The module seeks to provide post-graduate students studying international human rights law with an overview of the international legal system of refugee protection and examines the challenges to human rights protection in the context of that system.
Mr. Peter Fitzmaurice
Dr. Ciara Smyth
Irish Centre for Human Rights Room 109
School of Law, Room 403, Floor 2, Tower 2, Main concourse
To be confirmed
ICHR seminar room
Overall Learning Outcomes
By the end of the course, the student should be familiar with and be able to critically evaluate the universal and regional systems of refugee protection and selected international and national systems of human rights norms dealing with asylum seekers and refugees.
The course will be taught by 12 weekly seminars, conducted over three hours. Attendance is required. Students will be given a detailed outline of all the seminars with the assigned readings for the course. Students are encouraged to express their understandings/views and engage in active discussion. Guest speakers will contribute to some of the seminars.
All LLM Programmes at the Irish Centre for Human Rights.
Course material will be distributed by compact disc at the beginning of the course. A course web is available at http://blackboard.nuigalway.ie
There is no one single text that covers all the material for this seminar. The following will be of use, but are not compulsory texts:
Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law 3rd ed (Oxford: Clarendon Press, 2007);
International Law Journals, weekly readings (see below). Website – www.refworld.org
Evaluation is undertaken principally by means of an essay which should demonstrate significant research and should critically engage with the literature in the chosen field. Essays length is limited to 10,000 words and essays over the limit will be penalised. However, 20% of the final mark will come from a group presentation to be conducted in class. Students will be fully advised about the procedure for the group presentation at the first seminar.
All relevant legal instruments are readily available on internet. They can be consulted as needed or downloaded if you prefer. See refworld site of UNHCR: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain
The principal journals are:
European Journal of Migration and Law
International Journal of Refugee Law
Journal of Refugee Studies
Refugee Survey Quarterly Other relevant journals include:
American Journal of International Law
Most of these periodicals are available in the university library. The collection is supplemented with on-line journals available through J-Store and Hein On-Line, to which all registered students have access via the website.
The following is an outline of the topics to be covered in the course.
This course provides an overview of international refugee protection, examining Ireland, Europe and the World. Central to this is an examination of the 1951 Refugee Convention and the Protocol of 1967. The course explores the concept of 'international protection', asking who is a refugee? What status does a refugee get? Who is excluded from protection? Are these instruments still adequate for refugee movements in the 21st century? It aims to develop a critical understanding of the policy behind refugee law, and to develop a practical understanding of the implications of refugee law.
It further examines the notion of complementary protection (how human rights law has expanded States' protection obligations), the role of the United Nations High Commissioner for Refugees, the causes of and possible solutions to refugee flows, and the political and ethical issues concerning refugees and other forced migrants, including people trafficking and smuggling.
It also examines strategies that countries have adopted in an attempt to deter asylum seekers, such as detention, interdiction, deflection, and temporary protection, as well as legal constructs devised to shift responsibility to other States, such as the concepts of 'safe third country', 'internal flight alternative' and the process in Europe under the Dublin Regulation system.
It undertakes a comparative analysis of practices in the European Union and examines the situation and in regions such as Africa, Asia and Latin America. Contemporary protection concerns, such as mass influx, flight from general violence and civil war, internal displacement, and 'climate-change refugees' are also addressed.
Course outline by week:
Seminar 1: Introduction: Understanding “Protection” and what is a “Refugee”?
This introductory seminar considers issues that lie at the foundation of the concept of refugee deriving from the general relationship between state and the individual, whether citizen, national or alien.
What of the obligation of a state or society to admit the ‘stranger’.
What is the rationale for borders and migration control?
What do we understand by the expression ‘asylum’?
We also examine core concepts such as refugee, asylum-seeker, internally displaced, refoulement, etc.
J. Hathaway, ‘A Reconsideration of the Underlying Premise of Refugee Law’ (1990) 31 Harvard International Law Journal 129–147.
A. Edwards, ‘Human Rights, Refugees, and the Right “To Enjoy” Asylum’ (2005) 17 International Journal of Refugee Law 293-330.
M.T. Gil-Bazo, ‘‘The Charter of Fundamental Rights of the European Union and the Right to be Granted Asylum in the Union’s Law’ (2008) Refugee Survey Quarterly, 27(3), 33-52.
