LAW AND MIGRATION by Selina Goulbourne (ed). Northhampton, MA, USA: Edward Elgar Publishing, 1998. 465 pp. Cloth: $180.00. ISBN 1-85898-039-9.

Reviewed by Jonathan Klaaren, Faculty of Law, University of the Witwatersrand, Johannesburg, South Africa. Email: 125jo6kl@solon.law.wits.ac.za.

I asked to review this collection of law review articles because I wanted to see what the word "migration" meant. This was a question that I and several South African university colleagues have been asking as part of setting up what we are presently calling a Forced Migration and Refugee Studies program. It was seemingly clear that the term "refugee" was going in the program's title and also that the term "and" was to be present. But was the additional term going to be (is it going to be?) "migration" or "forced migration"? What difference would this make?

The task of defining the law and migration field necessarily also faced Selina Goulbourne, the editor of this collection, a UK based academic in a school of international studies and law. Especially in such a wide-ranging and fast-changing area, it was an impossible task to complete to the satisfaction of all. Goulbourne's collection takes the establishment route, defining migration law to be composed of refugee law of a specific type and the standard topics of formal immigration law.

Refugee law based on the 1951 UN Convention Relating to the Status of Refugees lies at the heart of Goulbourne's conception of the migration field. International Law and Refugees is the title of one of the collection’s four parts. The articles selected for this part argue that the legal definition of a refugee is imprecise and inconsistently applied (Eduardo Arboleda and Ian Hoy), that refugee law should be linked more firmly with human rights law than with public international law (Reinhard Marx), and that states should not engage in the growing practice of refusing asylum based on the concept of a safe third country (Prakash Shah). Several articles selected for the other parts also take refugee law as their subject matter. Further indicating the centrality of refugee concerns, THE INTERNATIONAL JOURNAL OF REFUGEE LAW contributes more articles (three) to this edited collection than any other journal. It is striking how the body of formal refugee and asylum law, once the practically non-existent tail end of the law and migration field, has now grown to the point where its substance and concerns are at least equal partners with the more traditional immigration jurisprudence.

These refugee law articles selected for inclusion are current and drawn from the mainstream of refugee law writing without attempting to be comprehensive (work by Guy Goodwin-Gill, Anne Bayefsky, and James Hathaway is not for instance included). Substantively, they focus on the 1951 UN Convention definition of a refugee. They do not address for instance either the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa definition of a refugee as including refugees caused by civil wars or natural disasters) or the more practical definition of a refugee often employed by the lead UN agency, the United Nations High Commissioner for Refugees as including those within a large-scale movement of persons across borders who can be presumed to be without their protection of their government (today, the Kosovo refugees come quickly to mind). A program title of Forced Migration and Refugee Studies would cover a broader section of the field than the selection of articles here.

The articles included in two other parts of the collection fall more within the standard ambit of formal immigration law. Themes inherent and emphasized in Goulbourne's refugee law selections – state sovereignty and individual human rights -- are also prominent here. In terms of international law and relations, the challenges to state sovereignty posed by international human rights law are examined in the United States, Japan, and the European Union through articles by Michael Scaperlanda, Yasuzo Kitamura, and Stephen Hall. The constitutional protection of human rights in immigration law is examined in the United States, Canada, and the United Kingdom through work of Peter Schuck, Hiroshi Motomura, Donald Galloway, Russell Cohen, and Ian Ward. In these parts as elsewhere, the good and bad guys are fairly clear in Goulbourne's classically liberal scheme. Good is the protection of civil rights and liberties through constitutional and other formal human rights instruments; bad is the unfortunate persistence of state sovereignty. The field of immigration law on which good and bad are playing is vast and covers the regulation of citizenship as well as both permanent and temporary migration.

The fourth and final part of the collection shifts its attention beyond doctrinal immigration and refugee law and treats race, gender and class issues. The focus is clearly on gender; race comes in through the concept of intersectionality, and class not much at all. Deborah Cheney presents the most critical article. She examines the interpretation and application of the UK immigration rule governing the admission of unmarried children under eighteen years of age who are joining their mother. Cheney argues that the whiteness of UK immigration law marginalizes black experiences. Nancy Root and Sharyn Tejani investigate bias in the US immigration law system and how it is differently experienced by women of different races, classes, and cultures. Rebecca Wallace introduces the 1993 Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution used by the Canadian Refugee and Immigration Appeal Board. Steve Peers analyses the rights of third-country nationals in the European Union in an article that only tangentially addresses class issues.

As with the other parts, Goulbourne’s selections here are valuable and worth reading although they remain rooted in their doctrinal starting points. They mostly fit into the mold of documenting how law in action falls short of law on the books. While difficult choices must be made in putting together a collection, what Goulbourne has not done is to integrate into this mainstream collection substantial recent immigration work by persons such as Kitty Calavita representing the constitutive turn in law and society scholarship. Such work does not start from the doctrinal sources of immigration law. It would add depth and would additionally give more prominence to the phenomenon of illegal immigration than Goulbourne does.

A final comment is perhaps truly provincial. A specific question I had in reviewing this volume was whether third world or developing countries figured in the book as anything other than production facilities for refugees and economic migrants. They do not. As Goulbourne's introduction forthrightly notes, the articles focus on western democratic states (including Japan), although she looked forward to the inclusion of work on Eastern Europe. Additionally, she justified the exclusion of articles focusing on the Indian subcontinent and the Far East as a result of "the inability to carry out the same [academic research] level of investigation and discourse as has become the norm in western democracies" (at xvi-xvii). Africa and Latin America figured neither in the disclaimer nor in the actual articles. Their exclusion is unfortunate. Even without going the route of questioning those rules, some articles by Africans such as Tia Maluwa and Joseph Oloka-Onyango and others would have been able to play in this law and migration game. Migration phenomena and its attendant legal analysis outside the developed world deserved more than incidental mention in the articles collected.

LAW AND MIGRATION can provide many core legal readings for an advanced law school seminar course in migration law and policy. The collection is what it sets out to be: a mainstream if necessarily selective collection of important legal academic work in the field of Convention-based refugee law and standard doctrinal immigration law.

Copyright 1995