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Socioeconomic Rights and Refugee Status: Deepening the Dialogue Between Human Rights and Refugee Law

Published online by Cambridge University Press:  27 February 2017

Fatma E. Marouf  and
Deborah Anker
Fatma E. Marouf
Affiliation:
Marouf Law Group, PLC
Deborah Anker
Affiliation:
Harvard Law School
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Type
Recent Books on International Law
Information
American Journal of International Law , Volume 103 , Issue 4 , October 2009 , pp. 784 - 796
Copyright
Copyright © 2009 by The American Society of International Law

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References

1 Deborah, E. Anker, Refugee Law, Gender and the Human Rights Paradigm, 15 Harv. Hum. Rts. J. 133, 136 (2002)Google Scholar; see also James, C. Hathaway, The Law of Refugee Status (1991)Google Scholar; Jane, Mcadam, Complementary Protection In International Refugee Law 29–33 (2007)Google Scholar (examining the human rights foundations of the Refugee Convention, infra note 2, and discussing it a specialist human rights treaty).

2 Convention Relating to the Status of Refugees, Art. 1A(2), July 28, 1951, 189 UNTS 150 amended by Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267 [hereinafter Refugee Convention].

3 Hathaway, supra note 1, at 104–05 (providing pioneering analysis of persecution).

4 See Anker, supra note 1, at 138.

5 See, e.g., Zachary, A. Lomo, Book Review, 21 J. Refugee Stud. 401, 403 (2008)Google Scholar (reviewing Michelle Foster, International Refugee Law And Socioeconomic Rights: Refuge From Deprivation (2007)) (misleadingly stating that Foster attempts “to convert economic deprivation . . . into a new independent reason for eligibility”); Rebecca, Heller, Book Review, 33 Yale J. Int’l L. 516, 517 (2008)Google Scholar (reviewing Michelle, Foster, International Refugee Law And Socioeconomic Rights: Refuge From Deprivation (2007)Google Scholar) (mischaracterizing Foster’s analysis as advocating “systematic relaxation” of the requirements of the Refugee Convention).

6 See, e.g., Guy, S. Goodwin–Gill & Jane, Mcadam, The Refugee Under International Law 15 (3d ed. 2007)Google Scholar (noting that “‘economic refugees’— the term has long been disfavoured . . . are not included” in the concept of a refugee); see also Debo Rah E. Anker, Law of Asylum In The United States 233 (3d ed. 1999) (“Although the refugee definition does not embrace voluntary economic migrants, a person who has left his country for both political and economic reasons should not be barred from asylum. . . .”).

7 See Refugee Convention, supra note 2, and accompanying text. This is the standard method of analysis. See generally Hathaway, supra note 1; Goodwingill & Mcadam, supra note 6.

8 See, e.g., Unhcr Division of International Protection, Gender–Related Persecution: An Analysis of Recent Trends, 9 Int’l J. Refugee L. (Special Issue) 79, 82–83 (1997)Google Scholar; Mark, Symes, Caselaw on The Refugee Convention: The United Kingdom’s Interpretation In The Light of The International Authorities 70 (2000)Google Scholar (“The dominant trend of the authorities is to accept the human rights approach.”); Dirk, Vanheule, A Comparison of the Judicial Interpretations of the Notion of Refugee, in Europe and Refugees: A Challenge? 91–106 (Jean–Yves, Carlier & Dirk, Vanheule eds., 1997)Google Scholar (studying the judicial interpretation of the refugee definition in 5000 cases from 13 European countries, Canada, and the United States, and finding that “the only essential criterion applied, either expressly or implicitly, by the courts appears to be the disproportional or discriminatory violation of basic human tights for one of the reasons mentioned in the Geneva Convention”); Anker, supra note 1, at 135; Hathaway, supra note 1, at 106; Goodwin– Gill & Mcadam, supra note 6, at 285–384. For criticisms of the human rights approach, see, e.g., Daniel, J. Steinbock, Interpreting the Refugee Definition, 45 Ucla L. Rev. 733, 782 (1998)Google Scholar; Niraj, Nathwani, Rethinking Refugee Law 21, 76–77 (2003)Google Scholar; Daniel, Wilsher, Non–State Actors and the Definition of a Refugee in the United Kingdom: Protection, Accountability or Culpability, 15 Int’l J. Refugee L. 68, 98 (2003)Google Scholar.

