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RETHINKING REFUGEE LAW
 Refugees and Human Rights
Volume 7

Editor-in-Chief
Professor Anne F. Bayefsky
York University, North York, Canada

Editorial Board
Dr. Chaloka Beyani
Law Department, London School of Economic & Political Science, London, U.K.
Professor Joan Fitzpatrick
School of Law, University of Washington, Washington, U.S.A.
Arthur C. Helton
Senior Fellow at the Council on Foreign Relations, New York, U.S.A.
Juan E. Mendez
Executive Director, Inter-American Institute for Human Rights, Costa Rica
Dr. Boldizsar Nagy
International Law Department, Eotvos Lorand University, Budapest, Hungary

The Refugees and Human Rights Series aims to meet the increasing need for literature
which probes the nature and causes of forced migration, the modalities and procedures
employed when refugees present themselves, and the manner in which the human rights of
refugees are, or should be, promoted and protected.
RETHINKING REFUGEE LAW

By

Niraj Nathwani
Legal Adviser, European Monitoring Centre on Racism
and Xenophobia, Vienna, Austria

MARTINUS NIJHOFF PUBLISHERS

THE HAGUE / LONDON / NEW YORK
A C.I.P. Catalogue record for this book is available from the Library of Congress

ISBN 90-411-2002-5

Published by Martinus Nijhoff Publishers,

P.O. Box 85889, 2508 CN The Hague, The Netherlands.

Sold and distributed in North, Central and South America

by Aspen Publishers, Inc.
7201 McKinney Circle
Frederick, MD 21704
USA

In all other countries, sold and distributed

by Kluwer Law International c/o
Turpin Distribution Services Limited
Blackhorse Road
LETCHWORTH
Hertfordshire
SG61HN
United Kingdom

Printed on acid-free paper

All Rights Reserved

© 2003 Kluwer Law International
Kluwer Law International incorporates the publishing programmes of
Martinus Nijhoff Publishers.

No part of this work may be reproduced, stored in a retrieval system, or transmitted

in any form or by any means, electronic, mechanical, photocopying, microfilming, recording
or otherwise, without written permission from the Publisher, with the exception
of any material supplied specifically for the purpose of being entered
and executed on a computer system, for exclusive use by the purchaser of the work.

Printed in the Netherlands.

For Sonal, Amit and my parents

v
This page intentionally left blank
PREFACE

Refugee status was bestowed on me at a very early stage in my life. At the age of two I
came to Austria as a stateless refugee because my family had to flee Uganda due to the
policy of General Idi Amin. I personally owe much to international refugee law. I am,
therefore, concerned about current developments which, in my view, undermine its
purpose. This book has been written in this spirit; my intention is to advocate a better
appreciation of its purpose in the current political climate. In my opinion, a better
understanding of the purpose of refugee law is a prerequisite for its effective
implementation. I am confident that a better understanding of its purpose will also prove
decisive in the political arena to convince fellow citizens of its value and significance.

Vienna, August 2002

v11
This page intentionally left blank
CONTENTS

Dedication v

Preface vii

Acknowledgements xi

Chapter 1 The Purpose of Refugee Law 1

1.1 INTRODUCTION 1
1.2 THE PROBLEM 4
1.3 DIPLOMATIC PROTECTION 7
1.4 DE FACTO STATELESSNESS 12
1.5 HUM AN RIGHTS 17
1.6 MUTUAL AID 26
1.7 NECESSITY: THE LIMITS OF DETERRENCE 27
1.8 CONCLUSIONS 48
Chapter 2 Current Strategies to Restrict the Scope of the Refugee Concept 49
2.1 PERSECUTION AND STATE RESPONSIBILITY 49
2.2 WELL FOUNDED FEAR AS OBJECTIVE STANDARD 68
2.3 ATTEMPTS TO LIMIT THE SCOPE OF APPLICABLE HUMAN RIGHTS 73
2.4 THE REASONS OF PERSECUTION AND DISCRIMINATION 77
Chapter 3 The Necessity Approach to Interpreting the Refugee Concept 85
3.1 PERSECUTION 85
3.2 WELL FOUNDED FEAR 106

IX
 Contents

3.3. REASONS OF PERSECUTION 113

Chapter 4 Asylum 115
4.1 THE POWER (OR RIGHT) OF THE STATE TO GRANT ASYLUM 115
4.2 THE DUTY OF THE STATE TO GRANT ASYLUM 131
4.3 ASYLUM: TEMPORARY OR PERMANENT? 140
4.4 ASYLUM ELSEWHERE 143
Chapter 5 Conclusions 147

