Laura Westra - Towards a refugee oriented right of asylum

Klaus Bosselmann, University of Auckland, New Zealand

Kathleen Mahoney QC, FRSC, University of Calgary, Canada

Satvinder S. Juss, Kings College London, UK

Migration and its subsets of refugee and asylum policy are rising up the policy agenda at national and international level. Current controversies underline the need for rational and informed debate of this widely misrepresented and little understood area.

Law and Migration contributes to this debate by establishing a monograph series to encourage discussion and help to inform policy in this area. The series provides a forum for leading new research principally from the Law and Legal Studies area but also from related social sciences. The series is broad in scope, covering a wide range of subjects and perspectives.

Edited by Paul Van Aerschot and Patricia Daenzer
978-1-4724-3654-2

Helen ONions
978-1-4094-0409-5

Edited by Ademola Abass and Francesca Ippolito
978-1-4094-4297-4

Clodhna Murphy
978-1-4094-6251-4

LAURA WESTRA
University of Windsor, Canada

SATVINDER JUSS
Kings College London, UK

TULLIO SCOVAZZI
University of Milano-Bicocca, Italy

First published 2015 by Ashgate Publishing

Published 2016 by Routledge

2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

711 Third Avenue, New York, NY 10017, USA

Copyright Laura Westra, Satvinder Juss and Tullio Scovazzi 2015

Laura Westra, Satvinder Juss and Tullio Scovazzi have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the authors of this work.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

Notice:

Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

A catalogue record for this book is available from the British Library

Towards a refugee oriented right of asylum / by Laura Westra, Satvinder Juss and Tullio Scovazzi.

pages cm. (Law and migration)

Includes bibliographical references and index.

ISBN 978-1-4724-5778-3 (hardback) ISBN 978-1-3155-5063-3 (ebook)

ISBN 978-1-3170-0921-4 (epub) 1. Asylum, Right of. 2. RefugeesLegal status, laws, etc. I. Juss, Satvinder S. (Satvinder Singh), author, editor. II. Scovazzi, Tullio, author, editor. III. Westra, Laura, author, editor.

K3268.3.T69 2015

342.083dc23

2015002544

ISBN 9781472457783 (hbk)
ISBN 9781315550633 (ebk-PDF)
ISBN 9781317009214 (ebk-ePUB)

Erika Feller, University of Melbourne

This is a scholarly, well researched and articulately presented assault on the conscience of those who vilify asylum-seeking and respond by turning their backs and foregoing their responsibilities. It comes at a time when new voices do need to be heard on this issue of global concern, as the responses by states and communities become ever more mired in polemics, populist politics and a bewildering mass of misinformation. There is a need to bring order into the discussion in a balanced way, to offset fears, offer new directions for thinking and action, and reinstate the core values and principles at its centre.

Assisting and protecting asylum-seekers and refugees should proceed within an apolitical and law-based framework. At the heart of this framework is the 1951 Convention relating to the Status of Refugees, together with the broad body of human rights texts and other legal and soft law instruments that collectively bear on the rights of affected peoples and the duties of states to them.

The 1951 Convention is the cornerstone text. One hears with alarming frequency the rationale for ever tougher government approaches being linked to perceived inadequacies of the Convention. It is said that the Convention is an outdated relic of the Cold War era, a text out of step with the displacement challenges of the times. Such commentary is at best ill-informed, as this volume brings out. The Convention is not responsible for the policy failures of governments. It is a rights protection instrument. It was never drafted as a migration regulatory instrument, and should not be held to account for alleged failures on this score. Anyone who has ever worked with refugees will know how singularly important the Convention is as often the only barrier lying between many helpless people and the whims and vagaries of state discretion. It is, though, not a perfect text. If the Convention is clear in terms of the rights, it is not so when it comes to which state actually has the responsibility to protect these rights in any given case. It rests on concepts of burden and responsibility-sharing, but without sufficient guidance, definitions or indicators to help the apportionment. It takes an approach to protection which has individuals at its centre, when many situations involve mass arrivals. It was drafted in an era before certain of the forms of persecution had even a name, much less attracted global recognition, such as ethnic cleansing or gender crimes. Important elements of this framework are the subject of careful analysis and scrutiny in the various chapters of this volume, which brings out both the resilience of the basic rules, together with the minefield of legal and policy issues involved in their actual application.