James C. Hathaway

The Conundrum of Refugee Protection in Canada: From Control to Compliance to Collective Deterrence

Canadian policy on the protection of refugees has evolved through three distinct traditions. During the first era, refugee protection was constructed as a matter of immigration control . Indeed, until the middle of the twentieth century, Canada had no law or policy specifically oriented to the admission of refugees. Refugees simply applied for permission to enter Canada under the auspices of the general immigration scheme, the primary purpose of which was to promote domestic economic interests. The erosion of this historical view of refugees as immigrants has occurred only gradually, such that even today most refugees protected by Canada must meet immigration selection criteria, in addition to showing that they are at risk in their home country.

Internal Protection/Relocation/Flight Alternative as an Aspect of Refugee Status Determination

* Professor of Law and Director, Program in Refugee and Asylum Law, University of Michigan; and Senior Visiting Research Associate, Refugee Studies Centre, Oxford University. This paper was commissioned by UNHCR as a background paper for an expert roundtable discussion organised as part of the Global Consultation on International Protection in the context of the 50 anniversary of the 1951 Convention relating to the Status of Refugees. Michael Kagan, JD (Michigan, 2000) prepared a careful synthesis of background materials upon which this study draws heavily. I am also indebted to the insights on this issue provided by participants in the First Colloquium on Challenges in International Refugee Law (see Annex I) in which the understanding of an “internal protection alternative” relied upon here was refined.

The Law of Refugee Status: Well-founded fear

The hallmark of a Convention refugee is her inability or unwillingness to return home due to a “well-founded fear of being persecuted.” Not all forced migrants qualify as refugees in law: only those who face a genuine risk of being persecuted for a Convention reason in their own country are entitled to the rights set out in the Convention. The scope and meaning of the “being persecuted” inquiry – which includes both identification of a relevant serious harm and a concomitant failure of state protection – will be discussed in Chapters 3 and 4, while this chapter addresses the notion of well-founded fear. It is generally asserted that “well-founded fear” entails two requirements. The first criterion is that the person seeking recognition of refugee status perceive herself to stand in “terror of persecution”; her very personal response to the prospect of return to her home country must be an extreme form of anxiety that is neither feigned nor overstated. Second, this subjective perception of risk must be consistent with available information on conditions in the state of origin, as only those persons whose fear is reasonable can be said to stand in need of international protection. Thus, for example, the UN High Commissioner for Refugees (“UNHCR”) opines: To the element of fear – a state of mind and a subjective condition – is added the qualification “well-founded.” This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term “well-founded fear” therefore contains a subjective and an objective element.

A Global Solution to a Global Refugee Crisis

The author argues that the time is right to change the way that refugee law is implemented. Specifically, Hathaway advocates a shift towards a managed and collectivized approach to the implementation of refugee protection obligations. He contends that while the obligations under the Convention remain sound, the mechanisms for implementing those obligations are flawed in ways that too often lead States to act against their own values and interests, and which produce needless suffering amongst refugees. The author concludes with a five-point plan to revitalize the Refugee Convention.

The Law of Refugee Status: Persons not deserving protection

This chapter takes up the provisions of the Convention that deem some persons who face the real chance of being persecuted nonetheless to be undeserving of international protection. Inspired by the prohibition in the Universal Declaration of Human Rights on the granting of asylum “in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations” and following the precedent of the Constitution of the International Refugee Organization, persons seeking to evade legitimate prosecution or punishment for serious domestic crimes, those who have committed serious international crimes, and anyone who is guilty of actions contrary to the principles and purposes of the UN must be denied refugee status. The decision to exclude these three limited categories of persons from refugee status – even assuming they face the real chance of being persecuted – followed in part from concern to ensure that serious criminals not be able to evade prosecution and punishment for their crimes by claiming asylum. But most fundamentally, the drafters were persuaded that if state parties were expected to admit serious criminals as refugees, they would simply not be willing to be bound to the Convention. France, the most ardent advocate of this view, insisted that the right to exclude limited categories of serious criminals from refugee status was “a prime factor in determining France’s attitude towards the Convention as a whole.” The Yugoslav drafter feared that without a rule on exclusion “there would be a good chance that [his government] would be unable to sign the Convention.” Even the British and Belgian representatives, despite their initial opposition to such a provision, ultimately conceded that the exclusion of serious criminals from refugee status was necessary “to promote maximum adherence to the Convention” and “to make the Convention acceptable to as large a number of governments as possible.” Thus, as the Court of Justice of the European Union determined, the fundamental purpose of Art. 1(F) is essentially instrumentalist, to “maintain the credibility of the protection system.”

