Arthur C. Helton 1949-2003

Through his advocacy, teaching and scholarship, Arthur Helton enabled some of the most vulnerable people on earth, as well as those who work to advance their rights, to ensure that governments strive to live up to their legal and moral obligations to protect and assist the displaced

Developing the Substantive Best Interests of Child Migrants: A Call for Action

This Article attempts to accomplish two goals. First, it provides an overview of what is known and unknown about international child migrants. While this Conference will focus to some degree on child migrants in the United States, this Article shows how significant this phenomenon is around the world. Therefore, this Article provides data and points out the research gaps surrounding this issue. Equally significant is the lack of legal and policy tools available for governments to respond well and in accordance with the Convention on the Rights of the Child ( CRC ) to the children themselves. First, informed by social science research, this Article briefly sets out the grounds for treating children as unique. This will lay the foundation for policy makers to think about child migrants as children first and above all. Second, this Article then looks at norms and practices that recognize the uniqueness of children and child migrants in particular. Finally, this Article suggests examples of how we-scholars, practitioners, policy makers, and adjudicators- might begin to develop better tools to address what sets child migrants apart

The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-First Century

When the fledgling U.N. negotiated a treat to protect refugees after the Second World War, member states focused on Europe as well as on events causing forced migration that occurred prior to 1951. No one imagined that cross-border escape from persecution would become a global phenomenon and remain one more than sixty years later, or that this human rights treaty would be needed in the twenty-first century. In fact, as increased numbers of asylum seekers from developing countries reached the most developed regions of the world during the last thirty years, critics have questioned the merits of this treaty and argued that the Refugee Convention has become outmoded and obsolete. This Article considers how well suited this treaty is for the protection of refugees fleeing persecution in today\u27s world. The author first looks at how the nature of the state itself has evolved and finds that too many governments today fail at providing significant portions of their citizens with the most basic level of human security. A new cast of persecutors apart from the state now exerts authority and power in such societies, targeting particular societal groups using new forms of persecution. Examining how states have adapted this multilateral agreement to these changing circumstances, the author finds that this treaty continues to be vital in protecting the human rights of refugees thanks to two important treaty elements: a clear and fundamental purpose to protect individuals whose governments have been unwilling or unable to do so, and flexible terms that have enabled jurists and government officials to adapt the refugee definition to the changing nature of forced migration. Accordingly, the author\u27s analysis confirms the conclusion of the International Law Commission Special Rapporteur on Treaties over Time that subsequent practice by the parties may guide an evolutive interpretation of a treaty

Aiding and Abetting Persecutors: The Seizure and Return of Haitian Refugees in Violation of the U.N. Refugee Convention and Protocol

Pursuant to Executive Order 12,807 of May 23, 1992, the “Kennebunkport Order,” United States Coast Guard cutters have been intercepting boatloads of Haitian citizens in international waters off the coast of Haiti and turning them over to the Haitian authorities in Port-au-Prince. No questions are being asked to determine if any of these citizens are bona fide refugees fleeing persecution. All are simply returned. Does the Protocol relating to the Status of Refugees (Protocol), to which the United States is a party, permit the U.S. government to do this? That question is now before the United States Supreme Court. Regarding United States obligations under the Protocol, the United States government claims that the United States may seize refugees and return them to a country of persecution, as long as such refugees are not within United States borders. This Article examines the Convention Relating to the Status of Refugees (Convention) and the Protocol in light of that claim

Beyond the Supreme Court: A Modest Plea to Improve Our Asylum System

Moderating a session at the Workshop on the Supreme Court and Immigration and Refugee Law at the Georgetown University Law Center, Peter Spiro asked just how important the Supreme Court really is to refugee and immigration law. Unfortunately, the Supreme Court has actively interpreted the Refugee Convention and Protocol, and its decisions have had an adverse affect on important protection issues. James Hathaway knows this well. Yet his article focuses on the two Supreme Court decisions that most practitioners and scholars agree have not translated into serious protection problems in the United States or abroad

Protecting and Promoting the Human Right to Respect for Family Life: Treaty-Based Reform and Domestic Advocacy

