, and visa-free travel for eiti7.ens ofthe Baltics was bartered against readmission agreements eovering both nationals and non-nationals,5K By contrast, Germany put the emphasis on entry control by Poland and the Czeeh Republic, reflecting the fact that no sea border would stop onward migration once persons had entered its Eastern neighbours. 59 For the candidate states, much was at stake, and the leverage of the EU at large, as weil as of its single Members was considerable. After all, to deliver on the demands of their Western neighbour could create benevolence not only towards an early admission to the EU, but as weil towards membership in NATO. 60 .57

.5S

:;9 60

Vcdst.cd-Hanscn, 'Nordic Policy Responses in thc Baltic Asylum Challenge', in ßyrnc ci 01., supra note 3, at 22l. Sec thc chapters on EsLonia, Latvia and Lithuania in Byrnc ci al, supra note 3. aIl indicaLing that visa-rrcc travcl was an extraordinarily attraetive clementin the barter trade on asylum and migration bctween the Nordics and I.he Balt.ies. Noll, 'Ccrmany', in R. Byrnc ct 01" supra note 3, 41-6. NATO membership was a [actor particularly prominent in the Baltic debates.

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Thc latcral spiralling of asylum policics that occurrcd during thc formativc stagc in Western Europe appears to also be a feature in the development of asylum policy in the Baltics and eEEC states. Legislators in applicant states are as inclined to transport the restrictive innovations in the principles and procedures in the Member States, as the Member States were to mimic each others' policies. For as was the case with Western asylum poliey prior to the formal eriteria set by the Couneil ofMinisters in the area of asylum, Eastern states were already replicating policies and transferring concepts. For instancc, as carly as 1993 thc Czcch Rcpublic introduccd 'manifcstly unfoundcd procedures' into their asylum determination procedure, at a time when on average there were roughly 800 applications submitted for refugee status per year. 61 The Latvian Government Warking Group argued that asylum legislation should be introduced in anticipation of EU pre-conditions for membership, but 'also because similar direetions ean be seen in the other Baltie Countries' .62 The rippling of restrictive policies in the new asylum states is motivated in part by thc political pcrsuasion ofthc fcar ofbccoming a targctcd 'soft touch' or a 'closcd sack' for the returned asylum seekers from Western Europe. As the figures on European asylum flows in the West indicate, there is a very real cost to embracing more progressive policies when one's neighbours are creating pro ce dural and substantive barriers to protecting refugees. 61 Among the neighbouring applicant states, there is also a domino effeet, whereby legislative and poliey models for implementing aspeets of the asylum acquis are barrowed. As is evident, far example, the upholding of the safe third country conccpt by thc Ccrman Fcdcral Constitutional Court in 1996 inspircd the amendment to the Hungarian Constitution in 1997 in order to deny protection to those asylum seekers coming from safe third countries or safe countries of origin. 64 In part, this is a reflection of the rippling of restrictive practices, whereby states which attempt to legitimately provide access to determination systems and ensure an adequate provision of proeedural safeguards eonsequently are exposed to inereased migration and asylum flows which have been deterred and diverted from more restrictive jurisdictions. Enhanced border controls, which may bar genuine asylum seekers and illegal mi grants alike, have an equivalent etIect. It is no coincidence that in 1998, with the tightening of controls on the Polish borders, the Czech and Slovak 61

62 Gl

64

From 1990 through 1994, aceording 10 stalistics I'rom Ihc [)cpartmcnl 01' RcI'ugecs and Inlcgration 01' ]7(Jreigners, 3.295 applications were submitted for Convention Status, These procedures, however, were reporledly sei dom used, F, Liebaut,IA'Yl(1 a/l(! Social CondiUonsji)r .1sylum Seekers and Reh/gees in Central and Eastcrn Europccm Countries (1999), at "g, Ose and Zumenle-Stee1e, 'Lalvia', in Byrne el a1., supra note 3, al268. Authoritics in states experiencing rising applications eommonly attribute this to the fact that thcy have less restrlcllve legislation than thelr European nelghbours and henee are targeted by asyluIll seekers bceausc the jurisdietion is repu(ed 10 be a 'soft touch' I'or asylum seckers. This was thc juslilkation I'or (hc introduction ofmanifestly unf"unded procedures, and 'white lists' fi,r safe countries of origin along with other rcstriclivc practiccs in (he 1995 Asylum and Immigration Bill: 'We receive morc asylum claims than any other westcrn Europcan country except Germany. We are the only target country in which claims are gro"ving rather than I'alling. Our neighhours have improved their legislation and "ve must do likewise as quiekly as possible.' A. Widdecombe. Minister of Stale. Homc (llliee, House of Commons, Commillee D, Ollicial Reporl. 19 Dec. 1995, c.4. See supra text accompanying notcs 20 and 21.

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Republies became the preferred transit route to Western Europe, with German autharities readmitting only 2,700 persons to Poland, in contrast to 16,000 to the Czech Republic. 65 Purthermore, those measures adopted by members of the 'first group' states that stand at the head of the queue for admission to the European Union, will be noted and potentially imitated by those states currently in the 'second group' of Associated SLates whose membership will be considered at a later stage. 66 The phenomenon oflateral spiralling ofrestrictive policies throughout sub-regions means that the dialectical process of restrictive measures and counter-measures, along with incentives to replicate the restrictive policies of neighbouring states, expands the scope of the European asylum practices to sub-regions where they will be implemented without minimal protection safeguards. At the very least, the transfer of problematic seetions of the acquis should have been accompanied with systematic transfer ofLraining and sLalIlng resources. 67 When analysis allows [or an examination of sub-regional asylum transformation, it is predictable that a lateral spiralling of like policies will occur in neighbouring jurisdictions, These jurisdictions will not have the attendant obligation to enhance minimum standards to meet European norms, and where those norms are woefully low, they will not have the press ure upon them, or resources and training that the candidate countries have when implementing these practices, In the absence of significant countervailing support from the European Union, Lhere is litLle Lo lessen Lhe threat thaL the restricLive pracLices pose Lo the proteetions under the 1951 Convention weil beyond the current and future frontiers of the European Union. In effect, the Commis si on and Council of Ministers, and the United Nations High Commissioner far Refugees have not only failed to address their policy recommendations tor the future Common Asylum System to carefully include the distinctive challenges to protection in the future Member States, but to recognize that these policies will also laterally spiral to the sub-regions falling outside of the fuLure European Union. By complementing regional analysis with a scrutiny of sub-regional torees, many of thc policics of individual Mcmbcr Statcs appcar to convcrgc with thc wider cfforts of the European Union to harmonize asylum policy between the current and future Member States. There are also practices which serve contlicting agendas. An examination of some ofthe features of sub-regional migration demonstrate incongruities between regional policies of the European Union towards applicant states and the bilateral initiatives of its individual Member States towards applicants states in their respective sub-regions. To wit, Austrian press ures led to a harsher detention regime

GO hh

h7

Noll, 'Cermany', in R, llyrne et al.. supra note 3, at 44-46, Negotiations were eoncluded with a first group o!' applicants in Deeember 2002 and the Treaty o!' Aeeession signed in Athens on 16 April 2003 (Cyprus, the C"eeh Republie, ESlonia, Hungary, Lalvia, Lithuania, Malta, Poland, the Slovak Republie and Slovenia), 'legotiations eontinue with a seecmd group eomprising Romania and llulgaria, Additionally, Turkey has applied I'or EU membership, lleycll1d that group 01' prospective EU members, a further lateral spread of restrietive policies is coneeivablc, Consider the example 01' aece!erated proeedures at horder points laeking the right to an appeal with suspensive cffcet, allowed under the present acquis, It is obvious that the rigidity of such proeedures requires a qualily in deeision-making which cannol be presumed in lhe lransilory syslems or lhe East.

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by Hungarian authorities by 1998, enabling authorities to lock away asylum seekers for an unlimited period of time. 6S While the Austrian agenda of migration control is shining through, there is a dear conflict with the requirement to implement the ECHR, which is, after all, part of the asylum acquis. ßilateralism collides with multilateralism, and the sub-regional policy is out of step with stated regional goals. Western European domestic refugee agendas seek to advance the standards of protection atIorded across their Eastern frontiers through the transfer of funds, training and teehnical assistance. At the same time, by example, they offer their newly democratized neighbours deficient policy models which aim to deter and deflect asylum seekers. Moreover, through incentives, such as the promise ofvisa-free travel in the West, they even promote their implementation in aspiring member states, undermining their alternative policy objective of advancing refugee protection standards.

5 Conclusions on the Role of State Practice in the Formation of International Refugee Law In this artide, we have argued that the traditional pattern of explaining legislative tendencies in Europe through the regional standards set in the acquis commwlautaire is inadequate, and that the framework of analysis must be expanded. To understand the development of European asylum law in context, one needs to adrnowledge that refugee law forms at the domestic level. This article looks at how sub-regional repercussions are sent out by domestic legislation beyond jurisdictional borders. These may entice neighbouring states to import the underlying ideas and concepts of these asylum laws, and adapt them to res pond to pressures of national politics and sub-regional migration. In reality, asylum norms are transformed in a constant interplay between domestic, sub-regional and regional forces, rather than replicated from the acquis into domestic legislation. Hence, domestic legislation in neighbouring countries can very weIl vary at the level of specific legal rules into which the imported ideas are translated. The normative patterns forming at the sub-regional level are driven by the dynamics of the power relationship between the states and the impact of domestic policies in a sub-regional grouping. This lateral process of formation and transformation is critical for the formulation of refugee law, and its study should be prioritized by refugee law scholars. Instead, a parallel process at the regional level seems to capture our imagination. This regional process allowed Western European states to lift up their substantive domestic norms and practices to the policy level of the EC, and, later, of the EU. In addition, norms and mechanisms of coordination, such as the Schengen and Dublin Conventions, were negotiated. For a long time, this regional process produced a host of instruments replicating substantive domestic solutions without having the dout to impact on practices of other Member States. A consensus requirement ensured that GR

Nagy. supra note 20, at 191.

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any Member State eould objeet to any formulation threatening the persistenee oftheir own domestie legislation, With the exeeption of the Dublin and Sehengen Conventions, moulded into the form of a treaty under internationallaw, most instruments remained dead letter, unable to impaet domestie law and praetiee. Sub-regional transformation eontinued the aetual work, while the unwitting eredited the regional proeess and eompounded ihe myih of a Brussels dic1aie. This ehanged with enlargement, bringing the regional acquis into a barter trade of membership traded against norm eomplianee, Suddenly, the soft acquis hardened, and an institutional framework was set up to eontrol its implementation, Interestingly, the 'twinning' employed in this transfer of knowledge and norms emulated the dynamies of normative transformation at the sub-regional level. 69 The EU sought to eopy wh at had developed in the free interplay of fore es between neighbouring states. While the idea of veriieal transformation made sense w hen exporiing basic struc1ures of migration and asylum law into the eandidate eountries, sub-regional transformation between neighbours still provided the eritieal clout in instituting precise norms, Parallel to enlargement, the old Members set out to reform the acql1is, essentially replieating the transfer of their domestie norms into the 'minimum standards' of regional instruments. While mueh ofthe actual negotiations ofthe reform acql1is paid heed to the egalitarian principle ofnot harming eaeh other's domestie legislation, the insiiLuiional set-up had been ehanged wiih the Commission being given a riglü to initiative. Only at this stage, the myth ofvertieal transformation started to make sense within the group of old Members. Its full potential will be feIt when the Common European Asylum System enters its seeond phase of development, with further moves from a state-eentrist to an institutionalist-unionist form of norm ereation and proliferation, Does this mean that we may diseard the analytieal model whieh foeuses on sub-regional dynamies after 2004? Not so. Ironieally, enlargemenL iiself provided a major clawbaek: the likelihood is strong that new Member States will not weleome yet additional and eontinued re-engineering of domestie asylum and migration law and opt for the protection of status quo in this area. They might form a eonservative faetion in the Council, ensuring that proteetionist polieies will prevail over integrationist ones in spite of Qualified Majority Voting. This, again, will leave the development of asylum and migration law in the hands of sub-regional transformation, both within and beyond the future Union. What does this me an for the analysis of international refugee and migration law? International lawyers need to reeonsider the standard framework for examining asylum law, as state praetiee eannot be understood from an exclusive examination of regional instruments, like those adopted by EU institutions. Rather. sueh instruments should be seen merely as transmission belts, leading us baek to the study of refugee law and poliey in domestie systems. This ereates a eh allen ge tor seholars to engage in a

6'1

The practice 01' 'Iwinning' implied a closer collahoration het.ween a Memher and a Candidate Stak, and can bc seen as an institutionalization of sub-regional dynamies. Sec Anagnost (2001), supra note 5, at 42.

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morc comprchcnsivc collaborativc work across bordcrs. Wc shall thcn find that thc solutions chosen are heterogeneous. shunning the myths ofharmony or unity. This is a problem which scholars 01' customary internationallaw are weil acquainted with: the quest for the normative leads to the quagmire 01' the explicative.

[17] TRANSNATIONAL JUDICIAL DIALOGUE, HARMONIZATION AND THE COMMON EUROPEAN ASYLUM SYSTEM DR HELENE LAMBERT*

Abstract Increased policy harmonization on refugee matters in the European Union (EU), namely the creation of a Common European Asylum System (CEAS), has created the imperative for a transnational judicial comparative dialogue between national courts. This article is based on a structured, focused comparison approach to examining a key element of a transnational European legal dialogue, namely, the use of foreign law by national judges when making their own decisions on asylum. It does so by examining two countries, France and Britain, as representative of the difference in legal tradition and culture within the EU in terms of the civil-common law divide. Both case studies are structured around a common set of empirical and jurisprudential research questions. The empirical findings reveal a surprising lack of transnational use of national jurisprudence on asylum between judges. Nonetheless, a slight but noticeable increase in the use oftransnational asylumjurisprudence in the British and French courts must be noted. Two broad accounts-one rational, the other cultural-are applied in each of the case studies to explain this empirical finding. This article concludes on the broader implications of these findings for the establishment of a CEAS by 2012.

I. INTRODUCTTON

Asylum is a policy area that, by its very nature, demands inter-state cooperation and the 1951 Convention Relating to the Status of Refugees (Refugee Convention) is the basic instrument that provides far this. 1 Within the European Union (EU), the imperative far deeper cooperation is present, given the provision for the free movement of persons within the Union. EU Member States have committed themselves to greater harmonization of their national laws on asyl um but interpretation and application of these new EC

* Reader in Law, University of Westminster (London). [email protected]. I am grateful to Doede Ackers, Franyois Bemard, Roger Errera, Zeta Georgiadou, GeoffGilbert, Guy S Goodwin-Gill, Marie-Pierre Granger, Raza Husain, Brendan Kelly, Nick Oakeshott, Mark Ockelton, Janine Silga, Hugo Storey, Catherine Teitgen-Colly, Frederic Tiberghien and Vera Zederman for their comments on this project. I am also grateful to the anonymous rcferees for critical feedback on a draft of this artide. I thank Kathryn Howarth, Janine Silga, Karen Wylie, Patricia Ypma and Vera Zederman tor their research assistance. This project was supported by grants ti'om the Nuffield Foundation and the British Academy. 1 189 UNTS 150, entered into force on 22 April 1954.

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laws depend to a large extent on national judiciaries. Thus, the success of the harmonization substantially depends on the development of common judicial understandings, principles and norms conceming refugee matters. As a general trend, senior judges in the national courts are now commonly and increasingly paying attention to the law of foreign countries as a guide to their own decisions. It has even been suggested that we may be witnessing the emergence of aglobai jurisprudence, especially in the area ofhuman rights. 2 This affinity with foreign sources of a domestic nature is particularly present in Commonwealth courts, due no doubt to shared legal cultures and a common allegiance to the Privy Council; hence, Lord Bingham suggests that we may be facing 'a new dawn of intemationalism in the English legal world'? In Europe, this debate has traditionally focused on a three-dimensional dialogue: between nationaljudges and Europeanjudges (namely, the European Court of lustice or the European Court of Human Rights), between European judges themselves, and between national judges of the different Member States (that is, the transnational dialogue). This article concentrates on the last dimension-namely, the dialogue between national judiciaries-as scholarship to date has focused on the first two. 4 Some work has been done on the dialogue between nationaljudiciaries 5 but not in the area ofrefugee law. 6 Yet, refugee law offers a particularly interesting case study because it has evolved mostly

2 A-M Slaughter, 'A Typology of Transjudicial Communication' (1994) 29 University of Richmond Law Review 99; 'ludicial Globalization' (2000) 40 VJIL 1103; 'A Global Community of Courts' (2003) 44 Harv ILJ 191-219; C McCrudden, 'A Common Law of Human Rights?: Transnational ludicial Conversations on Constitutional Rights' (2000) OlLS 499. 3 TH Bingham, "There is a World Elsewhere": Changing Perspectives of English Law' (1992) 41 ICLQ 513, 515. 4 On the dialogue between European courts and national courts, sec T Koopmans 'Comparative Law and the Courts'(1996) 45 ICLQ 3, 545-556; K Lenaerts 'Interlocking Legal Orders in the European Union and Comparative Law' (2003) 52 (4) ICLQ 873-906; VP Pescatore 'Le recours dans la jurisprudence de la Cour de Justice des Communautes Europeennes ades normes dcduites de la comparaison des droits des Etats membres' (1980) Revue Trimestrielle de Droit Communautaire 337; T Franck and G Fox 'Transnational Judicial Synergy' in Franck and Fox (eds) International Law Decisions in National Courts (Transnational Publishers, New York, 1996). On the dialogue between European courts, sec F Lichcre, L Potvin-Solis and A Raynouard (eds) Le Diafogue entre fes Juges Europeens et Nationaux: Incantation ou Realite? (Bruylant, Brussels, 2004); CL Rozakis 'The European Judge as Comparatist' (2005) 80 Tulane Law Review 257. 5 McCrudden (n 2) 499; G Canivet, M Andenas and D Fairgrieve (eds) Comparative Law Belore the Courts (British Institute of International and Comparative Law, London, 2004); P Legrand 'European Legal Systems are not Converging' (1996) 45 (I) ICLQ 52; R Sefton-Green 'Compare and Contrast: Monstre a Deux Tetes' (2002) 1 Revue Internationale de Droit Comparc 85; BS Markesinis 'Judge, Jurist and the Study and Use ofForeign Law' (1993) LQR 622; and 'A Matter ofStylc' (1994) LQR 607; BS Markesinis and J Fedtke 'The Judge as Comparatist' (2005) 80 Tulane Law Review 11, and by the same authors, and velY much based on that article, Judicial Recourse to Foreign Law: A New Source oflnspiration? (University of Texas at Austin & UCL Press, 2006). 6 With one exception in the form of areport written by G Gyulai 'Countty Information in Asylum Procedures-Quality as a Legal Requirement in the EU' (Hungarian Helsinki Committee, 2007).

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under the influence ofjudges-so it has 'become fundamentally judicialized,7 and this is reflected in the key role occupied by high courts as 'agents of normative change,.8 Furthermore, refugee law lacks an international court competent to provide a comrnon interpretation of the Refugee Convention (unlike the area ofhuman rights law for instance),9 thereby leaving it to each Contracting State ultimately to interpret the Refugee Convention. lO In sum, refugee law provides tremendous opportunity in terms of seeking a greater transnational judicial role. There is some evidence of transjudicial activity in refugee law, among senior appellate judges in Commonwealth countries. Hathaway notes that: Senior appellate courts now routinely engage in an ongoing and quite extraordinary transnational judicial conversation about the scope ofthe refugee definition and have increasingly committed themselves to find common grounds. 1 1

Judges also refer more and more to the work of leading academic authorities. 12 However, this trend is less in evidence outside the Commonwealth. The International Association ofRefugee Law Judges' (IARLJ) own estimate is that there is a problematic lack of cross-referencing between European countries. 13 But there is no study of the precise extent of this problem. This article adopts a structured, focused comparison approach 14 to examining a key element of a transnational European legal dialogue, namely the use of foreign law by national judges when making their own decisions on asylum. It does so by examining two Member States, France and the United Kingdom, which represent key differences in legal tradition and culture within

7 JC Hathaway 'A Forum for the Transnational Development ofRefugee Law: The IARLJ's Advaneed Refugee Law Workshop' (2003) (15) 3 Intl J Refugee L 418. 8 V Guiraudon 'European Court and Foreigners' Rights: A Comparative Study of Norms Diffusion' (2000) 34 Int! Migration Rev 41088-1125,1107. 9 A-M Slaughter (n 2) 121 and 127. On the use of comparative law in the UK since the HRA, see D MeGoldrick 'The United Kingdom's Human Rights Act 1998 in Theory and Praetice' (200 I) 50 (4) ICLQ 90 I. 10 AM North and J Chia, 'Towards Convergenee in the Interpretation of the Refugee Convention: A Proposal for the Establishment of an International judieial Commission for Refugees' in J Me Adam (ed) Forced Migration, Human Rights and Security (Hart Publishing, Oxford, 2008) 225-261. 11 JC Hathaway The Rights 0/ Refugees !Inder International Law (Cambridge, Cambridge University Press, 2005) 1-2, see also 116. Referring in partieular to A-M Slaughter (n 2) 99, and to the University of Miehigan's Refugee Casclaw Site and the establishment of the International Association ofRcfugee Law Judges in 1995. Sec also, D E Anker 'Rcfugee Law, Gender, and the Human Rights Paradigm' (2002) 15 Harv Human Rts J 133, 136. 12 H Storey 'The Advanced Refugee Law Workshop Experienee: An IARLJ Perspeetive'(2003) 15 (3) Intl J Refugee L 423. 13 Author's discussions with Dr Hugo Storey (Senior Judge at the Asylum and Immigration Tribunal, and member of the IARLJ). 14 AL George, 'Case Studies and TheOlY Development: The Method of Struetured, Foeused Comparison' in PG Lauren (ed) Diplomacy: New Approaches in History, Theory and Policy (Free Press, New York, 1979) 43-68.

