International Law and Administrative Insulation: A Comparison of Refugee Status Determination Regimes in the United States, Canada, and Australia

2012 ◽  
Vol 37 (04) ◽  
pp. 933-968 ◽  
Author(s):  
Rebecca Hamlin
Keyword(s):  
United States ◽  
International Law ◽  
Control Policy ◽  
The United States ◽  
Border Control ◽  
Refugee Status ◽  
Common Definition ◽  
Political Debates ◽  
Political Interference ◽  
Definition Of

International law provides nations with a common definition of a refugee, yet the processes by which countries determine who should be granted refugee status look strikingly different, even across nations with many institutional, cultural, geographical, and political similarities. This article compares the refugee status determination regimes of three popular asylum seeker destinations—the United States, Canada, and Australia. Despite these nations' similar border control policies, asylum seekers crossing their borders access three very different systems. These differences have less to do with political debates over admission and border control policy than with the level of insulation the administrative decision-making agency enjoys from political interference and judicial review. Bureaucratic justice is conceptualized and organized differently in different states, and so states vary in how they draw the line between refugee and nonrefugee.

Asylum at Sea: The Legality of Shipboard Refugee Status Determination Procedures

2020 ◽  
Vol 32 (1) ◽  
pp. 1-27
Author(s):  
Azadeh Dastyari ◽  
Daniel Ghezelbash
Keyword(s):  
United States ◽  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
Best Practice ◽  
The United States ◽  
Human Rights Law ◽  
Refugee Status ◽  
State Practice ◽  
International Obligations

Abstract Austria and Italy have recently proposed that processing the protection claims of asylum seekers attempting to cross the Mediterranean should take place aboard government vessels at sea. Shipboard processing of asylum claims is not a novel idea. The policy has been used for many years by the governments of the United States and Australia. This article examines the relevant international law, as well as State practice and domestic jurisprudence in the United States and Australia, to explore whether shipboard processing complies with international refugee and human rights law. It concludes that, while it may be theoretically possible for shipboard processing to comply with international law, there are significant practical impediments to carrying out shipboard processing in a manner that is compliant with the international obligations of States. Current practices in the United States and Australia fall short of what is required. Nor is there any indication that the Austrian/Italian proposal would contain the required safeguards. It is argued that this is by design. The appeal of shipboard processing for governments is that it allows them to dispense with the safeguards that asylum seekers would be entitled to if processed on land. Best practice is for all persons interdicted or rescued at sea to be transferred to a location on land where they have access to effective status determination procedures and are protected from refoulement and unlawful detention.

The Politics of Border Control in Europe

The Border ◽  
2019 ◽  
pp. 146-176
Author(s):  
Martin A. Schain
Keyword(s):  
United States ◽  
Public Opinion ◽  
Political Party ◽  
Control Policy ◽  
The United States ◽  
Border Control ◽  
Population Movements ◽  
Party Leaders ◽  
Border Population ◽  
Political Priority

This chapter examines the growing politicization of border control policy in Europe. It first examines why the border has become important at all at a time when some have argued that borders are increasingly less relevant. The relatively easy movement of migrants into Europe until the 1970s was matched by the easy movement across the soft northern and southern borders of the United States at the same time. How, then, did the issue of the border become increasingly salient? This chapter argues that the developing political salience of the border has been the principle result, first of the reframing of the question of immigration by political party leaders as a failure by the state to control the challenge to identity. Party leaders and electoral competition have then mobilized public opinion around issues of border control as a political priority. This has taken place in the context of cross-border population movements within Europe, and by increased numbers of asylum seekers seeking entry into Europe.

“Digging for Deferments”

Rough Draft ◽  
2019 ◽  
pp. 13-22
Author(s):  
Amy J. Rutenberg
Keyword(s):  
United States ◽  
Military Service ◽  
Military Training ◽  
The United States ◽  
National Defense ◽  
War Department ◽  
Common Definition ◽  
Definition Of ◽  
Ways Of Being ◽  
Universal Military Training

This chapter argues that proposals for universal military training (UMT) for all American men failed for several reasons. Opponents of UMT attacked the idea’s efficacy for national defense, but they also questioned the assumptions that military training made men or should be an obligation of citizenship. Despite the support of the War Department, three presidents, and the majority of American citizens, UMT failed to gain legislative traction, in part because Americans did not share a common definition of masculine citizenship. The failure of UMT confirmed that military service in the United States would be selective rather than compulsory and that it would not be directly tied to masculine forms of citizenship. Its failure reinforced the notion that there were alternative acceptable ways of being a man and a citizen in the United States.

