Table Of ContentTHE NEW ASYLUM SEEKERS: REFUGEE LAW IN THE 1980s
International Studies in Human Rights
VOLUME 10
The New Asylum Seekers:
Refugee Law in the 1980s
The Ninth Sokol Colloquium
on International Law
Edited by
DAVID A. MARTIN
Professor of Law
University of Virginia
Springer Science+B usiness Media, B. V.
Library of Congress Cataloging in Publication Data
Sokol Colloquium (9th : 1986 : University of Virginia
School of Law)
The new asylum seekers.
Includes index.
1. Refugees, Political--Legal status, laws, etc.--
Congresses. 2. Asylum, Right of--Congresses. I. Martin,
David A., 1948- II. Title.
K3230.R45A55 1986 342'.083 88-15168
342.283
ISBN 978-94-017-6391-2 ISBN 978-94-017-6389-9 (eBook)
DOI 10.1007/978-94-017-6389-9
All rights reserved
© Springer Science+B usiness Media Dordrecht 1988
Originally published by Kluwer Academic Publishers in 1988
Softcover reprint of the hardcover 1st edition 1988
No part of the material protected by this copyright notice may be reproduced or utilized in any
form or by any means, electronic or mechanical, including photocopying, recording, or by any
information storage and retrieval system, without written permission from the copyright owners.
TABLE OF CONTENTS
Preface vii
Contributors XV
INTRODUCTION 1
The New Asylum Seekers
David A. Martin
I. JET-AGE REFUGEES: IRREGULAR MOVEMENTS AND GOVERNMENT
RESPONSES
Irregular Movements: The Concept and Possible Solutions 23
Gilbert Jaeger
"Jet-Age Refugees": Search of Balance and Cooperation 49
Michie} den Hond
Reflections on the U.S. Refugee Act of 1980 57
Doris Meissner
United States Asylum Policy 67
Laura J. Dietrich
The Country of "First Asylum": Some European Aspects 73
E.W. Vierdag
II. NEW APPROACHES WITHIN AND WITHOUT THE LAW
The Principle and Practice of Temporary Refuge: A Custo- 87
mary Norm Protecting Civilians Fleeing Internal Armed Conflict
Joan Fitzpatrick Hartman
Nonrefoulement and the New Asylum Seekers 103
Guy S. Goodwin-Gill
vi
Nonrefoulement and "Humanitarian" Refugees: 123
Customary International Law or Wishful Legal Thinking?
Kay Hailbronner
Sanctuary: A Comment on the Ironic Relation Between Law and 159
Morality
Tom Gerety
The New Asylum Seekers: Addressing Their Origin 181
Jack I. Garvey
APPENDIX
Selected Conclusions on the International Protection of 195
Refugees, Adopted by the Executive Committee of the High
Commissioner's Programme
INDEX 209
PREFACE
In the 1980s, the venerable institution of political asylum is facing
profound challenges, particularly in Western nations. Unprecedented num-
bers of asylum seekers are coming from distant countries, invoking, once
they arrive, often lengthy and complicated procedures in order to claim
protection against return to their homelands. These new challenges have
evoked a wide range of reactions from government officials, lawyers, scho-
lars, private citizens, and the Office of the United Nations High Com-
missioner for Refugees (UNHCR).
In April 1986, the University of Virginia School of Law hosted a collo-
quium in Charlottesville, with the generous support of the Gustave Sokol
Fund, to address the many legal and political issues raised by these develop-
ments. The participants were drawn from the ranks of government officials,
UNHCR staff, and scholars, and they came from both Europe and North
America. This volume consists of essays that were first delivered at that
colloquium. In the months since then, of course, there have been many new
developments involving asylum seekers, but none that affect significantly the
basic themes or points presented. Most of the authors have been able to do
a modest amount of updating to take account of recent developments, but
the papers maintain their principal focus on the situation as of the time of
the conference.
This volume also includes a brief documentary appendix, reprinting some
of the most important Conclusions on International Protection adopted by
the Executive Committee of the High Commissioner's Programme over the
past decade. These Conclusions, mentioned frequently in the essays in this
book, provide an important source of guidance on evolving refugee doctrine
or recommended practice. Nevertheless, they are often less accessible to the
David A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s.
ISBN 978-94-017-6391-2.
© 1988, Kluwer Academic Publishers, Dordrecht
Vlll
public than the more familiar texts of refugee law; hence their reproduction
in the appendix.