9 See Vienna Convention on the Law of Treaties, Art. 31(3)(c), opened for signature May 23, 1969, 1155 UNTS 331 (requiring interpretation to take into account “any relevant rules of international law applicable in the relations between the parties”).

10 James, C. Hathaway, The Rights Of Refugees Under International Law 4 (2005)Google Scholar.

11 Id. at 5.

12 Hathaway, supra note 1, at 106.

13 See, e.g., James, C. Hathaway, The Relationship Between Human Rights and Refugee Law: What Refugee Judges Can Contribute, in The Realities of Refugee Determination on The Eve of A New Millennium: The Role of The Judiciary 80, 86 (1999)Google Scholar.

14 Id.

15 Id.

16 Id.

17 Id.

18 Many scholars advocate a cautious approach to enforcing economic and social rights in general. See, e.g., James, L. Cavallaro & Emily, J. Schaffer, Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas, 56 Hastings L.J. 217, 219 (2004)Google Scholar (arguing that “successful promotion of economic, social, and cultural rights in the Inter–American system should be incremental, firmly grounded in established precedent, and always linked to vigorous social movements and effective advocacy strategies”).

19 See Jean–Yves, Carlier, General Report, in Who Is A Refugee? A Comparative Case Law Study (Jean–Yves, Carlier, Dirk, Vanheule, Klaus, Hullman & Galiano, Carlos Pena eds., 1997)Google Scholar.

20 Violation of the first tier, consisting of rights in the Universal Declaration of Human Rights (UDHR) that were made immediately binding in the International Covenant on Civil and Political Rights (ICCPR), always constitutes persecution. Violation of the second tier, consisting of rights in the UDHR that are codified in ICCPR but allow for derogation during public emergency, generally constitutes persecution unless derogation was strictly required, nondiscriminatory, and consistent with other aspects of international law. Violation of the third tier, consisting of rights in the UDHR that are codified in the ICESCR, constitutes persecution if the state ignores these interests despite the fiscal ability to respond, if the state discriminates, or in cases of an extreme violation that is tantamount to deprivation of life or cruel, inhuman, and degrading treatment. Finally, violation of the fourth tier, consisting of rights in the UDHR that are not codified in either the ICCPR or the ICESCR, is not usually sufficient to constitute persecution because these rights are not subject to a binding legal obligation. See Hathaway, supra note 1, at 109.

21 Foster cites numerous decisions that misinterpret Hathaway’s analysis. For example, in the seminal Gashi decision, the UK Immigration Appeal Tribunal noted the “four distinct types of obligations in a hierarchy of relative importance,” a phrase that has been repeated in numerous subsequent UK decisions. Gashi v. Sec’y of State for Home Dep’t, Appeal No. HX/75677/95 (13695) (Immigr. App. Trib. 1996) (unreported), [1997] Immigr. &Nat’lity L. Rep. 96, 100; see also Hotvath v. Sec’y of State for Home Dep’t, [2001] 1 A.C. 489 , para. 48 (H.L.) (appeal taken from Eng.) (“In an attempt to classify the gravity of the breaches of the human rights, Hathaway proposed the helpful division into four categories.”).

