MJIL Online

MJIL Online brings you timely short-form articles that represent a wide range of views on contemporary issues in international and comparative law. The views and opinions expressed in these articles are those of the authors only.


 

Patricia L. Judd
Toward a TRIPS Truce

Peter G. Danchin
Islam in the Secular Nomos of the European Court of Human Rights

John Quigley
Palestine is a State: A Horse with Black and White Stripes is a Zebra

Jonah Eaton (Student Note)
Emerging Norm - Determining the Meaning and Legal Status of the Responsibility to Protect

Download Volume 32:4 at the Repository

Charles Chernor Jalloh
Special Court for Sierra Leone: Achieving Justice

Daniel R. Cahoy
Breaking Patents

Eran Sthoeger
International Child Abduction and Children's Rights: Two Means to the Same End

Eric Stein
War, Politics, Law - And Love: Italy 1943-1946 (Special Feature)

Alan J. Alexander (Student Note)
Shifting Title and Risk: Islamic Project Finance with Western Partners

Download Volume 32:3 at the Repository

James A. Green
Questioning the Peremptory Status of the Prohibition on the Use of Force

Cyra Akila Choudhury
Exporting Subjects: Globalizing Family Law Progress through International Human Rights

Efraim Chalamish (Book Review)
Review of Do Treaties Matter? On Effectiveness and International Economic Law by Lisa Sachs & Karl Sauvant, eds.

Pier DeRoo (Student Note)
Public Non-Commercial Use Compulsory Licensing for Pharmaceutical Drugs in Government Health Care Programs

Download Volume 32:2 at the Repository

Jaya Ramji-Nogales
Designing Bespoke Transitional Justice: A Pluralist Process Approach

Daniel Benoliel & Ronen Perry
Israel, Palestine, and the ICC

Paul D. Carrington
Enforcing International Corrupt Practices Law: Essay

Katherine A. Wagner
Identifying and Enforcing Back-End Electoral Rights in International Human Rights Law (Student Note)

Download Volume 32:1 at the Repository





Cite as: James C. Hathaway, The Michigan Guidelines on the Right to Work, 31 Mich. J. Int'l L. 293 (2010).





THE MICHIGAN GUIDELINES ON
THE RIGHT TO WORK
English

Introduction
The right to work is fundamental to human dignity. It is central to survival and development of the human personality. According to the International Labour Organization (ILO), decent work “sums up the aspirations of people in their working lives—for opportunity and income; rights, voice and recognition . . . .”[1] Work is interrelated, interdependent with, and indivisible from the rights to life, equality, the highest attainable standard of physical and mental health, an adequate standard of living, the right to social security and/or social assistance, freedom of movement, freedom of association, and the rights to privacy and family life, among others.

Numerous international and regional human rights instruments, as well as many national constitutions, protect the right to work. The right to work is contained in Article 23 of the Universal Declaration of Human Rights. Articles 6, 7, and 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognize the right to work, along with rights at work. In addition, Article 8(3)(a) of the International Covenant on Civil and Political Civil Rights (ICCPR) protects





Cite as: James C. Hathaway, The Michigan Guidelines on Protection Elsewhere, Adopted January 3, 2007, 28 Mich. J. Int'l L. 207 (2007).





THE MICHIGAN GUIDELINES ON
PROTECTION ELSEWHERE

English / French / Russian / Arabic

Introduction
Refugees increasingly encounter laws and policies which provide that their protection needs will be considered or addressed somewhere other than in the territory of the state where they have sought, or intend to seek, protection.

Such policies-including "country of first arrival," "safe third country," and extraterritorial processing rules and practices-raise both opportunities and challenges for international refugee law. They have the potential to respond to the Refugee Convention's concern "that the grant of asylum may place unduly heavy burdens on certain countries" by more fairly allocating protection responsibilities among states. But insistence that protection be provided elsewhere may also result in the denial to refugees of their rights under the Refugee Convention and international law more generally. The challenge is to identify the ways in which the protection regime may be made more flexible without compromising the entitlements of refugees.

To this end, we have engaged in sustained collaborative study and reflection on the legal basis of protection elsewhere policies. Research conducted by the University of Melbourne's Research Programme in International Refugee Law





Cite as: James C. Hathaway, The Michigan Guidelines on Well-Founded Fear, 26 Mich. J. Int'l L. 493 (2005).





THE MICHIGAN GUIDELINES ON
WELL-FOUNDED FEAR

English / French / Russian / Arabic

Introduction
An individual qualifies as a Convention refugee only if he or she has a "well-founded fear" of being persecuted. While it is generally agreed that the "well-founded fear" requirement limits refugee status to persons who face an actual, forward-looking risk of being persecuted (the "objective element"), linguistic ambiguity has resulted in a divergence of views regarding whether the test also involves assessment of the state of mind of the person seeking recognition of refugee status (the "subjective element").

The view that the assessment of well-founded fear includes consideration of the state of mind of the person seeking recognition of refugee status is usually implemented in one of three ways. The predominant approach defines a showing of "fear" in the sense of trepidation as one of two essential elements of the well-founded fear test. In the result, refugee status may be denied to at-risk applicants who are not in fact subjectively fearful, or whose subjective fear is not identified as such by the decision-maker. A second view does not treat the existence of subjective fear as an





Cite as: James C. Hathaway, The Michigan Guidelines on Nexus to a Convention Ground, 23 Mich. J. Int'l L. 211 (2002).





THE MICHIGAN GUIDELINES ON
NEXUS TO A CONVENTION GROUND

English / French / Russian / Arabic

Introduction
Efforts to promote the contemporary vitality of the Convention refugee definition have usually focussed on refining our understanding of the circumstances in which an individual may be said to be at risk of “being persecuted,” or on giving contemporary relevance to the content of the five grounds upon which risk must be based—race, religion, nationality, membership of a particular social group or political opinion. Comparatively little thought has been given to how best to conceive the causal linkage or nexus between the Convention ground and the risk of being persecuted. In what circumstances may the risk be said to be “for reasons of” one of the five Convention grounds?

The jurisprudence of many leading asylum states is simply silent on this issue, while decisions rendered in other states assume that causation in refugee law can be defined by uncritical analogy to standards in other branches of the law. Only rarely have senior courts sought carefully to conceive an understanding of causation of specific relevance to refugee law, including the critical





Cite as: James C. Hathaway, The Michigan Guidelines on The Internal Protection Alternative, 21 Mich. J. Int'l L. 134 (1999).





THE MICHIGAN GUIDELINES ON
THE INTERNAL PROTECTION ALTERNATIVE

English / French / Russian / Arabic

Introduction
In many jurisdictions around the world, ‘internal flight’ or ‘internal relocation’ rules are increasingly relied upon to deny refugee status to persons at risk of persecution for a Convention reason in part, but not all, of their country of origin. In this, as in so many areas of refugee law and policy, the viability of a universal commitment to protection is challenged by divergence in state practice. These Guidelines seek to define the ways in which international refugee law should inform what the authors believe is more accurately described as the ‘internal protection alternative.’ It is the product of collective study of relevant norms and state practice, debated and refined at the First Colloquium on Challenges in International Refugee Law, in April 1999.
The Analytical Framework
1. The essence of the refugee definition set out in Art. 1(A)(2) of the 1951 Convention relating to the Status of Refugees (‘Refugee Convention’) is the identification of persons who are entitled to claim protection in a contracting state against the risk of persecution in their own country.

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