Bibliography 151

Index 167

x
ACKNOWLEDGEMENTS

This book is based on my PhD study which I defended at the European University
Institute (EUI) in 1999 before a panel consisting of Prof. Guy S. Goodwin-Gill of Oxford
University as Chairman, Prof. Philip Alston of the EUI, Prof. Jens Vedsted-Hansen of
Aarhus University and Prof. Massimo La Torre of the EUI. First of all, I would like to
express my appreciation to my supervisor at the EUI, Prof. Philip Alston, for his
guidance and comments. I am indebted to Prof. Massimo La Torre for his inspiration and
assistance. I would like to thank Prof. Jens Vedsted-Hansen, Prof. Antonio Cassese and
Prof. Marina Spinedi who commented on my study at various stages of its development. I
also enjoyed the possibility of discussing with Prof. James Hathaway and Prof. Guy S.
Goodwin-Gill during one of their visits to the EUI.

I am grateful to my editors Mrs. Reena Manchanda, Mrs. Maria Fermi and my mother,
Mrs. Amita Nathwani, for their assistance and efforts. Of course, I assume full
responsibility for any inadvertent errors.

X1
This page intentionally left blank
CHAPTER 1

THE PURPOSE OF REFUGEE LAW

1.1 INTRODUCTION1

It is commonplace to state that refugee law faces a severe crisis.2 Increasingly, refugee
status is seen merely as an alternative path to immigration.3 In this context, some tend to
speak of the asylum-strategy of immigration.4

The asylum crisis is closely linked to the immigration debate that has, of late,
forcefully entered the forefront of the political stage.5 The immigration debate is complex
and ideologically charged. According to some, the immigration debate is "obsessive,
punitive, neurotic and, in its own terms, largely inexplicable"6. Indeed, there seem to be
good arguments why immigration could be economically beneficial for the host society
and hence is bound to increase in a global economy. Actually, anti-immigration
propaganda does not seem to be based on sound economic argument, but on a mysterious
pursuit of national homogeneity. Yet, nobody has been able to define what this
homogeneity should be and how it could be defined convincingly and justifiably.7 It is

Chapter 1 was previously published as an article in the International Journal of Refugee Law, Oxford
University Press. See N. Nathwani, The Purpose of Asylum' (2000) 12 International Journal of Refugee
Law 3, pp. 354 - 379, by permission of Oxford University Press.
See G. Loescher (ed.), Refugees and the Asylum Dilemma in the West, Pennsylvania State University Press,
Pennsylvania 1992, p.l et seq.
The policies and practices during the 1980s and 1990s are indicative not just of a "restrictive trend", but of a
fundamental change. They are largely dominated by visa requirements, restrictive admissibility criteria, safe
third country removals, carrier sanctions and the emphasis on removal of failed asylum seekers. The
underlying causes and responses on the basis of principles of international co-operation and solidarity do not
feature prominently in the discourse. See G. S. Goodwin-Gill, The Refugee in International Law (2nd edn,
Oxford University Press, Oxford 1996), p. 191.
See C. Joppke, 'Asylum and State Sovereignty: A Comparison of the United States, Germany, and Britain',
(1997) 30 Comparative Political Studies, p.263.
Claudena Skran notes that the climate of immigration restrictions also conditions the asylum crisis of the
1990s in Western Europe. It is no accident that the asylum crisis developed after the immigration stop in
western Europe in the mid-1970s. C. M. Skran, 'The International Refugee Regime: The Historical and
Contemporary Context of International Responses to Asylum Problems', in: G. Loescher (ed.), Refugees and
the Asylum Dilemma in the West (Pennsylvania State University Press, Pennsylvania 1992), p. 13.
Nigel Harris, The New Untouchables - Immigration and the New World Order (I.B.Tauris, London 1995),
p.85.
Ibid., p. 203.

1
2 Rethinking Refugee Law

doubtful if all citizens of the host country actually fulfil the criteria, which are expected
from foreigners willing to immigrate.8 Without going into too much detail, it might be
simple to acknowledge that, as a matter of fact, concern about immigration is growing
rapidly, whatever the real reasons may be. This is especially true in Europe where the
immigration policy has become the central issue of many election campaigns and is used
by right wing political movements to gain votes and power. A restrictive immigration
policy is already a political reality in the European Union (EU). Presently, no Member
State of the EU is pursuing an active immigration policy.9 The EU has merely reacted to
perceived migratory pressures.10

The inherent tension between immigration control and refugee law can be traced back
to the origins of refugee law in the 20th century11 .People who flee their homes to seek
safety elsewhere are not new to the twentieth century: this has existed earlier. According
to the Oxford English Dictionary, the term "refugee" was first applied to the French
Huguenots, victims of religious persecution who fled France after the revocation of the
Edict of Nantes in 1695. However, refugee crises arose only in the 20th century. John
Stoessinger sums up the problem in this way: "What distinguishes the refugee of the
twentieth century is the immense difficulty, and often impossibility of finding a new
home."12 This difficulty has a name: restrictive immigration policy.