Seminar 2: The history of international protection and the United Nations High Commissioner for Refugees This seminar considers the evolution of the international refugee regime and the work of the United Nations High Commissioner for Refugees.
Three major phases of the evolution of the international refugee legal regime.
Policy responses to different types of migration.
The role of the UN High Commissioner for Refugees.
Recommended readings: P. Fitzmaurice, ‘Between the Wars: the 1933 Refugee Convention a contemporary analysis’ in D. Keane and Y. MacDermot (eds) The Challenge of Human Rights, (Elgar 2012).
J. Hathaway ‘The Evoultion of Refugee Status in International Law, 1920 – 1950,’ (1984) 33 International and Comparative Law Quarterly 348
G. Loescher, ‘The Origins of the International Refugee Regime’, in Beyond Charity: International Co-operation and the Global Refugee Crisis (Oxford: Oxford University Press, 1993), pp. 32–55W. Kälin, ‘Supervising the 1951 Convention on the Status of Refugees: Art. 35 and Beyond’, in E. Feller, V. Türk, and F. Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge: Cambridge University Press, 2003), pp. 613–666.
Seminar 3: The international law framework for protection of refugees – the 1951 Convention: Inclusion In this seminar we begin to examine the 1951 Convention in great detail.
What is the right to non-refoulement?
What does 'persecution' mean?
How is the ‘validity’ of the fear determined?
When is fear well-founded?
What is state protection?
Persecution must be on account of race, religion, nationality, membership of a particular social group or political opinion. What do these grounds mean and how is the link to persecution established?
UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’, HCR/IP/4/Rev.3, 2011
G. Goodwin-Gill and J. McAdam, The Refugee in International Law (Oxford: Oxford University Press, 2007), Chapter 3.
J. Hathaway, The Rights of Refugees under International Law (Cambridge: Cambridge University Press, 2005), Chapter 4.
Seminar 4: The international law framework for protection of refugees – the 1951 Convention: Barriers to inclusion In this seminar we continue our examination of the 1951 Convention and focus on the barriers
Issues such as proof and credibility in the context of the asylum determination process.
How does proof in an asylum context relate (if at all) to burdens in civil or criminal law contexts?
What peculiarities of the asylum-seekers situation are problematic in the context of the typical determination process of interview/hearing/appeal.
Some claimants are excluded because they are already receiving protection from other UN agencies, such as UNRWA.
Those claimants residing in another state with the rights and obligations of a national of that state are also excluded.
Exclusion for reasons of past behaviour.
Cessation of refugee protection.
M. Gallagher, S.J. ‘Soldier Bad Boy: Child Soldiers, Culture and Bars to Asylum’ (2001) 13 International Journal of Refugee Law 310.
UNHCR Guidelines on International Protection No. 5, available in the UNHCR Handbook (see above)
M. Kagan, ’Is Truth in the Eye of the Beholder? Objective Credibility Assessment in
Refugee Status Determinations’, (2003) 17 Georgetown Law Journal 367.
E. Cameron ‘Refugee Status Determination and the Limits of Memory’, (2010) 22(4) International Journal of Refugee Law, 469-511.
Seminar 5: International human rights law and non refoulement
In this seminar we examine how international human rights law has developed a separate, complementary prohibition of refoulement in the context of torture and inhuman or degrading treatment or punishment. Non-refoulement in human rights law is both broader and narrower than in Refugee Law: broader in that an applicant does not have to demonstrate that the treatment feared is on account of race, religion, nationality, membership of a particular social group or political opinion; narrower in that the standard of proof is probably higher and the right of non-refoulement does not confer any status or rights – other than the right not to be returned – on the applicant.
The definition of torture and other ill-treatment.
International human rights instruments of relevance to asylum seekers and refugees, notably Article 3 European Convention on Human Rights, Article 3 Convention Against Torture and Article 7 International Covenant on Civil and Political Rights.
Complementarity between 1951 Geneva Convention and other human rights instruments.
International monitoring bodies and their protection-related practices.
Substantive and procedural human rights guarantees afforded to asylum-seekers by the ECHR.
