The New Asylum Seekers: Addressing Their Origin

David A. Martin, ed., The New Asylum Seekers: Refugee Law in the 1980s: The Ninth Sokol Colloquium on International Law, pp. 181-194, 1988

Posted: 25 Jun 2008

See all articles by Jack I. Garvey

Jack I. Garvey

University of San Francisco - School of Law

Date Written: June, 23 2008

Abstract

This essay argues in favor of a major elaboration of the legal responsibilities of the state of origin in international refugee law. It takes note of the increasing social, economic, and political burdens felt by resettlement states, and the perception that major refugee flows in recent years have been encouraged or even instigated by governments of states of origin as premeditated and malicious acts of deliberate policy. In light of these realities, an emphasis on the principles of human rights law, and the attempt to address "root causes" of refugee flow are both inadequate, and, by fastening on the internal situation of the state of origin and thus irritating the political interests of that state, may both exacerbate the situation.

The essay proposes a shift in emphasis to the legal obligations of one state not to harm other states by imposing the burdens of unmanaged refugee flow, arguing that this responsibility is firmly supported by the established principle of international law that a state is obligated to avoid the generation across its borders of damage to other states. The essay sets forth guidelines for assessing the responsibilities of the state of origin with respect to mass movement from its territory, and determining how that responsibility might be implemented. The essay proposes: that the international community avoid the "root cause" approach as well as complete dependence on human rights principles; that the thrust of the substantive principles should be cooperative, rather than prohibitive (focusing on obligations to cooperate in preventing the flow, in ameliorating and managing the flow, and in securing voluntary repatriation); that assistance to refugees should be secondary to a solution; that institutionalization of engagement of the state of origin must be at least as important as the development of substantive principles of responsibility; and that the concept of legal responsibility of the state of origin for the burden imposed on other states can be elaborated as substantive principles and procedures for compensation.

Keywords: asylum, refugee law, international law, inter-state obligation, Convention Relating to the Status of Refugees

Suggested Citation

Garvey, Jack I., The New Asylum Seekers: Addressing Their Origin (June, 23 2008). David A. Martin, ed., The New Asylum Seekers: Refugee Law in the 1980s: The Ninth Sokol Colloquium on International Law, pp. 181-194, 1988, Available at SSRN: https://ssrn.com/abstract=1150397

Jack I. Garvey (Contact Author)

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

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