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Summary Refugee and Asylum Law, Hathaway literature summarized
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Summary of the chapters prescribed for the course Refugee and Asylum Law. Almost the whole book.
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The Law of Refugee Status - Summary
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Refugee & Asulum Law Week 1Alienage
Alienage requirement: only a person outside her own state can be a refugee. This
derives from the convention only dealing with the problem of legal protection
and status. The treaty is established to assist persons who are outside their own
countries and who are not protected by a government. This means that not all
forced migrants are protected. Internally displaced persons do not fall under the
convention. The fear of the Herren der Vertrage was that states would shift the
responsibility for large groups of internally displaced persons to the
international community. It was deemed unthinkable that refugee law would
intrude with a states territory and protection of the ‘own’ government.
Nowadays there are rules governing internally displaced persons. However, the
Africans Union treaty is the only treaty that has a clear legal standing on
internally displaced persons.
At present, the Convention excludes at-risk persons who are still in their own
country, even when a state prevents departure from the home country, e.g. Roma
refugee claimants in Prague.
Although this requirement might seem unfair, in the literature it is said that
equal treatment of refugees and internally displaced persons is only feasible if
their factual legal situation can be compared. This is because the refugee label
does not attach to a group who need assistance but a group of persons with
specific needs. Refugee status protects people against refoulement: the right not
to be sent back to the country of origin. The convention establishes a legal duty
on states to treat refugees on par with their own population. The need to be
outside one’s own country limits refugee status to seriously at risk persons who
are within the unqualified protective competence of other states.
Being a refugee means being a person who needs and deserves a specific form of
protection and being a person who can be guaranteed the substitute of surrogate
protection that the Refugee Convention is designed to deliver.
Accessing protection
Alienage is normally achieved upon physical departure from the home country.
Outside the home country, other governments have the full capacity to protect.
But is a person in a foreign embassy/consulate in his own country outside his
countries territory? Although these premises are immune, they are not
assimilated to the territory of the state that established this diplomatic mission.
An individual who shelters inside has consequently not left the territory of his
country. The same counts for airports and pre-clearance zones. The same goes
for boarding an aircraft, which is still on home territory. Until a ship or aircraft
has left the departure country’s territory, the alienage requirement is not
satisfied.
Accessing a state party’s jurisdiction
An individual who has a well-founded fear of being persecuted is a refugee with
rights under international law for the purposes of the Convention. This is so
whether or not the status has been claimed or recognized. Refugee status
determination does not make a person a refugee. Positive assessment by a state
party simply confirms the status already held by the person. The person does not
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