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the EU in terms of the civil-common law divide 15 . Both case studies are structured around a common set of empirical and jurisprudential research questions-the normative question of legitimacy is explored in section 11. 16 The empirical findings reveal a surprising lack of transnational use of national jurisprudence on asylum between judges. Nonetheless, a slight but noticeable increase in the use of transnational asylum jurisprudence in the British and French courts must be noted. Two broad accounts-one rational, the other cultural-are applied in each of the case studies to explain this empirical finding. This article concludes on the broader implications of these findings for the establishment of a common European asylum system by 2012. 11. TRANSNATIONAL EUROPEAN LEGAL DIALOGUE AND THE COMMON EUROPEAN ASYLUM SYSTEM

The imperative for dialogue between nationaljudiciaries within the EU comes from the Tampere meeting of the European Council in October 1999, when the then 15 Member States agreed to develop the EU as a common area of freedom, security and justice. In order to do that, the Member States agreed to work towards establishing a Common European Asylum System (CEAS) by making full use of the provisions in the Amsterdam Treaty 1997. The effectiveness of this 'common' system will be somehow dependent on commonalities. An obvious way of achieving this is through the adoption of common legislation. In this regard, the adoption of four key Directives and two Regulations on matters of asyl um concluded the first phase towards the establishment of a CEAS (a phase which ended in 2005).17 15 For an analysis of a wider range of cases, see GS Goodwin-Gill and H Lambert (eds) The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union (forthcoming, Cambridge University Press, Cambridge, 2009). 16 The distinction between 'empirical', 'jurisprudential' and 'normative' questions is borrowed from C McCrudden (n 2) 499. 17 Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States tor Granting and Withdrawing Refugee Status [2005] OJ L326 13/12/2005 1334; Council Directive 2004/83/EC of29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Statc1ess Persons as Refugees or as Persons who Otherwise Need International Protection and the Conte nt of the Protection Granted [2004] OJ L304, 30/09/2004 12-23; Council Regulation (EC) 343/2003 of 18 February 2003 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in one ofthe Member States by a Third-Counfly National [2003] OJ L050 06/02/2003 1-10; Council Directive 2003/9/EC of27 January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers [2003] OJ L031, 06/02/2003 18-25; Council Regulation (EC) 407/2002 of 28 February 2002 Laying Down Certain Rules to Implement Regulation (EC) 2725/2000 Conceming the Establishment of 'Eurodac' for the Comparison of Fingerprints tor the Effective Application ofthe Dublin Convention [2000] OJ L062 05/03/2002 1-5; and Council Directive 200l/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Proteetion in the Event of a Mass Infiux of Displaced Persons and on Measures Promoting a Balance of Efforts between Member States in Receiving such Persons and Bearing the Consequences thereof [2001] OJ L212, 07/08/2001 12-23. The Commission is p1anning to amend these pieces of legislation in 2009, see SPeers, 'Statewatch analysis-the EU's .IHA

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The European Commission's Green Paper on the Future Common European Asylum System started the second phase ofthis process l8 which is due to end in 2012. 19 The European Commission is driving for fuller harmonization ofboth legislation and practice concerning asyl um procedures, protection status and asylum decisions?O Thus, how this common legislation is interpreted and applied by domestic courts is equally important. A comparative approach by judges therefore appears to be essential for the development of a system that is not only common but is also coherent and built on trust; these are necessary elements for any common system to work, as clearly recognized by the European Commission in its Communication to the Council and the European Parliament on 'Strengthened Practical Cooperation-New Structure, New Approaches: Improving the Quality of Decision Making in the Common European Asylum System,.21 For this to happen, a transnational judicial dialogue or process of communication, resulting in the use of each others' jurisprudence, must exist between European judges. This article is testing that: to what extent is the ground prepared for a common asylum system, and if not, what are the obstacles that need to be addressed between now and 2012? It is worth noting here that the adoption of the new EC legislation on asylum itselfhas already had some effect on the dialogue between refugee law judges and the use of comparative jurisprudence. Indeed, the adoption of new EC legislation has required the European Commission to consult with different actors (eg academics and senior judges) to learn of the practice and jurisprudence of the Member States. It has also forced the Member States to reform their existing asylum legislation, and in doing so an important process of inspiration by foreign practice and jurisprudence has taken place. Finally, the adoption of new EC legislation requires the national courts to adapt to what other Member States are doing in seeking to match their own approaches with those adopted by other national courts and the European Court of Justice (ECJ) when dealing with similar issues. 22 In this regard, information and best practice are being exchanged through face-to-face meetings and networks, such as the International Association of Refugee Law Judges (IARLJ). The Agenda for 2009', available at http://www.statewatch.org/analyses/eu-sw-analysis-2009-jhaagenda.pdf IR Brussels, 06/06/2007, COM (2007) 301, final. See also, the Hague Programme 'Strengthening Freedom, Seeurity and Justice in the European Union' Presidency Conclusions, Brusscls, 4-5 November 2004. 19 Note that the original, formal deadline was 2010 but this has been postponed to 2012. European Pact on Immigration and Asylum, adopted at the Council of European Union Meeting in Brusscls, 16 Oct 2008, DI08/l4. 20 Author's interview with Zeta Georgiadou and Doede Ackers (policy officers, European Commission, Directorate General lustice, Freedom and Security, Directorate Immigration, Asylum and Borders) Brusscls, 27 lune 2007. 21 Communication of 17 February 2006, COM (2006) 67, 3. See also L Potvin-Solis (n 4) 30. 22 H Storey 'EU Refugee Qualification Directive: A Brave New World?' (2008) 20 (I) International Journal ofRefugee Law 1-49.

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IARLJ has its own database, set up by a Gennanjudge, Dr Paul Tiedemann, in cooperation with the Europäische EDV-Akademie des Rechts in Merzig, Gennany, which offers free access to international case law on asylum. At present, the following languages are available: Dutch, English, Gennan, Finnish, French, Polish and Slovenian, and the database currently contains 190 decisions from ten countries. It is entirely dependent on voluntary submissions and the goodwill of contacts (often judges) in different States?3 However, the next section shows that in the case of Britain and France, judges rarely use each other's decisions within the EU. The extent of this problem is remarkable. Ideally, the ECJ should be able to help in this process but, as things stand, its interpretative role is considerably limited under Article 68 EC Treaty which restricts possibilities of references to the ECJ to 'a court or tribunal against whose decisions there is no judicial remedy under national law'. F or instance, since the coming into force of the Qualification Directive (Council Directive 2004/83/EC) on 10 October 2006, only three national courts have made a preliminary ruling reference to the ECJ. In October 2007, the highest administrative court (Raad van State) in the Netherlands sent a question to the ECJ concerning the interpretation of article 15(c) (serious hann) of the Directive. 24 In April 2008, the Gennan Federal Administrative Court (Bundersverwaltungsgericht) sent a preliminary question concerning the interpretation of Article 11 (1)( e) (cessation) of the Directive 25 . And in January 2009, the Hungarian second instance administrative court (Fowirosi Bir6sag) lodged a reference for preliminary reference to the ECJ concerning the interpretation of Article 12(1 )(a) of the Directive. Since the coming into force of the Dublin Regulation (EC) 343/2003, only one question of interpretation has been referred to the ECJ, by the Swedish Administrative Court of Appeal (Kammarrätten 1 Stockholm) in January 2008. 26 The Commission Communication of 28 June 2006 proposes that article 234 EC should also be applicable to the field of asylum, immigration and visas. 27 In the interim, the urgent preliminary ruling procedure applicable to references concerning the area of freedom, security and justice should help towards simplifying the various stages of the proceedings before the ECJ in certain cases, but the existing limitations regarding which courtltribunal can submit a reference remain. 28 It is therefore predicted that the interpretative role of the ECJ will continue to be limited for a number of years. Indeed, even if and when article 68 EC is to be abolished and replaced with article 234 EC (eg with the ratification ofthe Treaty ofLisbon), it will take the ECJ some time to identify foundational principles in this new area oflaw. 29 Furthermore, the ECJ is not Available at: http://www.iarlj.nl 24 Case C-465/07. Casc C-175-179/08 (pcnding). 26 Casc C-19/08. 27 COM (2006) 346 final. 28 Official Journal 8.3.2008, C-64/l-2. 29 C Cheneviere 'L'article 68 CE-Rapide survol d'un renvoi prejudiciel mal compris' (2004) 40 Cahiers de droit europeen 5/6 567-590; and K Lenaerts 'The Unity of European Law 23

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always able or willing to review facts, and yet in refugee cases, facts are often key elements in a decision. 30 Finally, it may be argued that the role ofthe ECJ in this area of law is seriously compromised by the lack of experts in refugee law at the ECJ and doubts are therefore expressed as to whether or not it will be able to interpret the necessary Directives in accordance with international law, in particular the Refugee Convention. The ECJ accepts the comparative approach as a method of interpretation,31 but in practice the ECJ generally does not refer in its judgments to national jurisprudence. It is left to the avocat general (or the Commission) to undertake any such comparative studies. 32 A notable exception is Case 155/79 AM & S Europe Ltd v Commission (relating to confidential treatment of contacts between lawyer and client), where the ECJ itself requested that the parties provide extensive comparative material on the existence and extent of a legal privilege of correspondence. 33 In the new area of EC asyl um law, the opinion of Advocate General Poiares Maduro in Elgafaji,34 the first to be delivered on the Qualification Directive, does very little to engage with existing asylum jurisprudence; instead the Advocate General developed autonomous concepts in interpreting the Qualification Directive. And yet, much national jurisprudence exists already in this area oflaw. Here there is scope for national courts to be more active in providing the ECJ with national and comparative jurisprudence on asylum. In any reference submitted to the ECJ (via articles 68 or 234 EC Treaty) on the interpretation of EU law, the statement of the facts and the legal context set out by the national court is central to the preliminary ruling procedure. lt is even recognised that this statement may be more important to the ECJ than the explicit question that has been referred to the court. 35 In sum, these particularities suggest that when the ECJ is going to enter into a dialogue with national judges in this area of law, its role will not be as effective as in other areas of integration. lt has been suggested that EU-wide and the Overload of the ECJ-The System of PreliminalY Rulings Revisited' in I Pernice, J Kokott and C.Saunders (eds) The Future of the European Judicial System in a Comparative Perspective, European Constitutional Law Network-Series Vol 6 (Nomos Verlagsgesellschaft, Baden-Baden, 2006) 211-239, 216. 30 Lenaerts however points toward the ECJ's devcloping tendency to 'provide more 'concrete', as opposed to 'abstract', rulings warranting complex analysis ofthe facts, nationallegislation and other aspects ofthe main action'; Lenaerts (n 4) 217. 31 Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame [1996] ECR I-1029, para.27. See generally Lenaerts, (n 4) 99-134. 32 Avocat gcncraux have often referred to foreign jurisprudence and academic writings (eg US) for inspiration in competition cases. See F Jacobs 'Judicial Dialogue and the CrossFertilisation ofLegal Systems: the European Court of Justice' (2003) 38 Texas International Law Journal, 553. The Commission too has on occasion provided comparative materials upon request by the ECJ, see Case 43/75 Defrenne v Societe anonyme helge de navigation aerienne Sahena. 33 T Koopmans 'The Birth of European Law at the Crossroads ofLegal Traditions' (1991) 39 American Journal ofComparative Law 493-507. 34 Case C-465/07, opinion delivered on 9 September 2008. 35 D Chalmers and ATomkins European Union Puhlic Law (Cambridge University Press, Cambridge, 2007) 278.

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guidelines based on national case law,36 which the ECJ can then rely on, may be necessary to address the problem of divergent interpretation. 37 This idea is advocated by the UNHCR38 and is currently being discussed by members of the IARLJ, European Chapter. The European Commission has recently adopted a proposal for a Regulation to establish a European Asylum Support Office, in the form of an independent agency, in 2009, and aiming at providing adequate support for practical cooperation activities between Member States. 39 It is feh that such support would serve 'to improve the quality and convergence of Member States' decision-making, through, inter alia, exchange of good practice, joint training activities and the sharing of information on countries from which asylum seekers originate' .40 This article argues that national judges are key players in the establishment of a 'common' European asylum system, and activities based on trust and reciprocity between national courts (such as using each others' jurisprudence on asylum) must occur for this system to work effectively. III. TRANSNATIONAL ASYLUM JURISPRUDENCE IN THE BRITISH AND FRENCH COURTS:

EMPIRICAL FOCUS

This section takes an empirical focus on Britain and France and answers three questions: (1) What is the precise extent of the use of transnational asylum jurisprudence by British and French judges in the EU? (2) When does it happen? (3) Where does it happen? Whilst not a primary focus, this section also considers questions ofhow and why transnational asylum jurisprudence is used. Is it used because it is interesting or persuasive?41 Is it used to prove or disprove factual propositions or to seek normative guidance? Is it used to fill a gap in the law or to confirm that a The terms 'case law' and 'jurisprudence' are used interchangeably throughout this article. This 'shared responsibility' between the national courts and the EC] is elearly reeognized by the EC] itself in the area of human rights, eg Case C-1l7/0 I KB v National Health Service Pensions Agency (Judgment) [7 JanualY 2004] and Case C-IOI/OI Lindqvist (Judgment) [6 November 2003]. 3R UN High Commissioner for Refugees, Asylum in the European Union: A Study of the Implementation ofthe Qualification Directive, November 2007. 39 Press Release, 'Setting up of European Asylum Support Office proposed by the Commission' IP/09/275, Brussels, 18 FebrualY 2009. Available at: http://europa.eu/ 36 37

rapid/pressReleasesAction.do?reference~IP/09/275&format~HTML&aged~O&language~EN&

(accessed 28 February 2009). Press Release 'The EU moves toward the ereation of a Support Office in the field of asylum management', IP/08/607, Brussels, 18 April 2008. Availablc at: http://europa.eu/ guiLanguage~en 40

rapid/pressReieasesAetion.do?referenee~IP/08/607&format~HTML&aged~O&language~EN&

(accessed 22 April 2008). See also COM (2008) 360 final, Commission's 'Poliey Plan on Asylum' . 41 The seareh for 'persuasive authority' has been described as an attempt 'to lcam something from a judge in a different countty dealing with a similar problem'; Comments in the Harvard Law Review (2005) 103, 167, 149. Also, J Bell French Legal Cultures (Butterworths, London, 2001) 8. guiLanguage~en

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proposed solution has worked elsewhere7 Is it used to interpret astatute that has its origins in the Refugee Convention or EC law (eg the Qualification Directive)7 In cases where no jurisprudence exists from the International Court of lustice or the ECl, the national court will naturally aim towards reaching a common meaning of the international treaty or the EC Directive. Some of these purposes fall within rules of relevance others within judicial discretion. In our context, refugee law, it is safe to say that judges have more discretion when interpreting international treaties (EC Article 31 (3) of the Vienna Convention on the Law of Treaties) than when interpreting EU laws (direct effect and indirect effect, and the evident role of the ECl). This may explain partly why we can see a slow increase in the pattern of transnational references between certain EU countries since the adoption of EC legislation on asylum.

A. Methodology These questions were applied to a rigorous empirical analysis of the use of foreign law in asyl um cases in France and Britain. In the case of France, a comprehensive survey was conducted by the Refugee Appeals Board's Legal Information Department on behalf of the author. 42 This involved analysis of all the decisions and preparatory documents ifeuilles vertes) of the plenary sessions of the Refugee Appeals Board (now the National Asylum Court) since its first hearing in 1993 until August 2006. The feuilles vertes are working documents that contain a summary analysis of the legal instruments and case law relevant to the case at hand. They are prepared by the Legal Information Department of the Appeals Board (now the new Court), directly under the supervision of its President (currently Mr Bernard) who decides which questions to be considered and which appendices to include. Thus, it is he who can require (and has required) foreign jurisprudence to be considered and added. The feuilles vertes are intended to be used by judges; on occasion they may be communicated to the parties (and their representatives). The empirical survey also involved analysis of all the relevant decisions of the Council of State (Conseil d 'Etat) including the conclusions of the Commissaire du Gouvernement which were available to the Refugee Appeals Board but excluding those applications that were found to be manifestly Ullfounded. In addition, a selection of decisions by the Refugee Appeals Board sitting in ordinary session was also examined. 43 In the case of Britain, a team 42 Note that the Refugee Appeals Board (Commission de recours des rejugies) beeame the National Asylum Court (Cour nationale du droit d'asile) following amendment ofthe CESEDA (Code de l"entree et du sejour des etrangers et du droit d'asile) on 20 November 2007. See new article L.733-1 f of the CESEDA. 43 Until 2001-2002, the annual eolleetion of deeisions of the Refugee Appeals Board (ereated by the Legal Information Department) was based on all the deeisions of the Board (ie 6,000-12,000 per year). Sinee 2003, the Board (and now the new Court) has made over

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of researchers conducted a complete survey of the published decisions of all the relevant courts in England and Scotland until January 2008. The decisions ofthe Asylum and Immigration Tribunal, the Administrative Court, the High Court, the Court of Appeal, the Court of Session (Scotland) and the House of Lords that made reference to foreign asylum jurisprudence were selected and analysed. B. Empirical Findings: France

Empirical research shows that it is very rare for French senior asylum judges to refer to foreign jurisprudence in the text of their decisions. With the exception of one case requiring the application of principles laid down in the Dublin II Regulation and Schengen Convention,44 none ofthe decisions ofthe National Asylum Court/Board or of the Council of State have made explicit reference to foreign jurisprudence in the actual text of courts' decisions. Rather, if and when foreign material is being used, this takes place through the use of supporting documents (feuilles vertes) for the plenary sessions of the National Asylum Court/Board which, on occasion, include an analysis of foreign jurisprudence,45 or through the conclusions of the Commissaire du Gouvernement who, as a member of the Council of State, gives her or his opinion on the interpretation of important legal issues, an opinion which very occasionally refers to foreign case law. 46 On these rare occasions, foreign jurisprudence has been used when it comes to interpreting certain controversial provisions of the Refugee Convention, such as the meaning of social group or the exclusion clause. The general assessment is that judges in France base their arguments and reasoning mostly on French sources of law, including international and European law which is binding on the French courts. However, arecent trend is starting to show towards an increase in transnational references, particularly in the context of new legal concepts that spring from the new EU Directives. For instance, the Refugee Appeal Board gave serious consideration to foreign jurisprudence when, in 2003, it drafted an internal document aimed at implementing Council Directive 2004/83/EC (namely, the Qualification Directive). This document, largely inspired by 40,000 deeisions per year, of whieh around 2,000 deeisions are seleeted eaeh year for lhe eollection. 44 CRR (Commission de recours des rf!jilgies) , SR (sections rhmies), 23 FebrualY 2001, application no. 351244, Keklicekpinari. 45 Eleven such eases were found: CRR, SR, 7 November 2001, applications 361050 and 373077, Sissoko; CRR, SR, 7 December 2001, appl 368138, Soumah; CRR, SR, 9 January 2003, appl 362645, Altun; CRR, SR, 28 February 2003, appls 404302 and 404411, Mlles Wang; CRR, SR, 17 Oelober 2003, appl 423904, Mlle M; CRR, SR, 25 lune 2004, appl 403498, Mme Koffi Amani; CRR, SR, 15 Oelober 2004, app1444000, Nazia; CRR, SR, 4 March 2005, app1489014, Mlle Tas; CRR, SR, 29 July 2005, appl 519803, Mlle Tabe. 46 See, Conclusions by Marline Denis-Linton in Mme Agyepong (Conseil d 'Etat, 2 Deeember 1994, applieation 112842) and Conclusions by lean-Denis Combrexelle in Ourbih (Conseil d 'Etat, 23 June 1997, applieation 171858).

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foreign jurisprudence, is important in providing new directions in the interpretation of new concepts in the Directive, such as lack of protection by the State of origin, internal relocation, and subsidiary protection. It also confirms that the new EC Directives on asyl um require judges to learn more about their neighbouring countries ' jurisprudence. C. Empirical Findings: Britain

In Britain, the search for an authority (or subsequent State practice )47 is an important component of a court's decision. To this end, the British courts (including the Scottish Court of Session) have often explicitly referred to common law jurisprudence in asylum cases, in particular to decisions from Canada, New Zealand, Australia and the USA when interpreting certain provisions ofthe Refugee Convention. 48 They have also increasingly relied upon the jurisprudence of the International Court of Justice, the International Tribunal for the Former Yugoslavia, and the European Court of Human Rights,49 as weH as drawn on distinguished academic writing. 50 However, judges only rarely refer to jurisprudence from other EU Member States. 51 When such transnational reference happens, it takes place mostly in the context of the application of the Dublin II Regulation (that is, when considering the likely conduct of a court in a third country), or when interpreting certain controversial provisions of the Refugee Convention (such as, persecution by non-state agents, protection of the country of nationality or article IDrefugees receiving United Nations protection and assistance). Other foreign material, such as foreign statutes or practice, is also occasionally being referred to in the context of the application of the Dublin Regulation. S2 In such cases, the use offoreign law is made quite openly by judges themselves in the Article 31(3)(b), Vienna Convention on the Law of Treaties 1969. eg Lord Bingham's opinion in Sepet v SSHD [2003] 1 WLR 856 (HL) and in Januzi and Hamid v SSHD [2006] UKHL 5 (HL) and Lord Steyn's opinion in Islam v SSHD and R vlATand another. ex parte Shah [1999] 2 AC 629 (HL) (25 March 1999). 49 eg R (Razgar) v SSHD [2004] UKHL 27 (HL), R (Limbuela) v SSHD, R (Tesema) v same, R(Adam) v same [2005] (HL) (3 November 2005) Jones v Ministry of Interior Al-Mamlaka AlArabiya AS Saudiya [2006] 26 (HL) and A et al Abu Rideh and Ajouaou v SSHD [2004] CA 71 (HL). 50 In particu1ar the work of Professors G S Goodwin-Gill and J C Hathaway, eg SSHD v K (Fe) and Fornah (Fe) vSSHD [2006]46 (HL); Horvath vSSHD [2000]lNLR 15 (HL); andl5lam v SSHD [1999]2 WLR 1015 and R v Immigration Appeal Tribunal, ex p Shah [1999]2 AC 629 (HL). 51 Seven such instanees were found, three at the House of Lords, one at the Court of Appeal and three at the Asylum and Immigration Tribunal. Sec Secretary 01' State far the Home Department, ex p Thangarasa & Yogathas, [2002] 36 HL; R ex p Zeqiri v Secretaty oIStatefar the HOIne Department [2002] (HL); R v Secretary of State je,r the Home Department, ex p Adan, and R v SSHD. ex p Aitseguer [2001] 2 WLR 143 (HL); and EB (Ethiopia) [2007] EWCA Civ 809; RD (Algeria) [2007] UKAlT 00066; STv SSHD, [2005] UKIAT 00006; Fadil Dyli v SSHD, [2000] UKIA T 0000 I. No instances were found at the Scottish Court of Session. 52 See, for instance, Sepet and Bulbul v SSHD [2003]1 WLR 856 (HL) Re B (Fe), R v Special Adjudicator ex parte Hoxha [2005] (HL)blam v SSHD [1999]2 WLR 1015 and R v Immigration 47

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actual text of the decisions of the courts. What is certain is that foreign law is only being used at a senior level, ie that of appeal and beyond, not at the initial first-instance level in the decision-making process. It also appears from a reading of the relevant cases that British judges are using foreign law because it is interesting; they are curious about finding out how other judges have responded when faced with a similar issue. In such cases, the aim is 'less to borrow than to benefit from comparative deliberation'. S3 In most cases where foreign law is being discussed, such an exercise also appears to lend legitimacy to the values of judges when exercising their judicial functions, particularly in instances where the law is ambiguous. S4 Thus, recourse to foreign law in the British courts helps reinforce legitimacy and 'guides, the exercise of judicial discretion'. ss The use of foreign law in Britain, therefore, seems to be about the protection of judges themselves in that it provides a form of reassurance and checks on their own power. 56 This is best illustrated with cases where deviations between foreign and domestic approaches were found. In such cases, British judges consider it important to distinguish judgments of foreign courts if these go against the conclusion that they intend to reach. 57 Such instances clearly show that British judges are actively engaged in a dialogue with other judges, just not judges from continental Europe, and that theyare using foreign law as persuasive authority. IV. TRANSNATIONAL ASYLUM JURISPRUDENCE AND THE BRITISH AND FRENCH mDGES: mRTSPRUDENTIAL QUESTION

This section considers a jurisprudential question: why transnational referencing does or does not happen. Two basic accounts are suggested: a rational account and a cultural account. A. Rational Account

The rational account focuses on language, time constraints and access, and training, and it looks at the extent to which these constitute obstacles to the Appeal Tribunal and Another, ex parte Shah [1999] 2 AC 629 (HL), and R v SSHD, ex p Adan [1999]INLR 362 (HL).

A-M Slaughter, A New World Order (Princeton University Press, Princeton, 2004) 75. W Laeey 'Judieial Diseretion and Human Rights: Expanding the Role of International Law in the Domestie Sphere' (2004) Mclbourne Journal oflnternational Law 108-132, 113. 55 ibid 108-132, 114. 56 Cherie Booth, remarks at a one-day eonferenee at the British Institute of International and Comparative Law: 'European Influenees on Public Law: 5 years ofthe HRA 1998 in English Law and Reeent Devclopments in Franee' Oetober 2005. See also, J Bell Judiciaries within EuropeA Comparative Review (Cambridge University Press, Cambridge, 2006) 9-10. 57 eg Lord Hope in Horvath v Secretary ofStatefor the Home Department [2001]1 AC 489, discussing Canadian jurisprudenee on the meaning of 'perseeution' and suffieient 'protection' in article 1 A(2) of the Refugee Convention. 53

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volume and direction of the dialogue between judges in France and in Britain. 58 The basic premise is that the extent of such obstacIes has a causal impact on the volume of dialogue and also on its direction. This explanation is said to be rational because it is based on opportunity cost, namely, the balance between the benefits of referring to foreign law and the costs that such an exercise entails. S9 1. Language Analysis of the relevant case law in France shows that where foreign law is used, decisions, legislation and practice from countries as diverse as Germany, the USA, Australia, the United Kingdom, Canada and Belgium have occasionally been used at the National Asylum Court and the Council of State without any obvious preference for French-speaking countries. This suggests that language does not constitute a major obstacIe to an exchange in jurisprudence between France and other EU Member States. At first sight, the situation appears different in Britain, where the courts commonly refer to jurisprudence from other Commonwealth countries but hardly ever make reference to decisions from non-English-speaking countries. However, the superior courts of some EU countries translate their key decisions into English. This is the case in France, where since 2004 summaries (more rarely the full text) of important decisions of the National Asylum Court and of the Council of State are translated into English. It would seem therefore that language is not a barrier per se to transnational European legal dialogue in refugee law. 60 Hence, other obstacIes need to be considered. 2. Time constraints and access It is evident that first-instance decision-makers in France are not adequately

equipped to take advantage of foreign law. The normal time limit for a decision by the OFPRA (Office franc;ais de protection des rlfugü'!s et apatrides) is two months, but it can be reduced to 15 days in the case of a priority procedure or 96 hours when the asylum-seeker is placed in administrative

58 Other 'rational' explanations have been put forward to account for the lack of traffie between foreign judges, such as institutional capacity and habit. 59 This rational aeeount is based on regime theory which seeks to explain co-operation between aetors in world politics. See A Hansenclever, P Mayer and V Rittberger, Theories oI International Regimes (Cambridge University Press, Cambridge 1997) 23-82; AStein, 'Coordination and Collaboration: Regimes in an Anarchie World', in SD Krasner (ed), International Regimes (Cornell University Press, lthaea, 1983), 115-140; and D Snidal, 'Coordination Versus Prisoners' Dilemma: Implications for International Cooperation and Regimes' (1985) 79 Ameriean Politieal Seience Review 923-942. 60 In addition to language barrier, lack ofknowledge offoreign legal systems may be a further inhibiting faetor in the use of foreign jurisprudenee in that system.

