Work, the Right to Work, and Durable Solutions: A Study on Sierra Leonean Refugees in The Gambia

It is rare indeed that the forced movement of people will nothave an economic dimension. Economic issues related to the movementof people have generally been viewed as beyond the scope ofthe debate on the international status and protection of refugees.Instead, ‘economics’ and ‘refugees’when heard together, or even in loose association, have evokedthe pejorative images of those who move to seek a ‘betterlife’. While recognising on the one hand the inevitabilityof economic dimensions to refugee movements, many advocatesfor refugees have traditionally taken great care in their policyand advocacy work to downplay the economic element of the complexmatrix of motivations that lead refugees and other forced migrantsto move. This paper takes a different approach. It promotesthe right to work, a social and economic right, as integralto protection and to all durable solutions. It explores itsrelevance, and indeed its significance, as a matter of law,policy and practice to the lives of refugees and those responsiblefor their protection, including their hosts. After all, ‘[d]espitethe statistical existence of unemployment in every country inthe world, work continues to be "an essential part of the humancondition"’. In addition, the paper examines the importanceof a rights-based analysis of work in understanding its relevancein the field both of international and national protection.In doing so, it explores the connections between work and theright to work and the three durable solutions. It acknowledgesthat social and economic conditions and inequities are oftenamongst the root causes of conflict which then lead to the failureof national protection and precipitate flight.     

The Use and Misuse of 'National Security' Rationale in Crafting U.S. Refugee and Immigration Policies

Since the terrorist attacks of 11 September 2001, U.S. immigrationand refugee policy has developed based on narrow and evolvingtheories of ‘national security’. Immigration reformlegislation, federal regulations, and administrative policychanges have been justified in terms of the nation's safety.On 1 March 2003, the U.S. Immigration and Naturalization Service(INS) was folded into the massive new U.S. Department of HomelandSecurity (DHS), formally making immigration a homeland defenseconcern. Counterterror and immigration experts increasingly agree onwhat constitute effective and appropriate immigration policyreforms in light of the terrorist threat. Unfortunately, manyof the post-September 11 policy changes do little to advancepublic safety and violate the rights of refugees and asylumseekers. These include reductions in refugee admissions, thecriminal prosecution of asylum seekers, the blanket detentionof Haitians, and a safe third-country asylum agreement betweenthe United States and Canada. Other measures offend basic rightsand may undermine counterterror efforts. These include ‘preventive’arrests, closed deportation proceedings, and ‘call-in’registration programs. This article reviews post-September 11 U.S. policy developmentsbased on their impact on migrant rights and their efficacy ascounterterror measures. It argues for a more nuanced and rigoroussense of ‘national security’ in crafting refugeeand immigration policy.     

Human Rights, Refugees, and The Right 'To Enjoy' Asylum

Increasingly hard-line and restrictive asylum policies and practicesof many governments call into question the scope of protectionsoffered by the 1951 Convention relating to the Status of Refugees.Has the focus on the 1951 Convention been to the detriment andsubordination of other rights and standards of treatment owedto refugees and asylum-seekers under international human rightslaw? Which standard applies in the event that there is a clashor inconsistency between the two bodies of law? In analysingthe interface between international refugee law and internationalhuman rights law, this article looks at the right to familylife and the right to work. Through this examination, contentand meaning is offered to the almost forgotten component ofthe right ‘to enjoy’ asylum in Article 14(1) ofthe Universal Declaration of Human Rights 1948.     

The Legal Status of Afghan Refugees in Pakistan, a Story of Eight Agreements and Two Suppressed Premises

Over 25 per cent of present day refugees enjoy asylum in Pakistan,most of them having been there for more than a quarter of acentury. Pakistan is not, however, a party to either the 1951Convention relating to the Status of Refugees or the 1967 Protocolrelating to the Status of Refugees. The legal status of theAfghan refugees it hosts is therefore not a foregone conclusion,even though they were considered to be refugees on a prima faciebasis during the first two decades of their exile in Pakistan.This article identifies the legal status of the Afghan refugeeson the basis of a series of agreements Pakistan concluded withUNHCR and also occasionally with Afghanistan. By virtue of thelast of the series of agreements, Afghan refugees can returnto Afghanistan under a UNHCR-assisted voluntary repatriationprogramme until December 2009. In view of the fact that allAfghans have been granted leave to stay in Pakistan until thesame date, many are expected to stay in Pakistan rather thanreturn with the assistance of UNHCR. Unlike the preceding agreements,the last one does not address the fate of those who will stillbe in Pakistan upon completion of the voluntary repatriationprogramme. It seems therefore imperative to identify the legalstatus and corresponding entitlements of the Afghan refugees.It is argued that the prima facie recognition of refugee statuscan be sustained on the basis of the agreements referred to.In addition it is argued that the current ‘profiling’exercise of UNHCR, even while presumably beneficial for themost vulnerable refugees, is irreconcilable with the statusand entitlements of the Afghan refugees, and the same holdstrue with respect to the usual practice of ‘screening’those refugees who have opted not to return under a voluntaryrepatriation programme. An alternative that would be reconcilableis a collective cessation of refugee status if and when thesituation in the country of origin so warrants, provided individualrefugees may contest this.     

