International law, international relations, human rights law, international humanitarian law, international organisations, law and politics

The Contemporary International Law Status of the Right to Receive Asylum

by William Worster

Clearly a state has a right to expel aliens generally, and a state has a right to grant asylum to aliens, but the... more Clearly a state has a right to expel aliens generally, and a state has a right to grant asylum to aliens, but the question is whether an individual has a right to asylum opposable to the state’s right to expel. In the literature, it is commonly understood that no such right exists. Treaty obligations discussing a “right to asylum” are understood in various ways, generally not to provide for a right to receive asylum but apply for it. However, the past few decades have shown a growth in conventions addressing asylum, especially, but not limited to, the European context. With refugee flows being an inherently international concern with a need for durable solutions, increasingly refugees are being assimilated to refugee-seekers. States are reacting or anticipating these issues by adopting domestic rights to asylum, at least for individuals qualifying as refugees. These trends suggest an evolving international consensus on opinio juris and state practice that refugees must receive asylum. Thus, it appears that the right to asylum for refugees exists under
customary international law.

The paper will proceed broadly in two sections viewing the issue from different perspectives. In the first section, the paper will begin by examining the “right to asylum” from the perspective of
the states, the authors of the Refugee Convention and similar agreements. The paper will conclude that the “right to asylum” in those agreements is directed at states, not individuals. In essence, states have a right vis-à-vis other states to grant asylum to aliens and not have that act be viewed as hostile.

However, this right of the state does not necessarily exclude a right of individuals to receive asylum if convention or customary international law also demand it. Accordingly, the second section examines the right of the individual to receive asylum. In the first sub-section, the author looks at conventional law and in the following sub-sections he looks at customary international
law, specifically state practice and opinio juris. In the conclusion, the author argues that, although there is a state right to grant asylum, there is also an individual right to receive it in certain circumstances. This conclusion is based on widespread and consistent practice granting asylum as an obligatory consequence of refuge.

Dignity, Humiliation, and the Erosion of the Humanities

by Myra Mendible

Book Review: Antoine Prost and Jay Winter, René Cassin et les Droits de l'Homme: Le projet d'une génération

by James Connolly

Published in the TLS: Times Literary Supplement, December 2 2011, p.32.

Human Rights and International Humanitarian Law

by Keow Abanto

My discussion memo on Human Rights and Intenational Humanitarian Law

Fairness and Liability in the Just War: Combatants, Non-Combatants, and Lawful Irregulars

by Christopher Finlay

Forthcoming in Political Studies. For a slightly earlier version of the essay, please follow the link.

Critics of non-uniformed ‘irregular’ warfare argue that it is unfair both to non-combatants and to enemy ‘regulars’. I... more Critics of non-uniformed ‘irregular’ warfare argue that it is unfair both to non-combatants and to enemy ‘regulars’. I contest that view by asking how the leaders of a people forced to fight a just war should distribute risks within their own population. Insofar as all are the victims of aggression or unjust occupation, I argue, no citizens on the just side are morally liable to attack. But to benefit from the restraining effects of the principle of discrimination, some members must be rendered legally liable. Political leaders must therefore find the most appropriate distribution of the risk of harm, first, by deciding which and how many citizens to select as ‘combatants’; and second, by specifying how far to distance combatants from civilians. I identify four normative considerations that must be taken into account: each possible arrangement must (1) fulfil basic requirements of fairness domestically; then, between equally fair arrangements, leaders ought to determine which offers the most auspicious balance between (2) the goal of survival during the war (of the society and as many of its members as possible) and (3) the goal of winning it and, hence, eliminating the injustices that caused the war; finally (4) the arrangement should not be unfair to enemy combatants. On this basis, I argue that in spite of the increased risks it poses to civilians, limited ‘irregular’ warfare might be deployed legitimately against occupiers where the use of uniforms would have rendered insurgents vulnerable to targeted assassination or arrest prior to actual combat.