A preliminary tour. A few more introductory words may be in order. The
Introduction and the paper by Gilbert Jaeger provide sketches of the factual
background, describing the phenomenon of the new asylum seekers and the
reactions of the receiving states. They then proceed to offer varying
approaches toward solutions. The Introduction concentrates on the reasons
why Western publics find the new situation so difficult and why governments
resort increasingly to deterrent measures and restrictive practices. It also
tenders suggestions for how refugee advocates and government officials
might break out of this vicious circle, which now deals out harsh treatment
indiscriminately, to deserving refugees and undeserving abusers of the sys-
tem alike.
Gilbert Jaeger, the author of an important UN study on "irregular move-
ments" of asylum seekers, gives primary attention to a different aspect of the
problem. That study was prompted by the concerns of Western nations that
a great many of the new asylum seekers were reaching their borders - or
airports - in an irregular fashion. But because virtually all asylum seekers
travel in an irregular manner at some point in their flight, it is important to
be very clear about what constitutes an "irregular movement" in this pejora-
tive sense. Summarizing the conclusions of his study, Jaeger argues persua-
sively that movements should be counted as a irregular only if the asylum
seekers leave a country of first asylum, not merely a transit country, in which
they have enjoyed an adequate measure of "protection." There appears to
be wide acceptance of this general statement, but that acceptance masks two
possible areas of dispute, and the reader should not miss those points: What
constitutes sufficient "protection" in the first country? What is mere "tran-
sit"?
As to "protection," Jaeger offers a helpful four-part scheme for assessing
an asylum seeker's situation in the country in which he first arrives. The host
country's provisions may range from mere shelter, without even a guarantee
against eventual repatriation, all the way up to the full panoply of benefits
that we associate with durable asylum. Jaeger suggests that a fairly ample
measure of benefits should be required before counting any further move-
ment as irregular - a view that would maximize the free choice of the asylum
seeker to move onward.
On this point, the principal response to Jaeger's position may be found
in the paper by Michiel den Hond, who is head of the Asylum Section of
the Foreign Ministry of the Netherlands and who has played a significant
role in UN and European deliberations on these matters. He argues
implicitly for a lower threshold for recognizing that "protection" exists in a
IX
first-asylum country, with the result that more movements away are likely
to be counted as irregular. Den Hond also introduces a most important
concept when he speaks of a "division of labor" in refugee matters. The
world can derive maximum benefit, he suggests, from the limited resources
available for refugee aid and assistance if the various governments involved
furnish what each is best suited to provide. In general, developing countries
are better positioned to provide camps or other accommodations in an
economical fashion for refugees from nearby developing countries; support
of such individuals becomes considerably more expensive if instead they
move on their own to industrialized nations - to the ultimate detriment of
the broader refugee group from whom resources will then be diverted. The
major function of the industrialized nations, on the other hand, is to provide
large amounts of aid and assistance, and also, selectively, to provide
resettlement opportunities as appropriate. This scheme can be knocked
askew, den Hond contends, by enterprising asylum seekers who, in an
understandable quest for a better individual outcome, move on their own to
the developed countries and thereby undermine the world community's
efforts to find the optimum solution for refugee populations as a whole. Den
Hond thus argues for doctrines that would help assure that asylum seekers
ordinarily remain in the first country in which they arrive, assuming only that
they have achieved a minimum level of protection there. His paper may also
be seen as a challenge to UNHC R to play a larger role in discouraging
onward movements in such circumstances, and perhaps also to help
developed countries secure the return of the individuals involved to the
territory of reluctant Third World asylum nations.
The second definitional issue suggested by Jaeger's presentation- what
constitutes "transit"? - is further addressed in the otherwise quite different
essays of Laura Dietrich, at the time of the conference a Deputy Assistant
Secretary in the U.S. Department of State, and E. W. Vierdag, a member
of the faculty of law at the University of Amsterdam and a recognized
authority on refugee matters. Both speak of the so-called "principle of the
country of first asylum" (Vierdag at some length, Dietrich in the course of
making other points). The debates over this principle are in essence debates
over the concept of transit. When should an asylum seeker be considered
to be merely in transit, and hence not expected to apply for durable asylum
in the first country reached after flight from the homeland? Or to put it
another way, how long a stay is required, and under what circumstances,
before he is considered, instead, the responsibility of that first country?
Dietrich reflects the view of most American officials in her references to what
she regards as a well-established principle offrrst asylum, one that mandates
application for protection in the first country of arrival in almost every
circumstance. Vierdag, in contrast, describes the remarkable diversity of
