by Hélène Lambert (ed). Ashgate Publishing, 2010. 554pp. Hardback. $300.00/£155.00. ISBN: 9780754628132.Reviewed by Victoria A. Redd, The Journal Offices, University of Florida Levin College of Law. Email: reddva [at] law.ufl.edu.
pp.82-87
In America and other democratic societies (where freedom and tyranny normally do not reign together), international refugee law and the much involved diplomacy that comes with it many times goes unnoticed. In recent news, it has become a laughing matter by many when Randy and Evi Quaid were seeking refugee status in Canada citing a “star whacking” threat. Many ask: What is a Refugee or Asylum Seeker?
If the study of international refugee law causes you to yawn, perhaps there is reason for you to change your opinion. Even I at first did not want to know about the topic, but then after reading the first essay I was hooked and continued to read. I discovered that international refugee law has affected my family history and will become a central focus in immigration policy in the near future. Scanning the internet sources dealing with international refugee law, there is an obvious bias for asylum seekers to choose the United States, which recognizes persecution “on account of race, religion, nationality, political opinion, or membership in a particular social group” (INA § 208; 8 U.S.C. § 1158), and most asylum seekers come to the United States in hope of better employment, education, and the possibility of being reunited with their families. How does a judge decide who is allowed to stay and who is not, when many times individuals do not have the evidence they need to support their claims?
The history of granting asylum goes all the way back to the days of pre-Christian Greece, when it was known as an “ancient, decent, and civilized tradition” that was divinely sanctioned by Zeus. This response to a refugee bodes well in an ideal world, yet by today’s standards some, like Andrew Bolt, feel otherwise – the “asylum seeker” could be replaced with “in truth, people after a richer life” (Minas 2010), that in fact is hitting the taxpayer with staggering bills.
In addition, while society is protecting the asylum seekers, who is going to protect us from them? In the 1940s, the United Nations created a convention listing rights and protections that countries should offer to asylum seekers, including a strict review process. More than 80% of applicants are denied because of these rules (TRAC Immigration, Asylum Law 2011). Asylum decisions in the United States are made by a group of 200+ Immigration Judges (TRAC Immigration, Immigration Judges 2011), and even before 9/11 a connection to terrorism made the applicant ineligible for asylum and subject to deportation. Because the Executive Office for Immigration Review (EOIR) is the administrative body of the Justice Department which oversees the immigration courts, with a motto of [*83] “Equal Justice Under the Law” (a phrase that is above the Supreme Court’s entrance), many immigration attorneys are finding fault with the system, claiming misconduct (most notable Attorney General Alberto Gonzales (Ryan 2006)) and requesting reviews of immigration courts across the United States. When first hit with this accusation of misconduct, the EOIR would not comment, citing a “strict no-interview policy”(TRAC Immigration, Immigration Judges), causing dismay among conservatives, and also leading to a request for “immigration reform.” This was envisioned in the Dream Act, which was most recently rejected on December 18, 2010 by the Senate (Bolton 2010). Besides, what does “asylum seekers” have to do with illegal immigrants who are not refugees? How relevant is the 1951 Refugee Convention when looking at domestic issues? And how do regional judicial systems fare when compared to the European Union when looking at international refugee law?
People who are interested in international refugee law and its implications on society in regard to these questions should consider Hélène Lambert’s powerful book, INTERNATIONAL REFUGEE LAW. Although the collection is quite thick, the reading goes quickly. The book is made up of several essays grouped by theme. Lambert, who is a University of Westminister Professor of International Law in the United Kingdom and leading authority on international refugee law, has used her connections and research interests in asylum, refugees, and migration to produce a book that brings out the critical issues surrounding the topic. The book is part of The Library of Essays in International Law (although it can stand alone on its own) that provides scholarly volumes which deal with different international law topics, and is an extensive evaluation of the topic dealing with international refugee law. Of equal interest to the essays in this volume, Lambert’s introductory analysis of the context is quite extensive.
Lambert’s view on international refugee law divides the topic into five themes. The first theme, titled “Historical Perspective,” has six essays, starting with We Refugees that deals with the history and definition of a refugee, written by Hannah Arendt that begins “In the first place, we don’t like to be called ‘refugees’” (she herself was “one of the most influential political and philosophical voices in postwar America”) (p. 3). This first essay and the others following lead to a conclusion of this theme with The Politics of Refugee Protection by Guy S. Goodwin-Gill, who served with the Office of the U.N. High Commissioner for Refugees (UNHCR) and uses several short accounts to illustrate the “politics of protection,” ending with his closing thesis “that the art for UNHCR is not to allow solutions or assistance to have priority over protection, [because] if it cannot provide protection, it will be judged a failure” (p. 145), and no excuses regarding organization or the challenges involved can outweigh the enormous responsibility of providing humanitarian protection. He reminds the reader that a refugee is an individual who has rights and that the UNHCR has every reason to step in to protect that individual when her/his rights have been violated. But even now it appears that there is no sense of the refugee’s individual right – the fact that “an individual [is] entitled to international [*84] protection,” and States need to “take the necessary political action in support of [this] mandate” (p.158-60).
