Mythbusting International Refugee Law
"The moment you flee an oppressive state because
of your race, because of a fear of being persecuted because of your
race. As soon as you leave its jurisdiction you are a refugee under
international law." - Prof James Hathaway
Prof James C. Hathaway
Professor Hathaway is a leading authority on
international refugee law, whose work is regularly cited by senior
courts across the common law world. He regularly provides advice on
refugee law to academic and governmental audiences around the world.
He is counsel to both the US Committee for Refugees and Immigrants and Asylum Access, a non-profit organization committed to delivering innovative legal aid to refugees in the global South. Professor Hathaway sits on the editorial boards of the Journal of Refugee Studies and of the Immigration and Nationality Law Reports and directs the Refugee Caselaw Site (www.refugeecaselaw.org), a website that collects, indexes, and publishes leading judgments on refugee law used by advocates, academics, students and decision makers around the world.
Most recently, Professor Hathaway was Dean of Melbourne Law School. He was integral developing Australian firsts in legal education, such as degree-granting partnerships with Oxford University, New York University and Chinese University Hong Kong.
He is counsel to both the US Committee for Refugees and Immigrants and Asylum Access, a non-profit organization committed to delivering innovative legal aid to refugees in the global South. Professor Hathaway sits on the editorial boards of the Journal of Refugee Studies and of the Immigration and Nationality Law Reports and directs the Refugee Caselaw Site (www.refugeecaselaw.org), a website that collects, indexes, and publishes leading judgments on refugee law used by advocates, academics, students and decision makers around the world.
Most recently, Professor Hathaway was Dean of Melbourne Law School. He was integral developing Australian firsts in legal education, such as degree-granting partnerships with Oxford University, New York University and Chinese University Hong Kong.
VOICEOVER
Welcome to Up Close the research, opinion and analysis podcast from the University of Melbourne, Australia. Up Close is available at upclose.unimelb.edu.au.
ERIC VAN BEMMEL
Hello and welcome to Up Close brought to you by the University of Melbourne, Australia. I’m Eric van Bemmel. In 1951 the United Nations approved the convention relating to the status of refugees designed to provide legal protections for the enormous numbers of refugees fleeing war ravaged parts of Europe. In what’s known as the 1967 Protocol the convention was expanded to include protection across the globe. Today there are some 147 signatory nations to the convention or the protocol. This landmark convention sets out who can be and who cannot be defined as a refugee. As well as the rights of people granted entry and the responsibilities of nations that offer entry the United Nations High Commissioner for Refugees, the UNHCR reported at the end of 2008 that there were 42 million forcibly displaced people around the world including over 15 million already defined as refugees.
With global migration patterns shifting and the sheer numbers of people on the move growing does the refugee convention still have relevance? To give us an overview of the legal framework surrounding the plight of refugees internationally and how it is or is not applied in the real world we are pleased to be joined today by Professor Jim Hathaway of the Melbourne Law School. Professor Hathaway is a professorial fellow and former dean of the Law School here at the University of Melbourne. He is also a senior visiting research associate at Oxford University’s Refugee Studies Program and president of the Cuenca Colloquium on international refugee law. Jim has written three of the principal books on refugee law used globally and over 60 articles and chapters on this complex topic. He regularly speaks before audiences and academia, government and the NGO sector. Professor Hathaway welcome to Up Close.
JAMES HATHAWAY
Thanks very much.
ERIC VAN BEMMEL
Now the Jim the refugee convention dates back to the mid twentieth century. First of all what is it and why is it important?
JAMES HATHAWAY
It’s actually a pretty extraordinary document in a lot of ways. It took the nations of the world about three and a half years to conceive it because they did so with great care. It starts by setting out a definition of who qualifies as a refugee under international law and as you’ve noted about 150 states have agreed to be bound by that definition. It’s not a definition that any state can change. You’re bound to respect it absolutely with no variations. It then goes on in about 30 articles to stipulate the entitlements of refugees under international law so everything from the right to get in, the right not to be detained, access to work, education, social security etc. So two pieces who qualifies, second piece what does a refugee get?
ERIC VAN BEMMEL
The word refugee is, well it’s what we’re talking about here but for me at least refugees are often confused with say illegal immigrants, economic refugees. There are a number of words that appear in the press regularly that for the lay person like myself are a bit confusing. Can I ask you just to delineate some of those?
JAMES HATHAWAY
Well it is really confusing and indeed you began the program by pointing out that the UNHCR thinks of some 42 million persons in the world as in need of protection and from only about 15 million the minority are actually qualified as refugees. That’s because the larger group these days are what are called internally displaced persons. They are people who are in trouble fleeing within the boundaries of their own state but who have yet to cross an international border and anyone still within their own state is excluded from refugee status. So the phenomenon today of internal displacement as the numbers may clear are nearly twice as pervasive as that of people who fled across borders.
The real concern I think today as you point out though is less that dichotomy which people can understand than it is who is a migrant, who is a refugee and how do you draw the line between the two. The essence of the definition is pretty straight forward. A refugee is a person who has what’s called a well founded fear of being persecuted, meaning there’s a genuine risk of severe human rights abuse that would occur to this person if they were returned to their home country. That fear needs to be for one of five reasons - race, religion, nationality, membership of a particular social group or political opinion. So in other words, if an entire country is engulfed in a comparable problem and everyone, black, white, male, female, rich, poor is equally at risk. Even if they do manage to flee a border none of them is a refugee. It’s only if they are in some sense segregated out because of who they are or what they believe and as a result of that face the risk of severe harm that their own state either can’t or won’t fix. Then they’re entitled to refugee status under the convention.
