Book Review of "International Refugee Law and Socio-Economic Rights: Refuge from Deprivation"

International Refugee Law and Socio-Economic Rights: Refuge from Deprivation
by Michelle Foster, Cambridge University Press, 2007 [publication info.]

In International Refugee Law and Socio-Economic Rights: Refuge from Deprivation, Michelle Foster confronts the over-simplistic line frequently drawn between the ‘economic migrant’ and the ‘political refugee’ in both refugee and migration studies literature and refugee determination processes. Foster argues that given recent jurisprudential developments, particularly relating to international human rights law, the existing terms of the 1951 Refugee Convention already allow for many of those displaced who have suffered socio-economic deprivation and persecution to be recognized as Convention refugees through a “creative interpretation of the Refugee Convention consistent with principles of international treaty interpretation.” (p.1)

There is increasing recognition, both from academic researchers and organizations such as UNHCR that one of the major challenges the international community now faces is in determining how the refugee protection regime should respond to refugee claims based on the deprivation of socio-economic rights and the challenges of ‘mixed migration’. This is a particular challenge given the economic impoverishment caused by the endemic fragility of many refugee-producing states.

Foster's work is a welcome addition to this important area of research, particularly because, unlike much of the pre-existing literature concerned with socio-economic displacement (which has tended to be sociological, anthropological or political in nature), this work is directly focused on the legal arguments and existing jurisprudence relating to socio-economic displacement. Although very much written from a legal perspective, the central argument presented is both accessible and relevant to non-lawyers.

Foster's arguments actually extend beyond the complex issue of socio-economic deprivation to offer a robust account of why refugee status determination - particularly in terms of understanding the meanings of ‘persecution’ - should be approached through the use of a human rights-based framework. The middle chapters of the book are particularly helpful in exposing the limitations of an over-reliance on rigid categorization between ‘economic’ and ‘political’ rights, and stake a persuasive claim for the understanding of refugee law as a particular dimension of human rights protection.

Her conclusion - that refugee status can and should be granted in response to certain forms of persecutory socio-economic deprivation - offers the possibility of innovative expansion beyond contemporary restrictive interpretations without the need for a new instrument. This is a welcome antidote to many legal accounts, which have often responded to the growth of ‘non-traditional’ asylum claims (and the parallel shrinkage of asylum space) by stressing the need for conservation of the distinction between the economic (migration) and the political (flight). In this sense, Foster has clearly been heavily influenced by the work of James Hathaway, her doctoral supervisor.

Refuge from Deprivation does suffer from some limitations. Although jurisprudence from the five major common law jurisdictions (UK, USA, Canada, Australia and New Zealand) is reviewed in considerable detail, civil law jurisdictions are (explicitly) not subject to Foster's scrutiny. The result is research which does not consider the legal and policy issues surrounding South-South displacement at all (a fact acknowledged only in the conclusion), and which fails to consider in detail even the evidence from Western states with civil law systems. This makes it difficult to assess the wider applicability of Foster's assertions regarding empirical international jurisprudential developments, although has less impact if her research is seen in aspirational terms.

Perhaps the major criticism that could be levelled at Foster's work is that in building up the theoretical grounding to support her contention that socio-economic deprivation can form a basis for the granting of refugee status under the 1951 convention, she overstates the existence of such a trend in present practice. Foster suggests an already on-going empirical shift towards this tendency, despite the fact that the decisions presented in the book actually appear to demonstrate a very mixed and inconsistent history of juridical decisions regarding socio-economic asylum claims.

Her insistence that socio-economic rights should be viewed as of equal normative importance in relation to civil and political rights sometimes appears to elide into an assumption that they are seen of equal importance. Foster's assertion would be strengthened by engaging in more depth and detail with those who critique the status of socio-economic rights, rather than simply dismissing such approaches as outdated.

There is also a tendency to over-state the strength of her own assertions regarding the importance attached to socio-economic deprivation by the international community (for example through her uncritical reliance on the pronouncements of the Economic Council to reinforce her own legal-normative claims (e.g. p.17 pp.83-84), and to understate the political dimensions influencing judicial interpretation. This is a shame given the keen awareness she displays in the conclusion to the book regarding the reality of the intersection between politics, policy and law that often informs refugee status decisions (e.g. pp.344-348).

Refuge from Deprivation is therefore arguably best read as a well-researched but aspirational account of the creative possibilities the Refugee Convention can afford to socio-economic claimants, rather than an account of current juridical trends. Its considerable value lies in Foster's convincing demonstration that through a nuanced and sensitive interpretation of the Refugee Convention in line with emerging jurisprudential use of a broad human rights framework to determine ‘persecution’, those who suffer certain forms of socio-economic deprivation should be recognized as Convention refugees with a valid claim to international protection.

UNHCR has already recognized the need for new approach through which to challenges the international community's bifurcated approach to the economic and political whilst preserving asylum space. Refuge from Deprivation makes an important contribution to this endeavour by suggesting that the legal meaning of ‘refugee’ can indeed extend to cover socio-economic persecution.

Dr Katy Long, Refugee Studies Centre, University of Oxford, and
Consultant to UNHCR's Policy Development and Evaluation Service.

(Circulated with the permission of the author.)

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