The second theme, “The 1951 Refugee Convention: Key Provisions and Implementation,” discusses further the definition of refugee and non-refoulement (referring to the repatriation of people to areas that could threaten their rights), including four essays, beginning with Who Is a Refugee? written by Andrew E. Shacknove (p.163); the final essay is by Joan Fitzpatrick titled Revitalizing the 1951 Refugee Convention (p.209), written originally for a German and American Migration and Refugee Policies Study, but published as a chapter in ESTABLISHING IMMIGRATION CONTROLS: THE SEARCH FOR WORKABLE POLICIES IN GERMANY AND THE UNITED STATES (Hailbronner 1996). Shacknove explains that a refugee would simply be “a person [who is] fleeing life-threatening conditions,” but the meaning is much more – according to international law, it is “a person who has crossed an international frontier because of a well-founded fear of persecution” (p.163). This definition is given by three U.N. instruments; it is also given in the governing law in the United States.
In Lambert’s third theme, she combines international refugee law, humanitarian law, and criminal law, with a title “Refugee Law and Its Relationship with International Human Rights Law, International Humanitarian Law and International Criminal Law,” including three essays. These various types of law together serve as the international community’s means to protect human rights, enabling protection for individuals under persecution: Since the middle of the twentieth century the majority of refugee cases have involved armed conflict; these laws have enabled the international community to protect the individual but also the unprotected (women and children who have no voice); and to strive to have a code of conduct that is similar across all borders. The first essay, Refugee Law, Gender, and the Human Rights Paradigm, by Deborah E. Anker (p.237), explains that there was a problem with the term “persecution” because it was undefined in the Convention, but now, since the case of CANADA v. WARD was defined as “sustained or systemic violation of basic human rights demonstrative of a failure of state protection” by the Supreme Court of Canada. Since that decision, there have been other interpretations of the definition, even a revision of the U.S. Guidelines. These efforts have protected tens of thousands of refugees (Fitzpatrick 2000). In the theme’s concluding essay, The Cross-fertilization of International Humanitarian Law and International Refugee Law by Stephane Jaquemet, Chief of the Promotion of Refugee Law Section for UNHCR (p.283), addresses the evolution of international refugee law. (How does an Immigration Judge weigh a society’s cultural practices when they appear to go against human rights? Is that even considered or does the law set the precedent?)
The fourth theme, “EU Dimension of Refugee Law,” comprised of four essays, reviews recent changes in the European asylum system, basing them on the Refugee Convention. Lambert believes that the European asylum legislation will influence international [*85] refugee and human rights laws. This section begins with an essay titled The Europeanisation of Europe’s Asylum Policy by Elspeth Guild (p.309), covering the European Union, its legislation, and unification of the States’ standards for immigration and asylum. Currently, the legislation excludes refugees, and asylum applications are at an all time low. Guild writes that these problems have come about because of the principles on territoriality within EU law, where there is a need both for individual States and the EU to be obligated to the European Court of Human Rights (ECHR. The concluding essay is one written by Lambert herself, titled Transnational Judicial Dialogue, Harmonization and the Common European Asylum System (p.383), promoting a Common European Asylum System (CEAS) that endorses a “global jurisprudence” (a term that depicts a national court, especially in the area of human rights). At present, judges in Commonwealth countries who are enlisting the advice and relating in a transnational approach with other experts – for example, referring to the work of leading authorities when making a decision – may be the beginning of judges committing themselves to a common standard for refugee law. This inclination is not noticeable in non-Commonwealth countries.
In the last theme, Lambert covers “Challenges and Perspectives on the Future,” involving three essays about reforming international refugee law, for example, facing the escalating numbers of refugees – these essays were chosen for their innovative ideas, not just involving globalization, but also security regarding human rights. The first essay is titled Reforming the International Refugee Regime: A Dialogic Model written by B.S. Chimni (p.411). The essay presents a Dialogic Model, which deals with the crisis stemming from the North-South divide and globalization, supporting dialogue between various actors. (The actors include States, nongovernment organizations (NGOs), academics and the UNHCR, within the UNHCR and between NGOs and governments; these dialogues would be on behalf of and also with refugees.) The book ends with an essay titled Human Security and the Rights of Refugees: Transcending Territorial and Disciplinary Borders by Alice Edwards (p.477). Working with international relations theory, Edwards examines the human security framework that protects the refugee. (Edwards points out that the law alone cannot solve all of the evolving refugee problems, especially where politics seems to take precedence, for instance, the manipulability of situations, the lack of agreement on a legal framework, the right of admission, and financing.) Edwards argues that refugees should not be seen as protection-seekers but as citizens who can contribute to their host communities.