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detention. 61 In this context, the time put aside by each officer for researching the facts, analysing the applicant's file, and refiecting upon each case, is extremely short. 62 As a judicial authority, the National Asylum Court can also issue a ruling without being bound by a time limit but, given the sheer number of asylum appeals, the Court has no choice but to rule promptly.63 In Britain, the New Asylum Model (introduced on 5 March 2007) requires asylum cases to be concluded within six months. Asylum-seekers' interviews take place six days after initial screening. Fast-track cases (namely, 'manifestly unfounded' or 'late and opportunistic') are decided within 11 days; all other decisions are made within one month. As a result, judges in the lower courts have very little time to undertake any research of foreign case law. Conceming access to decisions, the full text of most cases decided by the British courts is published and (easily) accessible to the public,64 but this is not the case in all European countries (for instance, Ireland), therefore making it difficult for a British judge to access this foreign case law. France too makes most of its decisions available to the public 65-but as discussed in sub-section B below these decisions are extremely short and reveallittle. However, this is not the case of the supporting documents intended for the plenary sessions of the National Asylum Court or ofthe conclusions ofthe Commissaire du Gouvernement at the Council of State. In sum, difficulty in accessing other countries' decisions, coupled with time constraints, appear to be a considerable baITier to a transnational judicial dialogue in refugee law. 66 3. Training The French National Asylum Court (previously the Refugee Appeals Board) is an administrative tribunal,67 whose ordinary members (or judges) are not required to be lawyers; they do not necessarily know French law, and less so (comparative) refugee law or human rights. 68 The prl!sidents des formations

Articles R 723-2 and R 723-3 of the CESEDA. 2.7 dossiers per day at the OFPRA; around 2 dossiers per day per rapporteur at the Refugee Appeal Board. J Valluy, 'La fietion juridique de I'asile' (Deeember 2004) Plein Droit 63. 63 The average time for ruling on an asylum appeal was approximatcly 10.3 months at the Board in 2006. See the Activity Report 2006 of the Refugee Appeals Board, available at: http://www.commission-refugies.fr/presentation_4/actualites_5/rapPoli_activite_2006_2142.html. Contrary to popular opinion, these are not just low-wage, unskilledjobs that have traditionally required foreign labour. They are not just jobs that the domestic workforce wants to shy away from. For exampIe, in London it is said that 'The capital's building trade is now almost entirely dependent on foreign, particularly Eastern European, labour'. 136 They include skilled jobs. The London Assembly's Health Committee recently reported on the acute shortage of doctors in London. More than 330 vacant GPs posts cannot be filled. This represents a shortfall of 7 per cent compared with anational shortfall of 3 per cent. In some areas 80 per cent of General Practitioner's surgeries are closed to new patients. Unusually, the Health Committee recommended that the answer lay in recruiting refugee doctors and doctors from Commonwealth countries who are unaccredited in Britain. 137 Like prostitution and drugs, migration is a matter of supply and demand. Rich countries want labour; poor countries have the workers. Migration is a market like any other. The key lies in bringing the state in on the market. The state should be a ready participant in this supply and demand. It should legalise the right to work, 132 See espeeially James P. Smith and Barry Edmonston, 'The New Amerieans: Eeonomie, Demographie and Fiseal Effeets of Immigration' (Kation al Aeademy Press, 'Vashington DC, 1997) and also Julian L. Simon, 'The Eeonomie Consequenees of Immigration' (Blaekwell Press, 1989). Studies in Europe also point to the benefieial elfeets ofimmigration. The United Kingdom's annual statistieal survey, Soci,,! Trends, has shown that wilh the aging of the largest generation born after the Seeond \Vorld \Var, deaths eould exeeed births around the year 2030, whereupon the population will begin to decline in Britain unless imrnigration aets as a balancing factar (see S.Juss, at 5). In Germany, the Institute ofEeonomie Research in Rhineland-\Vestphalia has ealculated that sinn: 1988, 100000 new jobs have been ereated in the eeonomy by firms employing eheap migrant labor. \Vithout the tax and soeial eontributions ofthese workers, estimated at DM29 billion in 1991, German nationals would have had to pay 40% more tax for the same level of service provision. Other surveys in Belgium and Sweden have also demonstrated that immigrants are neeessary to maintain the welfare state and the workfilree. (Sec S. Juss, at 119). 133 Sec 'Go for it' The Economist, 6 Mav 2000, at 19. 13: See Libby Brooks, at 3. 13', Sec Libbv Brooks, at 8. 13b See Camilla Cavendish, The people we ean see onlywhen they die', The Time.>, 9July 2003, at 20, where it is also stated that 'almost a quarter of staff working in British restaurants were born overseas' and that 'J\ifore than two-thirds of independently-owned loeal shops belong to people from ethnic rninorities'. 137 See Gabriel Rozenberg, 'shortage ofGPs "at eritieallevel" " The Time.>, 20June 2003 at 11.

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just as the London Health committee recommended. There is a ready framework to follow in the form of an international model. It lies in the ICESCR which provides for the right to work as a 'right of everyone,.138 It is in this way that the state can regulate migration. This means that restrictive measures taken by governments must conform to strict tests. As explained by one writer, \'\ihere the restriction does not involve a suspect classification or impinge on fundamental rights, a restrietion on entry would have to bear a reasonable relationship to a legitimate govemment interest. Present immigration law contains various exclusion provisions which would need to meet the test of a reasonable relationship to a legitimate state interest. \'Ve may consider these as fillling under the broad interests of public health and safety, public morals, fiscal integrity, and national security, though these categories overlap to a degree. 139

There is, therefore, compelling empirical evidence, not only that that free movement across national borders is, normatively speaking, a basic human right, because it has a long and illustrious history; but that it has been a de facta right in every practical sense, because it was exercised freely by anyone who had historically chosen to so exercise it. In the annals of international morality, it was recognized freely long before the developme nt of modern internationallaw. Indeed, Europeans exercised the right long before they thought of restricting it for others. Today, in an era of globalisation the collective interest the world community is such that the normative and de facto right to free movement needs to be given a clear legal basis in the asylum and immigration laws of domestic legal systems.

5. Free Movement and the Modern Publicists A second important question that Nafziger forces us to confront is whether modern publicists, writing for the modern era, have followed in the spirit ofthe classical publicists and endorsed freedom of movement as a normative principle. The question is important for two reasons. First, because globalisation of immigration controls is today at its peak in the developed world; and secondly, because given that the doctrine of state sovereignty allegedly allows for the determination by the state of its constituent population. Modern publicists wrote at a time when immigration restrictions were at their peak in most western countries. Yet, it is remarkable that they 13B Article 6 reads: 'The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he frecly chooses or accepts, and will take appropriate steps to safeguard this right'. The steps to be taken bya State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidancc and training programmes, policics and tcchniqucs to ac hieve stcady cconornic, social and cultural devclopment and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual. 139 See 'Immigrants, Aliens, and the Constitution', 49 No/re Dame LaU! Review [1974], 1075, 1082.

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do not differ in this respect from the classical publicists. One contemporary philosopher,Joseph Garens has put forward an eloquent thesis in defense of free movement rights. 140 Garens calls in aid the theories of modern liberal philosophers today to argue for a theory of free movement rights. First, he considers Robert Nozick who has argued that the state has no right to do anything other than enforce the rights which individuals already enjoy in the state of nature (for example, property rights). This being so, Nozick argues that because the state enjoys a defacto monopoly of power or the enforcement of rights within its territory, it is obliged to protect the rights of its citizens and non-citizens equally.141 Second, Garens considers John Rawls, who propounded a theory of the State that was more activist. Under Rawls' theory the state has positive responsibility for social welfare. Rawls believes that if people were asked behind a 'veil of ignorance' they would chose two things: (i) equalliberty for everyone; and (ii) the acceptance of social and economic inequalities only so long as they were advantageous to the least well-off and attached to positions open to all under fair conditions of equal opportunity.142 Garens draws upon this to argue that these principles, in particular the second principle does not necessarily just apply to a population within the state. There is no reason why it cannot extend across states to apply to different societies and communities. \'\Te only think about the state because liberalism always presupposes the existence of the state as it sets out to explore the relationship between the individual and the state, in an effort to posit a doctrine of individual rights. Michael Dummett takes an even more robust line. He states that philosophers from Plato to Rawls have only enquired into the foundations ofjustice in the context of a bounded society: 'they have rarely overstepped the boundaries of a society'. Gonsequently, 'they have seldom asked what obligations astate has towards those who are not its citizens'. This is an important question because '[a] just society ... is not merely one whose members act justly: it is one that functions justly as a whole'. He then suggests that 'Egalitarianism is the belief that within a just society every individual must be accorded absolutely equal treatment; this is difficult to describe, let alone achieve'. Nevertheless, '[f]or the egalitarian, it is the duty of the state to correct for inherited inequalities as much as can be done, as in a card game which awards a premium to a player for having no trumps or no court cards in his hand,.143 He is critical of Nozick for suggesting that that the natural forces of individual self-interest should be allowed to operate unchecked and that a just society need have no HO Joseph Carens, 'Aliens and Citizens: The Case für Open Borders', Review (1987) 251. H 1 Rober! Nozick, Anarchy, Siale and Utopia, (Oxford; Basil B1ackwell, 1974). ::~ John Rawls, .:t Theory of]ustice, (Cambridge, Mass. Harvard Cni. Press, 1971). . Dummett op Clt at 23.

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collective ideal at all. This laissez-foire view rests 'on a prior presumption that justice is on1y an individual virtue: that no question arises whether a whole society functions justly'. But a society cannot be just if it allows every unequal transaction to take pI ace unchecked, reasons Dummett, since it is well known how 'accidental advantages can lead over time to grotesque disparities of wealth and power' with the result that 'almost all societies are disfigured by such inequities'.144 Inequalities, therefore, have to be justified. It is he re that Rawls has a contribution to make for he has proposed that inequality within a society is legitimate only if the least well group is better off for it than it would be without it. Dummett extends this reasoning to groups outside a bounded society. He reasons that V\;nat is apparent is that we can no longer regard justice as bearing only on the functioning of a single society, considered as that compared within a single sovereign state. The horrifying inequalities that often exist within any one such society are outstripped by the yet more horrifying inequalities between rich and po~r ones - a disparity with the most powerful eflect on migration between them. 14:>

Astate has a duty, argues Dummett, 'to come to the aid of other states when disasters strike them, such as ftoods, earthquakes, volcanic eruptions and famine' and although these are underpinned by 'a great many principles' in internationallaw that govern one state's responsibility to another state 'to offer help ... in moments of sudden and severe need' the reality is that 'these are largely unenforced'. This raises a further question: 'what duties ... does astate have towards individuals seeking to enter the land over which it rules? The initial answer has to be that it must deal with them justly: it must give them their due,.146 Dummett appears to imply he re that this makes out a case for the right to migrate. The arguments above - and especially those of Dummett - stretches the limits of liberal theory. Liberalism presupposes the existence of the state. Without the state there are no human rights. The liberal state is only so-called because it protects the human rights of its citizens within its borders. ''\That these arguments point to accordingly, is a new way of thinking about human rights. One that allows for recognition of rights outside the state. Globalisation, or what is sometimes called the second phase of modernity, shows that the state is increasingly obsolete as a sovereign entity. lronically, the state is even more determined to control that which it thinks it can control, namely, population movements to and from its borders. However, globalisation makes the sustenance of closed and insular states much more difficult. That is the lesson both of the uprisings of 1989 and of the horrifying attacks on the Twin Towers on Dummctt at 24. . Dummett at 25. 146 Dummett at 27.

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11 September 2001. The opening up of the world through trade, travel and television 147 suggests that so-called sovereign states are subject to the forces of internationa1ism in which the understanding of individual human rights must extend beyond borders. 148 In era of the internationalization and globalization of environmental, resource, and rights issues new normative principles of appropriate state conduct and rights recognition has to be developed. Should we, therefore, be intellectually hamstrung by the limiting constraints ofliberalism when considering the future development of free movement rights? It seems, not. One notable and distinguished publicist gives a differing view. Michael \Valzer states that elite States must discriminate in order to preserve themselves in their choice of rules as to who they admit and who they reject, and he uses culture as the discerning discriminatory too1. This is the third important question that Nafziger leaves us to confront, namely, whether nativism properly can be the basis of migration policy today. \Valzer identifies the problem as follows: Since human beings are highly mobile, large numbers of men and women regularly attempt to change their residence and their membership, moving from unfavoured to favoured environments. Affiuent and free countries are, like elite universities, besieged by applicants. They have to decide on their own size and character. More precisely, as citizens of such a country, we have to decide: whom should we admit? Ought we to have open admission? Can we choose amonf'st applicants? What are the appropriate criteria for distributing membership? 49

Walzer states that the 'conventional answer' is that 'we who are already members do the choosing, in accordance with our own understanding of what membership means in our community and of what sort of a community we want to have. Membership as a social good is constituted by our understanding; its value is fixed by our work and conversation; and then we are in charge (who else could be in charge?) of its distribution,.150 \Valzer propounds a communitarian thesis in defence of the rights and desires of the existing community. He states that for aState when it comes to choosing an admissions policy, 'it is not merely a matter of acting in the world, exercising sovereignty, and pursuing national interests. At stake here is the shape of the community .... Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination. Without them, there could

H;,

Mary Kaldor, 'Armageddon Myths' New Statesman, 26 May 2003, 48 49 at 48. In this respect, sec also, David Jacobsen, Rights Aeross Borders (1996, Baltimore, Jolm Hopkins Cniversity Press) where he argues that since \Vorld \Var II citizenship has been increasingly devalued as govcrnmcnts cxtcnd fights to forcign populations and ho"v, in turn, international human rights IcH'V has ,become increasinglv important. Walzer, Mick~,l, Sjiheres of]ustice: A Defince of Pluralism and Equality (Oxford. 1983) at 32. l.JIJ \Valzer, at 32. Ho

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not be communities of character, historical stable, ongoing associations of . h some specia . l ' men an d women Wit commltment to one anoth er ... lr,l ' It could be argued, however, that it is precisely because some societies are so affiuent and free that they should not be allowed to deny admission to those less fortunate than themselves. Such an expectation arises from the principles of international morality, so that even though national polities must answer these questions for themselves, they must take account of the fact that for all international purposes all distinctions between different kinds of subjects have neither theoretical nor practical value. Michael \Valzer's communitarian thesis of exclusionary rights is open to question. It is based on an idea of community or ethnicity that has a doubtful basis in the modern world. Michael Walzer, nevertheless, does also assert that just as liberal societies have choices, they also have constraints. Accordingly, for hirn ... self-determination in the sphere of membership is not absolute. It is a right exercised, most often, by national clubs or families, but it is held in principle by territorial states. Hence, it is subject both to internal decisions by the members themselves (all the members, including those who hold membership simply by right of place) and to the external principle of mutual aid. Immigration, then, is both a matter of political choice and moral constraint l52

Walzer, nevertheless, remains clear, however, that '[tJhe citizens are free, of course, to set up a club, make membership as exclusive as they like, write a constitution, and govern one another'. The only restriction on this right is that 'they can't claim territorial jurisdiction and rule over the people with whom they share the territory' since this would be 'a form of tyranny'. 153 Yet, the freedom to deny membership to others less fortuna te , even in cases where one does not exercise dominion over them, purelyon the basis of community is surely open to question. The implications for humanity and for the international order are clear. Livermore observed, more than a hundred years ago, that: The people of an independent nation may, if they please, surround their territory with an impassable wall, and totally exclude all intercourse with other nations. But if adesire to promote their own interests induces them to cultivate an intercourse with other people, they must necessarily adopt such principles, as a sense of common utility and Justice will inspire ... 154

\Vriting at the turn of the twentieth century, Michael Dummett is much more specific, drawing attention both to the sheer inanity of

151

\Valzer, at 61-62.

:~~ Walzer, Michael, 5pheres o/]ustiee: A De/enee ofPluralism and ~quality (Oxford. 1983) at 62 .

\Valzcr, at 62 S. Livermore , 'Dissertations on Questions \Vhich Arise From the Contrariety of the Positive Laws ofDifferent States and Nations' 27-28 (1828). .J.

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discriminatory practices as well as their potentially harmful effects for a world that is both mobile and cosmopolitan: The world at the turn of the twentieth century is one in which there has long been no possibility of crossing any but a very few frontiers unhindered, but in which travel is swifter and easier than ever before, and there are manifold calamities persecution, violence, war, hunger - pressing people to flee the lands in which they are living. \'\7 e can therefore say with assurance that, in the world as it now is, and as it will doubtless be for many centuries yet, no state ought to take race, religion or language as essential to its identity. If it does, it will inevitably find living within its borders minorities not of the favoured one, speaking languages different from the majority tongue. These minorities will be liable to persecution or discrimination, whether by laws of the state or by the actions of those who belong to the dominant group ... 155

In attacking the notion of 'identity', Dummett is emphatic that '[tJhere is no country in today's world that does not have racial, religious or linguistic minorities; even if it lacked them, they would so on arrive'. 156 The irony is that these matters have been recognized by thoughtful and prescient officials for a long time now. As long as a quarter of a century ago, the legal system of a leading contemporary liberal democracy had no difficulty in recognizing that the proposition that common law countries had an absolute right to exclude others was 'xenophobie'. The New Zealand Supreme Court observed that 'the Royal prerogative to keep foreigners at bay has been superseded by the modern transportation and the mass population movements ofthe twentieth century'.157 The legal right of aState to exclude people is often asserted as an expression of its sovereignty. As such, this concept needs to be analysed here. Sovereignty implies absolute power. All power, however, is necessarily limited. State power cannot be described in terms of sovereignty. Sovereignty, indeed, is not astate of affairs. It is not a fact. It is simply a doctrine. As a doctrine, the primitive caricatures of Bodin, Hobbes and Austin, are now firmly discredited. At the beginning of the twenty-first century, sovereignty has never been weaker. The attacks on Afghanistan and Iraq by coalition forces to root out terrorism took place notwithstanding the doctrine of state sovereignty. So, why do states still rely on it? As a doctrine, sovereignty allows political activists to advance claims that further their poIitical objectives. 158 Its history provides the key to its nature. Sovereignty had its origins in Europe during the political developments of the Middle Ages. At the time, the Pope was supreme in spiritual Dummett, at 6. Dummett at 6. IS7 119781 2 I\.Z.L.R at 568. Ir also observed that there was a long custom of alien admissions under the New Zealand Immigrant Act, which made such a proposition untenablc. Isa Satvinder Juss, 'Abdancloning Vires-Based review' The King's College Law Journal (vol. 13, Part 2, 2002) 239-253 at 244-245. 155

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matters. The Emperor supreme in temporal matters. At first, the concept could not ftourish because sovereignty was shared and divided. In the sixteenth century, however, individual states challenged the authority of the Pope and the Emperor and asserted 'independence from their supremacy in spiritual and temporal matters' .159 It is in this context that sovereignty emerged as being seen as the supreme authority in an independent political society that was both indivisible and illimitable. Yet, the doctrine was fictitious from the start. Sovereignty is limited externally by the possibility of general resistance. Internally, it is limited by the very nature of power itself. Today sovereignty 'cannot be either the basis or the source of the law of nations'. 160 It is simply a term used to refer to the institutionalized independence of states who are subject to international law. 161 As applied to issues of migration and freedom of movement, sovereignty is both undefined and undefinable,162 particularly in an era of mass movement and globalisation. In fact, Deng has redefined Sovereignty as 'responsibility' recently. As he states, I approach sovereignty not as a negative concept by which states barricade themselves against international scrutiny and involvement, but rather as a positive concept entailing responsibility for the protection and general welfare of the citizens and those falling under state jurisdiction 163

Thus, the notion that astate may exclude all aliens is no more than a maxim. It lacks concrete justification. The philosophical justification is the sovereign's inherent powers to determine all activity within its territorial jurisdiction. Sometimes the notion is reformulated, as Michael Walzer and the communitarians do, on the basis of an autonomous, communal self-determination of a people to choose all other members of anational polity. These justifications, whether philosophical or otherwise, do not bear closer scrutiny. First, Vattel had suggested that astate has 'inherent powers' to take all necessary measures, for its self-preservation, provided that these do not offend against the laws of nature. 164 States often use this principle to act contrary to internationallaw so as to 'preserve its independence, and give security against foreign aggression and encroachment' as a matter of its 'highest duty,.165 However, if the self preservation of the state is not at stake, then the concept of inherent powers is redundant in international lVI.S. Rajan, United Nations and Domesti, Jurisdiäion (2nd cd., 1961) at 1 2. Hcrseh Lauterpacht, The Function of LaU! in the Intemational Community (London, 1933) at 96. 161 Custams R~r;irne between Gemwn)' and Austna, 1931 PCU, Ser. AlB, No. 41, at 57 (individual Opir~ion by Judgc Anzilotti). Ib2 See C. Gordon & H. Rosenfdd, Immzgratian LaU! & Procedure (1978) at 2-16. 163 See Francis lVIadding Deng, The Global Challenge of Internal Displacement', .Journal 0/ Law & Policy (Vol. 5, 2001) 144. 16: E. De Vattel, at 19-20. 16:, The Chinese Exc/usian Case 130. U.S. at 606. 159

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law. In any event, the territorialist presumption is of dubious validity in the global world. As Chief Justice Marshal1 said in the US Supreme Court, 'The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other and by an interchange of those good offices which humanity dictates' sovereign states 'have consented to a relaxation in practice ... of that absolute and complete jurisdiction within their respective territories which sovereignty confers,.166 The concept of a sovereign's inherent powers is, moreover, dangerous in the globalized community for it can easily become a function of brute force by astate if it is used in circumstances other than a sovereign's self preservation or necessity. Second, sovereignty which 'is described as a supreme and independent authority of states over all persons and things in that territory' is no less easy to dispose of today as a sole basis for the determination of the admission and expulsion of aliens, even though it is 'very deeply rooted' in 'national sentiment and in the psychology of people'. 167 Sovereignty has served as a source of major confusion in international law and it is high time that homage ceased to be paid to it in the globalized world. It has been said that '[TJhe notion that the validity of internationallaw raises some peculiar problem arises from the confusion which the doctrine of sovereignty has introduced into international legal theory. Even when we do not believe in the absoluteness of state sovereignty we have allowed ourselves to be persuaded that the fact of their sovereignty makes it necessary to look for some specific quality, not to be found in other kinds of law, in the law to which states are subject'.168 Hence, whilst it is possible to say in one breath that when it comes to questions of immigration and nationality '[iJ t is still common to find expressed the view that such matters are for the local state alone to decide, in the plenitude of its sovereignty', 169 in the next breath it becomes necessary to acknowledge that 'it is practically impossible to define sovereignty in isolation from any particular context' .170 Communitarians often imply that they have the right to exclude individuals from their membership. The sovereign right to do so may weIl prevent the normal functioning and development of international law and organization. This is because it presents itself as 'the internal law of the state, namely, as the highest underived power' of the State. 171 This cannot be right because sovereignty is in reality a 'bundle of competences conferred by international law' itself making it 'essentially a relative

16: Schooner Exchange v.lvI'Faddon, 11 D.S. (7 Cranch) 116, 136 (1812).

:~~ The Cor/li Channel Case, 119491 I(~J Rep. 1, (indi\~dual Opinion byJudge Alvarez) at 43.

169 170 171

J. Brierly, The Law o/Nations (6th ed. 1963) at 54 'Guv S. Goodwin Gil!, Intemational Law and the lvlovenzent of Pers(ms Between States Gu~ S. Goodwin Gil! at 51. See' L. Oppenheim, International Law (8th ed. 1955) at 122-123.

