Finding Refuge

Finding Refuge

By Katie Vloet
Photography by Sailendra Kharel

Trouble was brewing in Nepal. Last year, tens of thousands of refugees from Bhutan who had been in Nepal for decades were in the process of being resettled around the world, but some 60,000 still remained in the South Asian country. The debate about whether they should at last be allowed to leave their camps and integrate in Nepal was complicated by disagreements about how to define who is a refugee, as well as what rights refugees should have. Common ground was nowhere in sight.


Hathaway meets with refugees and NGO's in Nepal.

A Nepali nongovernmental organization (NGO) contacted Michigan Law Professor James Hathaway, one of the world's foremost experts on refugee law. Would he visit Nepal and discuss the options? He said he would, and he prepared to spend just a few days there.

Word spread that Hathaway was coming, and before long his itinerary was packed: meet with the refugees in their camps; speak to judges, government officials, attorneys, activists, and academics about the importance of a coherent set of legal protections for refugees; and discuss and critique draft refugee statutes developed by the NGOs at the government's request.

By the end of the trip, Hathaway not only had discussed and critiqued the drafts, but he unexpectedly had helped five NGOs meld the best elements of their proposals for refugee protection. The NGOs then combined those elements into a single version, which the government indicated it would work from. This was no small feat, notes Stephane Jaquemet, the representative in Nepal for the United Nations High Commissioner for Refugees (UNHCR), the group that hosted Hathaway.

"There were questions of ego, who had presented the best draft, some tension from one NGO to another," Jaquemet says. Some of the drafts, for instance, placed restrictions on the definition of a refugee. "They would not have been able to agree on something without the presence of Professor Hathaway."

The James E. and Sarah A. Degan Professor of Law and director of the Program in Refugee and Asylum Law (PRAL) at Michigan Law, Hathaway is one of a small number of globally regarded refugee law experts. He has helped to develop Michigan Law into a center of scholarship and education in the field.

The scope of PRAL is vast: the world’s most comprehensive program for the study of international and comparative refugee law, with courses and workshops, worldwide refugee- and asylum-related fellowships, a biennial colloquium that sets guidelines for the evolution of refugee law, and the Refugee Caselaw Site, the world’s leading site for access to and debate about the precedents on refugee law issued in more than 30 asylum countries.


Professor James Hathaway's 2011 trip to Nepal.

"I wanted to do something here that no other school was doing, to truly focus on international refugee and asylum law rather than treating refugee protection as just an aspect of domestic immigration law," Hathaway recalls. "We have defined our niche very narrowly, and we have achieved preeminence in it."

The program begins for students when they take the Transnational Law course, typically in the 2L year. After that, they can enroll in the core course in International Refugee Law and the Refugee Rights Workshop, both taught by Hathaway. Each year, several of those students then go on to a Michigan Fellowship in Refugee and Asylum Law, which sends them around the world—including recent placements in Auckland, Brussels, Canberra (Australia), London, Lusaka (Zambia), Quito, and Washington, D.C.

Building on these courses and experiences is the Colloquium on Challenges in International Refugee Law, at which leading academic experts are invited to Ann Arbor to develop resolutions to a significant problem facing international refugee law. Students can enroll in a series of specialized seminars that research and prepare the groundwork for the Colloquium, and participate as colleagues with the invited experts.

The Colloquium has met five times, and each time has established a new set of unanimously agreed-upon Michigan Guidelines, which have become so highly regarded that judges and officials around the world often cite them in the shaping of judicial precedents and governmental policy. The Guidelines are published not only in English, but also in Arabic, French, and Russian.

"I really wanted the program to be an agent of change on a global level," which it has accomplished through the Michigan Colloquium, Hathaway says.

The history of refugee law at Michigan predates Hathaway’s 1998 arrival. A symposium was held here as far back as 1981 on the Transnational Legal Problems of Refugees. Alexander Aleinikoff, a faculty member here from 1981 to 1987 who is now the UN’s deputy high commissioner for refugees, taught asylum and refugee law, and Suellyn Scarnecchia, ’81, oversaw the Asylum and Refugee Law Project Externship in the mid-1990s. When Hathaway was on leave to serve as dean of the University of Melbourne Law School, Penelope Mathew, a human rights and refugee scholar, took over as interim director of the Michigan program. And the Student Network on Asylum and Refugee Law (SNARL), now succeeded by Human Rights Advocates (HRA), has long been an important part of the school’s effort to encourage the awareness and understanding of refugee and asylum issues.

But Hathaway is, to many, the primary person associated with the program. His presence is part of the reason that Ronald Olson, ’66, and his wife, Jane, a longtime human rights activist who has chaired Human Rights Watch’s board, decided to give a major gift to Michigan Law that supports PRAL. In addition to Hathaway’s presence, they value the fact the deans—starting with Jeffrey Lehman, ’81, and continuing today with Evan Caminker—have strongly backed the program.

"I feel that the law is about saving lives and preventing additional violence against people who are already victimized," says Jane Olson. "Ron decided we should give to the Law School’s human rights programs, and particularly the refugee program. He did it as a surprise to me. It was the best gift he could have given to me, and a great and important gift to the Law School."


Hathaway meets with refugees and NGO's in Nepal.

Hathaway's journey toward becoming a top refugee law expert began because he was in the right place at the right time, and was fluent in the right language.

Hathaway, then a 2L in the LLB program at Osgoode Hall Law School in Toronto, was doing advocacy work at the Parkdale Community Legal Services clinic. When a client came in who spoke only Spanish, Hathaway—the only one present who was fluent—worked on his case.