ERIC VAN BEMMEL
So an illegal immigrant as we see in the press is someone who is crossing a border not because they’re persecuted but they have other reasons?
JAMES HATHAWAY
Well that’s complex because refugees can be at one level thought of as illegal immigrants. The only difference is that refugees are allowed by international law to be illegal immigrants. By that I mean this. Most refugees need simply to flee when danger appears. They can’t stand in queues at embassies waiting for visas. They need to often use traffickers or smugglers to be able to get out and get into a safe state. That’s just the nature of refugee flight. It was the nature back in the 1950s when the treaty was conceived. Those who have seen Schindler’s List will know that the idea that people sometimes have to use smugglers in order to get to safety is nothing new. The refugee convention actually says that refugees cannot not be penalised for unauthorised entry or presence. So in fact they cross a border without permission or with a visa, if they use a smuggler they may not be penalised in any way for having done so because we know that that’s just the nature of involuntary flight.
ERIC VAN BEMMEL
And the definition of danger does not include economic straits of course or economic refugees, again another term we see in the press doesn’t apply here.
JAMES HATHAWAY
Yes and no again that’s a complicated one. One of the things I say to my students in the first week of class is never ever in my presence use the term economic refugee. It’s a term that confuses two different things. You can on the one hand be a plain old ordinary economic migrant meaning what you seek, nothing unreasonable about this but what you seek is a better life for yourself or your children. You’re moving because you would like to find greater prosperity, greater ability to actually practice your profession, create the life you want for yourself. Again a perfectly reasonable desire but that’s an economic migrant.
You can be a refugee fleeing severe economic harm. So let me give you an example of that. If because of your race you’re denied access to all employment you’re a refugee, full stop. You’re not an economic migrant. Why? Because the serious harm that you face is the breach of the basic human right freely to seek work. If because of your race or your religion or your sex we say to you, you may not look for work, not that you may not have the job of your dream but you may not even look for work, then courts around the world have recognised those persons appropriately as refugees because that’s a basic human right that has been breached for a discriminatory purpose.
ERIC VAN BEMMEL
Is there a group that you can give us an example about?
JAMES HATHAWAY
Well this is actually a favourite tactic of a lot of dictators. One of the earliest examples was back in the 1970s in Chile when under the Pinochet dictatorship all of the supporters of the deposed President Allende were put on a black list. All private sector employers who wanted to hire somebody were forced to submit the name of the person they wished to offer a job to the Chilean secret police. If your name was on the list you were un-hireable and every member of the political group that had supported the deposed president was on that list and they were effectively starved to death because of their political beliefs.
ERIC VAN BEMMEL
What about stateless individuals?
JAMES HATHAWAY
Statelessness is different. Although interestingly the two treaties, one on statelessness and the convention to which you’ve referred on refugees, were actually drafted by the very same group at the very same time and give many of the same entitlements. The main difference is that a stateless person isn’t someone who is fleeing the risk of severe harm, that’s a refugee. A stateless person is simply an individual who doesn’t have a country that she or he can call home. So there is no place to which they can lawfully go. Only citizens have a right to enter a state, everyone else is subject to the discretion of that country. Citizens have a right of entry. Yet because of accidents at birth for example parents working overseas, giving birth to a child in a country that doesn’t grant citizenship based on soil, find that they don’t get the citizenship of the place where the child was born. Similarly the country from which they come requires birth on soil to get its citizenship child born with no citizenship.
That’s and actually a growing issue as citizenship laws become more and more complex and people travel more and more. There are more and more people who lack citizenship. Of course there are others like the groups in the Western Sahara who have been stateless for many, many years because no country has been in a position effectively to call that territory its own and hence those persons have no internationally recognised citizenship.
ERIC VAN BEMMEL
Just to push the terminology barrel just a bit further. Asylum seekers are people who are seeking refugee status is that correct and if not yet?
JAMES HATHAWAY
Well that’s another one of those words, you’re breaking all my rules here, Eric. That’s another one of those words that I tell my students they’re not allowed to use. An asylum seeker suggests somehow that a person is less than a full blown refugee just because some court or tribunal or government official has yet to declare them to be a refugee. In fact that’s not true. This is one of the beauties of the refugee treaty. You actually are a refugee as soon as you in substance meet the definition. Whether or not anybody’s ever said you are. So for example at the moment you flee an oppressive state because of your race, because of a fear of being persecuted because of your race. As soon as you leave its jurisdiction you are a refugee under international law. So that when you actually travel to another state, they are simply recognising what you already are rather than making you something by virtue of you having sought asylum. You are a refugee, they are simply recognising that fact.
Asylum is the other tricky word in what you put forward. There actually is no international human right to asylum. The Universal Declaration of Human Rights spoke about that idea but it’s never been translated into binding form and indeed the UN tried about three decades ago to draft a territorial asylum convention. It was one of the only human rights projects of the UN that ended in complete abject failure because states weren’t prepared to agree to it. By asylum what I mean is the right permanently to enter some other state and remain there because of your having qualified as a refugee. That doesn’t exist. What we have instead is a situation specific right to enter a state for the duration of your risk. That’s a critical distinction. A lot of states are afraid of protecting refugees for the wrong reason. They believe inaccurately that if a refugee actually arrives at their territory, they are therefore bound to admit that person and keep them there forever. Wrong.
You are under international law required only both to admit that person and grant them all of the rights in the treaty, rights to freedom of movement, education, work etc for so long as the risk of being persecuted persists. So for example if there is a fundamental change of circumstance in the home country, a new democratically elected government comes to power, restores safety, security, then your refugee status ends and you can lawfully be required to go home.
(Cont part 2)
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