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The Law of Refugee Status (2nd ed.). By James C. Hathaway and Michelle Foster. Cambridge, New York: Cambridge University Press, 2014. Pp. lxxxi, 693. Index. $160, cloth; $60, paper.

Published online by Cambridge University Press:  20 January 2017

Maryellen Fullerton
Maryellen Fullerton*
Affiliation:
Brooklyn Law School
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Type
Recent Books on International Law
Information
American Journal of International Law , Volume 109 , Issue 4 , October 2015 , pp. 908 - 917
Copyright
Copyright © American Society of International Law 2015

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References

1 R v. Sec’y of State for Home Dep’t, ex parte Adan, [2001] 2 A.C. 477, 517 (H.L.) (appeal taken from Eng.) (Lord Steyn).

2 Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 137 (entered into force Apr. 22, 1954) [hereinafter 1951 Convention], as amended by Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267 (entered into force Oct. 4, 1967).

3 The authors divide the “persecution” element into two components—”serious harm” and “failure of state protection”—and devote a separate chapter to each component.

4 The United Nations High Commissioner for Refugees (UNHCR) reported that 59.2 million individuals were displaced by conflict and persecu tion in 2014. UNHCR, Global Trends, World At War: Forced Displacement in 2014 (2015), available at http://unhcr.org/556725e69.html [hereinafter UNHCR, Global trends]. The Norwegian Refugee Council reported that natural disasters had dis placed 19.3 million people from their homes in 2014. Norwegian Refugee Council, Global Estimates: People Displaced by Disasters (July 2015), available at http://www.internal-displacement.org/publications/2015/global-estimates-2015-people-displaced-by-disasters.

5 James C. Hathaway, The Rights of Refugees Under International Law (2005).

6 Thomas P. “Tip” O’Neill, a Massachusetts member of the U.S. House of Representatives from 1952 until his retirement in 1987, served as speaker, the highest position in the U.S. House of Representatives, for ten years. Legend has it that Tip never lost an election after his father reminded him that “[a]ll politics is local.” American Experience: Biography: Thomas P. “Tip” O’Neill (Public Broadcasting System Nov. 11, 2002), at www.pbs.org/wgbh/americanexperience/features/biography/carter-oneill.

7 The “International Bill of Rights” encompasses the rights set forth in the Universal Declaration of Human Rights, Ga Res. 217A (III), UN GAOR, 3d Sess., Resolutions, at 71, UN Doc. A/810 (1948); the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171 (entered into force Mar. 23, 1976); and the International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3 (entered into force Jan. 3, 1976).

8 To be clear, Hathaway and Foster’s project is a normative one. In addition to compiling an encyclopedia of refugee law opinions, they discuss and analyze the judicial decisions in depth, with trenchant criticism of deficient reasoning.

9 E.g., Goodwin-Gill, Guy S., The Dynamic of International Refugee Law, 25 Int’l J. Refugee L. 651 (2013)CrossRefGoogle Scholar (taking stock of twenty-five years of refugee law scholarship and jurisprudence); the Limits of Transnational Law: Refugee Law, Policy Harmonization and judicial dialogue in the European Union (Guy S. Goodwin-Gill & Hélène Lambert eds., 2010); Goodwingill, Guy S. & McAdam, Jane, The Refugee in International Law (3d ed. 2007)Google Scholar; see also Deborah E. Anker, The Law of Asylum in the United States (2012); Marouf, Fatma E. & Anker, Deborah, Socioeconomic Rights and Refugee Status: Deepening the Dialogue Between Human Rights and Refugee Law, 103 AJIL 784 (2009)Google Scholar (reviewing Michelle Foster, International Refugee Law and Socioeconomic Rights: Refuge From Deprivation (2007)); Proof, Evidentiary Assessment and Credibility in Asylum Procedures (Gregor Noll ed., 2005); Gregor Noll, Negotiating Asylum: the EU Acquis, Extra-Territorial Protection and the Common Market of Deflection (2000).

10 At http://www.iarlj.org/general.

11 E.g., Hathaway, James C. & Neve, R. Alexander, Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection, 10 Harv. Hum. Rts. J. 115, 190 (1997)Google Scholar (proposing state cooperation in a system of refugee assistance that would feature “temporary protection within the region of origin,” financed by geographically distant states that would accept small numbers of resettled refugees); Hathaway, James C., Leveraging Asylum, 45 Tex. Int’l L.J. 503, 504, 506 (2010)Google Scholar (challenging Elihu Lauterpacht and Daniel Bethlehem’s view that customary international law recognizes a duty of nonrefoulement with regard to individuals who face serious harm as well as those who risk persecution, torture, and cruel and inhuman treatment or punishment; and criticizing Jane McAdam’s thesis that all individuals entitled to nonrefoulement are also entitled to all rights specified in the 1951 Refugee Convention).