Recommended Reading M. den Heijer, ‘Whose Rights and Which Rights? The Continuing Story of Non Refoulement under the European Convention on Human Rights’, European Journal of Migration and Law (2008) 10(3).
G. Goodwin-Gill and J. McAdam, The Refugee in International Law (Oxford: Oxford University Press, 2007), Chapter 6.
S. Persaud, ‘Protecting Refugees and Asylum Seekers under the International Covenant for Civil and Political Rights’, New Issues in Refugee Research Series, Research Paper No. 132, UNHCR (November 2006), pp. 1–33.
Seminar 6: International human rights law: treatment of asylum seekers and refugees Apart from the non-refoulement guarantee, human rights law provides a number of important guarantees for asylum seekers such as the right to fair procedures, the right to family reunification and right to liberty (i.e. the right not to be arbitrarily arrested or detained). This seminar begins with a brief overview of the right to fair procedures and family reunification before focusing on the right to liberty. It is an unhappy fact that many asylum seekers are routinely detained, either when they attempt to enter the state, when they make an asylum application or prior to deportation following a negative asylum decision. Human rights law does not prohibit asylum detention per se, but establishes a number of criteria and safeguards to ensure that detention is not arbitrary or unlawful and that detained persons are properly treated while in detention.
A right to fair asylum procedures?
The right to family reunification
The right to liberty
The prohibition of arbitrariness
The prohibition of unlawfulness
Standards relating to treatment in detention
N. Mole, Asylum and the European Convention on Human Rights (Strasbourg: Council of Europe Publishing, 2007).
D. Wilsher, ‘The Administrative Detention of Non-Nationals Pursuant to Immigration Control: International and Constitutional Law Perspectives’ International and Comparative Law Quarterly (2004) 53, 897-934.
C.Smyth, ‘Is the right of the child to liberty safeguarded in the Common European Asylum System’, currently in peer-review – to be provided but NOT FOR CITATION
Seminar 7: The European Context –the Common European Asylum System
Refugee and asylum have long featured on the EU agenda. This seminar considers key issues relating to the trends, possibilities and requirements of an emerging EU policy on refugees and asylum. The scale of applications (peaking at 400,000 asylum applications within the EU in 2000) have put “harmonisation” and “burden sharing” on the EU agenda.
Intergovernmental co-operation before Amsterdam.
The ‘communitarisation’ of asylum under the Treaty of Amsterdam.
Phase one of the Common European Asylum System (CEAS): minimum standards.
Phase two of the CEAS: an evaluation of the phase one instruments and adoption of amended instruments based on common standards.
Phase three CEAS: the external dimension of asylum.
Recommended readings: Green Paper on the Future Common European Asylum System, Commission Communication COM (2007) 301 final of 6 June 2007.
Teitgen-Colly ‘The European Union and Asylum: An Illusion of Protection’, Common Market Law Review(2006) 43, 1503-1566.
E. Guild, ‘The Europeanisation of Europe’s Asylum policy’, International Journal
of Refugee Law (2006) 18, 630–651.
R. Byrne, G. Noll and H. Vedsted Hansen ‘Understanding Refugee Law in an Enlarged European Union’, European Journal of International Law (2004) 15(2), 355-379.
We continue our examination of the Common European Asylum System. At its core, the system is made up of four directives and a regulation: the Reception Conditions Directive, which governs the treatment of applicants for international protection in terms of housing and subsistence; the Asylum Procedures Directive, which lays down minimum standards for processing asylum claims and claims for subsidiary protection, but which consists mainly of extraordinary procedures for speeding up or denying applicants access to the procedure; the Qualification Directive, which elaborates on the elements of the refugee definition laid down in the 1951 Convention and establishes, for the first time, the status of subsidiary protection – a form of complementary protection, while also outlining the rights to which refugees and beneficiaries of subsidiary protection are entitled; the Temporary Protection directive which establishes an extraordinary protection procedure in the event of a mass influx; and finally the ‘Dublin system’ which allocates responsibility for processing an asylum claim to one – and only one – Member State. At the time of writing, each of these instruments with the exception of the Temporary Protection directive has just been amended. This seminar is devoted to an exploration and critique of the instruments that make up the CEAS.
