Book Review: The Rights of Refugees under International Law
| Published date | 01 March 2007 |
| Date | 01 March 2007 |
| DOI | 10.1177/135822910700800405 |
| Subject Matter | Book Review |
International Journal
of
Discrimination and the Law, 2007, Vol. 8, pp. 295-296
1358-2291/2007 $10
© 2007 A B Academic Publishers. Printed in Great Britain
BOOK
REVIEW
James
Hathaway
The Rights
of
Refugees under International
Law
(2005)
Cambridge
University Press,
UK.
1184
pages+
li. £43
This is a
monumental
study
by a leading scholar
in
the
field.
It
takes
a
long
view
of
its subject
and
hence consciously detaches itself
from
the
ephemeral
'considerations
of
policy
and
preference'.
The
starting
position
for
the
analysis
of
the
rights
of
refugees is
that
refugee law
(i.e.,
the
1951
Convention
relating
to
the
Status
of
Refugees
and
the
1967
Protocol)
is
'a
system
for
the
surrogate
or
substitute
protec-
tion
of
human
rights'.
Thus,
refugee law, unlike
immigration
law, is
part
of
human
rights law.
Both
this
book
and
vision
answer
a call
from
late
Professor
Atle
Grahl-Madsen,
one
of
the
founding
fathers
of
refugee law.
The
book
starts with a discussion
on
the sources
of
refugee rights in
international law
and
identifies treaty law (particularly the Refugee
Convention
and
the Covenants
on
human
rights) as the
most
important
source
oflaw.
This discussion thus includes a valuable discussion
of
the
rules concerning treaty interpretation.
The
book
then
discusses the
evolution
of
the refugee rights regime from a historical perspective,
taking the international law relating
to
aliens
and
minorities as its
sources.
It
goes
on
to
tackle the core
of
its subject-matter, i.e., the
entitlement
of
refugees to the rights
under
the Refugee Convention.
Here
Hathaway
introduces a useful three-fold distinction based
on
the physical
and
legal 'presence'
of
the asylum seeker.
First
are those
physically present in the
country
of
asylum,
who
are entitled
to
protec-
tion
against refoulement,
to
be free from
arbitrary
detention
and
penalization for illegal entry,
to
have their physical security guaranteed
and
to
be recognised the basic necessities
of
life,
property
rights, family
reunification, freedom
of
thought, conscience
and
religion, education,
documentation
and
status
and
judicial
and
administrative assistance.
Second are refugees lawfully present in the
country
of
asylum
and
who
are entitled
to
be protected against expulsion, freedom
of
residence
and
movement within the
country
of
asylum,
and
the right
to
take self-
employment.
Third
are refugees lawfully residing in the country
of
asylum; they are entitled
in
particular
to
the right
to
work, the right
to
housing,
and
assistance
to
access
to
the courts. This straightforward
three-fold distinction forms the central structure
of
the book.
And
in
a
book
that
covers a vast canvas in such intricate detail, there
is
much
virtue in having a clear
and
practical structure.
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