This article examines the right to respect for family life in international law, focusing on its underlying principles and explicit protections. The article identifies these legal norms so that drafters of international treaties, specifically the International Migrants Bill of Rights, and United States legal practitioners representing immigrant children can incorporate the right to respect for family life into their drafting and advocacy, thereby protecting and promoting this critical human right. To encourage both high-level, international treaty-based reform and the grassroots domestic advocacy necessary to comprehensively protect and promote this right, this article provides specific ideas for incorporating the right to respect for family life into (1) the International Migrants Bill of Rights and (2) the United States immigration advocacy process. Section II identifies the principles that underlie the right to respect for family life, especially as it relates to children: (1) that family is the natural and fundamental unit of society and (2) that maintaining the family unit is in the best interests of the child. It also discusses the individuals to whom the right to respect for family life typically attaches. Section III discusses examples of how courts and U.N. expert bodies, including the European Court of Human Rights and the United Nations Human Rights Committee, apply the right to respect for family life in child and family immigration contexts. Section IV analyzes the themes and reasoning in this case law. Section V discusses specific ideas for further integrating the right to respect for family life into the current version of the International Migrants Bill of Rights. Section VI identifies ways in which United States-based advocates can incorporate the right to respect for family life into their advocacy efforts. Section VII provides a brief conclusion

Improving Immigration Adjudications through Competent Counsel

The immigration adjudication system in the United States is in serious need of reform. While much attention has focused on one of the principal adjudicators, the Immigration Judges, recent research conducted by Philip Schrag, Jaya Ramji-Nogales, and Andrew Schoenholtz has shown that policymakers and adjudicators should be examining all levels of decision making. This includes not only decisions at the Immigration Court level but also at the Asylum Office, the Board of Immigration Appeals and the Circuit Courts. In Refugee Roulette: Disparities in Asylum Adjudication, the authors found a troubling degree of inconsistency at all levels that track individual merits decisions

Asylum in Practice: Successes, Failures, and the Challenges Ahead

The Workshop on Refugee and Asylum Policy in Practice in Europe and North America was organized to facilitate a transatlantic dialogue aimed at understanding just how well these asylum systems are balancing the dual goals. The Workshop was convened by the Institute for the Study of International Migration (ISIM) of Georgetown University and the Center for the Study of Immigration, Integration and Citizenship Policies (CEPIC) of the Centre Nationale de Recherche Scientifique, with the support of the German Marshall Fund of the United States. It was held on July 1-3, 1999, at Oxford University. The workshop examined key issues as to the workings of the U.S. and European asylum systems: decision making on claims, deterrence of abuse, independent review, return of rejected asylum seekers, scope of the refugee concept, social rights and employment, international cooperation, and data and evaluation. In this opening paper, we explain the significance of these issues and raise central questions about them

The State of Asylum Representation: Ideas for Change

The plight of refugees-those who flee persecution-touches a chord with Americans, who have supported both a substantial overseas resettlement program and a fair system for asylum seekers. U.S. laws provide a seemingly full opportunity for asylum applicants to explain their fear or actual experience of persecution. In fact, the U.S. offers an extensive process of interviews, hearings, and appeals to ensure that bona fide refugees are not sent back to their persecutors. The substantive law, too, has been developed considerably through administrative and judicial precedents. But how meaningful is a process that, no matter how extensive and developed, leaves asylum seekers on their own to present their claims when only experts understand how the process works and what the case law means? Asylum applicants often have escaped life threatening situations in their home countries and have overcome financial and physical obstacles to reach the United States, only to be faced with a daunting and confusing asylum application process. Legal assistance is permitted, but it must be at no expense to the government. While some asylum seekers find competent representation, many do not. Most of the key players in the U.S. asylum process-the representatives, the Immigration and Naturalization Service ( INS ) trial attorneys, the Asylum Officers and the Immigration Judges– believe that representation makes a difference for those seeking relief and for the effectiveness of the system. Immigration Court data indicates that represented asylum cases are four to six times more likely to succeed than pro se ones. The time has come to develop ways for all asylum seekers to have the type of legal assistance needed to more fully ensure that bona fide refugees receive the protection that the U.S. public wants to give them and that our laws require. Despite the importance of legal representation, there has yet to be a systematic evaluation of the effectiveness of the current delivery mechanisms in place to aid those in need of legal services and the effect of representation on the asylum system in general. This paper examines the state of affairs with regard to asylum representation and attempts to understand better the barriers to representation. It also begins to assess the effects of representation on asylum seekers and the asylum system itself, and to analyze the various ways in which the representation system can be improved