International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention

US refugee law reflects an ever-increasing conception that theapplication of international standards would constitute an unacceptablerisk to national security. CSR Article 31(2)’s requirementthat refugees ‘shall not’ be detained unless ‘necessary’appears among the chief casualties of such suspicions. US jurisprudenceremains strikingly devoid of reference to Article 31, and 2003’sMatter of D-J- is a prime example. D-J- was an administrativedecision in which the US Attorney General held that nationalsecurity required all US asylum seekers who successfully arrivevia boat must be subject to mandatory detention throughout thecourse of removal proceedings. Despite US accession to the Protocol,Article 31(2) was not mentioned. This article explores what might have happened to D-J- if theRefugee Convention had indeed been applied to his case. Utilizingthe international methodology for treaty interpretation, itapplies Article 31(2) to various aspects of the Attorney General'sdecision. Part 2 argues that under the Supreme Court's CharmingBetsy rule, statutory discretion to detain must be interpretedconsistently with US international obligations. Part 3 concludesthat Article 31(2) of the Refugee Convention grants asylum seekersa right to release whenever their detention is not ‘necessary’.Part 4 proposes a three-part ‘pyramid’ approachto explain the elemental phases of the decision to detain anasylum seeker and examines necessity at each stage. Finally,Part 5 discusses Article 31(2)’s implications regardingevidence and proportion. The premise throughout is that, hadit been applied, the Refugee Convention could have protectedthe interests of both D-J- and ‘national security’.     

Sudanese refugees in Victoria: An analysis of their treatment by the Australian Government

Following a brief historical account documenting developments in Australian Immigration politics and refugee and asylum seeker policies, this paper seeks to explain why Sudanese refugees in Victoria have recently been implicated in an increased involvement in crime by politicians and the media. It will be argued that the alleged increase involvement in crime has been constructed by the Government and the media – in order to justify the Australian Government's policy responses to the refugee crisis, to create public acceptance of such policies, and additionally for political gain. These policies were part of the Australian Government's wider policies on maintaining a homogenous Australian identity and have negatively impacted minority groups. Ultimately such policies encouraged racism and segregation in local communities, thus tarnishing Australia's multicultural standing.     

Work/Family Policy in France: From State Familialism to State Feminism?

When one looks at the policies that target the relationshipbetween work and family (here labelled ‘work/family policies’),contradictory views come from France. On the one hand, the staterecognition of family interests is very strong, and was initiallyrooted in familialism, an ideology that promotes the familyas an institution, and has often played against women’srights. On the other hand, women’s – and especiallymothers’ – labour force participation has alwaysbeen relatively high compared to other western countries. Toaccount for this ‘French paradox’, this paper putswork/family policies into historical perspective, in order toanalyse them as a mix of policies coming from various publicpolicy institutions (work, education, family). While state familialismhas always been strong in France, it has been challenged andshattered by several social and political trends since the 1960s.Among these is the development of ‘state feminism’,with the creation of governmental bodies endowed with the formalmission of furthering women’s rights. Based on an empiricalstudy of these institutions, this paper shows how they reframedwork/family policy in terms of a policy of equality in employment.     

