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Temporary Protection: Hovering at the Edges of Refugee Law

Part of the Netherlands Yearbook of International Law book series (NYIL,volume 45)

Abstract

As a subject of international law, the refugee is inherently temporary: refugee status exists in order to fill the gap caused by a breakdown of the normal bond between citizen and state with ‘international protection’, until this bond can be restored, either with the original state of nationality, or with another state. While this ambition is clear, the practice of refugee protection under the current, post-1951 regime has exposed the serious problem international refugee law (IRL) faces with regard to the tail-end of protection, also known as ‘durable solutions’. This chapter studies the most prominent attempt made by UNHCR and states within the refugee regime at re-invigorating the temporary character of international protection—namely the mechanism known as ‘temporary protection’. While the concept can be traced to formulations of ‘temporary refuge’ in the 1980s, temporary protection (TP) truly emerged as a term of art in the 1990s, as Western Europe was faced with a large-scale influx of forced migrants from the former Yugoslavia. In 2001, TP was the subject of an EU directive, which partly clarified the relationship of TP to mainstream IRL—notably whether TP should be seen as a substitute for, or a prelude to, the operation of the 1951 Refugee Convention. Ambiguity has remained the hallmark of the TP concept, however, not least in UNHCR’s attempts at formalising a TP regime outside the European ambit. After examining the main features of these attempts, the chapter concludes that, while the EU directive should be taken seriously, a continuing doctrine of temporary protection outside established IRL is both legally unsound and politically unconvincing.

Keywords

  • Refugee
  • International protection
  • Temporary protection
  • 1951 Convention
  • Cessation
  • Repatriation
  • Derogation
  • Emergency

Programme Director, International Institute of Humanitarian Law, San Remo, Italy; Research Associate, Refugee Studies Centre, University of Oxford, UK.

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Notes

  1. 1.

    Goodwin-Gill and McAdam 2007, at 1.

  2. 2.

    Noll 2000, at 75.

  3. 3.

    Attorney General v. Ward, Supreme Court of Canada [1993] 2 SCR 689. In a similar vein, in the UK House of Lords, Lord Clyde ruled that ‘[w]hat [the Convention] seeks to achieve is the preservation of those rights and freedoms for individuals where they are denied them in their own state. Another state is to provide a surrogate protection where protection is not available in the home state’. Horvath v. Secretary of State for the Home Department [2001] 1 AC 489, at 16.

  4. 4.

    For one of the most complete recent analyses of the historical roots and evolution of international refugee law and its relationship to the theory and practice of asylum, see Chetail 2011. See also Goodwin-Gill and McAdam 2007, Chap. 7 on the modern concept of asylum.

  5. 5.

    Goodwin-Gill and McAdam 2007, at 201. The principle is reflected in Article 33 of the 1951 Convention relating to the Status of Refugees, 189 UNTS 150 (hereinafter: the 1951 Convention, or the Convention).

  6. 6.

    See, among others, Goodwin-Gill and McAdam 2007, at 345–354; Lauterpacht and Bethlehem 2003. Contra: Martin 1989; Hathaway 2005, at 366, 2010. Goodwin-Gill posits the existence of a customary norm of ‘refuge’ distinct from non-refoulement. Goodwin-Gill 2014.

  7. 7.

    1951 Convention; 1967 Protocol relating to the Status of Refugees, 606 UNTS 267 (hereinafter the Protocol); 1969 Convention on the Specific Aspects of Refugee Problems in Africa, 1000 UNTS 46.

  8. 8.

    ‘[A] satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot … be achieved without international co-operation’. See also Recommendation IV D of the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, which stipulates the following: ‘Recommends that Governments continue to receive refugees in their territories and that they act in concert in a true spirit of international co-operation in order that these refugees may find asylum and the possibility of resettlement.’ 1951 Convention relating to the Status of Refugees and Stateless Persons, 189 UNTS 150.

  9. 9.

    1950 Statute of the Office of the United Nations High Commissioner for Refugees, Annex, UNGA Res. 428(V), 14 December 1950, para 1 (hereinafter Statute).

  10. 10.

    On the role of the Executive Committee and the contribution of its Conclusions to international refugee law, see Goodwin-Gill and McAdam 2007, at 47–49 and 215–217.

  11. 11.

    Statute, para 5. UNHCR’s mandate was renewed by the General Assembly every five years until 2004, at which time it became open-ended. UNGA Res. 58/153, 24 February 2004.