(1978) at 52

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notion' so that 'its content depends on the stage of development of internationallaw,.172 Third, sometimes the doctrine of exclusive domestic jurisdiction is used today to re-assert the sovereign's inherent power to exclude aliens. But this doctrine too, suffers from the same inherent limitations. In fact, this doctrine has been described as 'one of the last refuges of the dogma of . , 173 The concept lS. worth relernng {"' . was to b ecause It a b so1ute soverelgnty.' precisely the concern over sovereign control of immigration matters that led to the permanent interposition of this concept under article 15(8) of the Covenant ofthe League ofNatiops.174 It is now Article 2(7) ofthe Charter of the United Nations 1948. 17:> However, the concept is still difficult because it is still international law that determines what lies within the domain of domestic jurisdiction. 176 Whereas it is still the case that under the current state ofinternationallaw, admission of an alien to state remains within the domestic jurisdiction of the state, what is domestic jurisdiction in any given case, is still worth considering. As Lawrence Preuss has observed, 'Matters of domestic jurisdiction do not qualify themselves' because ultimately, '[tJheir boundaries are traced by international law' which has the jurisdiction to decide whether a matter has 'entered the domain guaranteed au fond by internationallaw' 177 so as to limit domestic competence. There is a practical application of this limitation in Article 55 of the Charter which states that in order to create 'conditions of stability and well being which are necessary for peaceful and friendly relations among nations' the United Nations shall promise 'universal respect far and observance of human rights and fundamental freedoms far all without

172 J. L. Kunz, 'The NottebohmJudgment', 54 A]IL. (1960) 536 at 545. It is for this reason that, even 50 years ago, the Permanent Court oIJustice, declared that the concept of sovereignty has today 'bccornc an institution, an international social function of a psychological charactcr whieh has to bc cxcrciscd in accordancc ,'vith a new international 1aw'. In conscqucncc, lcading international lawycrs have been led to observe that the essential question 1'01' internationallaw is 'what is the maximum area of autonomy which the rules allow to states'. 173 M.S'- Rajan, at I. Q}lOting Eduard Hambro. 174 Article 15(8) reads as lüllows: 'Ifthe dispute between the parties is claimed by one ofthem, and is found by the Council to arise out of a matter which by internationallaw is solcly within the domestic jurisdiction of the party, the Council may in any case under this article reler the dispute to the Assembly'. See also, Helen Hart .Iones, 'Domestic Jurisdiction - From the Covenant to the Charter', 46 Ill. L. Rev. (1951 52) 219 at 219. Sec also, C. H. M. \Valdock, 'The Plea ofDomestic Juri§diction Belüre International Legal Tribunals' 31 Erit. YB. Int'l L. (1954) 96 at 100. 1/0 Article 2(7) reads: 'Kothing contained in the present Charter shall authorize the United Kations to intervene in mattcrs which are essentially within the domestic jurisdiction of any State or shall re~uire the members to submit such matters to settlement under the present Charter ... '. 76 \Valdock asserts that '[tJhe criterion of the scope of the reserved domain under the Charter must still be lüund in international law and the only relevant inquiry . .. is whether international law contains any aiterion determining the matters which are in essence matters of domestic jurisdiction' . See \Valdock, at 129. 177 L. Preuss, 'The International Court ofJustice, the Senate, and .tvlatters of Domestic Jurisdiction', 40 LrJIL. (1946) 720 at 726-27.

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distinction as to race, sex, language or religion'. 1 78 Article 56 underpins this commitment by adding that 'all members pledge themselves to take joint and separate action, in co-operation with the organization, for the achievement of the purposes set forth in Article 55'. It seems that the normative commitment to upholding human rights has fundamentally and irrevocably changed the doctrine of domestic jurisdiction. Thus, Professor Rosalyn Higgins has argued that 'the claim ... human-rights questions cannot be essentially within the domestic jurisdiction ... seems justified, for Articles 55 and 56 impose specific legal obligations by which all states are bound, Article 2(7) nothwithstanding'. 179 Indeed, in 1955 the International Court of Justice rejected the determination of nationality as a basis for diplomatic protection, from the reserve domain of domestic jurisdiction of states. Whereas it may be uncertain to what extent the question of alien admission or exclusion is solely within the reserve domain of states under the present condition of internationallaw, there should be no doubt that the racial, ethnic and cultural distinctions for the determination of these questions, are outlawed by internationallaw. This is particularly so where this has an impact on the global order. Even three quarters of a century ago Brierly wrote that even questions of immigration, tariffs, and naturalization can 'shade off into others of a more contentious kind, such as the treatment of racial or linguistic or religious n;inorities, [and] misgovernment producing repercussions in other states,.ldO \Vhat we can clearly say, therefore, is that whereas all states operate controlled borders, and have the right so to do under international law, there are certain limitations on what states can do. State action must be undertaken on the basis of universal respect for all human beings and without distinction as to race, sex, language or religion. State action also must not endanger conditions of stability and weIl being for peaceful and friendly relations among nations. \Vhether or not this implies a right to acquire seek and be granted entry can only be determined in particular cases with due regard to these principles and the principles of international public morality. \Ve should not, however, persist in dealing with these issues in a doctrinaire and dogmatic way. If we do so that will inevitably inhibit the normal processes of policy-making in the context of achanging world. Thus, it was the UN former Secretary-General Boutros-Ghali who noted in his Agendafor Peace, 17B The full text ofArticle 55 reads as folIows: "Vith a view to the creation of conditions of stability and weil being whieh are necessary for peaceful and friendly relations among nations based on respeet for the principlc of equal rights and self-determination of peoplcs, the L.K. shall promise: lligher standards ofliving, full employment, and conditions of economic and soeial progress and devclopment; solutions of international, cconornic, social, hcalth and rclatcd problems; and international cultural and educational co-operation; and universal respect für and observance of human rights and flmdam\I2Lal frccdorns für aU ,'vithout distinction as to race, sex, languagc or religion'. I Rosaly"' Higgins, The Develojmzent of International LaU! through the Political Organs of the United States (1963) at 128. Also see lan Brownlie, Principles ofPublic International LaU! (4th ed. 1990) at 552. IBO J.L. Brierly, 'Mattcrs ofDomesticJurisdietion', 6 Brd. Y.B. Int'l L (1925) 8 at 14.

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'the time of absolute and exclusive ~overeignty ... has passed; its theory was never matched by its reality'.lbl \'Vhen President Bush Sr attacked Iraq in 1990 for invading Kuwait the UN had never before approved the use of force to counter an invasion against a sovereign state. A further challenge to the post-second-world war order was posed by the Nato attack on Yugoslavia in 1999, and the U.S. and U.K. attack on Iraq in 2003. Both were carried out without UN support. Both were justified, to a greater or lesser degree, as humanitarian wars. Both were of dubious legality. In the case of the attack on Yugoslavia, this was outside Nato's own remit as a defensive organization. Indeed, its mission statement was subsequently rewritten to allow for such actions. In the case of the attack on Iraq, there was no evidence of the pos session of weapons of mass destruction, to justify the attack. Yet, in both cases, the ultimate goal of such intervention was regime change for a more stable and secure world. There is, of course, no evidence at all that such violent intervention has led to a stable and peaceful society in either ofthose countries, or in the world at large for that matter. Quite the contrary, in fact. In the case of Yugoslavia, half the Kososvan Serb population, numbering about 100 000 were driven out by the bombing, more than 200000 minority populations, including the Roma, are now estimated to have left the country, and the most pro-western politician in the country, the Serbian Prime Minister Zoran Djindjic, was assassinated. 182 Yet, like it or not, what remains clear from this challenge to the post Cold-War Order is that the framework of internationallaw has changed. The chief casualty is state sovereignty. Intervention on allegedly humanitarian grounds can now take place even if the aggressor is not threatened by attack. Like it or not, there is an increased use today of the language of human rights as basis for legal action and inaction. If we ignore this change, we will obscure the realities of the current international order, and the ever-increasing interdependency in international relations, because 'sovereignty today ... is an extraordinarily flexible, manipulative concept'. 183 In the face of these changes, rigid dogmatism and a failure to take human rights seriously will strain and lead to the collapse of the global order whose preservation is the raison d'etre of international law. In the circumstances, legal arguments can be deployed to expand the right to migrate in this chan ging global order. For example, we have so far noted the following legal rights: there is a right to seek refuge from persecution; there is a right to free movement (but no right to migrate indefinitely); and there is, technically speaking, the lai An Agenda/ar Peace, Report ofthe Secretary-General to the Security Council, CI\ Doc. A/47/ 277,ß/24111 (1992), para. I 7. ),,2 Kate Hudson, Breaking the South Slau Drearn: the Rise and Fall of Yugoslauia; also sec her 'A l~~ttern of aggression', The Guardian, 14 August 2003, at 23. ),,3 Richard B. Lillich, 'Sovereignty and Humanity: Can They Converge?' in Atle Grahl-lVfadsen andJiri Doman (eds.), The Sjiirit of Ujijisala, (Berlin and New York: De Gruyter, 1984) at 413.

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sovereign right in states to restrict entry. However, the ICESCR (unlike the ICCPR and the ECHR) provides for the right to work in a way that is not limited to those within the jurisdiction, 184 whereas the ICCPR makes a distinction between those lawfully and unlawfully within the territory.185 Inasmuch as most migrants to the \'\Test - whether voluntary or involuntary - want sooner or later to work the right to free movement can best and most easily be developed on the basis of a legal right to work. This can then pave the way to a more permanent immigration. There is, however, one argument in the modern world that is being used increasingly to restrict entry of new immigrants. This is found in Michael \'\Talzer's communitarian approach. He raises the compelling and pressing question of self-determination. As he states, 'communal independence' goes to the 'deepest meaning of self-determination' without which there could be no enduring community. He is assisted in this by Dummett who recognises that there is one right that any community has: 'The right is one possessed by groups united by race, religion, language or culture: such groups have a right not to be su?merged' adding, however, that it has an 'extremely limited application'.lb6 Dummett asserts this right because '\'\Te each need to be able to feel at horne somewhere; not just in some locality, but within the institutions and among the groups of those we are bound to .. f . . b y common en d eavours an d concerns.,187 R estnctlOns 0 new lmmlgrants can be contemplated because 'cultures are fragile: they can be dissipated by the impact of other cultures,.188 For Dummett, 'That is why it is an injustice that immigration should ever be allowed to a size that threatens the indigenous population with being submerged' but adding that 'It is very seldom that there is a genuine danger of this'. Dummett gives two clear examples where this may be so. One example is where unrestricted immigration of its own people is allowed 'under a colonial regime indifferent to the wishes of the inhabitants of a territory it governs'. Another is 'when a government is determined to obliterate a minority, and sets about it, ... by systematically settling large numbers in its territory' an? of this, the 'examples from recent times are East Timor and Tibet' .ld9 Thus,

llH Article 6 reads: 'The States Parties to the present Covenant reeognize the right to work, whieh includes the right of evcryonc to thc opportunity to gain his living by work which hc frecly ehooscs or acccpts, and ,,~II take appropriatc stcps to safeguard this right. The steps to be taken by aState Party to the present Covenent to aehieve the füll realization of this right shall includc tcchnical and vocational guidancc and training programmes, policics and tcchniques to achieve steady cconomic, soeial and cultural devclopmcnt and full and produetivc employmcnt under eonditions safeguarding fündamental politieal and eeonomie fieedoms to the individual.' I BS Articlc 12( 1) re'::tds: 'E~eryonc lawfully within thc territory of aState shall, within that tcrritory, haY36the right to liberty of movement and fieedom to ehoose his residenee'. Dummett at 14. 1 °7 " Dummett at 18. I BB Dummett at 19. I B9 Dummett at 20.

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although Dummett asserts freedom from cultural subjugation as a basis for immigration control, it is highly significant that the examples he gives are of a subjugated people who deserve every right to preservation of their own way oflife. It is doubtful if the principle can ever properly be extended to people who are in a dominant position without leading to precisely the sort of cultural discrimination that Dummett so rightly rejects. Certainly, it is not clear from Dummett's analysis as to how such a discriminatory policy can be carried out without being morally offensive. One distinguished writer has written about Europe's recent immigration experience in terms that 'there is a pervasive belief that the cultural and racial heterogeneity which accompanies immigration jeopardises European identity and solidarity,.190 Spellman himself has reminded us that 'Talk of an emerging "global village" may be difficult to accept in light of regional confticts which have claimed the lives of over 25 million people since the end of the Second \Vorld \Var'. 191 Yet, this is all the more reason why cultural discrimination should be staunchly resisted. \Vhat is worse is that cultural discrimination affects the processing of genuine immigration and asylum cases. Mary Coussey, during her investigation recently ofthe work ofimmigration officers at Heathrow, Gatwick and Stansted airports, did not find that a passenger's colour any longer triggered further checks by immigration officers. \Vhat she did find was that 'case-hardened officials' who had 'a cynical attitude towards some nationals'. In deciding upon refusals, case officials would use 'more subjective tests' ofbehaviour and dress. They would focus on subtle mistakes in dress such as wearing base-ball caps in too young a manner. She reported that 'some immigration officers said to me that they could distinguish Roma by appearance especially because of style of dress' and that this was informally known as 'white shoes syndrome'. As a result, Ms Coussey, recommended that the government must do more to dispel the emotive and ho stile climate about asylum seekers. She warned that this affects not only asylum caseworkers but also people in a position to practice racial discrimination. 192 It does not need reminding that such practices offend against the principle of the equal moral worth of all human beings enshrined in such legally binding instruments as the ECHR, ICCPR and CERD (including the non-binding seminal instrument, the UDHR). The latter, for example, is one of the most widely ratified instruments in the field of human rights and is in a broad sense the most important treaty regarding discrimination (even though it has not been ratified by the 190 SccJamcs C. Hathaway, 'Harmonizing For \Vhom? Thc Dcvaluation ofRcfugcc Protcction in thel 111'a, of European Economic Integration', 26 Cornell In!'l L.]. at 720. 192 Spcllman, at 8. 192 ALm Travis, 'Clothes Test for Asylum Seckers' The Guardian, 9 July 2003 at 6.

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United Kingdom on grounds of national security).193 Even the ICCPR is meant to be applied more robustly to protect the rights of aliens than it currently has been. Under a 1986 General Comment there was criticism that State Parties had failed to recognize that 'the rights in the Covenant [~p~lie?tto "~ll individuals within its territo:y and subject to i~s ju~isdic­ tlOn' ', - WhlCh suggests that once an apphcant for entry arnves m the jurisdiction he or she will not be denied the benefits of the Covenant. The guarantee of Covenant rights 'applies to aliens and citizens alike' as expressly provided for in the ICPPR, except where it is 'expressly' stated not to apply to aliens. 195 Accordingly, the General Comment re-affirmed the principle that '[TJhe Covenant gives aliens all the protection regarding rights guaranteed therein, and its requirements should be observed by States parties in their legislation and in practice as appropriate'. 196 It is remarkable that Ms Coussey's research has needed reminding the governme nt that discriminatory practices are wrong and unlawful. International law already outlaws such practices. None of this, of course leads to a general right to migrate. Indeed, even though in practice freedom of movement does take place, the right of the sovereign state to control the movement of people into its territories remains enshrined in positive internationallaw. As has been argued earlier, the more globalisation produces an increased sense ofborderlessness, and the more national states contemplate a geographical dispersion of 193 Diserimination is defined in the International Convention on the Elimination ofall Forms ofDiscrimination 1969 as füllows: ' ... any distinction, exelusion, restrietion or preference based on race , colaur descent, or natural or cthnic origin ,vhich has thc purpose or cffcct of nullifying or impairing thc rccognisition, enjoyment or exereise, on an equal footing, ofhuman rights and fundamental fieedoms in the politieal, eeonomie, soeial, cultural or anv other field of publie life'. 191 International Covenant ~n Civil and Politieal Rights (ICCPR), General Comment on the Position of Aliens Under the Cavenant, 1986: see Artide I. General Comment 15(27) under Article 40, Paragraph 4, of the International Covenant on Civil and Politieal Rights on the position of aliens undc:!" the Covenant, 9 April 1986. Article 1 reads: 'Reports from States parties often failcd to take into aecount that each State party must ensure the rights in the Covenant to "all individuals within its territory and subjeet to its jurisdietion" (art 2( I )). In general, thesetfrn'thsetfrn'th in the Covenant apply to everyone, im,ljJe(:tive of reciprocity, and ilJespectiue afhis or her nationality or setfrn'th setfrn'th (emphases added). 19:, Article 2 of the General Comment read as folIows: 'Thus, the general rule is that eaeh one of the rights of the Covenant must be guaranteeri without discrimination between citi;:ens and aliens. Aliens receive the benefit ofthe general requirement of non-diserimination in respect ofthe rights guaranteed in the Covenant, as pro\~ded for in article 2 thereof This guarantee applies to aliens and citizens alike. Exceptionally, some rights recognized in the Covenant are expressly applieablc only to eitizens (art. 25), while artide 13 applies only to aliens. However, the Committee's experienee in examining reports shows that in a number of eountries other rights that aliens should enjoy undc:!" the Covenant are denied to them or are subject to limitations that cannot always be justified under the Covenant' (emphases added). lYb Article 4 of the General Comment read as folIows: 'The Committee considers that in their reports States parties should give attention to the position of aliens, both under their law and in aetual praetiee. The Couenant gives aliens all the protectian rq;arding rights guaranteed therein, and its requirements SilOUld be obse17!ed by St(ttes jmrties in their legislation and in practice (IS approjniate. The position of aliens would thus be eonsiderably improved. States parties should ensure that the provisions of the Covenant and the rights under it are made known to aliens within their jurisdietion'.

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their key competences in such leading activities as capital and markets, the more determined governments become in controlling the one thing that they can control for the time being, namely, individuals. At present, where freedom of movement exists in international law it does so only in the context of 'lawful' migration thereby making that migration at the sufferance of the state. Thus, the ICCPR stipulates that 'Everyone lawfully within the territory of aState shall, within that territory, have the right to liberty of movement and freedom to choose his residence' 197 and the protection of an alien from arbitrary removal is only guaranteed for those who are 'lawfully' within the territory. 198 Yet, one thing that is all too often forgotten about immigrants is that (unlike money and markets) they are people. The law is made for the people; people are not made for the law. We do not relish the idea ofthe state controlling our free speech which we hold to be fundamental because it is intricately bound up with our right of conscience to say and do as we please. Yet, we put up with the right of the state to control our movements, both within territories and outside it, even though this is a far more fundamental right being even more intricately interwoven with our right to basic life, subsistence, and livelihood. There must co me a time when control of people and population is too considered to be anathema. A positive right in some limited form can then be asserted in internationallaw. The right to seek asylum is already so enshrined. The right to seek work should not be so far behind. The right to free movement in some sense is especially compelling in the case of people from underdeveloped and developing countries, for example in the continent of Africa. It allows those people to partake in the goods of life. In any event, the claims for \'\Testern responsibility in the economic devastation of Africa resulting from colonial and continuing post-colonial exploitation of that continent have in the past decade been growing louder. 199 The international community can do more to assist them in their right to seek refuge from persecution. 197

.

Article 12 (I). Article 13 ofthe ICCPR reads: 'An alien Imviully in the territory ofa State Party to the present Covenant may be expelled therefrom only in pursuance of adecision reached in accordance with the law and shall, except where compclling reasons of national security otherwise require, be allowed to submit the reasons against expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persclfls especially designated by the competent authority' . 199 S'ee Issa G. Shivji, 'The Concept ofHuman RZghts in Alrica' 43 (1989) at 29-33. Also see. Makau wa lVIutua, 'The Banjul Charter and the African Cultural Fingerprint: An Evaluation ofthe Language of Duties', 35 Va. J. Int'l. L. 340, 378 (1995). Also sec Satvinder Juss, 'The Coming of Communitarian Rights: Are Third-Generation Human Rights Really First-Generation Rights?' International]ournal of Discrimination & the Law (1998) vo1.3 , 159 180. Further, Bill Morris, as the Transport & General \Vorkers' Cnion leader in Britain, argued that 'Resourees have been pillaged and plundered in so many parts of the \vorld. Y Oll can't take out the minerals, you can't take out the resources, YOll can't exploit everything that's going and then turn the peoplc away' seeJack Ashlcy, 'Britain's best-known trade unionist wants managed migration, and will help the Lib Dems to fight privatisation' New Statesrnan, 10 September 200 I 18-19 at 18. 19B

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What is needed today is a not just the legal affirmation of equality and non-discrimination norms. \\That is needed is a society's legal commitme nt to cultural diversity. It is not enough to stipulate that 'Immigration Officers, Entry Clearance Officers and all staff of the Horne Office Immigration and N ationality [DirectorateJ will carry out their duties without regard to the race, colour or religion of persons seeking to enter or remain in the United Kingdom'.200 A government official who carries out his duties 'without regard to the race, colour or religion' of applicants before hirn, is stilllikely to offend against the rights of cultural minorities if there is no obligation on hirn to show a commitment to culturally diverse rights. Formally neutral and generally applicable rules will only catch express breaches of non-discrimination or equality principles of law. They will not catch violations of cultural rights that do not amount to an express breach of the law. There is, therefore, necessarily a dimension to cultural rights that is not addressed by legally neutral law that is applied to communities that are necessarily diverse and different form the host community. At a broader level, officials need to be not only culturally cognizant, in a culturally diverse and interdependent world, but they also need to be culturally competent, so that discrimination in the decision-making and policy-making process, is avoided. 201 Culturally cognizant systems recognize their weaknesses in serving minorities and attempt to improve their services to specific populations by hiring minority staff, initiating training for their workers on cultural sensitivity, and entering into needs assessments concerning minority communities. Culturally competent agencies are characterised by acceptance and respect for difference, continuing self-assessment regarding culture, careful attention to the dynamics of difference, continuous expansion of cultural knowledge and resources, and a variety of adaptations to service models in order to meet the needs of minority populations better. Such agencies view minority groups as being distinctly different from one another and as having numerous subgroups, each with important cultural characteristics. 202 Cultural cognizance and competence can be more easily learnt and applied if government and officials recognize that when it comes to immigration 'the strength of the migratory impulse has doubtless enhanced the creation of culturally diverse societies in a number of 200 Sec Statement of Ghanges in Immigration Rules (HC 395) at paragraph 2. These are departmental ministerial rules setting out the way in which the day-to-day administration ofirnmigration control is to be implemented in the United Kingdom. 201 Sec S. Juss, Discretion and Deviation in the Administration of Immigration Gontm/, (London, 1997) at 5. 202 For a more detailed disCllssion see Sat\~nder.Juss, 'Cultural Competence and the Law ofl\!lental Health' in Bhui & Olajide, lvIental Health Service Pmvisionfir a lvIulti-Gultural Society (Saunders, London, 1999) at 102 117 at 110 111. For an understanding ofhow the legal system should devclop a theory of 'cultural jurisprudence' für the proper determination of due process rights of minority populations see Satvinder Juss, Discretion and Deviation in the Administration of Immil7ation Gontral (Modern Legal Studies, Sweet & Maxwell, 1997) at 10 12.

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developed countries'203 which has been a laudable alm of government policy in recent years. Communities must learn, therefore, to legislate against cultural discrimination. Communities must even learn to legislate to promote cultural diversity.204 How a community does this depends very much upon its history, its cultural heritage, and its perception of its future interests. Yet, it is significant that leading liberal societies have managed to make this commitment to varying degrees. The Canadian Charter of Rights and Freedoms 1982 affirms that 'Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and in particular, without discrimination based on race, national or ethnic origin, colour, religion' and various other grounds. 205 It expressly recognises the existence of affirmative action programs for 'the amelioration of conditions of disadvantages groups including those that are disadvantaged because of race, national or ethnic origin, colour religion [andJ sex,.206 It is declared that '[tJhe guarantee in this Charter shall not be construed so as to abrogate ... from any ab original ... or other rifhts nor freedoms that pertain to the aboriginal peoples ofCanada ... ,.20 Astronger statement ofprinciple is to be found in the New Zealand Bill ofRights 1990 which sets out to 'affirm, protect, and promote human rights and fundamental freedoms'208 by protecting the rights of minorities, so that 'A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practice the religion, or to use the language, of that minority'.209 But perhaps the strongest statement is to be found in the Constitution of the Republic of South Africa 1996 which, reftecting upon its own racist past, affirms its 'Founding Provisions' as 'Human dignity, the achievement of equality and the advancement of human rights and freedoms' as weIl as 'Non-racialism and non-sexism'. The Constitution protects the right of 'Cultural, religious and linguistic communities' to exist and to develop by stipulating that 'Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community (a) to enjoy their culture, practice their religion and use their language; and (b) to form, join and maintain

SpeIlman at 8. Consider, in partieular, the development of 'Charter Rights' in Canada deseribed by F.L. lVforton and Rainer Knopff, The Charter Revolution and the Court Party (Broadview Press, l'eterborough, Ontario, 2000). 20S Article 15(1) which comes under the heading of'Equalitv Ri"hts'. 20(i Article 15(2). 207 Article 25. 20° 20:; Preamblc, Para (a) . . Arl1c1e 20. 203

204

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cultural, religious and linguistic associations and other organs of civil society'. 21 0 Yet, the most remarkable commitment to cultural rights comes, not from a State's own domestic affirmation ofits fundamental rights, but from a supra-national body, namely, the European Union's Charter of Fundamental Rights of the European Union 2000. 211 The Preamble of the Charter states that 'The peoples of Europe ... are resolved to share a peaceful future based on common values' and recognize that 'the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity' which 'Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as weIl as the national identities of the Member States ... '. It then states that 'To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments ... '. At the outset, there is an affirmation of what must be the ultimate right. The Charter states that 'Human dignity is inviolable. It must be respected and protected,.212 The Charter affirms the traditional equality and non-discrimination norms by stating that 'Any discrimination based on any ground such as sex, race, colour, ethnic or social origin' etc. 'shall be prohibited,.213 However, it then goes further and confirms a wider commitment so that 'The Union shall respect cultural, religious and linguistic diversity'.214 \'Vhat is remarkable, however, in a instrument that has been criticized for giving 'the impression that the E.U. regards itself and its members as worthy of different treatment from the remaining members ofthe Council ofEurope, a club of"well-off" democracies',2L3 is that the Charter gives the most resounding affirmation to the right to asylum into the countries of the European Union: 'The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community,.216 In so stating the Charter has squared the circle of refugee rights by ensuring, not only that there is the right to seek asylum as the Universal Declaration ofHuman Rights has stipulated, but the right to be 'guaranteed' asylum in the territories ofthe European Union, subject 210 Section 33(1).