22 The notion that retrogression violates a state’s obligations under international law is not purely theoretical and has been recognized in other contexts. The Colombian Constitutional Court, for example, has long held that “all retrogression is presumptively unconstitutional and therefore subject to strict scrutiny.” Yamin, Alicia Ely, Beyond Compassion: The Central Role of Accountability in Applying a Human Rights Framework to Health, 10(2) Health and Human Rights J. 1, 12 & n.89 (2008)Google Scholar (citing C 251/97, Segunda, Sala de Revisión, Constitutional Court of Colombia, 1997)Google Scholar. Consequently, when Colombia’s government sought to reduce drastically spending on the Subsidized Health Insurance Scheme, the Constitutional Court found that die cutbacks violated the law. Id. at 12 & n.90 (citing C 1165/2000, Segunda Sala de Revisión, Constitutional Court of Colombia, 2000; C 040/2004 Segunda Sala de Revision, Constitutional Court of Colombia, 2004). Indeed, the court has found that the government violates the principle of progressive realization whenever it takes step that contradict the aim of achieving universal coverage, as set forth in both the Colombian Constitution and legislation. Id. at 12 & n.91 (citing C 130/02, Segunda Sala de Revisión, Constitutional Court of Colombia, 2002).

23 See supra note 2 and accompanying text.

24 See James, C. Hathaway, Michigan Guidelines on Nexus to a Convention Ground, 23 Mich. J. Int’l L. 211, 215(2002)Google Scholar.

25 Lomo, supra note 5, at 403.

26 Id.

27 See Heller, supra note 5, at 517.

28 Lomo, supra note 5, at 402.

29 Guy, S. Goodwin–Gill, Migration: International Law and Human Rights, in Managing Migration: Time For A New International Regime? 160, 162 (Bimal, Ghosh ed., 2000)Google Scholar.

30 See, e.g., Audrey, R. Chapman & Sage, Russell, Introduction, in Core Obligations: Building A Framework For Economic, Social and Cultural Rights 1 (Audrey, R. Chapman & Sage, Russell eds., 2002)Google Scholar; Katharine, G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 Yale J. Int’l L. 113 (2008)Google Scholar.

31 The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, para. 9, 20 Hum. Rts. Q. 691, 695 (1998) [hereinafter Maastricht Guidelines]. In 1986, the International Commission of Jurists, the Faculty of Law of the University of Limburg (Maastricht, Netherlands), and the Urban Morgan Institute of Human Rights of the University of Cincinnati convened an important meeting of twenty–nine human rights experts that produced the Limburg Principles on the Implementation of the Icescr. See Symposium: The Implementation of the International Covenant on Economic, Social and Cultural Rights: Introduction, 9 Hum. Rts. Q. 121 (1987)Google Scholar. Ten years later, in January 1997, the same institutions convened another group of human rights experts in Maastricht to elaborate guidelines to further clarify the Limburg Principles, given dramatic changes in the world order and the substantial work of the UN Committee on Economic, Social and Cultural Rights in the intervening decade.

32 The Maastricht Guidelines provide that any discrimination on account of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant.” Maastricht Guidelines, supra note 31, at para. 11.

33 See, e.g., UN Committee on Economic, Social, and Cultural Rights, Concluding Comments (Israel) (May 23, 2003), UN Doc. E/C.12/1/Add.90, para. 31 (noting that “basic economic, social and cultural rights, as part of the minimum standards of human rights, are guaranteed under customary international law”); see also Sigrun, I. Skogly, Beyond National Borders: States’ Human Rights Obligations In International Cooperation 124 (2006)Google Scholar; Margot, E. Salomon, Global Responsibility For Human Rights: World Poverty And The Development of International Law 124–25 (2007)Google Scholar.

34 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3, The Nature of States Parties Obligations, UN Doc. E/1991 /23, Annex III (1990) [hereinafter General Comment No. 3].

35 CESCR, General Comment No. 4: The Right to Adequate Housing (Art. 11(1)), UN Doc. E/1992/23 (1991), Annex III.

36 CESCR, General Comment No. 13: The Right to Education, UN Doc. E/C.12/1999/10; CESCR, General Comment No. 12: The Right to Adequate Food, UN Doc. E/C12/1999/5 (1999); CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health, UN Doc. E/C. 12/2000/4 [hereinafter General Comment No. 14]; CESCR, General Comment No. 15: The Right to Water, UN Doc. E/C.12/2002/11 (2002); CESCR, General Comment No. 18: The Right to Work, UN Doc. E/C.12/GC/18 (2005).

