The Rights of Refugees under International Law

CDR-HSF Special Summer School 2011 27 to 29 September

Co-hosted by

Center for Documentation of Refugees and Migrants, the University of Tokyo Human Security Forum

COURSE SYLLABUS

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Introductory Remarks

Since the establishment of the Center for Documentation of Refugees and Migrants at the

University of Tokyo in the spring of 2010, CDR has been organizing many events relating to movement of people issues. The summer school is one of the events that originally started in 2009, in the process of establishing a specialized course for Human Mobility Studies, currently run by CDR. Last year’s course was held as a pilot program inviting Professor James C. Hathaway of the University of Michigan, an eminent scholar in this field. Over 70 people participated to study refugee protection with rights based approach, including practitioners and university students majoring not only in legal studies but also in other sciences.

This year’s course is also focusing on the issues of refugee rights. Professor Hathaway is a prominent scholar who can explain the whole picture of refugee rights protection with systematic view of legal specialty. According to his theory, a refugee is protected not for his/her legal status in an asylum country, rather for his level of attachment with the asylum country. Purely theoretical explanation of the situation is insufficient to understand the legal system, especially in some specific context of actual refugee protection process in a country. In this regard, professors of the University of Tokyo and officers of UNHCR Tokyo will also introduce the specific situation in Japan, after the two-day course given by Professor Hathaway.

We are hoping to discuss key issues of refugee protection, and share the theory and knowledge with all of you, through a lively series of lectures. And it would be appreciated if the knowledge gained through this summer course will help you in practical protection and assistance activities.

Yasunobu SATO Director

Center for Documentation of Refugees and Migrants The University of Tokyo

OUTLINE OF SCHEDULE -3 days-

Day 1

27 September Lectures by Professor James C. Hathaway

“The Rights of Refugees under International Law”

Day 2

28 September Lectures by Professor James C. Hathaway

“The Rights of Refugees under International Law”

Day 3 29 September

“Free Discussion and Conclusion”

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[Day 1] 27 September: The Rights of Refugees under International Law

9.00-10.30: “Introduction” by Professor Yasunobu SATO

11.00-12.30: “Introductory Remarks on Professor Hathaway’s Theory” by Dr. Satoshi Yamamoto

13.30-15.00: “The Rights of Refugees under International Law I” by Professor James C. Hathaway

15.30-17.00: “The Rights of Refugees under International Law II” by Professor James C. Hathaway

17.30-19.00 “The Rights of Refugees under International Law III” by Professor James C. Hathaway

[Day 2] 28 September: The Rights of Refugees under International Law

11.00-12.30: “The Rights of Refugees under International Law IV” by Professor James C. Hathaway

13.30-15.00: “The Rights of Refugees under International Law V” by Professor James C. Hathaway

15.30-17.00: “The Rights of Refugees under International Law VI” by Professor James C. Hathaway

17.30-19.00: “The Rights of Refugees under International Law VII” by Professor James C. Hathaway

[Day 3] 29 September: Free Discussion and Conclusion

9.00-10.30: “Practical Issues in Japan” by Dr. Daniel Alkhal (Senior Legal Officer of UNHCR Tokyo)

11.00-12.30: “Discussion” by Professor Hiroshi Homma (The University of Tokyo) and the Floor

Working Language

English (English-Japanese Simultaneous Interpretation will be provided)

Venue

Collaboration Rm.1

Bldg.18, 4th Floor, Komaba I Campus, the University of Tokyo

3-8-1 Komaba, Meguro, Tokyo

The Rights of Refugees under International Law

Time Table

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The first 50 persons who fulfill the following requirements can participate in the summer school.

1) Essay relating to refugee rights, protection and/or assistance

All applicants are required to submit a 500-1,000 word essay in English, to make clear the purpose and motivation of participation. The essays will be forwarded to the lecturers, after the check by the secretariat.

