- The Law of Refugee Statusby James C. Hathaway & Michelle Foster
Twenty-five years ago, James Hathaway wrote the book on refugee law. There were and are other excellent treatises, notably by Guy-Goodwin Gill (now with Jane McAdam). But Hathaway’s The Law of Refugee Status(LRS) was singular in scope, reach, and timing. As a law professor in my first year of teaching, I welcomed the arrival of a book that jumpstarted my nascent interest in refugee law. LRS masterfully situated the refugee definition in its historical context, advanced an integrated normative framework, and provided careful, reasoned analysis of the elements of the refugee definition. I could not imagine a more ideal introduction to the field. At virtually the same moment, Canada’s two year old Immigration and Refugee Board was ushering in a new era of procedurally and institutionally sophisticated refugee adjudication. Freshly appointed decision-makers (most of whom were non-lawyers) were hungry for methodical, comprehensive, expert analysis and guidance in interpreting and applying the refugee definition. By the time I took an appointment as a Member of the IRB for a few years, the LRS was a go-to resource for my colleagues. The same was true for refugee lawyers, and ultimately, for judges as well. In short, the LRS was an indispensable resource for scholars, decision makers and judges.
As the years progressed, Hathaway’s scholarly contributions to refugee law and policy grew vertically and expanded horizontally in various directions. This included another treatise on the rights of refugees under international law, a provocative proposal for international management of state responsibility-sharing toward refugees, and the Michigan Guidelines (which sought to distill vexing interpretive questions into a series of practical propositions). In person and in writing, Hathaway has not only engaged in sustained conversation with other scholars and with policy makers, but LRS has effectively established him as an influential interlocutor with whom courts, the UNHCR and, eventually, the International Association of Refugee Law Judges (IARLJ) engage. In some ways, Hathaway has become an unofficial amicus in most of the important refugee law cases in the highest courts of many countries. LRS2 is replete with references to judgments where a given court followed or departed from the analysis in LRS, demonstrating that LRS always summoned respectful attention from courts, even if not always agreement.
A lot has happened in the last quarter century: In the first edition of LRS, Hathaway chose to use the female pronoun to describe the refugee claimant, in recognition of the predominance of women as refugees. But the choice, and his brief discussion of gender and sexual orientation as examples of particular social groups, also anticipated the burgeoning of guidelines and jurisprudence in relation to both. Persecution related to sexual [End Page 220]orientation, trafficking, organized crime, and the violation of social and economic rights posed various interpretive challenges. The treatment of non-state actors as agents of persecution, and the duty of the state to protect the victimized became a source of divergence across jurisdictions. The break up of the Soviet Union generated puzzles of citizenship and state succession. The interpretation of the exclusion provisions grew more vexing and complex in the face of war crimes jurisprudence generated by ad hoc war crimes tribunals and, eventually, the International Criminal Court. The events of 9/11 made many states even less hospitable and more suspicious of asylum seekers, and this also put pressure on the exclusion doctrine. New or newly active actors, notably the European Court of Justice and courts in various jurisdictions have added their voices. The European Asylum Directives and their formal and substantive relationship to the Convention Refugee definition have added a new juridical layer to refugee adjudication among EU member states bound by the Directives. Because they purport to be consistent with the obligations imposed by the UN Convention, the Directives operate as yet another institutional participant in the interpretive debate.
This is by no means an exhaustive catalogue of major developments touching on the interpretation and application of the refugee...