37 Young, supra note 30, at 143 & n.174 (citing M. Magdalena Sepulveda, The Nature Of The Obligations Under The International Covenant On Economic, Social And Cultural Rights 42 (2003); Matthew, Craven, The International Covenant On Economic, Social And Cultural Rights: A Perspective on Its Development 91 (1995))Google Scholar.

38 Id. at l52 &n.224.

39 Chapman & Russell, supra note 30, at 14.

40 Young, supra note 30, at 154.

41 Id. at 155–56. For example, Young notes that General Comment No. 3, supra note 34, para. 10, allowed an infringement of the minimum core when the State party made “every effort... to use all resources that are at its disposal to satisfy, as a matter of priority, those minimum obligations,” whereas General Comment No. 14, supra note 36, para. 47, provides that “a State party cannot, under any circumstances whatsoever, justify its non–compliance with . . . core obligations . . . which are non–derogable.”

42 Young, supra note 30, at 114; see also Anker, supra note 1, at 153—54 (“Refugee law offers a particular structuring that confronts the human rights questions, but less contentiously than under the human rights regime’s more ambitious framework. Refugee law does not seek to reform states and does not address root causes.”).

43 See Sakiko, Fukuda–Parr, Terra, Lawson–Remer & Susan, Randolph, Measuring the Progressive Realization of Human Rights Obligations: An Index of Economic and Social Rights Fulfillment 8 (U. Conn. Working Paper 2008–22) Google Scholar, available at http://www.econ.uconn.edu/working/2008–22.pdf.

44 See Craig, Scott & Phillip, Alston, Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney ‘s Legacy and Grootboom’s Promise, 16 S. Afr. J. Hum. RTS. 206, 213 (2000)Google Scholar.

45 See, e.g., David, Bilchitz, Poverty And Fundamental Rights: The Justification And Enforcement Of Socioeconomic Rights 178–237 (2007)Google Scholar (arguing that the South African Constitutional Court should embrace a minimum core obligations approach in interpreting economic and social rights); Sandra, Liebenberg, South Africa’s Evolving Jurisprudence on Socioeconomic Rights: An Effective Tool in Challenging Poverty? 6 L. Dem. & Dev. 159 (2002)Google Scholar.

46 See, e.g., Dennis, M. Davis, Socioeconomic Rights: Do They Deliver The Goods? 6 Int’l J. Const. L. 687 (2008)Google Scholar; Lisa, Forman, Justice and Justiciability: Advancing Solidarity and Justice Through South Africans’ Right to Health Jurisprudence, 27 Med. & L. 661 (2008)Google Scholar.

47 Corte Constitucional de Colombia, Sala Segunda de Revisión, Sentencia T–760 (July 31, 2008) (Magistrado Ponente: Manuel José Cepeda). The decision also provides a process for implementing the modification of the country’s health system. Id.

48 See Amnesty International, What Are Economic, Social and Cultural Rights? at Google Scholar http://www.amnesty.org/en/economic–and–social–cultural–rights/what–are–escr (visited Apr. 16,2009).

49 See Anker, supra note 1, at 143 (“Refugee law can also sharpen the focus of debates within the human rights discourse by grounding them in the circumstances of a real person seeking refugee law’s particular, palliative solution.”).

50 See, e.g., Davis, supra note 46, at 709.

51 Mirzoyan v. Gonzales, 457 F.3d 217,219 –20 (2d Cir. 2006) (considering whether someone who was denied admission to a prestigious college, could not find a job in her profession, and was discharged from her job as an unskilled worker on account of her ethnicity had been subjected to persecution). The Second Circuit suggested that Mirzoyan “likely could not prevail under the standard referenced in Acosta, . . . but might prevail under the Kovac standard.” Id. at 223.