In legal terms, the areas of immigration law and refugee law differ in their legal
structure: whereas immigration law is ruled by the principle of sovereignty, where every
state is free to design and implement its own immigration policy, refugee law is
characterised by various international obligations based on international law. While,
under international law, a state is free to decide that it wishes no immigration, this level
of discretion is not permitted under refugee law.

Does a restrictive immigration policy13 entail an equally restrictive attitude towards the
interpretation of refugee status? Or, is refugee law independent from immigration policy

Harris notes the element of boasting and self-indulgence involved in characterising the national spirit. Thus,
defining what constitutes the principle of the nation's homogeneity is arbitrary, given the cultural
differentiation of a given population. Ibid., p.88
Council Resolution of 20 June 1994 on limitations on admission of third-country nationals to the territory of
the Member States for employment, Official Journal of the European Communities C 274,19.9.1996, p.3f.
See M. Baldwin-Edwards and M. A. Schain, The Politics of Immigration: Introduction1, in: M. Baldwin-
Edwards and M. A. Schain (eds.), The Politics of Immigration in Western Europe (Frank Cass & Co, Ilford,
Essex 1994),p.9.
See C. M. Skran, Refugees in Interwar Europe - The Emergence of a Regime (Clarendon Press, Oxford
1995), p. 21ff.
12
John G. Stoessinger, The Refugee and the World Community (University of Minnesota Press, Minneapolis
1956), p. 6.
13
Before the recession in the early 1970s, immigration was hardly considered as problematic in Europe; see
Baldwin-Edwards and Schain, The Politics of Immigration, n. 10 above, p.8f. During the 1960s and the
The Purpose of Refugee Law 3

insofar as one is able to conceptualise a generous practice of refugee law even if one
assumes the justification of a policy goal of strict immigration control14? In this context, it
would be useful to reflect on the purpose of refugee law and how the answers provided to
these questions could influence its interpretation. These are the central concerns that will
be examined.

In an attempt to focus attention on these questions alone, for argument's sake, one may
wish to assume that it is, indeed, justifiable to minimise immigration as a policy goal.
Thus, one can avoid being trapped in a complex debate, ensuring that one does not lose
sight of the forest for the trees. Ultimately, it might not be necessary to plunge into the
ideologically charged immigration debate in order to defend refugee law. If refugee law
can be defended under the assumption of the validity of immigration control, a possible
argument in favour of immigration can only serve to strengthen the argument.15 This
might prove to be a valuable strategy, even though one might disagree with the
assumption. The task is: can refugee law be immunised from the vagaries of the
immigration debate?

Based on these considerations, a search will be conducted for a persuasive argument

that justifies refugee law in the face of a presumably valid policy goal of immigration
control. For this purpose existing theories will be analysed, which attempt to explain
refugee law as it stands. If one understands the reason why it is necessary, in a moral and
practical sense, to adhere to refugee law even though one is committed to a policy of
immigration control, then a strategically valuable position will be gained in the debate on
refugee policy and practice. It will also be easier to address and understand the conflict
between immigration control and refugee law. It would also provide a better
understanding of what is really at stake in refugee law, no matter what we think about
immigration policy. This, in turn, can prove to be a valuable background against which to
interpret refugee law.16 Once a clearer understanding of the purpose of refugee law is

beginning of the 1970s, different European countries actually made a conscious recruitment effort in a
period of industrial expansion; see G. Brochmann, "Migration policies of destination countries', in: G.
Brochmann, Political and demographic aspects of migration flows to Europe (Council of Europe,
Strasbourg 1993),p. 111.
By strict immigration control, I do not mean the policy of identity checks at borders. Rather I use the terms
"policy of strict immigration control" and "restrictive immigration policy" as synonymous. In both cases, I
refer to a policy which aims at restricting the immigration of aliens as much as possible.
Such arguments can be found for example in M. J. Trebilcock, The case for a liberal immigration policy', in:
Warren F. Schwartz, Justice in Immigration (Cambridge University Press, Cambridge 1995), p.219-246.
This might figure as the purpose of refugee law. Art.31 of the Vienna Convention on the Law of Treaties
says that "[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and purpose."femphasis added] UNDoc.
A/CONF. 39/27, 63 AJIL 875 (1969). Given the fact that the 1951 Refugee Convention is a long term treaty,
it is advisable to search for a sensible application in the present circumstances. On interpretation of human
rights treaties, see H. J. Steiner and P. Alston, International Human Rights in Context - Law, Politics,
Morals (Clarendon Press, Oxford 1996), p.35 et seq.
4 Rethinking Refugee Law