Assessing the Credibility of Refugee Applicants: A Judicial Perspective

The principal responsibility of refugee decision makers is todetermine those to whom refugee protection is owed. The mannerin which these decisions are to be made in Australia is thesubject of ongoing debate. However, that debate is not the subjectof this paper. The focus of this paper is on the credibilityassessment of refugee applicants and its principal purpose isinstructive. It is my hope that it will enhance the credibilityof credibility assessment within existing processes. Its secondarypurpose is to provide a basis from which policy makers may considerlegislative and other procedural change. It has been suggested that the ‘devil is in the detail’in refugee decision making. Working in a common law country,Australian refugee decision makers are afforded the (often binding)benefit of extensive judicial review of the refugee determinationprocess.¹ Thus, for Australian decision makers, the ‘devilin the detail’ is often to be found in a plethora of bindinglegal precedent. Accordingly, while the first part of this paperdiscusses selected matters which have facilitated the assessmentof the credibility of refugee applicants in Australia, as oneof the most authoritative domestic sources available, the secondpart of this paper principally focuses on the expressed viewsof Australian courts after examining credibility findings indecisions of the Refugee Review Tribunal.²     

Assessing Testimonial Evidence in Asylum Proceedings: Guiding Standards from the International Criminal Tribunals

Although credibility determinations rest at the core of refugeeprotection, international refugee law has failed to developa body of evidentiary principles that is tailored to the uniquedimensions of the testimony of those seeking asylum. This articleexamines recent developments in assessing oral testimony ininternational criminal law. International criminal law judges,like national asylum adjudicators, must transcend geographic,linguistic, cultural, educational and psychological barriersin order to assess the credibility of testimony. As a result,these new international courts have developed a body of principlesof international evidence law for assessing the testimony ofalleged victims of, and witnesses to, human rights abuses. Currentsocial science research on the asylum procedures in severaljurisdictions reveals that asylum decision makers often failto adapt the determination process to account for the realitiesof refugees presenting their cases in legal fora, directingproceedings with a ‘presumptive skepticism’ of claims.It is argued that the nuanced and rigourous model for the assessmentof the testimonial evidence of alleged victims and witnessesof human rights abuses in war crimes trials introduces effectiveinternational norms for the assessment of credibility in asylumproceedings.     

Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines

In 1993 the Immigration and Refugee Board of Canada adoptedguidelines entitled ‘Women Refugee Claimants Fearing Gender-RelatedPersecution’. The Guidelines represent a cutting edgeapproach and have helped to guarantee a refugee determinationprocess for women refugees that is more sensitive to gender-relatedclaims of asylum. However, the author demonstrates that theconcept of gender-based persecution, as it is presently defined,makes it difficult for members of the Board to systematicallyevaluate all types of gender-related persecution, to which certainmen and women are subjected. The author examines asylum claimsbased on sexual orientation and identity, as well as those basedon persecution specifically inflicted upon men, and argues thatthe gender-specific analytical framework adopted by the Immigrationand Refugee Board is relevant to these cases. The author concludesthat change is needed in the form of a more clearly definedsocial constructionist interpretation of gender. Clearly, defining‘gender’ as a socially constructed concept wouldreveal the gender-specific factors that interfere with the rightsof certain men and would make more visible the links betweengender and other causes of persecution, like sexual orientation.     

From the Right to Return to the Return of Rights: Completing Post-War Property Restitution in Bosnia Herzegovina

Given the numbers displaced as part of the means and methodsof the armed conflict during the war in Bosnia Herzegovina between1992–95, it is not surprising that the return processhas been long and drawn out. Nevertheless, a remarkable processof post-war reconciliation has quietly drawn to completion inBosnia Herzegovina. In less than a decade after the end of thewar, over 90 per cent of the 211,871 claims for the restitutionof real property made by internally displaced persons (IDPs) and refugees have been resolved. Annex 7 of the Dayton Agreement, The Agreement on Refugees andDisplaced Persons, provided for the return of IDPs and refugees,but it was the object of obstruction in the mid to late 1990s.However, by the middle of the first decade of the 21^st century,restitution was all but complete. The significance of this turn-aroundextends far beyond the hundreds of thousands of Bosnians whobenefited directly. It is a model, both positive and negative,for the resolution of many other conflicts around the worldin which land is a major issue. While a number of factors contributedto the dramatic acceleration of the restitution process in Bosnia,certainly the unexpected staying power — and, indeed,concerted action on property restitution — of the internationalcommunity played its part. A ‘carrot and stick’strategy manifested itself in high-profile funding, admittanceto international bodies, and the removal of obstructive officials.As this paper shall argue, the greatest factor in seeing theprocess through to the end was the shift from a process thatfocused primarily upon ethnically-linked ‘return’,sometimes at the expense of individual property rights, to onethat was driven primarily by the recognition of property rightsand the rule of law. This was possible for a number of reasons.Uniquely, international human rights conventions were incorporateddirectly into post-war Bosnian domestic law. Influenced by this,legislative amendments and changes in implementation strategyprogressively slanted the process in favour of simple, almostintuitive, rights recognition. Shifting away from the emphasison ‘return’ removed a subjective element from implementationand, combined with greater emphasis on the ‘rule of law’,narrowed the scope for the system to be manipulated and thwarted.This, thereby, de-politicised restitution.     