  12. 12.

    For a good account of pre-UN international arrangements for the protection of refugees, see Hathaway 1984.

  13. 13.

    Article 1A(2) of the 1951 Convention: ‘For the purposes of the present Convention, the tem ‘refugee’ shall apply to any person who: (1) Has been considered a refugee under [previous arrangements and conventions]; (2) As a result of events occurring before 1 January 1951 and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…’ (emphasis added). Article 1B allows Contracting States to declare that they understand ‘events occurring before 1 January 1951’ to mean ‘events occurring in Europe’ before that date.

  14. 14.

    The purpose of the Protocol was to remove the time limitation from the 1951 Convention’s definition of ‘refugee’, so that ‘equal status [could] be enjoyed by all refugees’, including those in new situations that ‘have arisen since the Convention was adopted’. Preamble of the 1967 Protocol.

  15. 15.

    See Bem 2004; Davies 2007.

  16. 16.

    On the effects of unfair burden-sharing on the faithful application of 1951 Convention standards, see Goodwin-Gill and McAdam 2007, at 340–345; and generally Durieux and McAdam 2004; Durieux and Hurwitz 2004.

  17. 17.

    Executive Committee of the High Commissioner’s Programme, Conclusion No. 22 (XXXII) Protection of asylum-seekers in situations of large-scale influx, 21 October 1981.

  18. 18.

    In the sub-region, only The Philippines was party to the Convention. Though further removed from the source country, Australia—another State Party—did receive ‘boat people’, too, and played a major role in shaping the doctrine of ‘temporary refuge’.

  19. 19.

    Goodwin-Gill 1986; Perluss and Fitzpatrick Hartman 1986.

  20. 20.

    These include Fitzpatrick 2000; and Goodwin-Gill and McAdam 2007.

  21. 21.

    Fitzpatrick 1994, at 462.

  22. 22.

    The reader who is familiar with Joan Fitzpatrick’s opus, or simply with US immigration law, may wonder why this chapter does not make any reference to ‘temporary protected status’ (TPS), which is indeed a term of art in the law of the United States. The reason for this deliberate omission is that TPS, unlike TP, does not operate as an admission mechanism. It operates as a defence against deportation, and therefore ‘encompasses only those beneficiaries who somehow manage to penetrate the territory’. Fitzpatrick 1994, at 48.

  23. 23.

    Fitzpatrick 2000, at 305.

  24. 24.

    Chetail 2014, at 45–46.

  25. 25.

    These are the prohibition of discrimination, the acquisition of movable and immovable property, free access to domestic courts, rationing, primary education, fiscal equality, transfer of assets, and the protection against refoulement.

  26. 26.

    Presence triggers the benefit of freedom of religion, the issuance of identity papers, and the guarantee of non-penalisation for illegal entry. Lawful presence is further required for engaging in self-employment, freely moving within the territory, and being protected against expulsion.

  27. 27.

    Lawful residence also entails the right of association, access to housing and public relief, labour rights protection, social security, and the issuance of travel documents.

  28. 28.

    Chetail 2014, at 42.

  29. 29.

    Ibid., at 43.

  30. 30.

    Hathaway 2005, at 369 and 156.

  31. 31.

    Article 34 of the Convention. ‘The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.’.

  32. 32.

    In States that consider themselves as ‘countries of immigration’, such as Canada and the US, naturalisation may intervene after a few years of the refugee obtaining permanent resident status. In most States Parties to the Convention, though, the transition from permanent or long-term residence to citizenship is far from automatic or simple. In the global South, naturalisation of refugees remains exceptional.

  33. 33.

    Article 1C of the 1951 Convention.

  34. 34.

    Article 1C(1)–(4) of the 1951 Convention.

  35. 35.

    The second paragraph of Article 1C(5) of the 1951 Convention exempts from cessation a refugee ‘falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality.’.

  36. 36.

    It must be understood that return to the country of origin is not the inevitable consequence of cessation of refugee status under Article 1C(5) of the 1951 Convention. States of asylum may, upon cessation of refugee status, grant another type of lawful residence to the refugee(s) concerned. At the same time, the emphasis in this particular clause on conditions in the State of origin makes it especially appealing to asylum States that contemplate repatriation as the best—possibly the only—solution to the refugee problem at hand.