The people-centered approach does not seem to be the answer for which everyone is looking, especially when considering that the actors are not behaving logically. Looking at the ever expanding numbers of refugees, many do not seem to be approaching a working solution (only considering their own rights and not that of the refugee) because, although States want to control the migration, they are not willing to budge on their favored issues, such as preventing threats to the State’s national security. This in turn leads to “exclud[ing], neglect[ing], or treat[ing] [*86] with suspicion” the non-citizen (p.516). Lambert stresses that we have to focus on the principles presented by the 1951 Refugee Convention that has now been developed into the human rights framework and which has far-reaching importance, including “the right to enjoy asylum, the right to freedom of movement and the right to an adequate standard of living” (p.xxiv). What is envisioned here, however, is a policy that will evolve with the times – something that will benefit both developed and developing countries, as well as the refugees. The solution boils down to the fact that not everyone is going to be happy with the risks involved on all sides. So what compromises have to be made?
Obviously there is a need for a better approach. So, what can be used for the standard in deciding these issues? Do the gaps in the current international refugee law need to be filled? Lambert says yes, but she feels this will be resolved in time. Most of the law in place concerns citizens fleeing war-torn countries – mainly, World War II – the current solution places the question of what to do with refugees seeking their rights of a better quality of life on the mercy of the immigration court.
The current principles, according to Lambert, have some gaps, but the criticisms surrounding human security involve the lack of clear direction and a legal framework for decisions which has “affected [the] international humanitarian law and international criminal law.” However, there has been a new motivation to manage migration (this has raised questions about compromise and security), leading some to see the value of collaboration among those responsible for international refugee law. This collaboration (the interrelationship and communication, many times from conferences and internet interaction, is surfacing between the actors involved in international refugee law) shows potential and could represent an answer to the current problems.
Lambert is not trying to say that this is an unworkable situation; instead she thinks all of this is a good thing that will, in fact, change matters for the better. She does, however, remind us that states are only looking out for their best interests – worrying about how these refugees can be a danger to society in view of the current world system – and not the interests of asylum seekers, who need to find a safe home.
Such issues require patience, a luxury that most refugees may not be able to afford because they are in dire circumstances. In the meantime, international refugee law will evolve to a more positive sphere. Lambert’s ideas and this collection of essays are realistic and interesting. Anyone who wishes to explore the concept involved with international refugee law should give Lambert’s volume consideration – I do not see the situation changing anytime in the near future. [*87]
REFERENCES:
Bolton, Alexander. 2010. “Senate Rejects DREAM Act, Closing Door on Immigration Reform.” TheHill.com, Dec. 18, 2010.
Fitzpatrick, Joan. 1996. “Revitalizing the 1951 Refugee Convention,” in ESTABLISHING IMMIGRATION CONTROLS: THE SEARCH FOR WORKABLE POLICIES IN GERMANY AND THE UNITED STATES (Kay Hailbronner, et al. eds.).
Fitzpatrick, Joan. 2000. “Temporary Protection of Refugees: Elements of a Formalized Regime.” 94 AMERICAN JOURNAL OF INTERNATIONAL LAW 279-306.
Minas, Stephen. 2010. “The Controversy Over Asylum Seekers in Australia,” CANBERRA TIMES, July 3, 2010. available at http://shanghaigreengang.wordpress.com/2010/07/03/the-controversy-over-asylum-seekers.
Refugee Act of 1980 (Pub. L. no.96-212, 94 Stat. 102), available at www.acf.hhs.gov/programs/orr/policy/refact1.htm .
Statute of the Office of the U.N. High Commissioner for Refugees, adopted by General Assembly Dec. 14, 1950 (Annex to G.A. Res. 428, 5 U.N. GAOR, supp. [no. 20] 46, U.N. Doc. a/1775 [1950], available at http://www.unhcr.org/3b66c39e1.html .
TRAC Immigration, Asylum Law, Asylum Seekers and Refugees: A Primer (2011), at 2, available at http://trac.syr.edu/immigration/reports/161/ .
TRAC Immigration, Immigration Judges (2011), at 1, available at http://trac.syr.edu/immigration/reports/160/ .
UNHCR Website, U.N. Convention Relating to the Status of Refugees (July 28, 1951) (189 U.N.T.S. 137), available at http://www.unhcr.org/3b66c2aa10.html .
UNHCR Website, U.N. Protocol Relating to the Status of Refugees (Jan. 31, 1967) (19 U.S.T. 6223, T.I.A.S. no. 6577, 606 U.N.T.S. 267), available at http://www.unhcr.org/3b66c2aa10.html .
U.S. Citizenship and Immigration Services. Immigration and Nationality Act § 208, U.S.C. § 1158, available at http://www.uscis.gov/ (under Laws).
CASE REFERENCES:
CANADA v. WARD, [1993] 2 S.C.R. 689, 733.
© Copyright 2011 by the author, Victoria A. Redd.