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

The principle of non-refoulement contains a paradox. While stateshave committed to respecting the principle by joining the 1951Refugee Convention and key human rights conventions, its contentis not established in international law. In other words, stateshave committed to a principle the content of which is indeterminate.Since no common definition exists, in practice, national andinternational bodies have extensive powers of discretion togive content to the terms ‘persecution’, ‘torture’,‘degrading’ or ‘cruel’ treatment. Thepurpose of this article is to explore non-refoulement as anopen and ambiguous concept. Acknowledgement of the indeterminacyis important, as open concepts never remain such in practicebut are always issued with content or interpreted. This approachcalls for a further question: how do interpretations come aboutand what kind of factors influence them? The conclusion of thearticle is that different national and international actorspromote their own ‘correct’ interpretations of thiskeystone of refugee protection.     

Creating Legal Space for Refugees in India: the Milestones Crossed and the Roadmap for the Future

The whole of South Asia is devoid of any standards and normson any dimension of refugee reception, determination and protection.The fact that a quarter of the world's refugees find themselvesin a non-standardized, if not hostile, refugee regime is a situationwhich does not augur well for either the mandate of UNHCR orfor any civilized society. The South Asian nations have theirown apprehensions, real or imaginary, about the utility of CSR1951 to their situations. Because of historical mishaps, politicalignorance, unstable democracies and exaggerated concern overnational security, there is hardly any motivation for, or anyenvironment in which there is a possibility for, the enactmentof national legislation. Non-governmental agencies, in their own way, have been tryingto influence the States to accede to the Convention and, also,to promulgate national laws. The most noticeable contributionis the draft national law for India, ‘Refugees and AsylumSeekers Act’, discussed and approved by the Fourth InformalConsultations on Refugees and Migratory Movement Sessions intheir Dacca Session. The draft legislation has been under considerationby the Indian government for some time but the issue, nonetheless,remains both important and urgent. There is an almost completeabsence of discussion about it in any forum, even the media.This paper is an attempt to examine the provisions of the draftlaw, insofar as it conforms to the international standards,and to show where it is found wanting. The paper also evaluatesthe competence of the draft law to answer security considerationsafter 9/11. The paper suggests suitable amendments that maymake the enactment of national law a reality, so that the voidin the international regime of refugee protection can be filledeffectively and fast.     

Justice,Morality, and the Dehumanization of Refugees

Three studies were conducted to test the role of the dehumanization of refugees (through claims that they are immoral) in determining emotional reactions to refugees, attitudes toward refugees, and attitudes toward current refugee policy in Canada. We also examined determinants of such perceptions. In Studies 1 and 2, correlational analyses and structural equation modeling were utilized. In both studies, it was demonstrated that individuals who are higher in social dominance orientation are especially likely to dehumanize refugees, and this dehumanization leads to greater contempt and lack of admiration for refugees, resulting in less favorable attitudes toward the group and toward the nation’s current refugee policy. Study 3 was an experiment in which we examined the effects of information presented about refugees on emotions and attitudes. Results demonstrated that dehumanizing media depictions of refugees as violating appropriate procedures and trying to cheat the system cause greater contempt and lack of admiration for refugees in general, which in turn lead to less favorable attitudes toward the group and less support for the current refugee policy. Results are discussed in terms of the functions that dehumanization may serve, and potential strategies for counteracting such effects. Preparation of this article was supported by a Social Sciences and Humanities Research Council of Canada grant to the first author. Portions of this research were presented at the 2005 EAESP Small Group Meeting on Social Justice and Intergroup Conflict, Lisbon, Portugal, and at the 2005 Meeting of the European Association of Experimental Social Psychology, Wurzburg, Germany     

New developments in Belize Laws and Regulations affecting Trusts and Service Providers

The months of April and May 2007 have seen the enactment oftwo new pieces of legislation and one set of regulations. InJune 2007 the Regulations governing the Trust (Amendment) Act2007 and the International Financial Services Commission (Amendment)Act 2007 were passed. ‘The Trust and Company Services Providers (Best Practices)Regulations 2007’ were published in the Belize Gazetteon 7 April and came into force on 16 April. ‘The Trusts (Amendment) Act 2007’ and ‘TheInternational Financial Services Commission (Amendment) Act2007’ were signed on 30 May and were both published inthe Belize Gazette on 2 June. The regulations for these two, ‘The International TrustsRegulations 2007’ and ‘International Financial ServicesCommission (Licensing) Regulations 2007’ were enactedon     

