[URBANTH-L]REV: Mathiason on Foster, International Refugee Law and Socio-Economic Rights...

Angela Jancius jancius at ohio.edu
Thu Jan 3 16:05:23 EST 2008

[cross-posted from H-Human-Rights]

Published by H-Human-Rights at h-net.msu.edu (January 2008)

Michelle Foster. _International Refugee Law and Socio-Economic
Rights: Refuge from Deprivation_. Cambridge: Cambridge University
Press, 2007, 387 pp., $105 (ISBN: 978-0-521-87017-7)

Reviewed for H-Human-Rights by John Mathiason, Maxwell School of
Citizenship and Public Affairs, Syracuse University

Connecting the Conventions: Refugees, Economic, Social and Cultural
Rights and Due Diligence

There are different causes for global migration, but probably the two
greatest are flight from conflict zones as refugees, and movement from
country to country searching for better economic opportunities. In
most cases in the last twenty years, determining refugee status has
been fairly easy. The individuals concerned have crossed a border as a
group and have been placed in a camp under the authority of the United
Nations High Commissioner for Refugees, as mandated by the United
Nations 1951 Convention Relating to the Status of Refugees and its
1967 Protocol. UNHCR makes the determination of status, sometimes on
a collective basis. For other persons who cross borders and claim
refugee status, determining whether the person is a bona fide refugee
or an economic migrant has become increasingly difficult, particularly
when the person has left the proximity of the country of origin and
has reached a country that grants asylum on the basis of the Refugee
Convention. Michelle Foster's thorough study of the issue examines the
legal aspects of determining refugee status for individuals who have
already reached a developed country. Her focus is on the use of
economic, social and cultural rights to determine status rather than
the civil and political rights that are usually used.

Foster begins her analysis, which is thoroughly footnoted to case law,
with an exploration of why a human rights framework should be used to
interpret the refugee convention. That human rights are relevant is
set out in the first paragraph of the preamble to the Refugee
Convention. But which rights apply, or how, is not established in the
Convention. She discusses the arguments made for and against using
human rights protection as a ground for granting refugee status, and
concludes that it is incontrovertible. She then examines whether socio-
economic claims can provide grounds for status. Here the grounds
become somewhat more murky, but she argues that although some consider
economic, social and cultural rights less than civil and political
rights, there is a clear integration of all of the rights and no
realistic hierarchy of importance among them. She does note that some
States, including particularly the United States, consider economic
and social rights aspirations rather than rights in the same sense as
civil and political rights (and for this reason have only ratified the
International Covenant on Civil and Political Rights).

She then examines the meaning of "persecution" as defined in the
Refugee Convention. Here the application of economic and social rights
again is less clear, since often violation of rights is because of
neglect rather than a formal act, and it is sometimes difficult to
separate the situation of the individual from the general conditions
in his or her country of origin. She notes a number of cases where
there is an intersection between group membership and access to
education or to health. These are linked, in part, to her discussion
of what constitutes a social group for the purposes of the Refugee
Convention. Here there is a body of case law that links situations of
individuals to human rights conventions that define groups, like the
Convention on the Elimination of All Forms of Discrimination against
Women, the Convention on the Rights of the Child, the Convention on
Migrant Workers and their Families and the new Convention on the
Rights of Persons with Disabilities. She notes that there are other
groups, defined by common features that lead to discrimination, like
persons suffering with HIV/AIDS. She analyzes the existing cases and
concludes that there is an increasing, but by no means constant, body
of law that has found deprivation of economic and social rights,
including especially the right to work, to education and to health, to
be a ground for conceding refugee status.

I read Foster's analysis not from the perspective of an international
lawyer, but as someone who was involved in different ways with several
of the key conventions that she cites. While the International
Covenant on Economic, Social and Cultural Rights (ICESCR) is the
direct translation of the Universal Declaration on Human Rights, much
of the case law cited refers to the group specific conventions. I
worked with the CEDAW Convention when I was Deputy Director of the
UN Division for the Advancement of Women, as well as when the UN
Declaration on the Elimination of Violence against Women was
negotiated. I also had an input at an early stage of the negotiations
of the Disability Rights Convention. The ICESCR sets out the rights
and some obligations of States to protect them, but the other
conventions were negotiated because governments and civil society
believed that while States accepted the rights (even as aspirations),
the issue for the groups was whether the rights could be enjoyed. The
group-specific conventions contain a standard set of policies that
States should adopt in order to guarantee enjoyment. The focus was on
whether the States actually established policies as part of their
compliance with the obligations and how effectively they implemented