The Law of Refugee Status: Nexus to civil or political status

The text of the Refugee Convention requires that a person’s well-founded fear of being persecuted be “for reasons of” an enumerated ground: race, religion, nationality, membership of a particular social group, or political opinion. Under the Convention, if the peril a claimant faces – however wrongful it may be – cannot somehow be linked to her civil and political status and resultant marginalization, the claim to refugee status must fail. Put succinctly, refugee law requires that there be a nexus between who the claimant is or what she believes and the risk of being persecuted in her home state. In practice the corollary is that many involuntarily displaced persons do not fall within the ambit of the Refugee Convention. As recognized by the drafters, [t]he text…obviously did not refer to refugees from natural disasters, for it was difficult to imagine that fires, flood, earthquakes or volcanic eruptions, for instance, differentiated between their victims on the grounds of race, religion, or political opinion. Nor did the text cover all man-made events. There was no provision, for example, for refugees fleeing from hostilities unless they were otherwise covered by Article 1 of the Convention.

Persons no longer needing protection

The Convention conceives of refugee status as a transitory phenomenon that comes to an end if and when a refugee can reclaim the protection of her own state or has secured an alternative form of enduring national protection. Because the purpose of refugee law is to afford surrogate protection pending the resumption or establishment of meaningful national protection, the cessation clauses in Art. 1(C) of the Convention define various situations in which refugee status may come to an end. The first sub-chapter therefore considers the applicability of cessation where there is evidence of a refugee’s decision to reclaim the protection of her own country; where an objective assessment by the host country determines that the country of origin has undergone such a fundamental change of circumstances that it can be relied upon to resume its duty of protection; or where the refugee has acquired the nationality of another state that will protect her. In each of these situations, cessation “takes effect naturally,” since the rationale for imposing a duty of substitute national protection on an asylum state will have come to an end.

The Law of Refugee Status: Failure of state protection

Refugee law is not simply a system designed to enable persons to escape the risk of serious harm. While the duties of state parties to the Refugee Convention are, of course, engaged only when there is a risk of serious harm of the kind discussed in the preceding chapter, the more fundamental purpose of the Refugee Convention is to serve as a back-up to the protection one expects from the State of which an individual is a national. More specifically, [t]he general purpose of the Convention is to enable the person who no longer has the benefit of protection against persecution for a Convention reason in his own country to turn for protection to the international community. Refugee law is thus principally concerned with providing a remedy to a fundamental breakdown in the relationship between an individual and her state. As described in Chapter 1, the Refugee Convention’s overarching goal is to provide a new national home to persons driven from their own country by the risk of being persecuted. Specifically, refugee law seeks to enfranchise an at-risk subset of persons who are “outside their own countries [and] who lackthe protection of a government.” It provides these involuntary migrants with legal status and protection to offset the disabilities of presence outside their own country until and unless they acquire new or renewed national protection. This commitment to providing surrogate or substitute national protection is grounded both in the basic commitment of the interstate system to ensuring that all individuals have a nationality in the legally recognized form of citizenship, and are thus effectively “allocated” to a state, and also in the recognition that nationality provides the essential means by which individuals are able to avail themselves of the full range of protections established by international law.

Reconceiving International Refugee Law.@@@UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis.

Preface: Can International Refugee Law Be Made Relevant Again? J.C. Hathaway. I. Temporary Protection M.A. Castillo, J.C. Hathaway. II. Repatriation Aid and Development Assistance R.F. Gorman, G. Kibreab. III. Responsibility Sharing A. Hans, A. Suhrke. IV. Fiscal Burden Sharing A. Acharya, D.B. Dewitt. Afterword: Assessing the Prospects for Reform of International Refugee Law W. Frelick. Bibliography.Preface. Abbreviations. Introduction. 1. Of Solutions and Problems. Part One: The Legal Framework. 2. The Concept of International Refugee Law. 3. Some Historical Observations. 4. The Mandate of the United Nations High Commissioner for Refugees. 5. Marking the Contours of Voluntary Repatriation. Part Two: Voluntary Repatriation in Practice. 6. Cambodia (Thailand) 1980. 7. Iraq (Turkey) 1991. 8. Cambodia (Thailand) 1992, 1993. 9. Mozambique (Malawi) 1993-1995. Part Three: Synthesis. 10. The Solution of Voluntary Repatriation. 11. The Concept of Refugee Law Revisited. Annex: The Case of the Indochinese Refugees or An Exceptional Case of Voluntary Repatriation. Select Bibliography. Index.

The Law of Refugee Status.

1. Alienage 2. Well-founded fear 3. Serious harm 4. Failure of state protection 5. Nexus to civil or political status 6. Persons no longer needing protection 7. Persons not deserving protection.