obtained, a teleological interpretation along these lines is possible - a method which

offers solutions, especially for hard cases.17

An attempt is made to analyse the relationship between immigration policy and

refugee law from a European perspective. While European immigration policy will serve
as an example of a restrictive immigration policy, the fact is that most rich States attempt
to restrict and regulate immigration. The conclusions of such an analysis could, therefore,
be of relevance not only to Europe, but also to all countries wishing to pursue a restrictive
immigration policy.

1.2 THE PROBLEM

As already stated, the States of Western Europe are attempting to restrict immigration.
The Council of the European Union confirmed that "at present,..., no Member State is
pursuing an active immigration policy. All States have, on the contrary, curtailed the
possibility of permanent legal immigration for economic, social and thus political
reasons."18 If immigration were completely unregulated, there would be no need for
refugee law in its present form. Every refugee could live freely like any other immigrant.
It is precisely because States attempt to restrict immigration that refugee law is necessary.

The policy of the EU is a good example of how States control immigration. Under the
Schengen Agreement19, some European States agreed to gradually abolish person checks
at internal borders in order to create "a free market without internal frontiers". As a
compensatory measure, these States agreed to improve the checks at external frontiers in
order to maintain control. The Schengen Agreement aims at ensuring a high level of
control at its external borders. Here, it would be interesting to analyse the measures
contained in the Schengen Agreement for improving control at external borders. The
Schengen Agreement is also a good example of how a State can control its external
borders.

First of all, crossing external borders is only allowed at certain points where checks
can be carried out. Otherwise, border crossing is considered illegal. Art.3/1 of the

17
Hard cases are cases about which informed people can reasonably disagree. J. W. Harris, Legal Philosophies
(Butterworths, London 1980), p. 173.
18
Council Resolution of 20 June 1994 on limitations on admission of third-country nationals to the territory of
the Member States for employment, Official Journal of the European Communities C 274,19.9.1996, p. 3f.
19
Convention applying the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their
common borders, 19 June 1990, published in Official Journal of the European Communities C 340, 10
November 1997, p. 96 et seq.
The Purpose of Refugee Law 5

Schengen Agreement20 reads: "External borders may in principle be crossed only at

border crossing points during the fixed opening hours." Art. 6/1 reads: "Cross-border
movement at external borders shall be subject to checks by the competent authorities."

Between crossing points, a system of surveillance should ensure that nobody manages
to circumvent checks. Art. 6/3 of the Schengen Agreement reads:
"The competent authorities shall use mobile units to exercise surveillance on external borders between
crossing points; the same shall apply to border crossing points outside normal opening hours. This
surveillance shall be carried out in such a way as not to encourage people to circumvent the checks at
crossing points."

Art. 6/4 reads: "The Contracting Parties undertake to deploy enough appropriate
officers to conduct checks and maintain surveillance along external borders." Art. 6/5
reads: "An equivalent level of control shall be exercised at external frontiers".

There is also a considerable number of illegal residents in the EU who have entered
with a valid visa or residence permit, but have "overstayed". Others simply enter with
valid travel documents, if their nationality is exempt from visa requirements for a short-
term stay. This legal residence, however, becomes illegal, when the person concerned
embarks on employment not authorised by the visa exemption or the visa obtained. In
many cases, persons with a proper residence and work permit simply overstay their
period of legal residence or violate residence regulations in other ways.21

The deterrence system attempts to discourage illegal immigration by enforcing two

measures. First, every illegal immigrant is subject to punishment. Art. 3/2 reads:
"The Contracting Parties undertake to introduce penalties for the unauthorised crossing of external
borders at places other than crossing points or at times other than the fixed opening hours."

Secondly, every illegal immigrant is threatened with expulsion. Art. 23/1 reads:
"An alien who does not fulfil or who no longer fulfils the short visit conditions applicable within the
territory of a Contracting Party must in principle leave the territories of the Contracting Parties without
delay."

Art. 23/3 reads:

"Where such an alien has not left voluntarily or where it may be assumed that he will not so leave or if
his immediate departure is required for reasons of national security or public policy, he must be expelled

20
Ibid.
21
European Commission, COM (2001) 672 final dated 15.11.2001, p. 7.
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