12 In re Acosta, 19 I & N Dec. 211, 23235 (B.I.A. 1985), overruled on other grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

13 Cardoza-Fonseca, 480 U.S. at 439.

14 Although the appropriateness of comparative jurisprudence in the treaty context is more accepted than in the realm of constitutional law, e.g., N-A-M-v. Holder, 587 F.3d 1052, 1062 (10th Cir. 2009), the custom of referring to precedents from other court systems is undeveloped. For example, a search of the decisions of the U.S. Board of Immigration Appeals (BIA) concerning refugees who are members of a particular social group revealed no references to the national law of another country. E-mail from William Hine-Ramsberger, research assistant, to author (May 14, 2012) (on file with author).

15 NBGM v. Minister for Immigration and Multicultural & Indigenous Affairs, [2006] HCA 54, para. 158 (Austl.) (Allsop, J., dissenting) (citations omitted).

16 The Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980), adopted the 1951 Convention refugee definition, 8 U.S.C. §1101(a)(42), set forth an overseas refugee resettlement program, 8 U.S.C. §1157, and established asylum status for individuals within the United States or at its borders who meet the refugee definition, 8 U.S.C. §1158.

17 UNHCR, Global Trends, supra note 4, at 2.

18 1951 Convention, supra note 2, Art. 1F.

19 In contrast, clear and convincing evidence of “widespread and systematic conduct” would be sufficient to constitute serious reasons for exclusion. Though the legal standard is still unsettled, there is no dispute that evidence of “widespread and systematic conduct” can constitute a crime against humanity. The dispute is whether both elements must always be proved.

20 James C. Hathaway, the Law of Refugee Status 101–05 (1st ed. 1991).

21 Ghaly v. Ins 58 F.3d 1425, 1431 (9th Cir. 1994) (“Although the term ‘persecution’ is not defined in the Act, we have explained it as ‘the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.’ We have cautioned that ‘persecution is an extreme concept that does not include every sort of treatment our society regards as offensive.’”); Osaghae v. INS, 942 F.2d 1160, 1163 (7th Cir. 1991) (“‘Persecution’ means, in immigration law, punishment for political, religious, or other reasons that our country does not recognize as legitimate.”).

22 Hathaway, supra note 20, at 108.

23 Id. at 108 –12.

24 Parliament and Council Directive 2011/95/EU on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, Art. 9(1)(a), 2011 O.J. (L337) 9, available at http://eur-lex.europa.eu/legal-content/En/Txt/Html/?uri=Celex:32011L0095&from=EN.

25 Quoting Mark Gibney, International Human Rights Law: Returning to Universal Principles 4 (2008).

26 International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, S. Exec. Doc. 95-C (1978), 660 UNTS 195.

27 UN Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 UNTS 13.

28 UN Convention on the Rights of the Child, Nov. 20, 1989, 1577 UNTS 3, 28 ILM 1448 (1989).

29 UN Convention on the Rights of Persons with Disabilities, Ga Res. 61/106, UN Doc. A/Res/61/106 (Jan. 24, 2007).

30 Vienna Declaration and Programme of Action, UN Doc. A/Conf.157/23 (1993), 32 ILM 1661 (1993).

31 Hathaway, supra note 20, at 117.

32 According to Hathaway and Foster, almost all violations of broadly subscribed human rights treaties will constitute persecution. Only in rare exceptions will there be a clear and convincing basis to conclude that the violation is so minimal that it is an insufficient basis for refugee status (p. 206).

33 Convention on the Rights of the Child, supra note 28, Art. 28.

34 International Covenant on Economic, Social and Cultural Rights, supra note 7, Art. 13.

35 The jurisprudence concerning persecution related to denial of education has arisen in cases in which asylum seekers feared total exclusion from education and/or discriminatory limitations on access to education (pp. 274–78), and I do not challenge that those harms may constitute persecution. My query is directed to the authors’ contention that violations of widely adopted human rights norms constitute persecution unless the violation causes only negligible harm. In my view, their analysis would conclude that the failure to provide adequate educational opportunities could by itself constitute persecution because it would threaten a norm in a widely ratified human rights treaty and would likely cause serious harm to the affected children.