Framing Refugee Law in the New World Disorder

Posted: 23 Oct 2001 Last revised: 16 Apr 2010

See all articles by James C. Hathaway

James C. Hathaway

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

Colin Harvey

Queen's University Belfast - School of Law

Date Written: April 14, 2010

Abstract

The article makes three basic points about the way in which international refugee law should address terrorist and related concerns. First, the 1951 Refugee Convention is sufficiently flexible to allow states to exclude terrorists and other serious criminals from refugee protection: no amendments or re-interpretations are needed. Second, a distinction should be drawn between the Refugee Convention's mechanisms for denying protection to serious criminals (Art. 1(F)) and those designed to protect the basic safety and security interests of asylum countries (Art. 33(2)). Third and perhaps most important, Art. 1(F) exclusion may lawfully be considered as a preliminary question outside the usual refugee status inquiry. Because no person within the scope of Art. 1(F) can qualify for refugee status, there is simply no need to delay criminality inquiries until the refugee hearing itself.

As a matter of policy with particular relevance to the current anti-terrorism debate, the article recommends that applications for refugee status be expeditiously vetted for criminality concerns, with all persons found to within the scope of Art. 1(F) peremptorily excluded from refugee status. By taking lawful but determined measures of this kind, it is suggested that governments can best ensure continuing public support for the protection of genuine refugees, even in times of crisis.

Suggested Citation

Hathaway, James C. and Harvey, Colin, Framing Refugee Law in the New World Disorder (April 14, 2010). U of Michigan Law, Public Law Research Paper No. 12. Available at SSRN: https://ssrn.com/abstract=287396

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

Colin Harvey

Queen's University Belfast - School of Law ( email )

School of Law
Belfast BT7 1NN, BT7 1NN
Ireland

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