Leveraging Asylum

64 Pages Posted: 18 Nov 2009 Last revised: 23 Nov 2009

James C. Hathaway

University of Michigan Law School; Melbourne Law School; University of Amsterdam

Date Written: November 16, 2009

Abstract

The paper's thesis is that recent scholarly claims that a general right to asylum now exists are unfounded. The legal arguments underpinning the claim are twofold. First it is said that even states not bound by relevant conventions are nonetheless required by customary international law to honor the duty of non-refoulement in relation to refugees and others facing the prospect of serious harm. Second, the lex specialis principle is invoked to argue that all persons entitled to protection against refoulement (not just refugees) must be granted all of the refugee-specific entitlements codified in the Refugee Convention. Taken together, the two claims amount to an assertion that there is today a legally binding and universally applicable right to asylum for all seriously at-risk persons.

Although both claims have normative appeal, the author contends that as a matter of international law they are conceptually flawed. Taking account of relevant ICJ jurisprudence, the paper argues that there is neither opinio juris nor relatively consistent state practice to support the putative duty of non-refoulement. And even if there were such a norm in customary international law, the lex specialis principle exists only to resolve normative conflict, not to fill a normative void, and therefore affords no basis for the attribution to non-refugees of Refugee Convention rights. In short, there is no leveraged right to asylum.

Keywords: refugees, international law, human rights

JEL Classification: K00, K33

Suggested Citation

Hathaway, James C., Leveraging Asylum (November 16, 2009). U of Melbourne Legal Studies Research Paper No. 430; Texas International Law Journal, Vol. 45, No. 3. Available at SSRN: https://ssrn.com/abstract=1507308

James C. Hathaway (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

Melbourne Law School ( email )

185 Pelham Street
Carlton
Victoria, 3010
Australia

University of Amsterdam ( email )

Amsterdam, 1018 WB
Netherlands

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