  37. 37.

    Fitzpatrick 1999, at 353.

  38. 38.

    Ibid., at 352.

  39. 39.

    The passing of time and the establishment of ties with the host country can also, under human rights law, limit the removal powers of the State. As Costello shows, in cases concerning the legality of deportation of settled migrants, the European Court of Human Rights has on several occasions found an interference with the right to respect for private and family life. Costello 2015. See, e.g., Üner v The Netherlands, ECtHR, No. 46410/99, 18 October 2006.

  40. 40.

    Fitzpatrick 1999, at 352, citing the US examples of Nicaragua and Haiti. Obviously, mass expulsion also faces legal obstacles under human rights law.

  41. 41.

    The recent examples of Rwanda and Angola, as well as the precedents of former Socialist States in Eastern Europe, highlight another political dimension of cessation on account of changed circumstances, namely its attractiveness not only to States of asylum, but also and perhaps more importantly to States of origin, especially where these have undergone substantial regime changes. The interest of the ‘changed’ State may not necessarily or primarily be to facilitate the return of its exiled citizens, but rather to ‘turn the page’ on a dark chapter of its history and to project to the world the image of a responsible, peace-loving and functioning democracy.

  42. 42.

    UNHCR has this competence under Article 6A 1950 Statute.

  43. 43.

    For a recapitulation of cessation declarations by UNHCR, see Long 2013. In April 2014, UNHCR recommended invoking cessation in respect of refugees from Croatia displaced by the 1991-5 conflict. See http://www.refworld.org/docid/533d813f4.html. Accessed 10 July 2014.

  44. 44.

    UNHCR, Guidelines on international protection: cessation of refugee status under Article 1C(5) and (6) of the Convention relating to the Status of Refugees (the «Ceased Circumstances» Clauses), Doc. HCR/GIP/03/03, 10 February 2003, paras 6 and 7.

  45. 45.

    Ibid.

  46. 46.

    Ibid., paras 6–8. See also (b) of the Executive Committee Conclusion on the ‘Cessation of Status’, which refers in (b) to the ‘fundamental, stable and durable character of the changes’. Executive Committee Conclusion No. 69(XLIII) ‘Cessation of Status’, 9 October 1992, para B (hereinafter Conclusion No. 69).

  47. 47.

    Conclusion No. 69, para d. On this basis, all refugees are allowed to seek the exemption ‘for compelling reasons arising out of previous persecution’, which Article 1C(5) of the 1951 Convention foresaw for refugees recognised before 1951. See note 34.

  48. 48.

    Durieux and Hurwitz 2004, at 114.

  49. 49.

    Coles famously referred to the ‘exilic bias’ of the Convention. Coles 1989, at 373.

  50. 50.

    See Zieck 1997, in particular Chapter V.

  51. 51.

    Durieux and Hurwitz 2004, at 129–131.

  52. 52.

    Note that the 1969 (African) Convention refers to the ‘essentially voluntary character’ of repatriation. Article 5 of the 1969 African Convention governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45 (hereinafter 1969 African Convention). For a critique, see Barutciski 1998.

  53. 53.

    Durieux and Hurwitz 2004, at 133.

  54. 54.

    Goodwin-Gill and McAdam 2007, at 496.

  55. 55.

    The main ingredients of the debate can be found in Zieck 1997; Barutciski 1998; Bagshaw 1997; Takahashi 1997; Vedsted-Hansen 1997; Long 2013.

  56. 56.

    Durieux and Hurwitz 2004, at 138.

  57. 57.

    The literature on TP in the 1990s is vast. In addition to the authors cited in this section, see Van Selm Thorburn 1998; Kälin 2001; Kerber 1999, and references therein. See also UNHCR, Note on international protection, UN Doc. A/AC.96/830, 7 September 1994. Chapter IV C of the Note refers to ‘a broad consensus on the need to provide protection, including asylum on at least a temporary basis, to refugees forced to flee war or serious civil disorders as well as to those fleeing persecution’, and suggests to this end ‘the adoption of guiding principles embodied in a global or regional declaration’. This language is symptomatic of the ambiguity, which endured throughout the decade, regarding the personal scope of TP. That UNHCR would recommend a non-binding declaration to address the needs of refugees fleeing persecution is, to say the least, odd—given that these refugees fall within the scope of the 1951 Convention.

  58. 58.

