by Matthew E. Price. Cambridge and New York: Cambridge University Press, 2009. 290pp. Hardback. $80.00/£45.00. ISBN: 9780521881166. Paper. $32.99/£17.99. ISBN: 9780521707473.
Reviewed by Kevin R. Johnson, University of California, Davis School of Law. E-mail: krjohnson [at] ucdavis.edu.
RETHINKING ASYLUM is a provocative effort to reconceptualize the law of asylum and refugee protection in the West. Offering a politically savvy look at an area of law that deserves just such attention, the book showcases the strengths of its author, Matthew Price, who is trained in both political science and law.
Price’s basic premise is that the principal function of asylum law, which is designed to provide relief to refugees from certain kinds of persecution, is – and should be – to allow governments to express political value judgments about the governments from which the persecuted flee. The book thus embraces “the political conception of asylum – as limited in focus to persecuted people, as expressing condemnation of the persecuting regime, and as linked to a broader strategy to reform that regime” (p.26).
While focusing on the political messages sent by asylum decisions, Price arguably undervalues the humanitarian impacts of the narrower asylum policies that it advocates. Importantly, the “expressive character” of asylum (p.72) that Price defends is at odds with the approach taken by human rights advocates, as well as the general trend of international asylum law in the post-World War II period (p.85). For example, he at one point belittles the humanitarian approach to asylum as serving the purpose “to receiving states [as nothing more than] moral self-satisfaction” (p.94). The conflict between the political versus the humanitarian approach to asylum replays itself throughout the book.
The first two chapters of RETHINKING ASYLUM lay the foundation for the subsequent analysis. Chapter 1 offers a detailed legal history of the “political roots” of asylum law from ancient Greece to the present. Chapter 2 defends the expression of political judgments by governments about other governments through grants and denials of asylum.
Grounding the analysis in the expressive political function of asylum, Chapter 3 considers the definition of “persecution” for purposes of asylum. Endorsing a narrower definition of “persecution” than human rights advocates generally do (“‘[P]ersecution’ should be defined as serious harm inflicted or condoned by official agents for illegitimate reasons” (p.135, emphasis added), the chapter reviews some “hard cases,” including the treatment of rebels seeking to overthrow a government and persons who flee civil war, a condition that raises the “fear of opening the floodgates” to hordes of foreigners (p.131).
Chapter 4 analyzes whether persecution by private parties, which is at issue in the much-publicized cases of women [*820] who flee domestic violence or fear female genital mutilation, should give rise to cognizable claims of asylum. RETHINKING ASYLUM would limit eligibility for asylum based on persecution by private parties to only those instances in which government is unwilling (as opposed to unable) to provide protection (p.155), such as when the state refuses to protect women from domestic violence.
Chapter 5 proceeds to analyze the “toolkit” available to governments in dealing with refugee flows, including asylum, temporary protection, and refugee admissions. Unfortunately, Price fails to consider some of the oft-criticized inadequacies of some of the tools in the kit, such as the foreign policy bias in the overseas refugee admissions program in the United States. Chapter 5 insightfully demonstrates how more liberal asylum grants and increasing numbers of claims have contributed to the growth of political pressures in recent years for aggressive (and excessive) curbs on “asylum abuse,” including detention, filing deadlines, limits on work authorization, corroboration requirements, and many others. Put differently, more liberal - some might say more reasonable - treatment of asylum claims has produced a political backlash of sorts.
Chapter 6 reiterates the book’s conclusions.
RETHINKING ASYLUM convincingly demonstrates that governments have historically used asylum to express disapproval of regimes that they want to condemn for foreign policy reasons. However, it assumes but does not establish that this is a good thing in modern times. During the Cold War, for example, the United States and most of the Western nations politicized relief to persons fleeing persecution in other nations. Persons fleeing the old Soviet Union, Cuba, and the rest of the Eastern bloc, including athletes, entertainers, or true political refugees, generally received relief while most similarly situated persons fleeing the U.S. government’s authoritarian allies, such as El Salvador, Guatemala, and Haiti, generally did not. Price acknowledges this history (pp.6, 24) and the great human costs of “underprotection” of asylum-seekers (p.91), but surprisingly appears to use this historical experience as a blueprint for the expression of future political value judgments by governments about enemy regimes.