What is the core content of the five instruments and how have they been interpreted by the Court of Justice of the EU?
Has phase one of the CEAS lead to an increase in standards in the EU or a ‘race to the bottom’?
Is phase two CEAS an improvement on phase one from a protection point of view?
Focus on the Dublin Regulation
Recommended readings: V. Moreno-Lax, ‘Dismantling the Dublin System: MSS v Belgium and Greece’, European Journal of Migration and Law (2012) 14, 1-31.
C. Costello, ‘The European Asylum Procedures Directive in Legal Context’, UNHCR (2006) New Issues in Refugee Research, Paper No. 134.
H. Lambert (2006) ‘The EU Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom and International Law’, International and Comparative Law Quarterly (2006) 55, 161-192
Seminar 9 : Refugee law in Ireland In the following seminar we examine current issues in the Irish refugee context.
The short history of refugee protection in Ireland.
The legislative and administrative basis for refugee protection in Ireland.
The distraction of the ‘Irish born child’ controversy and the 2004 citizenship referendum.
Ireland’s position viz a viz the Common European Asylum System.
Contemporary issues in public policy
Recommended reading: U. Fraser and C. Harvey (eds). Sanctuary in Ireland: Perspectives on Asylum Law and Policy. Dublin: Institute of Public Administration (2003).
S. Mullally ‘Separated Children in Ireland, Responding to ‘Terrible Wrongs’, International Journal of Refugee Law (2011) 23(4), 632-655.
Seminar 10: Refugees in the global South The course focuses on the European context of refugee protection. However it must be remembered that the vast majority of the world’s refugees live in the global South. In this seminar we examine international refugee protection in the global South.
The role of UNHCR
Status determination in situations of mass influx
Regional instruments such as OAU Convention
Protection and mass repatriation
Recommended reading: R. Amit, No Refuge: Flawed Status Determination and the Failures of South Africa's Refugee System to Provide Protection, International Journal o Refugee Law (2011) 23(3): 458-488
A. Edwards: Refugee Status Determination in Africa, 2006, African Journal of International & Comparative law, Vol. 14, pp. 204-233, 2006
M. Kagan, We Live in a Country of UNHCR: The UN Surrogate State and Refugee Policy in the Middle East (The UN Refugee Agency: Policy Development & Evaluation Serv., Research Paper No. 201, 2011). Seminar 11: International protection for those fleeing conflict Given the origin of the modern refugee regime in the events of the Second World War, it seems a paradox that national determination systems implementing international refugee law have traditionally been reluctant to accept the claims for refugee status of those fleeing armed conflict. In North America and Europe, state practice and jurisprudence in the application of Article 1(A)(2) of the 1951 Refugee Convention have traditionally adopted a highly individualized approach, requiring evidence of fear of a more targeted and personalised violence from those seeking protection.
Recognising that the majority of persons forced to leave their state of nationality today are fleeing the indiscriminate effect of hostilities, subsequent regional refugee instruments in Africa and South America have expanded their definitions to include persons fleeing armed conflict. In addition, and more recently, the influence of international human rights on the right to non-refoulement has led to the rise of the concept of complementary protection – that is the protection offered by States to persons who need international protection but fall outside the legal definition of a refugee under the 1951 Convention. A good example of this is the Article 15 (C) provision of the EU Qualification Directive. In this seminar we examine the right to non-refoulement of those fleeing armed conflict and indiscriminate violence.
Recommended Reading H. Lambert/T. Farrell, The Changing Character of Armed Conflict and the Implications for Refugee Protection Jurisprudence, International Journal of Refugee Law 22 (2) (2010) 237.
H. Storey/R. Wallace War and Peace in Refugee Law Jurisprudence. The American Journal of International Law, Vol. 95, No. 2 (Apr., 2001), 349-366.
UNHCR, Safe at last – Law and practice in selected EU Member States with respect to asylum seekers fleeing indiscriminate violence.
Seminar 12: Emerging issues in international protection In this seminar students will be given an opportunity to collectively identify one or two topics for discussion relating to emerging issues in international protection. Below are a list of possible topics.
Internally displaced persons.
Child asylum seekers
Counter-terrorism and international refugee law.
Regional protection regimes in Africa, Asia and the Americas.