Book review: International Refugee Law and Socio-Economic Rights

It is common experience of all lawyers dealing with immigration and refugee claims that many, if not the majority, people applying for refugee protection in Europe are victims of violation of social and economic rights rather than of 'traditional' political rights.

This consideration moved Michelle Foster, lecturer at the University of Melbourne Law School, to analyse to what extent the violation of socio-economic rights can justify successful refugee claims in the framework of international refugee law, namely the Geneva Convention of 1951. The interesting and pioneering considerations of Prof. Foster are contained in the book “International Refugee Law and Socio-Economic Rights. Refugee from Deprivation”, published by Cambridge University Press.

Prof. Foster moves from the assumption that the strong dichotomy between economic migrants and refugees is outdated and that it is not possible to say any more that everyone leaves his or her country due to economic constraints cannot be eligible for refugee protection.

For many years refugee law has been seen (in general and not precise terms) as devoted to the protection of people, usually part of the national elite, who had to leave their country due to divergence of political views with the government – of course, such a divergence should bring to persecution suffered by the refugee seeker.

The political reality has dramatically changed in the last decades so that the notion and object of persecution shall be extended too. Prof. Foster links persecution and violation of human rights: those rights, comprised in the most important and widely accepted treaties and covenants, shall be closely related to the Geneva Convention and to the notion of persecution. Basically there is persecution when human rights, although to a different extent, are violated and , most importantly, it should not be possible to dismiss refugee claims due to the fact that the asylum seeker declared a violation of social and economic rights in his/her country.

Although not expressly declared by Prof. Foster, it seems that the refugee law shall be closely linked to the notion of dignity: the dignity of a person is offended when he is persecuted due to his/her political opinions but this is the case even if a person is banned from school or university due to his racial or ethnic background. The concept of dignity is not a legal one, at least strictly speaking: that is why the effort of Prof. Foster to rationalize the need of protection for refugee seekers who declare violations of their socio-economic rights and to link it to the human rights treaties and covenants has to be appreciated.

In more general terms we have to say that refugee law must take into account the new dimension of the world order, or better, the new dimension of the world disorder. Very often, in fact, people must escape not because a national, strong, government persecutes him but because the government cannot do anything to prevent the persecution of its citizens by criminal, terrorist or political groups. This is the case in Iraq, Afghanistan, Kosovo, many African countries, etc.

The problem seems to be not the state as such, but rather the lack of an effective state. In other words, refugee law cannot be anymore conceived and interpreted as it could be after the WWII and more or less until the end of the Communist regimes in Europe. Basically we moved from a political dimension where there was too much power of centrally-organized states to dimension where states, in many regions of the world, simply cannot control their territory.

Refugee lawyers have to face a world of anarchy, where often mafias, criminal groups, transnational terrorist organizations are more powerful than national states. In this sense decision makers cannot simply neglect this reality and dismiss refugee claims based on the assumption that refugee seekers can obtain protection by the national authorities, since these authorities exist only on paper or actively collaborate with the illegal groups they officially have to fight. For these reasons refugee seekers from many countries cannot be blamed because they did not report violations of their rights or acts of persecution to the competent authorities: this would simply be useless.

Decision-makers shall take these issues into account, as well as the conclusions of Prof. Foster that violations of social and economic rights, when sufficiently serious, can fully justify a refugee claim: for instance, violation of right to health, right to education, right to form a family, right to work, etc.