52 Kovac v. INS, 407 F.2d 102,107 (9th Cir. 1969); see also Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61 (2d Cir. 2002); Yong Hao Chen v. INS, 195 F.3d 198, 204 (4th Cir. 1999); Borca v. INS, 77 F.3d 210,216 (7th Cir. 1996); Baka v. INS, 963 F.2d 1376, 1379 (10th Cir. 1992); Berdo v. INS, 432 F.2d 824, 845–46 (6th Cir. 1970).

53 In re Acosta, 191. &N. Dec. 211,222 (BIA 1985), overruled on other grounds by INS v. Cardoza–Fonseca, 480 U.S. 421 (1987).

54 In re T—Z—, 24 I. & N. Dec. 163, 170 (BIA 2007) (citing In re Laipenieks, 181. & N. Dec. 433,457 (BIA 1983), rev’d on other grounds, 750 F.2d 1427 (9th Cir. 1985)).

55 Id. at 171 (emphasis added) (citing H.R. Rep. No. 95–1452, at 5, as reprinted in 1978 U.S.C.CA.N. 4700, 4704).

56 Id.

57 Id. at 172–73. The BIA explicitly rejected an “open–ended ‘substantial economic disadvantage’” test, noting that “[a] heavy fine against a wealthy individual might be seen as a substantial economic disadvantage, even if the person remains relatively wealthy and experienced no meaningful change in life style or standard of living.” Id. at 173 n.10.

58 Id. at 173.

59 Id. at 174.

60 Makatengkeng v. Gonzales, 495 F.3d 876, 883 (8th Cir. 2007). The BIA issued its decision in T—Z— while Makatengkeng’s petition for review was pending with the Eighth Circuit. See id. at 876; T—Z—, 241. & N. Dec. at 163.

61 Makatengkeng, 495 F.3d at 884.

62 Id.

63 Beck v. Mukasey, 527 F.3d 737, 741 (8th Cir. 2008) (internal quotations omitted).

64 Ngengwe v. Mukasey, 543 F.3d 1029, 1036–37 (8th Cir. 2008).

65 Id. at 1037.

66 Id.

67 See also Manzur v. U.S. Dep’t of Homeland Sec, 494 F.3d 281,285 (2d Cir. 2007) (concluding that the immigration judge’s analysis of the petitioners’ economic persecution claims was insufficient to determine if he had applied the correct legal standard and remanding the case for adjudication under the standard set forth in T—Z—). Manzur involved a widow from Bangladesh and three of her adult children, who were the immediate family members of a former high–ranking military official and a leading freedom fighter. They were placed under house arrest for a month and subjected to constant surveillance and harassment for the next twelve years, including the denial of benefits and medical care, as well as obstruction of employment opportunities. Id. at 284–85.

68 Xiu Zhen Lin v. Mukasey, 532 F.3d 596, 597–98 (7th Cir. 2008).

69 Id. at 599; cf. Jian Hui Shao v. Mukasey, 546 F.3d 138, 164 & n.25 (2d Cir. 2008) (finding that the Chinese petitioners had failed to demonstrate a wellfounded fear of economic persecution based on a single statement in a 2006 Country Report indicating that women with two or more children are sometimes penalized with a fee that leaves them little practical choice but to undergo an abortion, and noting that “a system of economic rewards and moderate economic penalties” did not necessarily amount to persecution).

70 Vicente–Elias v. Mukasey, 532 F.3d 1086, 1089 (10th Cir. 2008).

71 Id. at 1088.

72 Id. at 1090

73 Id. at 1091–92.

74 Id. atl089n.3.

75 Kadri v. Mukasey, 543 F.3d 16, 22 (1st Cir. 2008) (noting that Kadri “may be able to sustain a claim for economic persecution”). The majority of the BIA had disagreed with the immigration judge’s finding that Kadri has suffered past persecution based on economic deprivation. Id. at 21.