2000/C 364/01. See P. Alston andJ. Weiler, 'An EI: Human Rights Policy' in P. Alston ed., The EU and Human RZglzts (1999), Cap. I. Also see S. Fredman, C. McCrudden, and M. Freedland, 'An E.~.?Charter of fundamental rights' [2000] Public LaU! 178 186. - - Arllcle I. 213 , Article 21. 21"1 Article 22. 215 Fredman, NlcCrudden, and Freedland, at 180-181, who set out the arguments both fiom the op~onents and the proponents of the EI: Charter of Fundamental Rights. _16 Article 18. 211

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to the requirements of the Geneva Convention. The Charter demonstrates that it is possible for a human rights instrument for a particular people in this case the 'peoples ofEurope' - to guarantee rights for those who are not amongst them. It remains true that the Charter is non-binding. It is also subject tot he 1950 Convention that limits eligibility for asylum status. Further, the various Directives on definition and procedure firmly relocate decision-making and protection to areas beyond the EU borders. Yet, the statement of principle in law that has he re been articulated is highly significant. \'\That is needed now is for domestic human rights instruments to follow suit. The communitarian assumptions of current immigration control cannot be endorsed for at least four reasons. First, we cannot, given the principle of preferential discrimination based on inherited characteristics of birth and geography, endorse the idea that some people are more entitled to have access and residence in a territory because of ethnic and cultural affinities than others, notwithstanding the fact that there is in law no right to choose nationality. But then, nationality is a concept oflaw and what we are here talking about is membership of a community. Second, we cannot endorse the idea that restrictions can be introduced against some dasses of immigrants because they reduce the current well-being of citizens, given the priority in roles ofliberty, which must apply to everyone who is morally equal, everywhere. Third, we cannot endorse the commonly held belief that the effect on culture and history of a society is an important criterion in determining the eligibility for en try of one dass of persons as against the other, given the fact that this is not a relevant moral consideration. Fourth, we cannot ignore moral arguments in law. Internationallaw in particular must take cognizance of principles of international morality if it is to command respect and have any efficacy. \'\Titness the ruling in the East Afiican Asians Gase by the European Commission that the European Convention on Human Rights, like the Convention on Genocide, has a humanitarian character whose object was to 'safeguard the very existence of certain human groups' and to 'endorse the most elementary principles of morality'. 217 These principles suggest to us that if people want to sign the social contract and become full contributing members of a society, they should, where ever possible, be permitted to do so, because this is compatible with the idea of equal moral worth of all individuals. The social contract between the individual and his chosen society at large will make that individual subject to the same rights and obligations, without prejudice or preference, to which the entire community is subject. Ifthe individual's

217 ~astAfiicanAsians v. The United Kingdorn - Applications I\umbers. 4403170-4419170, 4422170, 4423/70,4434/70,4443/70,4476/70-4478/70,4486/70,4501/70and4526/70-4503/70.

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membership of such a community is shown, however, on the evidence to be detrimental, such as on grounds of public health, public security, and public order, then the individual may be deprived ofthe right to enter into such a contract. However, such a withdrawal of membership must be subject to exacting standards in a liberal society.

[20] HUMAN SECURITY AND THE RIGHTS OF REFUGEES: TRANSCENDING TERRITORIAL AND DISCIPLINARY BORDERS Alice Edwards* I. II.

lll.

ORIGINS AND DEVELOPMENT OF HUMAN SECURITY ............... 768 SECURITY DISCOURSE AND REFUGEES ..................................... 774 CRITIQUING HUMAN SECURITY ............................................... 778 A. Lack ofa Precise Definition .............................................. 778

B. Lack of a Legal Framework ............................................... 782

IV.

C. "Securitization" Problems ................................................ 784 D. Enforceability .................................................................... 788 HUMAN SECURITY AND THE RIGHTS OF REFUGEES ................. 790

A. The Refugee Proteetion Framework .................................. 791 B. The Complementary Human Rights System ...................... 797

C. Why Talk Human Security? ............................................... 801 1. 2.

People-Centered .......................................................... 802 Multilateralism, International Cooperation, and Interdependence .......................................................... 803 3. Prevention ................................................................... 804 4. Empowerment and Protection ..................................... 805 CONCLUSTON: MOVTNG TOWARD A LEGAL DTSCOURSE ON HUMAN SECURTTY? ............................................................................... 805 The notion of security has been subject to serious rethinking by international relations scholars and foreign policy advisors since at least the 1980s, but increasingly since the end of the Cold War. l This is because the realist paradigms of territorial sovereignty, national interest, and military force that dominated Cold War discourse are no longer considered as weH suited to the transnational character of many of the new challenges of the post-Cold War era. In fact, it has been claimed that the impetus to this radical reappraisal of security discourse was "the very

* Lecturer in Law, University of Nottingham. B.A, LL.B with Honors, University of Tasmania; LL.M in Public International Law with Distinction, University of Nottingham; Dip!. [nt'! & Comp. L. (IIHL, Strasbourg). This Essay was prepared for the 2009 Michigan Journal of International Law Symposium, Territory Wit/wut Boundaries, he!d in February 2009. This Essay was also drawn from work toward a forthcoming edited collection on the same subject: HUMAN SECURITY AND NON-CITIZENS: LAW, POLICY AND INTERNATIONAL AFFAIRS (Alice Edwards & Carla Ferstman eds., forthcoming 2009) (on file with author) lhereinafter HUMAN SECURITY AND NON-C!TIZENSl. [ wish to thank Carla Ferstman, Eve Lester, Pia Oberoi, and the editorial team at the Michigan Journal (,f International Law for their comments on earlier drafts of this Essay; and the participants at and organizers of the Symposium for challcnging my thinking on this subjcct. I. BILL McSWEENEY, SECURITY, IOENTITY ANO INTERESTS: A SOCIOLOGY OF INTERNATIONAL RELATIONS !-2 (1999).

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novelty of peace" between the Communist bloc and the West at the end of the Cold War. 2 Arguably, the most important attempt to reconceptualize security has been the introduction of the concept of "human security." Emerging from within development circles, rather than security circles, the United Nations Development Programme (UNDP) stated in its 1994 annual report that the concept of security has been too narrowly construed for too long "as security of territory from external aggression, or as protection of national interest in foreign policy, or as global security from the threat of a nuclear holocaust.,,3 Arguing that it is time to move beyond the narrow concept of "national secmity" or "territorial integrity" to "an all-encompassing [trans-boundary] concept of human security,,,4 the UNDP identified two main components of this new approach: It means, first, safety from such chronic threats as hunger, disease and repression. And second, it means protection from sudden and hurtful disruptions in the patterns of daily life.'

The UNDP predicted that the "idea of human security ... is likely to revolutionize society in the 21st century."" This prediction has not been born out, however, not least due to the post September 11 reassertion of conventional national security agendas. Nonetheless, the new human security paradigm is growing in influence. At aminimum, it is an important conceptual shift and complementary policy objective on the international agenda. Accordingly, a U.N. Commission on Human Security (CHS) was established in 2000, cochaired by Amartya Sen and Sadako Ogata. In 2003, the CHS issued its final report, in which it concluded that human security means protecting "vital freedoms." It means protecting people from critical and pervasive threats and situations, building on their strengths and aspirations. It also means creating systems that give people the building blocks of survival, dignity, and livelihood. Human security connects different types of freedoms-freedom from want, freedom from fear, and freedom to take action on one's own behalf. To achieve

2. 3. REPORT

4. 5. 6.

ld. at 2. UNTTED NATIONS DEVELOPMENT PROGRAMME [UNDPl. HUMAN DEVELOPMENT

22 (1994). ld. at 24. Id. at 23. ld. al 22.

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human security, it offers two general strategies: protection and empowerment. 7 The human security paradigm focuses directly and specifically on people and their right to live in safety and dignity and to earn a livelihood, rather than on the State and its security and sovereignty. Human security treats security, rights, and development as mutually reinforcing goals and is oriented as much toward the protection of individuals as toward their empowerment. It also reinforces the view that no matter how vigorously aState defends its national borders, today' s global threats, such as environmental degradation, international terrorism, poverty, and infectious diseases do not respect them. It also challenges us to revisit notions of territory and sovereignty as far as they inhibit global action in the face of transnational threats to our shared security and humanity.8 However, the idea of human security has met considerable criticism. One of the main concerns of the human security framework is that it may undermine hard-won human rights guarantees or otherwise displace law-based systems of protection. This concern has raised many questions about the discourse on human security. Is it intended to or likely to replace or undermine human rights? Does it threaten these hard-won legal gains? These questions are addressed in this Essay. A second level of inquiry in this Essay interrogates what the "human security/human rights" dialogue means for the protection of refugees, who have typically been outside the remit of States' national interests, except insofar as they are seen as threats to a State's security or some geopolitical pawns in the realist security paradigms of the Cold War and its bipolar politics. As non-citizens who are on the perimeters of the citizen-state protection system, refugees have been reliant largely on specific legal regimes, supported by humanitarian goodwill, for their protection. However, these legal regimes have been increasingly eroded by state noncompliance and exploitation of legal loopholes. This Essay asks whether the framework of human security may offer a complementary source of protection in the face of eroding refugee rights. In the background to these debates lie disciplinary boundaries between scholars of international relations and international law respectively. These boundaries can, to an extent, determine whether the human security framework is accepted or rejected. Any attempt at evalu7. COMM'N ON HUMAN SECURITY [CHS]. HUMAN SECURITY Now iv-v (2003). available at hUp://www.humansecurity-chs.org/finalreportiEnglish/FinalReport.pdf (last visited May 27. 2009). 8. For more on the changing nature of territoriality and sovereignty. see Saskia Sassen. Bordering Capabililies Verslls Borders: Implicaliofls for Nalional Borders. 30 MICH. J. INT'L L. 567 (2009).

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ating the usefulness of the human security framework must therefore be cognizant of the disciplinary tradition from which one starts. Security and human rights have been concurrent aims of the United Nations since its inception in 1945. 9 Under the traditional realist view of international relations, despite the proliferation of international human rights instruments, international legal obligations have been regarded at best as "a significant brake on the pursuit of [national] interests"JO and have been pursued as far as they satisfy or further state interests. 11 Lassa Oppenheim, for example, invokes the idea of state interests to explain the construction of the rules of international law. 12 In contrast, many international lawyers do not generally ex amine why States follow or violate human rights obligations. Rather, they seek instead to articulate ways to strengthen or to improve the law. 13 These same divisions are also being played out in the context of the human security framework. International relations theorists have either rejected the framework because it downplays State interests to individual needs (the realist and neo-realist schools of thought I4 ), or have found it appealing as a new method of conceptualizing international relations and security discourse because of its broader view of reality (for example, liberalism,15 constructivism,16 or critical security studies 17). Meanwhile, some internationallawyers are skeptical of it either because of its lack of

9.

U.N. Charter arts. 1(1)-1(3),2(3),2(4),2(6), 13, 55(e), 62(2), 68, 76(e), ehs. Vl-

VII.

10. JACK L. GOLDSMITH & ERlc A. POSNER, THE LIMITS OF INTERNATIONAL LAW 15 (2005). Id. I I. 12. See 1 LASSA OPPENHEIM, INTERNATIONAL LAW: A TREATISE (2d ed. 1912). 13. See GOLDSMITH & POSNER, supra note 10, at 15; see also OAVID ARMSTRONG ET AL., INTERNATIONAL LAW AND INTERNATIONAL RELATIONS (2007). KENNETH N. WALTZ, THEORY OF INTERNATIONAL PouTIes (1979). For an over14. view of traditional seeurity diseourse, see ARNOLD WOLFERS, DISCORD AND COLLABORATION: ESSAYS IN TNTERNATIONAI. POUTICS (1962); see also Alice Edwards & Carla Ferstman, HumanisinR Non-Citizens: The ConverRence ot Human RiRhts and Human Security, in HUMAN SECURITY AND NON-CITIZENS, supra note *, eh. 1. 15. For a discussion on liberalism, see generally ROllERT O. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN THE WORLD POUTICAL ECONOMY (2005); BRUCE RUSSETT & JOHN R. ONEAI., TRIANGUI.ATlNG PEACE: DEMOCRACY, TNTERDEPENDENCE, AND INTERNATIONAL ORGANIZATION (2001). For diseussions on eonstruetivism, see generally ALEXANDER WENDT, SOCIAL THE16. ORY OF INTERNATIONAL POUTICS (1999); Ted Hopf, The Promise ()t Constructivism in IR Theory, 23 INT'L SEC. 171 (1997); Edward Newman, Human Security and COl1structivism, 2 TNT'1. Snm. PERSP. 239 (2001). 17. Critical Seeurity Studies provide the theoretieal underpinning to the human seeurity approach. See generally MCSWEENEY, supra note I; NEW THINKING ABouT STRATEGY AND INTERNATIONAL SECURITY (Ken Booth ed., 1991).

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enforceability, its alleged conceptual "fuzziness," or the fact that it may threaten or undermine binding human rights norms.l~ As an international lawyer, I have much sympathy for the concerns raised by internationallawyers about the non-legal nature of the human security framework and all that this entails. However, I am also cognizant of the fact that, as lawyers, we sometimes overstate the effect of the legal system on state behavior, agenda setting, and the protection and empowerment of individuals (particularly refugees and other noncitizens). I posit that, notwithstanding our present attachment to disciplinary boundaries, international law cannot and should not be divorced from international relations. At best, States acknowledge the importance of an effective international legal system,19 as the law regulates many areas of international life. In particular, it "provides for stability in international relations.,,2o However, international human rights and refugee laws contain only a minimum set of standards. These standards are selectively and poorly enforced, usually relying on their coinciding with the political objectives of States to achieve their aims. This is not to suggest in any way that persuasive arguments cannot be made to States that they must observe their internationally agreed obligations under international law. However, attributing such compliance to non-instrumentalist reasons 21 is only one theory of why States respect international law. A second school of thought holds that States comply for instrumentalist reasons, such as for fear of retaliation for noncompliance, for reasons of future cooperation, for national interests, or for reasons of reputation. 22 This latter theory explains why recourse to rights-based language has been met with, in some cases, limited success or even resistance. 23 Tt is at this juncture between rights and security that human secmity-as a transboundary and cross-disciplinary concept-can potentially step in to bolster, strengthen, and support the law. For States, it may permit the reconciliation of instrumentalist and non-instrumentalist goals. At the same time, however, it may be applied to further political objectives rather than as a set of 18. See infra Part IIl.A. 19. Arthur Watts, The Importance (!( International Law, in THF ROLF OE LAW IN TNTERNATIONAL POLlTlCS: ESSAYS IN TNTERNATIONAL RELATIONS AND TNTERNATIONAL LAW 5, 7 (Michael Byers ed., 2000). 20.

Id.

21. An example of such a non-instrumentalist reason is that aState may comply because it is the fight thing to do, or because its citizens believe it is the right thing to do. 22. See GOLDSMITH & POSNER, supra note 10, at 100-04 (discllssing theories of state compliance with internationallaw). 23. See, for example, the U.N. Convention on the Prevention and PlInishment of Genoeide, whose obligations to act failed to stop the genocide in Rwanda or in the former Yugoslavia in the 1990s. G.A. Res. 96 (I), art. l, U.N. Doc. NRES/l/96 (Nov. ll, 1946).

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guiding principles and must be carefully monitored to ensure that States do not appropriate it entirely for their own ends. Iexamine the concept of human security through the lens of refugee protection. In particular, I ask whether the concept of human secmity could add anything to the international protection regime for refugees and asylum seekers under internationallaw. Before internationallawyers 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. I start by providing a summary of the origins and development of the human security framework, how it has been defined, and what have been identified as its main shortcomings. I then provide an overview of how refugees and asylum seekers have been featured in this security discourse. I follow this overview with an analysis of the legal protection regime relating to refugees, including recourse to human rights standards to fill some of the legal gaps in that regime. Finally, I ask whether the human security framework is in any way beneficial to refugees.

1.

ÜRIGINS AND DEVELOPMENT OF HUMAN SECURITY

As noted above, Cold War security discourse was dominated by State borders, national interests, and the arms race. This traditional view of security explains the underlying principles of the U.N. Charter of 1945, namely the sovereign equality of States, mutual coexistence, the maintenance of international peace and security through collective action, and non-interference in the internal affairs of other States. 24 However, this realist political agenda has failed to solve the majority of the world's security concerns, including many non-military threats, such as those arising from globalization, poverty, and environmental issues. 25 This agenda also ignores the fact that human rights, including economic and social rights, non-discrimination, and international cooperation are also central features of the U.N. Charter. 26 In the post-Cold War context, non-military threats have been increasingly recognized as being of equal seriousness as military threats; at a 24. See U.N. Charter arts. 1-2 (discussing sovereign equality. international cooperation. harmonization. and maintenance of international peace and security); see also id. chs. VI-VII (discussing prohibition on use of force, subject to individual or collective self defense or Security Counci! action). 25. See Barry Buzan, Rethinking Security After the Cold War, 32 COOPERATION & CONFLICT 5, 5-10 (1997). 26. U.N. Charter arts. 1(3), 13,55 (discussing human rights); id. arts. 1(1), chs. VI, VII (discussing collective measures and cooperation).

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mImmum, they have gained some international attention. This shift in security discourse mainly "proceeds from the assumption that defining national security merely (or even primarily) in military terms conveys a profoundly false image of reality."n This false image gives rise to two problems: First, it causes [S]tates to concentrate on military threats and to ignore other and perhaps even more harmful dangers. Thus it reduces their total secmity. And second, it contributes to a pervasive militarization of international relations that in the long run can only increase global insecurity.28 It further "presupposes that threats arising from outside a [S]tate are

somehow more dangerous to its security than threats that arise within it,,,29 and overlooks the fact that state protection is often pursued at the expense of individuals' personal security.'" A call was thus made to conceive of many of these non-military issues as security concerns31 in order to put them on the international agenda. The 1994 UNDP report was lauded as groundbreaking and innovative, although, as has been noted by some academics, the ideas behind human security had been around for some time. 32 1t has been further ob27. 28. 29. 30.

See, e.g., Richard H. Ullman, Redejining Security, 8 INT ' L SEC. 129, 129 (1983). Id. ar 129. Id. ar 133. See BARRY BUZAN, PEOPLE, STATES AND FEAR: AN AGENDA FOR INTERNATIONAL

SECURITY STUDIES IN THE POST-COLD WAR ERA 22, 37-38 (2d ed. 1991); BARBARA VON TIGERSTROM, HUMAN SECURITY AND INTERNATIONAL LAW: PROSPECTS AND PROBLEMS 12 (2007) (citing MICHAEL SHEEHAN, INTERNATIONAL SECURITY: AN ANALYTICAL SURVEY 11 n.7 (2005)). 3l. Ullman, supra note 27, at 129. See generally Jessica Tuchman Mathews, Redejining Security, 68 FOREIGN AFF. 162 (1989); The Environment and International Security, in WORLD SECURITY: CHALLENGES FOR A NEW CENTURY (Jessica Tuchman Mathews er al. eds., 2d ed. 1994). 32. Already, in 1980, reports of the Brandt Commission stressed that: security must be reconceived with people foremost in mind. The purely defensive concept of security should be enlarged to include hunger, disease, poverty, environmental stress, repression, and terrorism, all of which endanger human security as much as any military provocation. To that end, the international community has the responsibility to eliminate any social conditions that pose threats to the prorection and dignity of people, before they erupt into anned contlict. JAMES BERNARD QUILLIGAN, THE BRANDT EQUATION: 21sT CENTURY BLUEPRINT FOR THE NEW GLOBAL ECONOMY 13 (2002). In 1987, the Brundtland Commission report noted that a "comprehensive approach to international and national security must rranscend the traditional emphasis on military power and armed competition. The real sources of insecurity also encompass unsustainablc dcvcIopmcnt, and its cffccts can bccomc intcrtwincd with traditional forms of conflict in a manner that can extend and deepen the latter." World Comm'n on Environment & Development, Report oithe World Commission on Envimnment and Development: Our Common Future, '114, U.N. Doc. AlRES/42/187/Annex (Aug. 2, 1987). For antecedents in

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served that transnational threats could not properly be dealt with unilaterally, but required collective action and international cooperation and multilateralism.33 In this new security environment, a one-dimensional focus on the nation-state is less relevant. Military threats that did exist have largely shifted from being international to internal in character. For example, individuals in the post-Cold War era face a greater risk of human rights violations at the hands of their own governments than of external aggression. 34 Realist approaches have also failed to respond adequately to such issues as international terrorism. 35 [n 1992, the U.N. Security Council fonnally recognized that "nonmilitary sources of instability in the economic, social, humanitmian and ecological fields have become threats to peace and security.,,36 Superpower rivalry and bipolar politics had ended, and the world was entering aperiod of globalization and increased cross-border flows of capital, goods, and people. 37 Within this context, national borders were increasingly seen as less important, although they remained and were strengthened in relation to preventing, among other things, irregular migration. This has included efforts to deter the movement of asylumseekers and refugees from the global South to the global North. Since the release of the UNDP report, the human security concept has featured variously within the U.N. system.38 [n 1999, a Trust Fund international relations theory, see Shahrhanou Tadjhakhsh, Human Security in International Relations: Blessing or Scourge, 4 HUM. SEC. J., 9 (2007). Tdjbakhsh stated: [The] idea [of human security] had been part of academic debates since the early [19808], where expanding and deepening security studies revolved around Barry BlIzan and others' Copenhagen School scholars in international relations theories. If Buzan's movement emphasized on the social aspects oI security, the constructivist, critical and feminist theuries in international relations had further brought the lInit of analysis, and the referent object and subject of "security" down to the level of individllals.

Id. CHS, supra note 7, passim. See GII. LOESCHER, THE UNHCR ANO WORI.O POI.ITlCS: A PERII.OUS PATH (2006). See generally National Security and the "War on Terror", in HUMAN SECURITY AND NON-CITIZENS, supra note *, at pt. IV. 36. U.N. SCOR, 47th Sess., 3046th mtg. at 142, U.N. Doe. S/PV.3046 (Jan. 31, 1992). SHAHRBANOU TADJBAKHSH & ANuRADHA M. CHENOY, HUMAN SECURTTY: CON37. 33.

34. 35.