The dilemma with economic, social and cultural rights is that if a
State fails to provide for them for the whole population through
policies and programs, it is difficult to make a case for individuals
on the basis that the rights are not enjoyed. As Foster points out,
the strongest case individuals can make is that, because of their
political views - or their ethnic or other group affiliation, States
act to deprive them of work, or education or health services as a
matter of policy. The key here is that the States act against the
individual and that this constitutes persecution. Less clear is when
there is no act, but rather neglect. States can argue that resources
are not sufficient to enable the State to protect certain rights, as
some have done regarding persons with HIV/AIDS.

This argument came up in the context of negotiating the UN Declaration
on the Elimination of Violence against Women (VAW). The Declaration
itself was one response to the fact that the CEDAW convention was
completely silent on the violence, because the convention had been
negotiated before the violence issue had come to the fore. The
definition of violence against women in the Declaration is, in fact, a
tautology ("violence against women 'means any act of gender-based
violence that results in, or is likely to result in, physical, sexual
or psychological harm or suffering to women, including threats of such
acts, coercion or arbitrary deprivation of liberty, whether occurring
in public or in private life."-- United Nations Declaration on the
Elimination of Violence Against Women, Article 1 (General Assembly
resolution 48/104 of 20 December 1993) It specifies a range of acts
that constitute this type of violence. Because much of this occurs in
non-public space, the issue of using a well founded fear of violence
as a woman's basis of a claim for refugee status has to do with the
role of the State. Here the negotiators of the Declaration agreed that
State responsibility was not merely to avoid committing violence
itself, but rather to "Exercise due diligence to prevent, investigate
and, in accordance with national legislation, punish acts of violence
against women, whether those acts are perpetrated by the State or by
private persons." (United Nations Declaration on the Elimination of
Violence Against Women) Under this understanding, if a State failed to
exercise due diligence to protect a group - in this case women - it
could be said to permit persecution. When the VAW was being negotiated
I remember some of the participants noting that the addition of due
diligence was a breakthrough in defining State obligations for acts
that did not occur in public space. It is interesting that due
diligence is not something highlighted in the analysis. In some
respects, this is an instance of the emerging international notion of
responsibility to protect, one of the innovations of Kofi Annan's
tenure as U.N. Secretary-General and one now being promoted by his
successor Ban Ki-Moon.

Foster bases most of her analysis on judicial decisions in common law
countries. This makes sense since judicial reasoning in the United
States, the United Kingdom, Canada, Australia and New Zealand (as well
as some countries in the Commonwealth like South Africa) is how
international law develops. While her arguments are cogent, I did note
that in some places she noted that the application of economic and
social rights was accepted by courts because the discrimination was
directed toward groups, like the Roma, who could be shown (because of
the Nazi concentration camps) to have been historically targeted. The
same case often cannot be made for persons who are not part of those

The real issue is whether, if violation of economic and social rights
becomes a major basis for granting refugee status, this will open the
floodgates to inter-state movements. One could envisage, for example,
persons from the United States fleeing to Canada and claiming refugee
status because the United States government has not been able to
provide them with affordable health insurance. More apt is the current
move of persons to leave their own countries in search of a better
life, but where, depending on how economic and cultural rights are
interpreted, they could claim that economic opportunities were not
provided in their home countries. Applying the due diligence test
might be one way of dealing with this. If the State of origin has
tried to improve the economic and social lot of its population without
discrimination, there would be no grounds for claims of persecution.
However, if it failed to exercise due diligence for a part of its
population, based on discrimination against a coherent group, a claim
might be made.

Foster notes that there is an evolution of practice, and that she has
not addressed the issue of whether the Refugee Convention needs to
be revisited in the light of a broader human rights approach. Such a
reexamination would be a positive development, as would a further
exploration of due diligence as a criterion. In the meantime, this
book should be of considerable use to everyone dealing with the
complexities of refugee law or the practical evolution of economic,
social and cultural rights.

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purposes, with full and accurate attribution to the author, web location,
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