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Description
CONTENTS
I Introduction II The Right to Leave in International Law III Human Rights Law IV The Kantian Right to Hospitality
I INTRODUCTION
In the previous issue of the Melbourne Journal of International Law, Professor James C Hathaway, a leading authority on international refugee law, published a text based on an address delivered at The University of Melbourne on 22 February 2007. (1) Under the title 'Why Refugee Law Still Matters', Hathaway relaunched his proposal of a multilateral refugee protection system based on the idea of 'common but differentiated responsibility'. (2) This proposal originally drew on the results of a comprehensive research project led by Hathaway in the 1990s, which culminated in two publications in 1997. (3) Now, ten years later, the director of this ambitious 'reformulation project' reiterates the central ideas. This is done in response to both the totalising governmental policies of the past decade as well as the 'absolutism' of the 'majority of the refugee advocacy community'. (4)
While Hathaway gives free rein to wit and rhetoric in his critique of both quarters, the description of his own antidote is limited to a rather sparse and general overview. To fully appreciate the current proposal, one has to read it in conjunction with the 1997 article by Hathaway and Neve, titled 'Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection'. (5) As the 2007 article in no way indicates that its author has distanced himself from the 1997 proposal, I think that it is adequate to resort to the latter when reading the author's recent publication. This is all the more true as the 2007 article neither indicates that its author takes exception from the 1997 article, nor seems to alter or amend the details of the proposal articulated in it.
I think it is laudable that an academic attempts to regain ground in a debate that has been thoroughly appropriated by governments throughout the past ten years. Australia's policy of zero tolerance towards boat arrivals in its 'Pacific Solution' and the analogous crisis of access to asylum in the European Union are the most visible examples of how liberal democracies have afforded themselves the lethal luxury of a maritime Berlin wall. For international lawyers, the challenge is to analyse the way in which such policies of containment relate to international law. Undertaking this analysis might mean identifying concrete international obligations. It might also require analysis of how international legal thinking is drawn into the intellectual crisis expressed by containment policies.
Reiterating my respect for his position, (6) I believe that Hathaway's 2007 article provides a strong catalyst for consideration of how concrete violations and a crisis of thinking in international law are connected. I am therefore indebted to him. This debt is best repaid by considering the implications of his proposal. In doing so in the present text, I wish to limit myself to an examination of the way Hathaway's proposals address the refugee in particular, and, in some respects, migrants at large.
In a nutshell, Hathaway's proposals aim to expand the international capacity for refugee protection. To that end, Hathaway outlines a multilateral system for the planned distribution of different responsibilities amongst participating states. (7) The criteria for distributing responsibilities amongst states is to be set up 'in advance and supervised by a revamped UNHCR'. (8) The proposed system also features an oversight institution responsible for monitoring the resource transfers under the system. (9) Hathaway emphasises that allocations should 'operate against a foundational principle that even the significant assumption of fiscal burdens cannot justify withdrawing from human protective responsibilities'. (10) That is, industrialised nations should not escape from a minimum obligation to provide a rudimentary form of hospitality towards refugees.
Where is the pivot in this planned economy of protection? In the interplay of forces we witness today, governments can never fully predict first or secondary movements of migrants, including protection seekers, and therefore engage in a contingency system based on withholding protection reserves. To protect these reserves, and to avoid situations where legal obligations might be activated, migrants are intercepted and deflected to the greatest extent possible. In the regime proposed by Hathaway, these withheld protection reserves would be pooled, allowing protection dollars to flow to where they are most needed. (11) In isolation, this would surely be a good thing. However, to convince governments of the wisdom of releasing their protection reserves, they need to be assured of the predictability of first and secondary movements by migrants. Only when migrants are completely disenfranchised from making the decision to move, can this succeed. This is the price at which Hathaway's expansion of protection capacities comes. As opposed to the current situation, migration movement would need to be subjected to complete control. Where this is not possible, governments will find themselves engaged in a new and ambitious protection scheme, while remaining stuck with the costs associated with spontaneous movements and arrivals. Surely, no government will accept this. Hathaway's proposals reflect an awareness of that constraint.
In the 2007 article, Hathaway underscores that refugee status is temporally limited to the duration of risk in the country of origin. (12) In their 1997 article, Hathaway and Neve provide more detail about how this is to be systematised in the proposal:
If and when the risk that gave rise to refugee status comes to an end, however, refugee status may legitimately be... |
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