CEPTS ANO TMPI.ICATIONS 1 (2007). 38. See, e.g., The Secretary-General, We the Peoples: The Role o[the United Nations in

the Twenly-First Century: Millennium Reporl or lhe Secretary-General, delivered 10 Ihe General Assembly, U.N. Doc. A/54/2000 (Mar. 27, 2000); Wurld SlImmit fur Social Development, Copenhagen, Den., Mar. 6-12, 1995, Copenhagen Declaration on Social Development and Programme (![ Action for the H-brld Summitfor Social Development, ']['][ 2, 5, 8, 20, U.N. Doc. A/CONFI66/9 (Apr. 19, 1995); THE COMM'N ON GLOBAL GOVERNANCE, OUR GLOBAL NEIGHBORHOOD (1995); see also VON TIGERSTROM, supra note 30; G8 Foreign Ministers' Meeting, Cologne, 10 June 1999, Conclusions, http://www.dfait-maeci.gc.ca/g8fmm-

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for Human Security was established that finances projects carried out by organizations in the U.N. system, and when appropriate, in pmtnership with non-U.N. entities, to advance the operational impact of the human security concept. ,9 This Tmst Fund is managed by the Human Secmity Unit, a body that works to integrate human security into all U.N. activities and now operates as a formal stmcture within the U.N. system. 40 In 1999, the Human Security Network, a high-level group of likeminded countries, was established to maintain dialogue on human security issues. 41 Human security was also prominently highlighted in the U.N. Secretary General's Millennium Report, in which former Secretary General Kofi Annan noted that: In the wake of these [internal rather than international] conflicts, a new understanding of the concept of security is evolving. Once synonymous with the defense of territory from extern al attack, the requirements of security today have come to embrace the protection of communities and individuals from internal violence. The need for a more human-centered approach to security is reinforced by the continuing dangers that weapons of mass destmction, most notably nuclear weapons, pose to humanity: their very name reveals their scope and their intended objective, if they were ever used. 42 At the 2005 World Summit, the human security concept was recognized and the Peacebuilding Commission established: We stress the right of people to live in freedom and dignity, free from poverty and despair. We recognize that all individuals, in particular vulnerable people, are entitled to freedom from fear and freedom from want, with an equal opportunity to enjoy all their rights and fully develop their human potential. To this end,

g8rmae/concl-en.asp (last visited June 18, 2009) (discussing human security in the conclusions). 39. An initial contribution of 500 million yen was donated by the Government of Japan to set up the Trust Fund. For further information on the Trust Fund, see United Nations Trust Fund for Human Security, http://ochaon1ine.un.org/TrustFunditabidI2107/Defau1t.aspx (last visited June 18,2009). 40. See U.N. Trust Fund tor Human Security, Human Security Unit (2007), http://ochaonline.un.org/HumanSecurity Unitltabidl2212/1anguage/en- US/Default.aspx (last visited June 18, 2009). 4l. See The Human Security Network, www.humansecuritynetwork.org/network-e.php (last visited June 18, 2009). 42. The Secretary-General, supra note 38, '1['1[ 194-95.

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we commit ourselves to discussing and defining the notion of human security in the General Assembly.43 Following up on this commitment, the U.N. General Assembly held its first thematic debate on human security in March 2008, in recognition of the growing number of States using or referring to the concept. 44 At this meeting, human security was characterized as a framework to further the principles of the U.N. Charter of 1945. 45 Human security has further featured in the foreign policies of a number of governments, most notably those of Canada and Japan. 46 In 1998, Norway and Canada formed a partnership47 that subsequently evolved into the Human Security Network mentioned above. As of September 2008, members of the Network included Austria, Canada, Chile, Costa Rica, Greece, Ireland, Jordan, Mali, the Netherlands, Norway, Slovenia, Switzerland, and Thailand (South Africa participates as an observer).4B In addition, Friends of Human Security was established by Japan as an unofficial, open-ended fomm at the United Nations for governments to discuss human security from all angles:9 It held its first meeting in October 2006. 51) Among the successes attributed to the human security agenda by these governments include the creation of the Inter-

43. 2005 World Summit. Sept. 14-16.2005.2005 World Summit Outcome. '][ 143. U.N. Doc. Al60/L.l (Sept. 20, 2005). 44. Srgjian Kerim, President, U.N. General Assembly, Opening Remarks at the Thematic Debate on Human Security (May 22, 2008), available at http://www.un.org/gaJ president/62/statementslhumansecurity220508.shtml (last visited June 18,2009). 45. Srgjian Kerim, President, U.N. General Assembly, Concluding Remarks at the Thematic Debate on Human Security (May 22, 2008), available at http://www.un.org/gaJ president/62/statements/crhumansecurity220508.shtml (last visited June 18, 2009). 46. See DEP'T OF FOREIGN AFF. & TRADE, FREEDOM FROM FEAR: CANADA'S FOREIGN POLlCY FOR HUMAN SECURITY (2000), available at http://pubx.dfait-maeci.gc.ca/OO_global/ Pubs_Cat2.nsf/5 6153893 FF8D FDA285 256BC70065 3 B9F/$file/Freedom_from_Fear-e.pdf (last visited June 18,2009); MINISTRY OF FOREIGN AFFAIRS OF JAPAN, THF TRUST FUND FOR HUMAN SECURITY: FOR THE "HuMAN-CENTERED" 21sT CENTURY (2006), available at http://www.mofa.go.jp/policy/human_secu/Cfund21.pdf (last visited June 18, 2009). 47. Press Release, Dep't of Foreign Aff. & Trade, Canada and Norway Form New Partnership on Human Security (May I I, 1998), available at http://wOl.international.gc.ca /minpub/Publication.aspx?is Redirect= Tme&publ ication_id=37525I &Language=E&docnumber =117 (last visited June 18,2009). 48. See VON TrGERSTROM, supra note 30, at 22 (citing Paul M. Evans, Human Security and East Asia: In the Beginning, 4 1. E. ASIAN STUD. 263 (2004». 49. Ministry of Foreign Affairs of Japan, Friends of Human Security, http://www.mofa.go.jp/policy/human_secu/friends/index.html(last visited June 18,2009). 50. Id.

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national Criminal Court5l and the agreement of the antipersonnel land mine ban treaty.52 A large number of academic institutions and centers have been established to address human security issues," and academic publications and journals on the subject have proliferated. 54 Although the human security framework has gained considerable momentum and remains firmlyon the international security agenda, it arguably suffered a setback in the aftermath of the terrorist attacks on the United States on September 11, 2001. The CHS was established prior to these attacks, yet operated within a rapidly chan ging security environment in which state security, militarization, and unilateralism again rose to the forefront of national security agendas under U .S. foreign policy, as evidenced by the U.S.-Ied invasions of Afghanistan and Iraq and subsequent responses adopted in the name of countering terrorism. 55 The CHS report was issued in the same year that the United States and its allies went to war in Iraq, without a U.N. mandate. At aminimum, the human security concept is now apart of the peace and security, as weH as the humanitarian, agendas of the United Nations and is likely to become of increasing importance. However, at a practical level, the framework has not displaced traditional notions of security, and the two policy discourses are likely to operate alongside one another. A number of recent events have provided some impetus toward a new multi-polar re-configuration of international relations, one in which the fundamentals of the human security framework may become more rather than less important. These include the world financial crisis triggered in large measure by U.S. lending practices and with worldwide

51. See Rome Statute ofthe International Criminal Court. luly 17. 1998.2187 U.N.T.S. 90. 52. Convention on the Prohibition of the U se. Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, Sept. 18, 1997,2056 U.N.T.S. 241. 53. See, e.g., Liu Institute tor Global Issues, Human Security Centre, http://www.ligi.ubc.ca/pageI65.htm (last visited lune 18, 2009); Tnstitute for Human Security, The Fletcher School, Tufts University, http://fletcher.tufts.edu/humansecurity/ (last visited lune 18, 2009); Ford Institute for Human Security, University of Pittsburgh, http://wwwJordinstitute.pitt.edu (last visited lune 18, 2009); Centre for Peace and Human Security, Sciences Po, http://www.peacecenter.sciences-poJr (last visited lune 18,2009). 54. See, e.g., RMTT Publishing, Journal of Human Security, http:// www.rmitpublishing.com.au/jhs.html(last visited lune 18, 2009); CERI Program for Peace and Human Security, Sciences Po, Human Security Journal/Revue de la securite humaine, http://www.peaeeeenter.seienees-poJr/journal/ (last visited lune 18,2009); The Fletcher School, Tufts University, The Fleteher Journal of Human Security, http:// fletcher.tufts.edu/praxis (last visited May 27, 2009). 55. See Carla Ferstman, The Human Security Framework and Counter Terrorism: Examining the Rhetoric Refating to "Extraordinary Renditions", in HUMAN SECURlTY AND NON-ClTlZENs. supra note *. eh. 15.

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reverberations,56 which reminds us of our interdependence in the face of globalization, as weH as the international condemnation of D.S. unilateralism in the so-caHed "war on terror." The latter has been epitomized by the "kidnap[ping]" and "rendition" of individuals without regard to mIes of internationallaw. The "war on terror" is also epitomized by the Dnited States detention facility at Guantanamo Bay and the resulting legal vacuum in which many terror suspects have found themselves. 57 Arguably of most significance is the election of Barack Obama, a liberalminded lawyer/academic whose early policy statements have focused on reexamining U.S. foreign policy, as President of the United States. His vision of leadership in this new era begins with the recognition that "the security and weH being of each and every American is tied to the security and weH-being of those who live beyond [its] borders."S8 He has indicated that the role of the D.S. is to provide globalleadership "grounded in the understanding that the world shares a common secmity and a common humanity."S9 AIthough not direct1y quoting the language of human security, his early foreign policy statements share many of its central tenets.

11.

SECURITY DISCOURSE AND REFUGEES

Refugees and asylum seekers are never far from international and domestic security discussions. Whether they are viewed as victims of security deficits or as potential threats to national or international security, security is a defining element in the refugee protection landscape. There is, therefore, no option but to participate in security debates when discussing refugee protection. The international refugee protection regime, founded on the 1951 Convention Relating to the Status of Refugees (1951 Convention/' and the humanitarian efforts that followed the mass atrocities of World War 56. One particularly negative aspect of the financial crisis is that States may turn inward, which may constrain the ability of States to implement the vision of human security beyond their borders in the face of other global crises. See Roger C. Altman. The Greal Crash. 2008: A Geopolitical Setbackfor the West, FOREIGN AFF., Jan.-Feb. 2009, at 2, 9. 57. See Ferstman, supra note 55. ORAMA FOR AMERICA, STRENGTHENING OUR COMMON SECURITY RY TNVESTING IN 58. OUR COMMON HUMANITY 1 (2008), available at http://www.cgdev.org/doc/blog/obama_ strengthen_security.pdf (last visited lune 18, 2008); see also Barack Obama, Remarks of Senator Barack Obama: A World that Stands as One (June 18, 2008), available at http://www.barackobama.com/2008/07124/remarks_oLsenatocbarack_obam_97 .php (last visited May 27, 2009). 59. See Obama, supra note 58. 60. United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 134, ISO (entered into force Apr. 22, 1954)[hereinafter 1951 Conventionl.

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II, has faced some of its greatest challenges in the post-Cold War environment. Throughout the Cold War, security terminology was applied in favor of refugees. Although the modern refugee protection regime was buiIt on the compassion evoked by World War II, it was clear by 1950 that refugees had also become important figures in the geopolitical interests of States and were viewed as being legitimately in flight from beIligerent and politicaIly unfriendly States. 61 In addition, as Guy Goodwin-Gill observes, "in drafting the various treaties covering the field, States have never been blind to the need to protect essential interests ... ,,,62 including security interests. With the growth in international migration and the shift from international to internal contlicts in the 1990s, refugees have been viewed as threats to national borders and security, perceived as criminals and terrorists, and, coIlectively, as threats to international peace and security.63 Refugees no longer offer the same geopolitical benefits to state interests as they did in the bipolar politics of the Cold War. The Declaration of States Parties to the 1951 Convention, issued at the conclusion of the Global Consultations on International Protection held in the fiftieth anniversary year ofthe 1951 Convention, recognized: [The] complex features of the evolving environment in which refugee protection has to be provided, including the nature of armed conflict, ongoing violations of human rights and international humanitarian law, current patterns of displacement, mixed population flows, the high costs of hosting large numbers of refugees and asylum-seekers and of maintaining asyl um systems, the growth of associated trafficking and smuggling of persons, the problems of safeguarding asyl um systems against abuse and of excluding and returning those not entitled to or in need of international protection, as weIl as the lack of resolution of long-standing refugee situations. M In fact, some refugees arguably fared better under abipolar nationstate system, in which they were of use within the superpower rivalry 61. See GIL LOESCHER. BEYOND CHARITY: INTERNATIONAL COOPERATION AND THE GLOBAL RErUGEE CRISIS 32-55 (1993); LOESCIIER, supra note 34. 62. See Guy Goodwin-Gill, Refugees. Rights and Security, in FORCED MIGRATION. HUMAN RIGHTS AND SECURITY 1,3 (Jane McAdam ed .• 2008). 63. This latter characterization has some beneticial impact in terms of Security Council action, but has otherwise been a negative portrayal. See infra Palt III.D. 64. Ministerial Meeting of States Parties to the 1951 Convention andlor its 1967 Protocol Rclating to thc Status of Rcguecs, Geneva, Switz .• Sept. 12-13, 2001. Declaration of States Parties to the 1951 Convention and/or its 1967 ProtocoL ReLating to the Status of Refugees, 'j['j[ 2. 6, U.N. Doe. HCRLMMSP/200l/09 (Jan. 16, 2002) [hereinafter Declalation of States Paltiesl.

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that characterized the Cold War. lronically, the Cold War was responsible in part for the very refugeehood of these individuals. 65 Of course, this system did not accommodate all those in need of protection. At that time, border controls prevented departures where today they prohibit entry. The United Nations High Commissioner for Refugees (UNHCR) noted that, during the 1990s, the problem of forced displacement had become Iarger, more comp1ex, and geographically more widespread. 66 Refugee movements and other forms of population displacement had also assumed a new degree of political importance, largely because of their impact on national and regional stability. Noting that "[t]he security of people and the security of [S]tates are in that sense intimately linked," the UNHCR recognized the limitations of its "humanitarian agenda.,,"7 The nation-state system in this latter context has witnessed the overall diminution of asylum space due to the erection of toughened border controls and other deterrence measures such as carrier sanctions, administrative detention and reductions in economic and social rights, extraterritorial processing and "safe third country" arrangements, restrictive definition of the term "refugee," and the establishment of lesser protection statuses in replacement of asylum. 6B It has also been argued that the notion of borders for the purposes of immigration regulations has shifted beyond the territory of the nation-state (off-shore) and further inside it (internal immigration zones),69 the effect being the creation of rights-free zones. 70 Refugees and asylum seekers have also figured prominently in security debates in the post-September ll era. For example, there are references to refugees and asylum seekers in most of the U.N. resolutions on terrorism. 71 Additionally, the perceived link between the individual refugee and the threat of terrorism has influenced much the 65.

See LOESCHER, supra note 61, at 32-55; LOESCHER, supra note 34. 66. D.N. HIGH COMM'R FOR REFUGEES [UNHCRI, THE STATE OF THE WORLD'S REFUGEES 1997: A HUMANITARIAN AGENDA eh. 1 (1997), available at http://www.unher.org!cgibin/texis/vtx/publ?id=3f098b4d4.

67.

Id.

On lesser statuses, see Erik Roxström & Mark Gibney, The Legal and Elhical Obligations of UNHCR: The Case of Temporary Proteetion in Western Europe, in PROIlLEMS OF 68.

PROTECTION: THE UNHCR, REFUGEES, AND HUMAN RIGHTS 37 (Niklaus Steiner et al. eds., 2003). 69. See Ayelet Shaehar, The Shifting Border of Immigration Regulation, 3 STAN. J. c.R. & C.L. 165 (2007), reprinled in 30 MICH. J. INT'L L. 809. 70. See Alice Edwards, Tampering with Refugee Proteetion: Tlze Case ()f AustraLia, 15 INT'L J. REFUGEE L. 192 (2003) (arguing that Australia's attempt to excise territory from the application of its migration laws is a legal fiction and does not diminish its obligations under internationallaw). 71. See Goodwin-Gill, supra note 62, at I (tracing the United Nations' approach to security and its many references to refugees and asylum seekers).

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treatment of refugees by States in the post-September 11 era. As Goodwin-Gill observes: [T]he already restrictive, hostile and generaIly repressive measures which States were already taking towards refugees and asylum-seekers-such as mandatory detention, denial of support, denial of access to procedures, to legal advice and representation and to appeals, and government-to-government agreements on removals-have been given spurious justification by the terrorism agenda. For some States (or rather, for some govemments), that has been the opportunity to introduce yet more stringent laws and policies, often in the aftermath of a terrorist incident, but also generaIly under a carefuIly constructed cloud of fear. 72 Today, the largest single group of refugees is the Iraqi caseload, having fled amidst the unilateral invasion, and subsequent occupation, of Iraq by the United States and its allies, which was justified in part on antiterrorism grounds. 73 According to Fitzpatrick, "[a] crisis exists [today] not because the [1951] Convention fails to meet the needs of asylum-seekers, but because it meets them so weIl as to impose burdens that are no longer politically tolerable to the States [P]arties involved.,,74 I submit that States exploit a combination of gaps and limitations in the legal proteetion framework, as well as the changed political landscape, to avoid responding to refugee crises. The "exceptionalism" of the so-called "war on terror" has, for example, seen governments pursue politically justifiable policies and laws which undermine some fundamental human rights guarantees, including through the use of legal arguments to support their political stance. 75 Refugees are relabeled from being allies in the Cold War to "queue jumpers," "bogus refugees," or "terrorists." With the post-Cold War era (and increasingly the post-September 11 era) giving rise to attempts to question the durability of the 1951 Con72. Id. at 7. 73. The UNHCR estimates that 4.7 million persons have been displaced as a result of the Traq conflict (2.7 million intemally, 2 million externally). See UNHCR Traq, http://www.unhcr.org/cgi-bin/texis/vtx/iraq?page=briefing&id=4816ef534 (last visited lune 4, 2009). 74. loan Fitzpatrick, Revitalizing the 1951 Refugee Convention. 9 HARV. HUM. RTS. l. 229,231 (1996). 75. See, e.g., A and others v. Sec'y of State for the Horne Dep't., [2005] 2 A.C. 68 (H.L.) (the Belmarsh Detainees case) (holding that the indefinite detention of nine foreign citizens suspected of being involved in terrorist activities was unlawful as bath a disproportionate measure and on the basis of discrimination).

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vention, the human security framework, with its emphasis on the individual and away from the "high politics" of the State, may reinvigorate the waning refugee protection regime. It may at least be a supplementary defense in its armor. This is explored further below. But, first, what are its main critiques?

III.

CRITIQUING HUMAN SECURITY

Human security is a contested concept. Its main opponents criticize it for its vagueness; at the same time, it has been praised for its breadth. The framework has been particularly challenging for some international lawyers, keen to promote instead a concrete rules-based system and eager to draw up neat definitions and criteria. Four of the most commonly mentioned criticisms-lack of a precise definition, lack of a legal framework, "securitization" problems, and enforceability-are addressed in this section. A. Lack of a Precise Definition

The main limiting factor to the usefulness of the concept of human security is said to be the lack of a precise definition. It has been daimed that "[h]uman security is like 'sustainable development' -everyone is for it, but few people have a dear idea of what it means.,,76 Gerd Oberleitner has identified three "rough categories" from the range of definitions of human security available: [A] narrow approach that relies on natural rights and the rule of law anchored in basic human rights; a humanitarian approach that understands human secmity as a tool for deepening and strengthening efforts to tackle issues such as war crimes or genocide and finally preparing the ground for humanitarian intervention; and a broad approach that links human security with the state of the global economy, development, and globalization. n At a minimum, human security means security of persons from threats to life, freedom, and dignity. At its broadest, it includes humanitarian imperatives for joint action on a wide range of issues based on understandings of shared humanity.

76. (2001). 77.

Roland Paris, Human Security: Paradigm Shitt or Hot Air?, 26

TNT',- SEC.

87, 88

Gerd Oberleitner, Human Security: AChallenge to International Law!, 11 GLOBAL 185, 187-88 (2005).

GOVERNANCE

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Of the two main state praponents of the human security framework, Canada and Japan offer different definitions of human security, supporting realist claims that national interests are still paramount. Canada, for instance, has defined human security as "freedom fram pervasive threats to people's rights, safety or lives."n Canada has limited its dialogue on human security to the most serious security threats. 79 Canada asserts that its view of human security is complementary to prevailing efforts that are focused on national security as we11 as international efforts to protect human rights and to promote human development. 8o "A human security perspective asserts that the security of the [S]tate is not an end in itself. Rather it is a means of ensuring security [and therefore rights] for its people ....,,8 1 Japan, on the other hand, adopts the broader, all encompassing approach of the CHS. Japan has stated that the concept of human security "comprehensively covers all the menaces that threaten human survival, daily life and dignity-for example, environmental degradation, violations of human rights, transnational organized crime, illicit drugs, refugees, poverty, anti-personnel landmines and ... infectious diseases such as AIDS-and strengthens efforts to confrant these threats."s2 The mainstay of critiques of the concept revolves araund the absence of a concise definition. These critics argue that the concept is so ambiguous as to be analytically and practically useless. 83 However, these same critics concede that "one can support the political goals of human security ... while recognising that the idea of human security is a muddle."s4 Roland Paris, for example, asserts that it may be an effective campaign slogan, even if it is not so useful as a guide to either research or policymaking. 85 Interestingly, the term "security" itself has been said 78.

79.

DEP'T OF FOREIGN AFF. & TRADE, supra note 46, at 3 (emphasis added). Id. (identifying these main threats as including public safety from transnational threats

such as terrorism, drug trafficking, and organized crime; protection of civilians in armed conflict; confliet prevention; governance and aeeountability; and peace support operations). 80. Id. 81. DEP'T OF FORElGN AFF. & TNT'L TRADE, HUMAN SECURITY: SAFETY FOR PEOPLE IN ACHANGING WORLD 6 (1999) (Can.). 82. MOFA, Diplomatie Bluebook 1999, eh. H, Section 3, http://www.mofa.go.jp/ policy/otheT/bluebook/I999/Il-3-a.html (last visited June 18, 2009); see also Yuko Takasu, DiT.-Gen., MOFA of Japan, Statement at the International Conference on Human SecuTity in a Globalized World (May 8, 2000), available at http://www.mofa.go.jp/poliey/human_seeu/ speech0005.html (last visited June 18,2009). 83. See, e.g., Jane McAdam & Ben Saul, An Insecure Climale for Human Security? Climate-Induced Displacement and International Law, in HUMAN SECURITY AND NONCITIZENS, supra note *, eh. 10; Astri Suhrke, Human Security and the Protectio!1 (~f Refugees, in REFUGEES AND FORCED DISPLACEMENT: TNTERNATIONAL SECURITY, HUMAN VUI.NERARILITY, AND THE STATE 93, 101 (Edward Newman & Joanne van Seim eds., 2003). 84. Paris, supra note 76, at 91-92. 85. Id. at 88.

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to be "an elusive term. Like peace, honour, justice, it denotes a quality of relationship which resists definition."g6 A number of academics have offered definitions of human security.X7 At least one author has suggested that it is a new way to describe the work of the United Nations. 88 Similarly, then-U.N. Secretary-General Kofi Annan stated that "[e]nsuring human security is, in the broadest sense, the United Nations' cardinal mission.,,89 Given the fact that the traditional security emphasis of the U.N. Charter was seen as the security of States, this new shift to human security language must be said to elevate the human rights aims of the U.N. Charter to a new level. Moreover, the drafters of the UNDP and CHS reports regard the "allencompassing" nature of human security as one of its strengths. Placing a broad umbrella over issues of human security allows proper consideration of the inter-sectionality of various threats and corresponding responses. The drafters argue that a broad approach is better suited to reflecting reality, and that this, in turn, offers space to develop and reimagine new solutions. The broad view allows analysis of the interlinkages between, for example, environmental degradation and conflict, between under-development and displacement, or between racism and terrorism. 90 Although undefined, the 1994 UNDP report offers four fundamental characteristics of human security: 1. "Human security is a universal concem,,91 relevant to people in all nations; 2. Human security is transnational in character and interdependent, that is, threats to human security in one part of the world affect persons in other parts regardless of state borders;92 3. "Human security is "easier to ensure through early prevention than later intervention,,;93 and 4.

"Human security is people-centred.,,94

86. MCSWEENEY, supra note I, at 13. 87. See Paris, supra note 76, at 91-92. 88. Dwight Newman, A Human Security Council? Applying a "Human Security" Agenda to Security Council Reform, 31 OTT AWA L. REV. 213 (2000). 89. Kofi Annan, From the Secretary-General: Nothing Lost, Nothing Conceded, Nothing Given Away, 35 U.N. CHRON. ONLINE ED. 3, 3 (1998), avaiLable at http://www.lIn.org/ PlIbs/chronic1e/1998/issllel/0198p3.html (addressing the Foreign Affairs COlnmittee of the Chinese People's Political ConslIltative Conference of April 1998). 90. See Oberleitner, supra note 77, at 188. 91. UNDP, supra note 3, at 22. 92. Id. 93. Id. 94. Id. at 23.

