An Injury to the Citizen, a Pleasure to the State: A Peculiar Challenge to the Enforcement of International Refugee Law
Seattle University School of Law
August 7, 2008
Chicago-Kent Journal of International and Comparative Law, Vol. 6, No. 116, 2008
It is a well-established principle of international law that an injury to the citizen is an injury to the state of his or her nationality. Ordinarily, if a non-citizen is injured by the acts of a host state, the state of his or her nationality would see redress. By definition a refugee maintains no such relationship. The refugee not only has severed his relationship with the country of his nationality or habitual residence but also fears being persecuted by the government of that country. If that refugee is injured in a country where he sought refuge, then the country of origin that would have sought redress under normal diplomatic and consular situations certainly would be unwilling or even might be pleased to see the injury occur.
A refugee could be injured in his country of refuge in many different ways. One of the most serious and common injuries that refugee could sustain occurs when the refugee is sent back to a place where he may face persecution. Under normal circumstances, that is exactly what the country of origin wishes. Generally, this could happen in two different ways: either with full intent and purpose or because of faulty administrative and/or judicial sanction. The consequence's of both are absolutely identical. Upon return to his country of origin, the refugee may face severe treatment including death. Countries wil well-established systems of asylum adjudication rarely fall under the first category; however, they almost always cannot avoid falling under the second. The article intends to demonstrate the inherent problems of refugee law that make it almost impossible to avoid some faulty administrative and judicial decisions and suggests remedial measures that would help alleviate some of the serious consequences.
The problem of the law of refugee status starts with the definition of a refugee itself. Part I of this article highlights the historical underpinnings of the legal definition of a refugee and puts the political compromise that went into crafting the criteria for refugee status into perspective. Part II deals with the challenges associated with the interpretation of each element of the substantive definition of the Refugee Convention as well as problems of exclusion and cessation of refugee status under the Refugee Convention. Part III critically examines the challenges in defining and applying the burden and standard of proof in refugee status determination proceedings (asylum proceedings), which perhaps is the most serious of all challenges. In Part IV, this article highlights the lack of concrete remedies for erroneous decisions and suggests alternative domestic and international remedies to limit the execution of erroneous decisions and mitigate the consequences of refoulement. This article concludes with a summary of observations and recommendation for moving forward.
Number of Pages in PDF File: 68
Keywords: International refugee law, Enforcement of Refugee Law, the Refugee Convention, Persecution, Definition of a refugee
JEL Classification: K33working papers series
Date posted: August 12, 2008 ; Last revised: November 11, 2009
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