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Review: Jason Pobjoy’s Book, The Child in International Refugee Law

Published on August 31, 2017        Author: , and

Jason Pobjoy’s newly released book, The Child in International Refugee Law, represents a major contribution not only to the advancement of protection claims of children, but to refugee law more broadly, taking its place among such seminal works as J. Hathaway and M. Foster’s, The Law of Refugee Status (2d Edition 2014) and G.Goodwin-Gill and J.McAdam’s The Refugee in International Law (3d Edition, 2007).

The publication of Pobjoy’s treatise comes at an opportune time, when there is increasing sophistication among practitioners and scholars about the complex issues involved in conceptualizing children’s claims and providing effective representation to children refugees accounting for their unique needs and vulnerabilities as children. The body of law regarding children’s claims builds on earlier work regarding in particular refugee law’s treatment of women claimants that challenges refugee law’s dominant male paradigm. Similarly, the body of children’s refugee law challenges the dominant adult paradigm: As Pobjoy advocates and presents so comprehensively, in the case of children every criteria in the refugee definition must be interpreted in a child-centered manner, grounded in the specific structure of rights and obligations of the Convention on the Rights of the Child (CRC). This review focuses on Chapter 4 of Pobjoy’s book, “A Child-Rights Framework for Identifying Persecutory Harm.”

The publication of Pobjoy’s treatise also comes at a precipitous moment in the development of U.S. refugee law. There is growing sophistication among the American refugee bar and scholarly communities, especially evident over the past decade. Although in the past the U.S. has been, in some respects, an outlier, doggedly parochial and resistant to acknowledging the role that international human rights law should play in the interpretation of its domestic asylum provisions, there has been a shift: American lawyers have been urging a more internationalist approach; they have been including arguments about international human rights law in their advocacy; and, presenting the jurisprudence of other states parties to the UN Refugee Convention in support of their clients claims to protection. The U.S. Supreme Court has recognized the roots of U.S. law in the UN Refugee Convention and Protocol, has referenced the jurisprudence of other states parties, and federal courts have suggested at least implicitly a human rights standard. See Deborah E. Anker, Law of Asylum in the United States, Ch. 1 (2017). And as the American non-profit Opportunity Agenda points out, in other areas of law, the U.S. Supreme Court “has increasingly cited human rights law as persuasive authority for important constitutional decisions.” The Opportunity Agenda, Legal and Policy Analysis: Human Rights in State Courts: 2011, at 2. It may be unclear at this challenging moment in U.S. politics what long-term effect this new advocacy in refugee law will have, but the orientation is changing in an internationalist direction. Read the rest of this entry…