The Rights of Refugees under International Law James C. Hathaway Cambridge and New York: Cambridge University Press, 2005
For James Hathaway, the James E. and Sarah A. Degan Professor of Law and the Director of the Program in Refugee and Asylum Law at the University of Michigan Law School, The Law of Refugee Status (1) is a hard act to follow. It has become the bible for those involved in the interpretation of the Refugee Convention in the late 1980s and early 1990s. Published in 1988, it quickly became essential reading for refugee practitioners and members of refugee tribunals. It has been routinely relied upon by courts around the world in interpreting the definition of a Convention refugee.
As a result, when I was asked to review Hathaway's new book, The Rights of Refugees under International Law, I readily accepted. I was curious to see if Hathaway could produce another treatise that might revolutionize thought around such an important issue. At the same time I was somewhat surprised that a refugee practitioner would be chosen to review his new book. Practitioners are generally grounded in domestic law. Our role as refugee lawyers is to ensure that our clients are recognized as Convention refugees by the relevant tribunals and to ensure that they are afforded all the rights and protections available under domestic law. As a Canadian lawyer grounded in domestic law, I rely on Canada's Immigration and Refugee Protection Act (IRPA) (2) and the Charter of Rights and Freedoms (Charter) (3) as the sources of my advocacy on behalf of my clients. That being said, international law is becoming an increasingly important part of my practice. It is an important tool of interpretation when attempting to ascertain the meaning of our Charter. (4) For instance, the Supreme Court of Canada in Suresh (5) had recourse to international human rights law in interpreting section 7 of the Charter and in determining that removal to torture would in almost all cases violate the principals of fundamental justice.
Despite these advances in the use of international law in the domestic refugee context, practitioners are well aware of the difficulty of ascertaining the scope of international law in the everyday practice of refugee law. Courts have been reluctant and cautious in using international law in the immigration context. (6) The applicability of international law is uncertain, and its substance is subject to differing interpretations by domestic courts. (7) Moreover, international human rights tribunals charged with protecting these rights have no power to effectively enforce their decisions. (8) It is with this background in mind that I approached Hathaway's treatise about refugee rights with caution.
Hathaway addresses this challenge head on in the first chapter of his book, when he deals with the scope of international refugee law. He argues in favour of a conservative approach to defining rights under refugee law. He suggests that there are very few rights that are universally accepted under international law--the right against discrimination and the right to be free from arbitrary deprivation of life, from torture, and from genocide. Given this limitation, traditional customary international law therefore cannot be a source for refugee rights. He maintains that the source for rights of refugees under international law must be found first in the Refugee Convention and then in the other international human rights treaties. (9)
He begins with the text of the Refugee Convention and "seeks to understand it not on the basis of literal...