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For internationallawyers, accustomed to neatly articulating the criteria for particular international crimes or human rights violations, the broad view may appear intangible and difficult to grasp. But this should not be seen solely as a problem of the human security framework. It is also a question of how we "do law" at an international level. The disciplines of international law and international relations have long been criticized for being too exc1usive, ignoring the rights and interests of women, refugees, and other marginalized groupS.95 Narrow definitions rarely take account of the full picture of reality or the interests of all groups. David Turton has stated that it is important to understand how we conceive of issues or particular factual scenarios because "we are to some extent constrained, even imprisoned, by our conceptual maps.,,96 He argues that "[ w]e need concepts in order to think about the world, to make sense of it, to interpret it and to act in relation to it.,,97 Resisting the need to pin down the notion of human security into narrow legal language opens up possibilities for transformative solutions, and for broad thinking and negotiations not al ready circumscribed by fixed criteria. It is worth noting that the concept of human security has faced many criticisms similar to those leveled against "humanitarianism," a term widely used in the late 1990s but of narrower ambit. 8.S. Chimni, for example, criticized the language of "humanitarianism" along many of the same lines as critics of human security: [T]he word "humanitarian" is omnifarious and lacks rigid conceptual boundaries. It has not been defined in international law .... It is therefore not captive to any specialized legal vocabulary and tends to transcend the differences between human rights law, refugee law and humanitarian law. A wide range of acts can therefore be classified as "humanitarian." 1ts extendibility facilitates ambiguous and manipulative uses and allows the practices thus classified to escape critique through shifting the ground of justification from legal rules to the logic of situations.98 The concept of national security is also undefined, or at least it is subject to varying definitions depending on the interests at issue. It too

95. See, e.g., ENGENDERING HUMAN SECURITY: FEMINIST PERSPECTIVES (Tranh-Dam Truong et al. eds .• 2006). 96. David Turton, Conceptualising Forced Migration 2 (Refugee Studies Centre. Working Paper No. 12,2003). 97. Id. 98. B.S. Chimni, Globafization, Humanitarianism and the Erosion of Refugee Protection, 13 J. REFUGEE STUD. 243. 244 (2000).

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can be charged with arbitrariness and of being self-serving. The human security framework does not escape similar and other charges. From an international law perspective, these outstanding questions give pause for concern. Without legal mIes, the system of international relations can dissolve into selectivity, unilateralism, and non-legal justifications for acts or omissions. Paradoxically, the international legal system is similarly selective, multilateral only to the extent that it is in the national interests of States to act collectively, and permits justifications for acts or omissions that are ipso facto contrary to human rights based on unclear criteria, such as public order (ordre public),99 national security, health of others, or even morality. The human rights-human security debate is dealt with further below. Despite these shared shortcomings, it is possible to characterize human security as the goal and human rights as a means for its achievement. B. Lack of a Legal Framework

Similar to lack of adefinition, the second main critique of the human security framework is that the lack of law or its nonbinding nature may undermine legal guarantees that are already in place, in particular, human rights norms. This is tied to the vagueness of the concept, which is said to provide scope to States to avoid any legal imperatives to act. In 1998, UNHCR's Division of International Protection shared some of these concerns, suggesting for example that references to UNHCR's role in safeguarding or reinforcing human security represented "a distraction from and a dilution of UNHCR's statutory function of providing international protection to and solutions for refugees" and that the concept constituted "a misguided attempt to use the language of security in UNHCR's dialogue with [S]tates, at a time when the organization should be speaking unequivocally in terms of refugee protection and the defence of human rights."II~) This concern over legality should be taken seriously. However, it can be overstated by those who assume that it is the legal character of human rights that brings about their implementation and ensures the protection and security of individuals. This is certainly one component 99. For an overview of the difficulties of defining and applying eoncepts such as "publie order" under internationallaw, see Alice Edwards, RefUgee Status Determination in Africa, 14 AFR. 1. INT'L & COMP. L. 204 (2006). 100. Frances Nicholson. Proteetion and Empowerment: Strategies to Strengthen Re.fUgees' Human Security, in HUMAN SECURITY AND NON-CITIZENS, supra note *. eh. 3 (citing UNHCR Memorandum from Soren lessen-Petersen to Abu Zayd et al.; UNHCR Policy Committee Meeting on August 3, 1998, Draft Paper by Centre for Doeumentation and Research, The Concept or Human Security and its Refevance to UNHCR, U.N. Doe. AHC/98/219 (July 28, 1998».

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of state compliance, not least because the state-based system of internationallaw is consent based. It has been argued that States, having already opted into specific legal regimes and obligations, have therefore more reason to adhere to their terms. However, many States sidestep even their existing legal obligations. Many international lawyers are unconcerned with questions of why States implement their human rights obligations (rather, they are concerned about whether they have done so or are in breach of their obligations). This can also mean that they may overlook or consider irrelevant the view that human rights are politicaIly conceived and endorsed, and their implementation driven by a wide range of non-Iaw-based influences. Legal norms developed at the level of international law begin in the corridors of power and politics be fore garnering sufficient support to emerge as law. International law cannot claim to cover the entire range of human rights and needs or to reglllate all issues adequately and in isolation. Even the Declaration of States Parties to the 1951 Convention acknowledges that this instrument, "as the primary refugee protection instrument ... , as amended by its 1967 Protocol, sets out rights, including human rights, and minimum standards of treatment that apply to persons falling within its scope."JOl That is, both human rights and refugee law offer minimum, not maximum, standards. These standards are those that have been achievable at the time of drafting as influenced by, inter alia, national interests and international relations. Achieving maximum human rights protection is as reliant on national interests and humanitarian goodwiIl as on legal considerations. International law in this way is seen as "littIe more than handmaiden to the powerful. States, it is argued, employ international law when it suits their interests and simply disregard it when it does not.,,102 But what the above critics ignore is that the human security framework, as elaborated by the United Nations or by state proponents, is not intended to replace or usurp existing legal frameworks, but rather to support and to strengthen them. Sadako Ogata and Johan Cels argue that human security embraces both legal duties and obligations while also recognizing their ethical and political implications. lU3 Human security in this sense refers to the rights, "weIl being, safety, and dignity-of individual human beings."llJ4 In this way, the human security framework may be a useful tool to rethink and reconceptualize security issues as weIl as 101. Declaration of States Parties, supra note 64, '![ 2 (emphasis added). 102. David Cox & Andrew O'Neill, The Unhappy Marriage Between International Relations Theory and International Law, 20 GLOBAL CHANGE, PE ACE & SEC. 201,201 (2001). 103. Sadako Ogata & Johan Cels, Human Security-Protecting and Empowering the People, 9 GLOBAL GOVERNANCE 273, 275 (2003). 104. Oberleitner, supra note 77, at 190.

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to deal with those issues that fall outside existing legal parameters, with a view to moving toward accepted standards and consensus. It has also been argued that the human security framework draws on and is linked to the international right to liberty and security of person contained in a range of international and regional human rights instruments. IOS However, this right has primarily been used in the narrow context of arbitrary arrest and detention.")(j That is, it has been posited that there is an emerging right to human security.107 At aminimum, the language of rights should be used as the floor but not the ceiling for what is possible under a re-imagined system of security and international relations.

c.

"Securitization" Problems

The third main criticism of the human security paradigm is that it can result in putting all issues under a "security" canopy, the aim of which is to elevate attention to the particular issue. The negative effect of this "securitization" is that it can label the subjects of security discourse as threats to security, rather than victims or persons at risk of insecurity. This is not an uncommon response to refugees and other migrants. Chimni has argued, for example, that this process of "normalizing" the language of security has hidden from view the real agendas at play. He states: The language of burden sharing has today been transformed into a language of threats to the security of [S]tates. Refugees are now seen as threatening a host country's security by increasing demands on its scarce resources or threatening the security of regions by their mere presence. The fact that the perceptions can often be attributed to a policy of containment or to the absence of burden sharing is veiled by the language of security. lOB The end result, he suggests, is the erosion of fundamental principles, such as non-refoulement, as States feel justified closing their borders or

105. See, e.g., African Union, African (BANJUL) Charter on Human and Peoples' Rights art. 6, June 27, 1981, O.A.U. Doc. CAB/LEG/67/3 rev.5, reprinted in 21 I.L.M. 58 (1982); American Convention on Human Rights art. 7, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 23; International Covenant on Civil and Political Rights art. 25, Dec. 16, 1966, S. EXEC. Doc. E, 95-2 (1978), 999 D.N.T.S. 171 [hereinafterICCPRl. 106. See SARAH JOSEPH ET AL., THE INTERNATIONAL COVENANT ON ClVIL AND POLlTICAL RIGHTS: CASES, MATERIALS, AND COMMENTARY (2d ed. 2004). 107. See Lois E. Fielding, Taking a Closer Look at Threats to Peace: The Power (!f the Security Council to Address Humanitarian Crises, 73 U. DET. MERCY L. REV. 551, 568 (1996); Newman, supra note 88, at 213,215. 108. Chimni, supra note 98, at 252.

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returning individuals to less than ideal eireumstanees."'9 Gregor Noll makes similar observations in finding that labels do matter and that "seeurity" is not a neutral label. 11o Rather, "seeurity" has predominantly eolleetive eonnotations in the diseourse of internationallaw,"lll "whereby the eolleetive interest permits the saerifiee of the interests of the individual.,,112 "In NolI's view, the individual beeomes voieeless in seeurity diseourse."l13 As he observes: A further eharaeteristie of the seeurity eoneept is its trump funetion: Invoking seeurity eoneerns seemingly reduees the legal eonstraints put on aetors and inereases the leeway for diseretion. Thus, "seeuritizing" the diseourse on t1ight and proteetion means introdueing a bias that ultimately works against the individual. l14 Likewise, Astri Suhrke fears "the misappropriation and misuse of the term to justify [s]tate-eentrie responses to the movement of people."ll5 In her examination of its applieation to refugees, she says: Applying a "seeurity" perspeetive to examine the needs of "outsiders" and their relationship to the eommunity typieally involves assumptions of antagonistie relations and non-tradable interests. In other words, the negative effeets often assumed to follow the "seeuritization" of the diseourse on refugee movements that was assoeiated with "soeietal seeurity" in the 1990s are likely to oeeur even when the adjeetive is "human" rather than "soeietal.,,1l6 "All these fear-driven responses play into the raeialised and/or xenophobie 'othering' of individuals and populations on the move that is replete with paternalistie eonnotation.,,117 While these eoneerns should not be dismissed, they tend to treat all seeurity diseourse as one and the 109. !d. Gregor NaH, Securitizing Sovereignty? States, Refugees and the Regionalization of 110. international Law, in REFUGEES AND FORCED DISPLACEMENT: INTERNATIONAL SECURITY, HUMAN VULNERABILlTY, AND THE STATE, supra note 83, at 277, 280. 111. !d. Eve Lester, Socio-Economic Rights, Human Security, and Survival Migrants: 112. Whose Rights? Whose Security?, in HUMAN SECURITY AND NON-CITIZENS, supra note *, eh. 9. 113. Jd. 114. NaH, supra note 110, at 280. 115. Lester, supra note I 12; see, e.g., Maggie Ibrahim, The Securitization of Migration: A Racial Discourse, 43 INT'L MIGRATION, 163, 173-78 (2005). 116. Suhrke, supra note 83, at 106-07. Lester, supra note 112 (citing EDWARD SAID, ORIENTALISM (1979»; NaH, supra 117. note 110, at 281.

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same. They rest upon an assumption that security is a negative force, rather than a condition under which human rights can f1ourish. Although acknowledging the validity of these arguments, Eve Lester reminds us of the "risk in failing to engage in either the definition al or operational debate that surrounds the notion of 'human security.",1l8 She urges us to attempt to explore what possibilities there might be for applying the human security concept in a manner that yields constructive and protective outcomes. 119 If the concept of human security can be brought to bear on a refugee or migration "problem" normatively, she asserts, it may have the etIect of bringing the legal frameworks of international refugee and human rights law, and indeed humanitarian law where relevant, into sharper focus. In this way, she argues that "it may serve a constructive purpose that cannot be achieved by resort to existing legal frameworks alone.,,12o It has also been argued that the consistency between human rights and human security "provides a potentiaHy valuable language for human rights advocates to enter into the security sphere and to seele reform of institutions in that security sphere."l2l That is, in order for human rights concerns to be more prolific within security discourse, the pathway might be through the language of human security.122 Shahrbanou Tadjbakhsh and Anuradha Chenoy argue that the added value of the concept lies in the new questions it poses regarding security: "security of whom?," "security from what?," and "security by what means?,,123 It has also been suggested that [s]ecuritization can also be performed with an emancipatory interest. Given the capacity of security language to prioritize questions and to mobilize people, one may employ it as a tactical device to give human rights questions a higher visibility, for example. 124 An alternative put forward by Suhrke, is that the term "vulnerability" should be applied ahead of "human security."125 NoH too has noted that 118. Lester, supra note 112. 119. Id. !d. 120. 121. Newrnan, supra note 88, at 215. 122. Paris, supra note 76, at 94-95 nn.26, 31 (citing Gary King & Christopher Murray, Rethinking Human Security, 116 POL. SCI. Q. 585 (2002»; Emma Rothschild, What Is Security?, 124 DAEDALUS 53, 58-59 (1995). TADJBAKHSH & CHENOY, supra note 37, at 13. 123. 124. Savitri Taylor, Migration and Human Security in the Asia- Pacific Region, 19 GLOBAL CHANGE, PEACE & SEC. 17l, 172 (2007) (quoting Jef Huysmans, Defining Soeial Constructivism in Security Studies: The Normative Dilemma (!f Writing Security, 27 ALTERNATIVES: GLOBAL, LOCAL, POL. 41, 59 (2002». 125. Suhrke, supra note 83, at 105.

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"vulnerability" is "not burdened with the military heritage and the collectivist bias of the security concept.,,126 However, the concept of "vulnerability" attracts its own complexities, "connoting disempowerment and loss of agency.,,127 Frances Nicholson challenges us to move away from an emphasis on the "vulnerability" of refugees to recognition of "refugees as rights-holders and as agents of their own security and future, an approach very much envisaged by the CHS's focus on empowerment.,,12R Ultimately, the language of security-whether "national" or "human"-is not necessarily antithetical to either the aims and purposes of the United Nations, or to those of human rights. Although security terminology is open to manipulation by States and can be a central tool in efforts to undermine or avoid legal obligations, security discourse and security needs are not new to international or foreign policy agendas, or to the frameworks of international law. '29 Security concerns are evident in the language of a number of key provisions on refugee protection. '30 The human security discourse, with its focus on the individual, requires States to consider the impact of security measures on individuals. This is not required by the realist approaches to national security, in which the interests of the State are paramount. Although the protection of persons qua citizens is not irrelevant to States under the national security paradigm, they are not the primary referent objects of security. Security under the human security concept transcends territorial borders. Refugees as victims of human insecurity in the form of human rights violations, persecution, and armed conflict stand to gain under the human security concept if it is conceptualized and implemented in the 126. Noll, supra note 110, at 282. 127. Lester, supra note 112. 128. Nicholson, supra note 100. 129. See Goodwin-Gill, supra note 62, at 1. 130. The "right to seek and enjoy in other countries asylum from persecution" in the Universal Declaration of Human Rights (UDHR) "may not be invoked in the case ofprosecutions genuinely arising from non-political crimes ar from acts contrary to the purposes and principles of the United Nations." Universal Dec1aration of Human Rights, G.A. Res. 217 A, art. 74, U.N. GAOR, 3d Sess., 183d plen. mtg., U.N. Doc. A/81O (Dec. 10, 1948) [hereinafter UDHR]. Similarly, the prohibition on refoulement or return to threats to life of freedom in the 1951 Convention is qualified by Article 33(2), which provides that such protection will not apply to "a refugee whom there are reasonable grounds far regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the conmlUnity of that country." 1951 Convention, supra note 60, art. 33; see also Organization of African Unity [OAU], Convention Governing the Specific Aspects of Refugee Problems in Africa art. 3, Sept. 10, 1969, 1001 U.N.T.S. 45 [hereinafter OAU Convention] (containing provisions in which the Organization for African Unity (now African Union) outlawed political and subversive activities by refugees). These provisions were approved in light of concerns by host States of the impact of these political activities on state security./d. pmbl. 'l['j[ 4-5.

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manner intended. After all, human security is aprerequisite to the enjoyment of rights. Likewise, the lack of security is the greatest threat to human rights and the key motivating cause of human displacement and migration. To adopt an absolutist view that we should not engage in security discourse is, in my view, to isolate artificially and unhelpfully internationallaw from the realities of international relations. D. Enforceability The fourth critique of relevance to this Essay is that the human security framework is weakly institutionalized and has poor enforcement powers. This may be in part a temporal problem given the fact that the framework has yet to be taken up fully by the United Nations, or individually by a majority of Member States. Paradoxically, the same charges can be made against human rights law with its system of enforcement that revolves around quasi-judicial decisionmaking on individual petitions and monitoring through State Party reporting, which have been heavily criticized by many international lawyers. 13 1 However, the use of the language of security is not just rhetorical. One significant consequence of identifying a range of threats to human life and dignity-such as environmental disasters, poverty and under-development, major health risks, and irregular migration-as issues of security is the implicit potential for activating the enforcement powers of the U.N. Security Council under Chapter VII of the U.N. Charter. 132 In the 1990s, the U.N. Security Council was willing to characterize some widespread human rights violations and mass human displacement as threats to international peace and security, thereby putting them within the purview of the United Nations' enforcement powers. 133 The problem with doing so was the gap that developed between theory and practice, and the related selectivity of operations. Serious questions also arose surrounding their effectiveness. According to the International Commission on Intervention and State Sovereignty (ICISS), [t]he debate on military intervention for human protection purposes was ignited in the international community essentially 131. The human rights system is, however, being strengthened all the time, through ef fort such as through fact-finding and inquiry procedures and regional courts with the power to issue binding decisions. See. e.g., Alice Edwards, The Optional Prolocol 10 the Convention Againsl Torlure and Ihe Delenlion o( Re(ugees, 57 INT'L & COMP. L.Q. 789 (2008). 132. See also MeAdam & Saul, supra note 83, eh. 10. 133. See, e.g., S.c. Res. 1199, at 2-4, V.N. Doe. SIRESIl199 (Sept. 23,1998) (calling for aetions to resolve the crisis in Kosovo); S.c. Res. 841, at 2-3, V.N. Doc. S/RES/841 (lune 16,1993) (endorsing an embargo against Haiti in response to the ouster of Jean-Bertrand Aristide); S.c. Res. 688, at 31, V.N. Doe. S/RES/688 (Apr. 5, 1991) (condemning actions taken against the Iraqi civilian population).

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because of the critical gap between, on the one hand, the needs and distress being feIt, and seen to be feIt, in the real world, and on the other hand the codified instruments and modalities for managing world order. 134 The notion of "responsibility to protect" (R2P), which the human security concept entails or supports (it is not clear which) is a move away from a right of military intervention on humanitarian grounds to a threetiered responsibility framework encompassing a responsibility to prevent, a responsibility to react, and a responsibility to rebuild. The ICISS identified two basic principles of R2P as folIows: A. State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the [S]tate itself. B. Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the [S]tate in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect. 135 The ICISS formulated three elements of R2P: prevention, reaction (which includes military force but is meant to be an "exceptional and extraordinary measure,,136), and rebuilding. 137 The main emphasis, however, is on prevention. 13R The R2P doctrine is broader than the concept of humanitarian intervention, which implies primarily military intervention. The ICISS limited the exercise of military intervention to cases of "large scale loss of life, actual or apprehended" or "I arge scale 'ethnic c1eansing,' actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.,,139 Other qualifying criteria were also elaborated in some detail. 140 Military intervention is therefore limited to only the most severe forms of human insecurity. The World Summit Outcome document clarified that these severe fonns of human insecurity referred to the four international crimes of genocide, "ethnic cleansing,"

134. TNT" COMM'N ON TNTERVENTION & STATE SOVEREIGNTY (TCTSS), THE RESPONSIBILITY TO PROTECT '112.24 (2001), avaiLabLe al http://www.iciss.ca/pdf/CommissionReport.pdf (last visited May 27, 2009). 135. Id. at XI. 136. Id. at XII. Td. at Xl. 137. 138. Id. 139. Id. 140. Id.

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crimes against humanity and war crimes. 141 Options under R2P may include "humanitarian operations, monitoring missions and diplomatie pressure and ... force [as a last resort].,,142 For refugees and asylum seekers, it has been proposed that R2P could include the responsibility to grant asylum and to open borders for those fleeing from one or more of the four crimes listed above. 143 The UNHCR has expressed its acceptance of R2P as one way of alleviating some of the root causes of forced displacement, subject to working out its modalities relating to "eligibility, 1egitimacy, state sovereignty, political will, mandates, and operational effectiveness.,,144 However, it is unclear how humanitarian intervention and responsibility to protect in terms of military intervention will really differ in any actual situation, given that the players and legal frameworks remain the same. The politics behind the exercise of enforcement powers under the U.N. Charter and the veto power of the permanent members of the Secmity Council will also remain, even if the human security concept acts to expand the range of issues that are seen as threats to international peace and security. The operationalization of human security would appear to be its greatest challenge.