Assessing Maritime Piracy in American Law: A Century-old Punishment for an Evolving Crime

2019 ◽  
Vol 34 (4) ◽  
pp. 755-777
Author(s):  
M. Bob Kao
Keyword(s):  
United States ◽  
International Law ◽  
Rule Of Law ◽  
The United States ◽  
Life Imprisonment ◽  
Maritime Piracy ◽  
National Courts ◽  
American Law ◽  
Definition Of ◽  
In The Beginning

AbstractThe rise of Somali piracy in the beginning of the 21st century led to a swift response by the international community. Suspects were arrested by naval forces in the high seas exercising universal jurisdiction. As there is no international tribunal for maritime piracy, the suspects were prosecuted in national courts using domestic laws. The United States prosecuted a handful of cases using its piracy statute passed in 1909, which incorporates international law but prescribes mandatory life imprisonment for those convicted. Although the definition of the crime of piracy in the United States evolves along with developments in international law, the punishment is an outlier that deviates from global norms. This article argues that the punishment for piracy in the United States must also evolve with international practice because a changing definition of a crime coupled with a fixed punishment may lead to rule of law violations and other undesirable results.

scholarly journals Foreign Relations Law as a Field of Study

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 316-320
Author(s):  
Curtis A. Bradley
Keyword(s):  
United States ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Field Of Study ◽  
Working Definition ◽  
Definition Of

This essay offers a working definition of “foreign relations law,” describes its various sources, and distinguishes it from international law. It also provides some comparative illustrations of this law and notes some reasons for both commonalities and differences in this law across national jurisdictions. Finally, it discusses the growing emergence of foreign relations law as a field of study outside the United States.

scholarly journals The Evolving Common Law Jurisprudence Combatting the Threat of Terrorism in the United Kingdom, United States, and Canada

Laws ◽  
2019 ◽  
Vol 8 (1) ◽  
pp. 5
Author(s):  
James Simeon
Keyword(s):  
United States ◽  
United Kingdom ◽  
Common Law ◽  
The United States ◽  
International Terrorism ◽  
Common Definition ◽  
The United Kingdom ◽  
Laws And Policies ◽  
Definition Of ◽  
The Uk

Terrorism is a concept that defies a simple and straightforward legal definition. Therefore, it is not surprising to find that there is no Comprehensive Convention on Terrorism with a universally accepted definition of what constitutes “terrorism.” Consequently, States have devised their own definitions of what constitutes terrorism that are typically found in their criminal law. This raises the fundamental question of whether there is a convergence or divergence in jurisprudential trends on what constitutes terrorism among States? Presumably, a convergence in jurisprudential trends is more likely to contribute to combatting the threat of terrorism at the international and national levels. Accordingly, this article comparatively analyzes the definition of terrorism in three common law jurisdictions: the United Kingdom, the United States, and Canada. It finds that although there are a number of similarities in the definition of terrorism in these three States, they have significantly different definitions of what constitutes terrorism. The UK definition, ostensibly, has the broadest definition of terrorism of the three States. The US has, undoubtedly, the most unique, with separate definitions for “international terrorism” and “domestic terrorism.” Additionally, Canada has the most international definition of terrorism, drawing on 13 functional terrorism Conventions to define offenses such as hijacking, hostage taking, and bombing, etc. The second part of the article comparatively analyzes seven of the leading Supreme Court cases on terrorism in these three States. From the ratio or rationes decidendi in each of these cases, it draws out the twelve legal principles that underlie these judgements and finds that they are similar and overall consistent. The conclusion reached is that there is, at least in these three common law jurisdictions, an apparent convergence in jurisprudential trends in the law of terrorism. This augurs well for the development and emergence of a common definition of what constitutes terrorism at the international and transnational levels, as well as more rigorous and effective counter-terrorism laws and policies within and across States.

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