    UNHCR, Note on international protection, UN Doc. A/AC.96/830, 7 September 1994, para 50.

  59. 59.

    Fitzpatrick 2000, at 305.

  60. 60.

    Durieux and Hurwitz 2004, at 136.

  61. 61.

    Statement of Mrs. Sadako Ogata, United Nations High Commissioner for Refugees, to the International Meeting on Humanitarian Aid for Victims of the Conflict in the former Yugoslavia, Geneva, 29 July 1992, www.unhcr.org/3ae68fac1a.html. Accessed 10 July 2014.

  62. 62.

    Kjaerum 1994, at 447.

  63. 63.

    Fitzpatrick 1999, at 372. See also Noll 1997. Quoting UN figures, International Crisis Group 1997 reported that close to one half of the pre-war population of Bosnia and Herzegovina (4.3 million) were displaced during the 43 months of war. One million of the displaced remained within the country, and over 1.2 million refugees were dispersed throughout 25 host states. By early 1996, Germany was host to 345,000 Bosnians under TP, Austria to 80,000 and Sweden to 61,500, while other EU Member States were hosting only a few thousand. Outside the EU, Croatia was host to 288,000 refugees from Bosnia, and the Federal Republic of Yugoslavia to 253,000. In her July 1992 statement, the HC could have been stronger on the burden-sharing responsibilities of states. True, she stated that ‘all States, within or outside the region, should provide temporary protection’, but in the next sentence she almost discouraged offers of resettlement places as a measure of solidarity. Contra: the note on international protection prepared by the UNHCR argued that TP ‘also implies burden sharing and international solidarity, including assistance, where required, to the countries most directly affected’ as well as ‘reception of refugees, particularly the most vulnerable, outside the immediately affected region.’ UNHCR, Note on international protection, UN Doc. A/AC.96/830, 7 September 1994, para 22.

  64. 64.

    Statement of Mrs. Sadako Ogata, United Nations High Commissioner for Refugees, to the International Meeting on Humanitarian Aid for Victims of the Conflict in the former Yugoslavia, Geneva, 29 July 1992, www.unhcr.org/3ae68fac1a.html. Accessed 10 July 2014.

  65. 65.

    Ibid.

  66. 66.

    As for the adjective ‘flexible’, which Ogata used to qualify the desired TP regime, it can only be understood as inviting States not to be too preoccupied with the letter of the 1951 Convention, or at least to depart from their own past practice under the Convention, which favoured long-term stay and integration. Clearly, the High Commissioner’s analysis of the conflict and its implications for refugee protection must be read in context—i.e., bearing in mind the tremendous pressure put by Western European States on both the Convention and UNHCR itself. In a less tense environment, the High Commissioner could have said—more in keeping with established refugee law—that (i) in a post- cold war era it was all right to apply the Convention with the flexibility built into it, notably through recognition of refugee status without delay and cessation as soon as possible; and (ii) the Convention allowed group determination of refugee status, and the former Yugoslavia was a good case in point given what she herself described as the causes of the exodus.

  67. 67.

    Statement of Mrs. Sadako Ogata, United Nations High Commissioner for Refugees, to the International Meeting on Humanitarian Aid for Victims of the Conflict in the former Yugoslavia, Geneva, 29 July 1992, www.unhcr.org/3ae68fac1a.html. Accessed 10 July 2014. She referred in her statement to SC Resolution 752 of 15 May 1992, which called ‘upon all parties and others concerned to ensure that forcible expulsions of persons from the areas where they live and any attempts to change the ethnic composition of the population, anywhere in the former Socialist Federal Republic of Yugoslavia, cease immediately; and [e]mphasize[d] the urgent need for humanitarian assistance, material and financial, taking into account the large number of refugees and displaced persons and fully supports the current efforts to deliver humanitarian aid to all the victims of the conflict and to assist in the voluntary return of displaced persons to their homes’. Ibid., paras 6 and 7.

  68. 68.

    Fitzpatrick 2000, at 299.

  69. 69.

    UNHCR, Note on international protection, UN Doc. A/AC.96/830, 7 September 1994, paras 50 and 51.

  70. 70.

    Ibid.; Statement of Mrs. Sadako Ogata, United Nations High Commissioner for Refugees, to the International Meeting on Humanitarian Aid for Victims of the Conflict in the former Yugoslavia, Geneva, 29 July 1992, www.unhcr.org/3ae68fac1a.html. Accessed 10 July 2014.