IV. HUMAN SECURITY AND THE RIGHTS OF REFUGEES So what does or could human security offer refugee protection? This section adopts a three-tiered approach to this question. First, I briefly outline the refugee-specific legal regime and identify its gaps, into which human rights law (and international humanitarian law, as relevant, although the latter is not dealt with in this Essayl45) has stepped to 141. 2005 World Summit Outcome, G.A. Res. 60/1, 'J['j[ 138-39, U.N. Doc. A/RES/60/l (Oel. 24, 2005). 142. Erika Feller, Dir., Dep't of Int'l Prol., UNHCR, The Responsibility to ProtectClosing the Gaps in the International Protection Regime and the New EXCOM Conclusion on Complementary Forms of Protection, Address to "Moving On: Forced Migration and Human Rights" (Nov. 22, 2005), available at http://www.unhcr.org/cgi-bin/texis/vtx/admin/ opendoc.htm?tbl=ADMIN&id=43a692122 (last visited lune 2, 2009). 143. See, e.g., Brian Barbour & Brian Gorliek, Embraeing the "Responsibility to Proteet": A Repertoire of Measures Including Asylumfor Potential Vietims, 20 INT'L J. REFUGEE L. 533, 561 (2008). 144. Erika Feller, Dir., Dep't of lnfl Prol., UNHCR, Migrants and Refllgees: The Challenge of Identity and Integration, Address to the 10th Annllal Hllmanitarian Conference of Webster University (Feb. 17-18, 2005), avaifable at http://www.unhcr.org/refworld/docid/ 42b96a3d2.html (last visited lune 4, 2009). 145. For more on the inter-linkages between international hllmanitarian law and refllgees, see Alice Edwards, Crossing Legal Borders: The Interface Between Refugee Law, Human Rights Law and Humanitarian Law in the "International Protection" of Refugees, in INTERNATIONAL HUMAN1TARIAN LAW AND HUMAN RIGHTS LAW: TOWARDS A NEW MERGER

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supplement the rights contained in the 1951 Convention. Second, 1 consider the role of human rights in the refugee protection regime, identifying in the process some of its own weaknesses. I conclude that even with these two legal framewarks operating in favor of the protection of refugees, many of the problems facing refugees, particularly their security, remain unaddressed or unresolved. I then turn to ask what the human security framework could offer this reasonably robust, albeit imperfect, legal system. A. The Refugee Proteetion Framework

Refugees are the recognized beneficiaries of internationally endorsed rights. Centered on the non-refoulement guarantee in the 195 I Convention, which prohibits States from returning individuals to the frontiers of territories where they may face threats to their life or freedom,146 the international refugee protection regime provides adefinition of who qualifies as a refugee (and therefore who does not) in recognition of entitlement to special protection, which includes aseries of rights relevant to the specific situation of refugees. Refugees are a specific category of non-citizens who are considered deserving of a specific set of rights, ultimately because they lack the protection of their own governments. At the time of this writing, there were 147 States Parties to either or both the 1951 Convention and/or 1967 protocoe 47 The international instruments are reinforced by regional ones, which expand the category of those entitled to special protection as well as the rights to which they are entitled in some limited ways.148 Institutionally, refugees are served by the UNHCR. 149 Although the UNHCR is not a substitute far state protection, it is a leading humanitarian arganization with a specific mandate to protect and represent the rights and interests of refugees. It is, therefare, an important player in IN INTERNATIONAL LAW 421 (Roberta Arnold & Noelle Quenivet eds., 2008); see also 843 INT'L REV. RED CROSS passim (2001) (special edition on the interface between international humanitarian law and international refugee law). Far an overview of the principle of non-ref(JUlement under the 1951 Convention, see 146. Elihu Lauterpacht & Daniel Bethlehem, The Scope and Conlenl lhe Principle NonRefoulement, in REFUGEE PROTECTION IN INTERNATIONAL LAW 87, 98-164 (Erika Feiler et al. eds., 2003). 147. UNHCR, STATES PART/ES TO THE 1951 CONVENT/ON RELATING TO THE STATUS OE REFUGEES AND THE 1967 PROTOCOL 1 (2008), available at http://www.lInhcr.org/protect/ PROTECTION/3b73bOd63.pdf (last visited May 28, 2009). 148. Far example, the explicit reminder that non-refoulement incllldes non-rejection at the frontier and the principle of voluntary repatriation is endorsed as a right in the OAU Convention. See OAU Convention, supra note 130, arts. 2(3), 5. 149. See Statllte of the Office of the United Nations High Commissioner for Refllgees, G.A. Res. 428, at 46, U.N. GAOR, 5th Sess., 325th plen. mtg., U.N. Doc. A/RES/428 (Dec. 14,1950).

or

or

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ensuring the human security of refugees. As of this writing, it operates in 116 countries and has over 6,000 staff. 150 Nonetheless, in order to fulfill its mandate, the UNHCR relies on the assistance and support of States, including non-States Parties to the 1951 Convention, many of whom are host to major refugee populations. 151 Despite enumerating a range of rights for refugees in Articles 3 through 34, the 1951 Convention is not without its gaps. In the post-Cold War period, in which the nature and scale of displacement has changed, the 1951 Convention has been criticized as being virtually redundant, or "functionally inefficient, overly legalistic, complex, and difficult to apply in a world of competing [and changing] priorities.,,152 With such claims, driven by state interests and serving to undermine the legal and humanitarian value of the 1951 Convention, it is at this juncture that human rights law has stepped in to fill in the "grey areas.,,153 First, the rights enumerated in the 1951 Convention are limited guarantees for refugees and asylum seekers and are not the entire range of rights available to them under international human rights law as a whole. 154 For example, there is no entrenched right to family life contained in either the 1951 Convention or the 1950 Statute of the UNHCR;'55 nor is there a right to liberty and security of person. AIthough the fundamental principle of refugee law is the protection from return or refoulement to threats to life or freedom, the guarantee under the 1951 Convention can be lifted if a refugee poses a threat to national security or, having been convicted by final judgment of a particularly serious crime, is considered to be a danger to the community.156 The nonrefoulement guarantee in the 1951 Convention is not an absolute proteetion against refoulement to threats to life or freedom, and thus can play

150. See The UN Refugee Agency, UNHCR, Basic Facts, http://ewww.unhcr.org/ basics.html (last visited June 4, 2009). According to the UNHCR, among the major refugee hosting countries are Pakistan 151. (2 million), the Syrian Arab Republic (1.5 million), and Jordan (500,300), none of which are parties to the 1951 Convention. UNHCR, 2007 GLOBAL TRENDS: REFUGEES, ASYL UMSEEKERS, RETURNEES, INTERNALLY DrsPLAcED AND STATELESS PERSONS 8 (2008). 152. Guy S. Goodwin-GiB, Asylum 200J-A Convention and a Purpose, 13 INT'L J. REFUGEE L. I, 1-2 (200 I). 153. See Alice Edwards, Human Rights, Refugees and the Right to "Rnjoy" Asylum, 17 INT'L J. REFUGEE L. 293, 295 (2005). 154. Id. at 303. 155. However, the Final Act of the 1951 U.N. Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons also recommended that governments "take the necessary measures for the protection of the refugee's family." See id. at 309. For an overview of protections of family life under international human rights law versus international refugee law, see id. at 308-19. 1951 Convention, supra note 60, art. 33(2). 156.

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into the national security agendas of States. 157 Likewise, protection against expulsion can be lifted on grounds of national security or public order, subject to a number of legal safeguards. 15B Second, the rights listed in the 1951 Convention are subject to, in the words of James Hathaway, a complex "structure of entitlement" that provides for "enhanced rights as the bond strengthens between a particular refugee and the State Party in which he or she is present.",59 That is, not all rights contained in the 1951 Convention apply to recognized refugees immediately upon recognition, and only a few overtly apply to asyl um seekers. 161l In contrast, international human rights law is in principle applicable to all persons on the basis of their shared humanity (with limited exceptions 1(1 ) and must be applied according to principles of non-discrimination. 162 In this way, human rights is not based on nationality or telTitory, but on jurisdiction. In contrast, Article 3 of the 1951 Convention provides that States Parties must apply the Convention pro-

157. Notably, restrictive applications of the refugee definition is a more effective means of excluding an individual from refugee protection than recourse to the non-refoulement guaran tee, which has arguably attained the status of customary internationallaw. 158. 1951 Convention, supra note 60, art. 32. JAMES C. HATHAWAY. THE RIGHTS OF REFUGEES VNDER INTERNATIONAL LAW 154 159. (2005); see also GUY S. GOODWIN-GILL & JANE McADAIVI, THE REFUGEE IN INTERNATIONAL LAW 305-07 (3d ed. 2008) (distinguishing four general categuries on which the extent of a refugee's rights may depend, namely "simple presence," "lawful presence," "lawful residence," and "habitual residence"). 160. These inc1ude non-discrimination, non-penalization tor illegal entry ur stay in cases of threat to life or freedom, and non-refoulement. See 1951 Convention, supra note 60, arts. 3, 31, 33. 161. See. e.g., ICCPR, supra note 105, art. 25 (applying the right to participate in public affairs onl y to citizens); id. art. 13 (applying the proteetion against arbitrary expulsion only to aliens); see also International Covenant on Economic, Social and Cultural Rights art. 2(3), Dec. 16, 1966, 993 V.N.T.S. 23 [hereinafter ICESCR] (allowing for discretion by developing countries in guaranteeing economic rights to non-nationals). 162. See Hum. Rts. Comm., General Comment No. 15 on "The Position of Aliens Under the Covenant", V.N. Doc. HRT/GEN/T/Rev.I (Apr. 11, 1986), [herein after Gen. Comment No. 15] ("Thus the general rule is that each one of the rights of the [TCCPR and the TCESCR] must be guaranteed without discrimination between citizens and aliens."); see also Loizidou v. Turkey, App. No. 15318/8923, 23 Eur. H.R. Rep. 513, '1152 (Dec. 18, 1996) ("The obligation to secure ... the rights and freedoms set out in the Convention, derives from the fact of control [of territory.]"); Hum. Rts. Comm., General Comment No. 31: The Nature (!f the General Legal Obligation Imposed on States Parties to the Covenant, V.N. Doc. CCPRlC/211 Rev.lIAdd.13 (Mar. 29, 2004) [herein after Gen. Comment No. 31]; Comm. on the Elimination of Racial Discrimination, General Recommendation XI on Non-Citizens, V.N. Doc. A/46/18 (Mar. 19, 1993) [hereinafter Gen. Recommendation No. XI]. In relation to expanded understandings of state responsibility in recent case law, see Guy Goodwin-Gi11, Keynote Address, Extra-Territorial Processing of Asylum Claims from a General International Law Perspective, Refugee Studies Centre International Conference on Refugees and International Law: Challenges to Protection, V niversity of Oxford (Dec. 15-16, 2006).

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VlSlOns without discrimination only as to "race, religion or country of origin.,,163 The third advantage of having recourse to human rights law is that should aState fail to respect its human rights obligations, appropriate redress mechanisms may be available. '64 Apart from writing a letter of complaint to the UNHCR or exercising rights under domestic law, no such mechanisms exist under the 1951 Convention. Fourth, international human rights law "is especially relevant with respect to non-State parties to the 1951 Convention andJor 1967 Protocol that are otherwise parties to various human rights instruments, as well as its role in developing international customary rules that apply to all States.,,165 Of all of the rights contained in the 1951 Convention, only the race component of the prohibition on discrimination and the principle of non-refoulement have attained the status of customary international law. '66 Fifth, "[t]he discrepancies between [the treatment of] refugees recognized under the 1951 Convention and the wider group of persons in need of international protection,,'67 reinforce the relevance and importance of human rights instruments. log Many victims of human insecurity, for instance, would fall within this latter category but may not qualify as refugees. 169 Finally, international human rights law applies to individuals within the jurisdiction of the State,170 and it can, therefore, apply on both sides of the border. The operation of international refugee law, on the other hand, usually starts with the act of seeking admission to the territory of 163. 1951 Convention, supra note 60, art. 3. 164. Individual petition mechanisms are available under several international treaties. See e.g., Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women arts. 1-2, G.A. Res. 54/4, U.N. Doc. A/RES/54/4 (Oct. 15. 1999); Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment art. 22. G.A. Res. 39/45, U.N. GAOR 39th Sess., 93d plen. mtg., U.N. Doc. AlRES/39/45/Annex (Dec. 10, 1984); Optional Pratocol to the International Covenant on Civil and Political Rights. G.A. Res. nOOA (XXI), U.N. GAOR Supp. No. 16. U.N. Doc. A/63 16 (entered into force March 23. 1976). For further discussion, see h,fra Part TTT.B.2. 165. Edwards. supra note 153, at 299. 166. See Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18, 2003 Inter-Am. Ct. H.R. (ser. A) No. 18/03, '11'11100-01 (Sept. 17, 2003) (on discrimination asjus eogens); Declaration of States Parties, supra note 64, pmb!. '114. 167. See UNHCR. Exec. Comm. High Comm'r Programme, Note on International Proteetion, '1121, U.N. Doc. AlAC.96/830 (Sept. 7, 1994). 168. Oldrich Andrysek, Gaps in International Proteetion and the Potentiallor Redress Through Individual Complaints Proeedures, 9 INT'L J. REFUGEE L. 392,393-94 (1997). 169. See Andrew Shacknove, Who Is a Refugee?, 95 ETHICS 274, 278 (1985) (questioning whether there is any real reason to treat individuals displaced by persecution differently fram those displaced by economic causes or other calamities). 170. This, of course, depends on whether the State has ratitied or acceded to the relevant human rights treaty and/ar whether the right has attained the status of custom.

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an asylum State, but more usually after crossing an international border. An important exception to this rule is the prohibition on refoulement, which is accepted as applying "at the frontier" or arguably whenever "effective control" is exercised. 171 Without international human rights law, many individuals would remain in a legal vacuum until they managed to escape the persecutory conduct and reach safety in another country. International human rights law is, therefore, another legal system available to strengthen and enhance existing proteetion standards for refugees. 172 Neither body of law renders the other redundant or secondary, but it is clear that in some instances human rights law is needed to fill some gaps in the 1951 Convention. It is not, though, the panacea to all the problems in the refugee protection framework, suffering from many of its own weaknesses. In addition, law alone is unable to resolve distinct and evolving refugee crises that demand immediate political attention (especially in an international system in which politics run alongside rights). Law, as far as it applies, can and should guide the responses taken by the international community to such crises, but ultimately many other non-legal factors and non-legal solutions are involved. Erika Feiler, then-Director of UNHCR's Department of International Protection (and now Assistant High Commissioner for Protection), has characterized the interlinkages pragmatically: "To put it simplistically, to see the refugee problem as an issue of human rights law creates protection space.,,173 Could further space be created if refugee protection is also seen as an issue of human security? According to J oan Fitzpatrick the main weaknesses in the refugee protection framework can be categorized as follows: (1) the vagueness and manipulability of one of its key provisions, the refugee definition; (2) the lack of an agreed framework for refugee determination and the lisks involved in harmonization efforts that attempt to fill this vacuum [as now being played out in the context of the European Union 174]; 171. See Lauterpacht & Bethlehem. supra note 146. at 87 Creferring to EXCOM Conclusions that support this position). 172. Edwards. supra note 153. at 296. 298-99. 173. Feiler, supra note 142. 174. See European Commission, The European Union Policy Towards a Common European Asylum System, available at hup://ec.europa.euljustice_home/fsj/asylum/fsLasylum_ intro_en.htm (last visited June 18, 2009); see also Couneil Directive 2004/83/EC, Minimum Standards for the Qualifieation and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need International Proteetion and the Content of the Proteetion Granted, 2004 0.1. CL 304) 12-23 Cestablishing uniform standards for the European

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(3) crucial substantive lacunae or ambiguities, particularly the right to receive asylum, the right of admission, the rights of asylum-seekers interdicted at sea, and the right of temporary refuge for forced migrants who do not qualify as Convention refugees; and (4) key gaps in inter-state obligations, especially burden sharing through admission of refugees, security issues relating to refugee encampments and dependable financing of refugee prevention and relief strategies. 175 To her listing, one ought also to add strategies for dealing with mass influxes of refugees, the question of how to protect refugees and asylumseekers within mixed migration flows, and the issue of protracted refugee situations and the quest for durable solutions. 176 Solutions to these issues are not found within the terms of the 1951 Convention, although its principles, such as non-discrimination, non-refoulement, and nonpenalization, should guide the approach taken. 177 In addition, questions continue to be posed about how to strengthen the supervisory mandate of the UNHCR, which highlights the problem of the enforceability of refugee rights.

Community Member States, with the exception of the United Kingdom, Ireland, and Denmark); UNHCR, Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004, http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=4200d8354 (last visited lune 18,2009). 175. Fitzpatrick, supra note 74, at 232. 176. Each of these issues was discussed during the Global Consultations on International Protection and readdressed by the Convention Plus Initiative and the High Commissioner's Dialogues on Proteetion in 2007 and 2008. See, e.g., UNHCR. Mechanisms or International Cooperation to Share Responsibilities and Burdens in Mass b,flux Situations, U.N. Doc. EC/GC/O 1/7 (Feb. 19, 2007), available at http://unhcr.org/3ae68f3cc.html(last visited June 18, 2009); UNHCR, Complementary Forms (~f Protection, U.N. Doc. EC/GC/Ol/18 (Sept. 4, 2001), available al http://www.unhcr.org/refworld/docid/3bfa84345.html(last visited lune 18, 2009); UNHCR, Asylum Processes: Fair and E{ficient Asylum Procedures, U.N. Doc. EC/GC/O 1/12 (May 31, 2001), available at http://www.unhcr.org/refworld/docid/ 3b36f2fca.html (last visited June 18, 2009); UNHCR, Praclical Aspects ()f Physical and Legal Protection with Regard to Registration, U.N. Doc. EC/GC/Ol/6" (Feb. 19,2001), available al http://www.unhcr.org/refworld/docid/3bfa82464.html (last visited June 18, 2009); UNHCR, The Civilian Character or Asylum: Separating Armed Elements from Rerugees, U.N. Doc. EC/GC/01/5 (Feb. 19,2001), available at http://unhcr.org/3ae68f3cI8.html (last visited June 18,2009). 177. See 1951 Convention, supra note 60; Volker Türk, Nerv Tssues in Refugee Research: UNHCR's Supervisory Responsibility 1 (UNHCR, Dep't of Int'1 PrOI., Working Paper No. 67, 2002), avaifable al http://www.unhcr.org/research/RESEARCH/3dae74b74.pdf (last visited June 18, 2009).

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B. The Complementary Human Rights System As noted above, international human rights law has increasingly become an important supplement to refugee protection. For example, it has been used to expand the definition of a refugee in the 1951 Convention,178 to complement rights available, and to provide the basis for complementary or subsidiary forms of protection for individuals who need protection and who would not otherwise meet the persecutory or other components of the refugee definition. 179 This is because, under international human rights law, States are in principle obligated to afford rights to all persons, citizens, and non-citizens alike, who are under their j urisdiction-territorially or otherwise. '80 Nonetheless, this general position is subject to a number of legal exceptions, especially in relation to political and economic rights. 'S' During the drafting negotiations of the two main human rights treaties-the ICCPR and the International Covenant on Economic, Social, and Cultural Rights (ICESCR)'82-the divisive politics of the Cold War were evident. The human rights regime that resulted has arguably been wealcened by these political influences. The division of rights into three so-called "generations,,183 reminds us of the East-West politics that influenced the elaboration of the two main separate treaties making up the socalled International Bill of Rights. Under this division, civil and political rights (first generation rights) are seen to have greater value than economic, social, and cultural rights (second generation rights), as weIl as other purported rights revolving around group rights, such as those to development, peace, or water (third generation rights). Despite state178.

See, e.g.• A1ice Edwards. Age and Gender Dimensions in International Refugee

Law. in REFUGEE PROTECTION IN INTERNATIONAL LAW. supra note 146. at 46-48 (discussing how human rights standards relevant to women have been transposed to ensure that the experiences of refugee women are given full consideration during refugee status determination). 179. See. e.g .• JANE McADAM. COMPLEMENTARY PROTECTION IN INTERNATIONAL LAW (2007). 180. See supra note 178. On the question of the extraterritorial application of human rights norms, see generally Michael Gondek, Extraterritorial Applicatio/1 (~f the European Convention on Human Rights: Territorial Focus in the Age of Globalization?, 52 NETHS. INT'L L. REV. 349 (2005). 181. See e.g., ICCPR, supra note lOS, art. 25 (extending only to citizens the right to participate in public affairs); see also Edwards, supra note 153, at 320-28 (discussing the fact that refugees are often not given an equal right to work as citizens). 182. lCCPR, supra note 105; lCESCR, supra note 161. 183. The "generations" metaphor is problematic for a number of reasons, not least of which is that it can work to overstate some of the differences between different types of rights. It is used here simply as an organizing tool. On the "generations" metaphor, see Karel Vasak, ?our une troisieme generation des droits de l'homme , in STUDIES AND ESSAYS ON TNTERNATlONAL HUMANITARIAN LAW AND RED CROSS PRINCIPLES IN HONOUR OF JEAN PICTET (C. Swinarski ed., 1984); Karel Vasak, Les differentes categories des droits de I'homme, in I LES DIMENSIONS UNIVERSELLES DES DROITS DE L' HOMME (A. Lapeyre et al. eds., 1991).

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ments to the contrary by the United Nations that human rights are universal, indivisible, and non-hierarchical,184 the legal reality does not always match the political rhetoric. 185 Rights have been ranked in importance, evidenced by the idea of derogability of some rights in times of public emergency,'86 the failure to recognize the justiciability of specific types of rights,IX7 ideas of immediate versus progressive implementation,'88 and the qualified or limited nature of many fundamental freedoms. 189 States have often employed some of these legal ambiguities to limit the enjoyment of rights to nonnationals. 190 However, such limitations should not be read as suggesting that the human rights system is worthless, or that States are free to disregard their human rights obligations without consequences. There are many 184. See, e.g .• World Conference on Human Rights, June 14-25. 1993, Vienna. Austria, Vienna Declaration and Programme ofAction. 'J[5, V.N. Doc. A/CONF.157/23 (July 25,1993) ("All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis."). 185. See Theodor C. van Boven, Distinguishing Criteria of Human Rights. in THE INTERNATIONAL DIMENSIONS OF HUMAN RIGHTS (Karel Vasak & Philip Alston eds., (982) (discussing the distinction between fundamental human rights and other human rights). 186. See, e.g., ICCPR. supra note 105, art. 4. Very few rights are of a non-derogable and absolute nature. and even these have been subject to challenges by States Parties. See Saadi v. Italy, App. No. 37201/06, 'J['J[ 102-14 (Feb. 28. 2008), available at http://cmiskp.echr.coe.intl tkpI97/search.asp?skin=hudoc-en (search "Saadi v. Italy" in "Case Title") (last visited June 2, 2009) (challenging the idea of an absolute prohibition on deportation where the deportee faces risk of torture); Ramzy v. The Netherlands, App. No. 25424/05 (Eur. Cl. H.R.) (pending before the Grand Chamber). The right to be protected from arbitrary detention and the right to security and Iiberty of person are not part of the privileged group of absolute rights. See ICCPR, supra note 105, arts. 4, 9. 187. For example. the initial failure to agree to an Optional Protocol to the ICESCR was based on the belief that economic. social, and cultural rights are nonjusticiable. The draft Option al Protocol to the ICESCR inc1udes an individual communications procedure and was adopted by the General Assembly on Dec. 10. 2008. G.A. Res. 63/117, art. 2, D.N. Doc. AlRES/63/117 (Dec. 10. 2008). 188. Early views of States Parties and the treaty bodies are that ICCPR rights are "immediately enforceable" and that TCESCR rights are "to be realized progressively." Tt is now c1ear that some rights of the ICESCR are "immediately enfurceable," such as nondiscrimination. See D.N. Econ. & Soc. Council [ECOSOCl, General Commenl No. 16: The Equal Righl (~f Men and H1rJmen to the Enjoyment (~f all Economic. Social and Cultural Rights (Art. 3 (~f the International Covenant on Economic, Social and Cultural Rights). 'J[ 16, V.N. Doc. E/C.12/2005/4 (Aug. 11, 2005). 189. The latter is "particularly tTUe for the so-called fundamental freedoms, that is, the freedoms of religion or belief. expression and speech, and association and assembly, as weil as the freedom of movement." Nigel S. Rodley, International Human Rights Law and Machinery for Monitoring its Implementation in Situations (~f Acute Crisis, in CONFERENCE ON THE PROMOTION ANO PROTFCTION OF HUMAN RIGHTS IN ACUTF CRISIS 51, 52 (Dep't fur Int'l Dev. & Human Rights Centre. Vniv. of Essex eds., 1998). 190. See DANIEL MOECKLI, HUMAN RIGHTS AND NON-DISCRIMINATION IN THE "WAR ON TERROR" (2008).

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legal checks on the actions of governments in their attempts to restrict human rights. Suspension of rights in astate of emergency, for example, must threaten the life of the nation, be officially proclaimed, and the measures taken must be strictly required by the exigencies of the situation and must not be inconsistent with the State's other obligations under international law. 191 Appealing to national security arguments to limit fundamental freedoms is judged according to legal criteria of strict legality, necessity, reasonableness, and proportionality.192 Moreover, reservations made by aState must be compatible with the object and purpose of the treaty,193 and international obligations must be interpreted and applied in good faith. 194 A further consequence of a human rights system built on dialogue, consensus, and compromise is that it is often selectively and inconsistendy applied. States opt in to the various human rights treaties, and the associated litigation processes mayaiso require further consent by States Parties in order to be bound. Apart from the International Court of Justice and some regional human rights courts, very few mechanisms have the capacity to issue binding judgments. Many States Parties to various treaties have also not incorporated the terms into their domestic laws, making access to justice for human rights ineffective at the local level. Thus, in international relations terms, international human rights law, like all internationallaw, is reliant on the convergence or "coincidence of interests,,,195 or some other political impetus to act. In the context of averting or resolving a refugee crisis, the legal framework can be used to persuade governments to stop human rights violations, to agree to or to implement a cease-fire arrangement, or to allow safe passage for humanitarian organizations or refugees. However, many other considerations are also at play, including what would be at stake if aState failed to comply. These considerations may include trade relations, foreign aid, or membership in a regional or international community of likeminded States (that is, reputational considerations). With the proliferation of international courts and tribunals, the possibility of prosecution can act as a deterrent to governments and other violators of

191. See Rodley, supra note 189, at 53. 192. See Mare-Andre Eissen, The Principle «f Proportionality in the Case-Law «f the European COl1vention of Human Rights, in THE EUROPEAN SYSTEM FOR THE I'ROTECTION OF HUMAN RIGHTS, 125, 125-37 (R. St. J. MacDonald, F. Matscher & H. Petzond eds., 1993). 193. Vienna Convention on the Law ofTreaties art. 19(c), May 23, 1969, 1155 U.N.T.S. 331 [hereinafter VCLT]. 194. Td. arts. 26, 31. 195. GOLDSMITH & POSNER, supra note 10, at 111 (2005) (attributing eompliance with international law prohibitions on genoeide and erimes against humanity as a "eoineidence of interests").

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human rights; not least because "unlawful deportation or transfer" is a recognized war crime. 196 Refugees are typically, but not always, the products of collapsed, weak, or unstable States, in which internal strife and human rights abuses are evident. As noted by the UNHCR in 1997, "[r]efugee movements and other forms of forced displacement provide a useful (if imprecise) barometer of human security and insecurity."197 In many situations, refugees originate not only from unstable States but also unstable regions. "[F]orced displacement of people is a clear indication that the web of rights and obligations which links the citizen to the [S]tate has broken down.,,198 "By and large neither the law of human rights nor the notion of human rights is well adapted to dealing with the anarchy attendant on the generally collapsed [S]tate.,,199 In fact, international human rights law "presupposes the existence of a relatively stable government.,,2