2) Tuition fee

All participants except affiliates of the University of Tokyo are required to pay a tuition fee of JPY 20,000. Expenses including materials and refreshments are to be covered by the fee. 3) Application form

Applicants must submit an application form via Email to the following address by 31 August 2011 with the essay mentioned above:

Summer School Office hsfss2011@gmail.com

After reviewing the contents, the secretariat will notify you on wheather you have been admitted to the course by 7 September. Tuition fee should be paid in full by 14 September into the following bank account:

銀行名: ゆうちょ銀行 支店名: 本店東京大学駒場内出張所 普通・口座番号: 00140-0-718637 名義: 人間の安全保障フォーラム

The Rights of Refugees under International Law

How to Apply

Requirements for Certificate

1) Attendance

To obtain the certificate of the course, participants are required to attend at least 7 out of 11 classes.

2) Essay on one of the specific topics discussed during the course

To obtain the certificate, participants are required to submit to Summer School Office a 1,000-3,000 word essay in English, in which issues related to one of the specific topics dealt with in the classes should be discussed. The essays will be forwarded to the lecturers, after screening by the secretariat:

Summer School Office hsfss2011@gmail.com

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INTRODUCTION I. EVOLUTION OF THE REFUGEE RIGHTS REGIME (Read pp. 75-153)

A. International Aliens Law B. International Protection of Minorities C. Early Refugee Rights Regimes

II. THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES (Read pp. 154-277)

A. Context of the Refugee Convention B. Substantive Rights C. Steps in Determining Applicability of a Refugee Convention Right

Included in substantive list of rights? Level of attachment satisfied? Under a state's jurisdiction, Physically present in territory, Lawfully present, Lawfully staying, Durable residence? Absolute or contingent right? Absolute, National treatment, Most favoured foreigners, Foreigners generally? Reservations (except vis à vis freedom from discrimination, religion, access to courts, non-refoulement)? Permissible limitations on rights applicable? Internal limitations inherent in scope of right as codified (reasonable restrictions on freedom of movement pending regularization of status, denial of travel documents for security reasons, refoulement where extreme malfeasance or serious danger to asylum state)? Or situation-specific limitations ("war or other grave and exceptional circumstances" – but only provisionally).

III. THE RIGHT TO FREEDOM FROM ARBITRARY DETENTION (Read pp. 370-439 + 695-719)

A. Sources of Entitlement

Refugee Convention, Art. 31 Civil and Political Covenant, Art. 9(1) Refugee Convention, Art. 26 Civil and Political Covenant, Art. 12

B. Rights of Refugees Awaiting ‘Regularisation’ of Status: Refugee Convention, Art. 31

1. Basic Requirements

a. Must take affirmative steps to make themselves known to officials. b. Must take such steps within a reasonable period of time. c. Must satisfy officials that breach of immigration rules was inherent in search for protection.

2. Limitations on Detention Pursuant to Art. 31(2)

a. Must ordinarily end at ‘regularisation’ (shift to Art. 26) b. Must be ‘necessary’

- Mass influx - Time to complete basic inquiries into identity, element of claim, security or public order concerns

c. Detention to promote deterrence d. Detention for reasons of administrative efficiency

- R. (Saadi) v. SSHD, [2002] UKHL 41, Oct. 31, 2002. - Attorney General v. Refugee Council of New Zealand and “D”, [2003] 2 NZLR 577 (NZCA, Apr. 16, 2003).

e. Other limitations on freedom of movement

Course Outline

27 and 28 September 2011

Note: References for reading below are to the text for the class – J. Hathaway, The Rights of Refugees under International Law (CUP, 2005).

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Problem No. 1:

Harsai is a refugee who fled Afghanistan in fear for his life, and who first travelled to Peshawar, Pakistan. He stayed there in a camp for about one month, but left when it became clear to him that conditions there were unbearable and that there was no prospect of finding a durable home there. He managed to travel to Italy, where he stayed for two days before travelling onward to Switzerland, where he sought recognition of his refugee status two days after arrival.

Problem No. 2:

Adamu is a refugee from Sierra Leone, who has recently arrived in Bulgaria and claimed refugee status. He has been told that until his claim to refugee status is formally verified, he will have to live in a reception centre (specially constructed to receive refugees, and regularly visited by UNHCR and others able to assist him to pursue his claim). The reception centre has adequate personal space and facilities, and Adamu is free to move about in the adjacent town during daytime hours.

Is Adamu’s assignment to a reception centre in compliance with international law?

