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This page intentionally left blank THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW States are increasingly challenging the logic of simply assimilating refugees to their own citizens. Questions are now raised about whether refugees should be allowed to enjoy freedom of movement, to work, to access public welfare programs, or to be reunited with family members. Doubts have been expressed about the propriety of exempting refugees from visa and other immigration rules, and even about whether there is really a duty to admit refugees at all. This book presents the first ever comprehensive analysis of the human rights of refugees set by the UN Refugee Convention, including analysis of its history and application by senior courts. Hathaway links these standards to key norms of international human rights law, and applies his analysis to the most difficult protection challenges faced around the world. This is a pioneering scholarly work, and a critical resource for advocates, judges, and policymakers. J A M E S C . H A T H A W A Y is James E. and Sarah A. Degan Professor of Law at the University of Michigan, and is a leading authority on, and is widely published in, international refugee law. He is the founding director of the University of Michigan’s innovative Program in Refugee and Asylum Law, in which students have the opportunity to study refugee law from international, comparative, and interdisciplinary perspectives. He is also Senior Visiting Research Associate at Oxford University’s Refugee Studies Programme. Hathaway was previously Professor of Law and Associate Dean of the Osgoode Hall Law School (Toronto), and has been a visiting professor at the American University in Cairo, and at the universities of Tokyo and California. He regularly provides training on refugee law to academic, non-governmental, and official audiences around the world. T H E R I G H T S O F RE F U G E E S U N D E R IN T E R N A T I O N A L LAW JAMES C. HATHAWAY    Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge  , UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521834940 © James C. Hathaway 2005 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2005 - - ---- eBook (EBL) --- eBook (EBL) - - ---- hardback --- hardback - - ---- paperback --- paperback Cambridge University Press has no responsibility for the persistence or accuracy of s for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. In memory of Lisa Gilad ‘‘[D]ecisions had at times given the impression that it was a conference for the protection of helpless sovereign states against the wicked refugee. The draft Convention had at times been in danger of appearing to the refugee like the menu at an expensive restaurant, with every course crossed out except, perhaps, the soup, and a footnote to the effect that even the soup might not be served in certain circumstances.’’ Mr. Rees, International Council of Voluntary Agencies (Nov. 26, 1951) ‘‘[I]t was clearly in the best interests of refugees that [the Refugee Convention] should be cast in a form which would be acceptable to governments, thus inducing them to accept at least certain commitments . . . Otherwise, they would be obliged to enter reservations which would probably exclude even those minimum commitments. Liberalism which was blind to the facts of reality could only beat the air.’’ Mr. Rochefort, Representative of France (Nov. 30, 1951) CONTENTS Acknowledgments page xiii Table of cases xvii Table of treaties and other international instruments 1 xxxiii Abbreviations for courts and tribunals cited l Introduction 1 International law as a source of refugee rights 15 1.1 A modern positivist understanding of the sources of universal rights 16 1.1.1 Customary law 24 1.1.2 General principles of law 26 1.1.3 Jus cogens standards 28 1.2 The present scope of universal human rights law 31 1.2.1 Human rights under customary international law 34 1.2.2 Human rights derived from general principles of law 39 1.2.3 Human rights set by the United Nations Charter 41 1.3 An interactive approach to treaty interpretation 48 1.3.1 The perils of ‘‘ordinary meaning’’ 49 1.3.2 Context 53 1.3.3 Object and purpose, conceived as effectiveness 55 1.3.4 But what about state practice? 68 vii viii CONTENTS 2 3 The evolution of the refugee rights regime 75 2.1 International aliens law 75 2.2 International protection of minorities 81 2.3 League of Nations codifications of refugee rights 83 2.4 The Convention relating to the Status of Refugees 91 2.4.1 Substantive rights 93 2.4.2 Reservations 95 2.4.3 Temporal and geographical restrictions 96 2.4.4 Duties of refugees 98 2.4.5 Non-impairment of other rights 108 2.5 Post-Convention sources of refugee rights 110 2.5.1 Protocol relating to the Status of Refugees 110 2.5.2 Conclusions and guidelines on international protection 112 2.5.3 Regional refugee rights regimes 118 2.5.4 International human rights law 119 2.5.5 Duty of equal protection of non-citizens 123 2.5.6 International aliens law 147 The structure of entitlement under the Refugee Convention 154 3.1 Attachment to the asylum state 156 3.1.1 Subject to a state’s jurisdiction 160 3.1.2 Physical presence 171 3.1.3 Lawful presence 173 3.1.4 Lawful stay 186 3.1.5 Durable residence 190 3.2 The general standard of treatment 192 3.2.1 Assimilation to aliens 196 3.2.2 Exemption from reciprocity 200