From Benchmarking to Final Status? Kosovo and The Problem of an International Administration's Open-Ended Mandate

This contribution examines certain inherent shortcomings ofan ‘open-ended’ institution-building operation forwhich the future status of the entity in statu nascendi remainsundecided. It first addresses the policy of conditionality throughwhich Kosovo’s international administration attempts tomeasure the performance of local institutions against imported‘standards’. The external representation functionof an international administration acting on behalf of a non-stateterritorial entity, as an agent of necessity, is then analysed,considering recent and little-known developments and suggestingthat UNMIK’s practice supports the argument that ‘internationalized’territories possess limited legal personality. Turning ‘inward’to a sphere of domestic governance, the contribution highlightssome of the problems encountered with regard to the privatizationof public assets in Kosovo. Here, it argues that UNMIK is awkwardlycaught between the pursuit of both the interests of the territoryunder its administration and the collective interest of theorganized international community – two sets of interestswhich can collide head-on. The article concludes by suggestingthat an international territorial agent should not, as a rule,attempt to mediate a solution, but endeavour to represent theterritory in good faith.

‘You gave us freedom, but not a future’.¹

     

The Impact of Information Technology Development on the Legal Concept A Particular Examination on the Legal concept of 'Signatures'

This paper intends to explore the impact of Information technology(IT) development on the legal concept of ‘signatures’.To what extent and in which way does it impact on the legalconcept of ‘signatures’? This paper attempts toexamine this issue from an international and comparative perspective.It was found that IT development has different levels of impacton the legal concept of ‘signatures’ in differentjurisdictions. In the Common Law system such as the UK and theUS, it does not change the legal concept of ‘signatures’.However, it does put the legal concept on such an importantposition. On the contrary, IT development changes the legalconcept of ‘signatures’ in the Civil Law systemsuch as Germany and China.     

Trustees beware: submit with care

The Royal Court of Jersey has recently heard an interestingapplication reported in Jersey as In the Matter of CI Law TrusteesLimited and Folio Trust Company Limited as Trustees of the FountainTrust [2005 JRC099]. The case concerned an application for directions by CI Law TrusteesLimited (the ‘Trustee’) seeking directions as tohow to respond to a judgement of the Family Division of theHigh Court of Justice in England and Wales setting aside a Jerseylaw trust (the ‘Trust’) as a sham, and orderingthe Trustee to transfer the Trust assets to the petitioner inthe English matrimonial proceedings (the ‘Wife’).     

Equity and Conscience

This article argues that the peculiarly ‘common law tradition’separation of common law and equity had at its origins a principledbasis in the concept of ‘conscience’. But ‘conscience’here did not mean primarily either the modern lay idea, or the‘conscience’ of Christopher St German's exposition.Rather, it referred to the judge's, and the defendant's, privateknowledge of facts which could not be proved at common law becauseof medieval common law conceptions of documentary evidence andof trial by jury. The concept of a jurisdiction peculiarly concernedwith this issue allowed the ‘English bill’ procedureto be held back to a limited subject area rather than—asin Scotland and the Netherlands—overwhelming the old legalsystem. By the later 17th century, however, the concept of consciencehad lost its specific content, leaving behind the problem, stillwith us, of justifying the separation of ‘equity’.     

The Myth of 'Rebalancing' Retaliation in WTO Dispute Settlement Practice

It is generally assumed that trade retaliation under the WTOperforms some kind of ‘rebalancing’ by allowingthe injured Member to suspend ‘concessions and obligations’vis-à-vis the violating Member of a level equivalentto the level of ‘nullification and impairment’ sufferedby the injured Member. This article argues that this perceptionis misguided. The article first questions if a sensible comparatorexists with which equivalence for purposes of ‘rebalancing’could be evaluated. It then argues that WTO arbitration decisionsdo not even succeed in their limited goal of providing for retaliationthat will affect trade in the same amount as the WTO-inconsistentmeasure at issue. One reason is the use of an asymmetric andunderspecified trade effects comparator. The other reason isvery significant miscalculation of the trade effects of theviolation, as shown by detailed legal-economic analysis of allrelevant arbitration decisions. The decisions concerning countermeasuresagainst prohibited export subsidies do not make any attemptat ‘rebalancing’ in the first place. The articleconsiders political explanations of arbitration decisions. Itconcludes with some suggestions for improvement.