Problem No. 3:

The European Union has adopted the following standards in Council Directive on the Reception of Asylum Seekers, Directive No. 2003/9/EC, Jan. 27, 2003, at Art. 7:

1. Asylum seekers may move freely within the territory of the host Member State or within an area assigned to them by that Member State...

2. Member States may decide on the residence of the asylum seeker for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application.

3.Where it proves necessary, for example, for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their national law...

5. Member States shall provide for the possibility of granting applicants temporary permission to leave the place of residence mentioned in paragraph[] 2... and/or the assigned area mentioned in paragraph 1. Decisions shall be taken individually, objectively and impartially and reasons shall be given if they are negative...

Are these standards in compliance with the Refugee Convention, and more general standards of international human rights law?

Union of Refugee Women Case

Constitutional Court of South Africa Case CCT 39/06, Dec. 12, 2006

Please download/print a copy of the decision from:

http://www.saflii.org/za/cases/ZACC/2006/23.html

Please consider these questions in preparing for class discussion of this case:

[Note: To facilitate discussion, it will be useful for you to identify paragraphs in the court’s judgment that are relevant to the questions below].

1. What is the basic factual context of the case (what is the dispute about)?

2. Without considering the details of their reasoning, what is the essential result reached in each of the three judgments of the South African court (for or against the refugees, and on what basis)?

3. How, if at all, does the court address the general (non-refugee-specific) international human right to work? [Note: the two main Human Rights Covenants are found at pp. 1030 and 1050 of your text].

4. Is the non-discrimination guarantee in South African law (which closely parallels the international rules on non-discrimination) an effective means of ensuring that refugees can work in the security industry?

5. Please devote most of your preparation to considering which articles of the Refugee Convention are in fact relevant to deciding this case, and how the case should have been decided if account had been taken of these articles.

** Hint: at least 3 articles of the Refugee Convention are relevant – one in a major way, two in an auxiliary fashion. **

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Professor James C. Hathaway

James E. and Sarah A. Degan Professor of Law / Director, Program in Refugee and Asylum Law, University of Michigan Law School; Prize winner of the ASIL Prize 2007 by The Rights of Refugees under International Law (Cambridge, 2005)

Professor Hathaway’s publications include more than sixty journal articles, a leading treatise on the refugee definition (The Law of Refugee Status, 1991), an interdisciplinary study of models for refugee law reform (Reconceiving International Refugee Law, 1997) and, most recently, The Rights of Refugees under International Law (2005) - the first comprehensive analysis of the human rights of refugees set by the UN Refugee Convention, all linked to key international human rights norms and applied to the world's most difficult protection challenges.

He is counsel to both the US Committee for Refugees and Immigrants and Asylum Access, a non-profit organization committed to delivering innovative legal aid to refugees in the global South. Professor Hathaway also sits on the editorial boards of the Journal of Refugee Studies and of the Immigration and Nationality Law Reports and directs the Refugee Caselaw Site (www.refugeecaselaw.org), a website that collects, indexes, and publishes leading judgments on refugee law.

Center for Documentation of Refugees and Migrants

The Center for Documentation of Refugees and Migrants (CDR) is a research organisation and the secretariat of “Human Mobility Studies (HMS)”, a series of lectures in the University of Tokyo. Both of these initiatives are sponsored by the Hogakukan Co.Ltd. under a donation initiative. The initiative was started in April 2010 and will continue till March 2015.

The CDR is charged with several tasks relating to the documentation and dissemination of information on forced displacement, and migration issues; these issues are to be considered from a broad range of disciplinary perspectives. Tasks include inviting experts such as: academic researchers and practitioners, governmental officers, and lawyers to discuss the pressing issues in our field of research. In addition, by the publishing original research and information and by providing lectures and training sessions for students, the general public, and professionals, CDR is contributing to the building of a more conscious public opinion vis-à-vis having an open or closed society. Moreover, the CDR is developing an online database for knowledge accumulation and dissemination.

Human Security Forum

Human Security Forum is a non-profit organization that has been established to promote and facilitate activities aiming to secure the human security for all. The activities are mainly focusing to help vulnerable people in particular those living in Japan such as victims of the tsunami/earthquake disasters of March 11.

About the Guest Lecturer and the Organizers

COURSE SYLLABUS All Rights Reserved 2011

Human Security Forum hsfss2011@gmail.com http://hsf.jp