RETHINKING ASYLUM offers few true justifications besides past practice, except for the utilitarian and the politically expedient, for restricting asylum to its expressive political function. Consequently, Price never squarely addresses the all-important normative question whether asylum decisions should rest primarily on the political message the receiving nation is sending to the world about the sending country by a grant of relief. Given the state of international law, such a justification seems necessary.
Contrary to the book’s gospel, international law seeks to restrict the precise political expression by states in asylum decisions. The United Nations Protocol Relating to the Status of [*821] Refugees (Jan. 31, 1976, 19 U.S.T. 6223, 606 U.N.T.S. 267) incorporates the ideologically neutral definition of “refugee” from the United Nations Convention Relating to the Status of Refugees (July 28, 1951, 19 U.S.T. 6260, 189 U.N.T.S. 137): a “refugee” must have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion . . . .” Through the Refugee Act of 1980 (Pub. L. No. 96-212, 94 Stat. 102), U.S. immigration law incorporates the Protocol’s definition of refugee, with the Act’s legislative history making it crystal clear that ideological and geographical litmus tests, the bread-and-butter of governments seeking to express political judgments through grants of asylum, should not be part of asylum decision-making (Anker and Posner).
Despite the dictates of international and domestic law, U.S. asylum decisions reflect foreign policy bias. Put differently, as RETHINKING ASYLUM advocates, the U.S. government has often used asylum as a tool for expressing political views about particular governments. (Johnson; Kenney and Schrag; Ramji-Nogales, Schoenholtz, and Schrag). This fact, however, does not make it right, much less legal. That states use asylum to express foreign policy judgments remains an important insight, whether or not one agrees with the government’s use of asylum for those ends. Rather than bring the law within international norms, RETHINKING ASYLUM seems to suggest that the proper course is to bring the law into line with the states’ conduct.
Two issues not raised by the book – nor by many other scholarly works on asylum – need to be addressed for those observers truly interested in reforming asylum law. First, any asylum system can only be fully and properly understood as part of a nation’s overall system of regulating immigration. If the immigration admissions system for a nation is overly restrictive given the level of demand to immigrate to that country, noncitizens seeking modes of lawful entry will exert pressures on the asylum provisions of that system. For example, if a noncitizen is living in the midst of a civil war but has limited employment skills and no family ties in the United States, coming here lawfully is extremely difficult to do and to seek asylum may be one of few available options. In that way, efforts to pursue asylum may be symptomatic of deeper structural problems in an immigration system.
Although not considering more far-reaching immigration reforms, RETHINKING ASYLUM condemns the current migration systems in the Western world and states bluntly that, “[b]y and large, the West’s migration policy is indifferent to the reality of a brutal, dangerous, and grossly unequal world” (p.245). The book, however, fails to try to improve the impacts of those tough immigration policies but instead would make asylum law more, not less, indifferent to the real world consequences.
Second, RETHINKING ASYLUM leaves the reader to wonder what role racism, as well as plain vanilla nativism and xenophobia, plays in the formation of the backlash against “asylum abuse.” In a time when many asylum-seekers are people of color as that term is generally understood in the United States, most observers would claim that racism plays some role in the backlash. One could look at this racism and suggest that nations should (1) fashion policy to [*822] further racist sentiments (a tactic that seems consistent with narrowing asylum to avoid the backlash but would be inconsistent with worldwide efforts to eradicate racism), or (2) ignore such invidious sentiments (and perhaps even send a message that the nation does not condone or promote racism by pursuing a humanitarian asylum policy that is based neither on ideology nor foreign policy and, for that matter, the race of the applicants). The issue, which is at the core of the debate over immigration and asylum the world over, requires acknowledgement, consideration, and analysis.
Anker, Deborah, and Michael Posner. 1981. “The Forty Year Crisis: A Legislative History of the Refugee Act of 1980.” 19 SAN DIEGO LAW REVIEW 9-89.
Johnson, Kevin R. 1991. “A ‘Hard Look’ at the Executive Branch’s Asylum Decisions.” 1991 UTAH LAW REVIEW 279-360.
Kenney, David Ngaruri, and Philip G. Schrag. 2008. ASYLUM DENIED: A REFUGEE’S STRUGGLE FOR SAFETY IN AMERICA. Berkeley: University of California Press.
Ramji-Nogales, Jaya, Andrew Schoenholtz, and Philip Schrag. 2009. REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM. New York: NYU Press.
© Copyright 2009 by the author, Kevin R. Johnson.