And so his refugee law career began with a young man named Leonardo who had been a 16-year-old high school soccer captain in Chile. The Pinochet regime had detained and tortured the boy for more than a year on suspicion that he was stoking opposition to the dictator. Now the young man needed the clinic's help to secure refugee status in Canada based on the then-novel claim that, though he wasn't in fact a political activist, his case should nonetheless be recognized on the grounds of "political opinion" because the government treated him as political.

"We won the case. Afterward Leonardo and his wife, Sandra—who both worked as dishwashers—invited me to dinner at the restaurant where they worked," Hathaway recalled. "Seeing them surrounded by their obviously ecstatic colleagues and new friends, seeing the look of pure joy and gratitude on their faces, drove home to me that this was the part of law I really wanted to build a career around.

"It was so clear to me that helping people to escape persecution and live in dignity is about as good as it gets."

That personal connection was part of his inspiration to continue in the field. But as someone with an undergraduate background in international politics, he was struck by the fact that despite being governed by a broadly subscribed international treaty, most states continued to treat refugee protection as little more than a branch of domestic immigration law. This meant that although the rules were in theory common, there were massive disparities in the quality of asylum around the world.

"I found an area where international law, if properly understood and conscientiously implemented, could make a difference, where getting it ‘right' could literally be the difference between life and death. So when I returned to graduate school [Hathaway earned both an LLM and JSD at Columbia] to prepare for an academic career, I knew that refugee law was the area I wanted to spend years studying.

"My goal was to inject a human-rights perspective into the conversation."

His path took him from the Ecole de droit de l'Universite de Moncton (Canada), the world's first French-language common law program of study, where he was a founding faculty member; to the Canadian Department of Justice, where he was special consultant on legal assistance for the disadvantaged; to Osgoode, where he was a professor of law and associate dean; and to Michigan Law.

Along the way, he wrote The Law of Refugee Status (Butterworths, 1991), which is now recognized as the leading treatise on the central question of who qualifies for refugee status, and has been translated into Japanese and Russian. "I can't stress enough the impact he and that text have had on the development on refugee law," says Louise Moor, LLM '04, a member of the Immigration and Protection Tribunal of New Zealand.

This was followed by a pioneering interdisciplinary study on how to revamp the international protection system, Reconceiving International Refugee Law (Kluwer, 1997), and by the 1,000+ page The Rights of Refugees under International Law (Cambridge, 2005), winner of the American Society of International Law's Certificate of Merit and the first book to show how to meld Refugee Convention standards with norms of general international human rights law.

"Without a doubt," Moor says, "he is the leading scholar internationally in refugee law. You probably wouldn't find any leading decision in the world that doesn't make reference to his work."

Justice Tony North of the Federal Court of Australia, immediate past president of the International Association of Refugee Law Judges, has been in training sessions taught by Hathaway, and he cannot imagine what the field would be like without his influence. "I do know it would lack a certain inspirational spark."

North adds, "He's demonstrated wherever he's gone a great fearlessness in espousing the views he believes in." That fearlessness can put Hathaway at odds with his detractors, who may disagree with some aspects of his take on refugee law, but for Hathaway, North says, his passion for the work outweighs any instinct to be in unison with all other voices.

Perhaps the best gauge of the program’s success is its worldwide reach. Hathaway speaks and trains around the world, has drafted the refugee laws for several countries and the European Union, and has been cited in more than 700 appellate court decisions around the world. He also draws students and collaborators with a wide range of national origins.


Professor James Hathaway's 2011 trip to Nepal.

"I see his footprint everywhere," Jane Olson says.

The influence of the program is seen in the records of its graduates, many of whom now play key roles in the refugee and related fields. Some, like Moor and Seong Soo Kim (a PRAL visiting fellow in 2002–03, now an administrative law judge in Korea) decide asylum cases; some, like Taylor Garrett, ’03, undertake on-the-ground protection work (first with the UNHCR, and now as a field officer in the Southern Africa Regional Office of the U.S. Agency for International Development/U.S. Foreign Disaster Assistance; see sidebar, page 21). Still others, like Libby Marsh, ’01, currently Human Rights Watch’s director of foundation relations in San Francisco, are active in the nongovernmental human rights world; or, like Michael Kagan, ’00, now an associate professor at the University of Nevada, Las Vegas, are refugee law academics themselves. Many more have undertaken critical pro bono litigation on behalf of refugee rights.

And of course, every year PRAL Fellows are dispatched around the world to help governments and NGOs sort out important refugee and asylum issues.

But it is perhaps Hathaway’s commitment to engaging personally with the most difficult refugee situations around the world that most clearly epitomizes Michigan Law’s determination to harness academic insights in the service of real protection for refugees. In Nepal, for example, there is little question that Hathaway’s influence will be felt for years to come. "Professor Hathaway’s immense care in listening to those he met with, and demonstrating respect and appreciation for Nepal’s humanitarian traditions, proved very effective in getting through to people at all levels," recalls Amit Sen, a protection officer with UNHCR Nepal. "During the week or so he spent in Nepal, he was able to create breakthroughs on a number of key issues of policy and protection where we had been hitting a wall for years.

"It was really quite extraordinary."

In 2012, PRAL will celebrate its 15th anniversary. We will tell the program’s story on the Law School website and in other media. Please email us anecdotes, stories, and photos about your PRAL experience, at PRALmemories@umich.edu.

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