  71. 71.

    Fitzpatrick 2000, at 299.

  72. 72.

    Kjaerum 1994, at 450.

  73. 73.

    Fitzpatrick 2000, at 299.

  74. 74.

    But see Kerber 1999; Kjaerum 1994, and references therein.

  75. 75.

    Article 14(1) of the 1948 Universal Declaration of Human Rights, UNGA Res. 217 A(III), 10 December 1948. ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution.’.

  76. 76.

    UNHCR, Note on international protection, UN Doc. A/AC.96/898, 3 July 1998, para 18.

  77. 77.

    UNHCR Standing Committee, Progress report on informal consultations on the provision of international protection to all who need it, UN Doc. EC/47/SC/CRP.27, 30 May 1997, para 4(h).

  78. 78.

    Kjaerum discusses these restrictions in the light of human rights and refugee law. Kjaerum 1994, at 450–455.

  79. 79.

    Fitzpatrick 2000, at 302–304.

  80. 80.

    UNHCR, Note on international protection, UN Doc. A/AC.96/830, 7 September 1994, para 50.

  81. 81.

    Durieux and Hurwitz 2004; Bagshaw 1997, note 157; Andersen 1996, at 203. Bagshaw points out the inflexibility of Germany, which was hosting over forty percent of the Bosnian refugees based outside the immediate region, forced UNHCR into a compromise at variance with what it had recommended generally, and had been followed by other European States.

  82. 82.

    Article I(5) of the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7, 14 December 1995.

  83. 83.

    UNHCR announced it would initially concentrate on a million people displaced within Bosnia itself, followed by about 670,000 in neighbouring ex-Yugoslav republics. The largest part of those and an additional 200,000 refugees from other third countries were expected to return home between April and November 1996. Large-scale return from EU States was not foreseen until mid-1997.

  84. 84.

    All references to the UNHCR Repatriation Plan are taken from Bagshaw 1997 and/or Andersen 1996. See also Van Selm Thorburn 1998, at 152.

  85. 85.

    Fitzpatrick 1999, at 372.

  86. 86.

    The Humanitarian Issues Working Group, established by UNHCR in 1992, was subsumed under the Dayton Peace Implementation Council in 1996. It continued to meet on a regular basis until 2000—although by that time its attention had largely shifted to Kosovo.

  87. 87.

    Fitzpatrick 2000, at 302 and note 190.

  88. 88.

    Van Selm Thorburn 1998, at 224.

  89. 89.

    See Bagshaw 1997; International Crisis Group 1997. In the case of Bosnia, ‘minority return’ meant the return of an individual to an entity not under her own ethnic group’s control. The original ethical justification for TP, namely the condemnation of ethnic cleansing, was reflected in Annex 7 to the Dayton Peace Accords, which affirmed the right of all refugees and displaced persons ‘freely to return to their homes’. The reversal of ethnic cleansing, i.e. the ‘re-mixing’ of diverse ethnic groups within Bosnia, thus became the preferred durable solution, and whether it could be achieved or not became the key criterion for assessing whether return to (particular areas of) Bosnia could be considered ‘safe’.

  90. 90.

    Durieux and Hurwitz 2004, at 162.

  91. 91.

    See EU Commission, Proposal to the Council for a joint action based on Article K3 para 2 lit.b of the Treaty on European Union, concerning temporary protection of displaced persons, COM(1997) 93 final, 5 March 1997. Remarkably, the Commission’s proposal kept the burden-sharing dimension of TP alive.

  92. 92.

    Presidency Conclusions, Tampere European Council, 15 and 16 October 1999, para 16, www.europarl.europa.eu/summits/tam_en.htm. Accessed 10 July 2014.

  93. 93.

    Suhrke et al. 2000, at 6, para 31.

  94. 94.

    Ibid., at 93, para 462.

  95. 95.

    Fitzpatrick 2000, at 279.

  96. 96.

    EU Council Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, 20 July 2001 (hereinafter TP Directive).

  97. 97.

    Chapter VI TP Directive.

  98. 98.

    Article 5 TP Directive.

  99. 99.

    Article 1 TP Directive.

  100. 100.

    Article 2(a) TP Directive.

  101. 101.

    Article 2(c) TP Directive.

  102. 102.

    Prima facie determination of refugee status consists in designating an entire class of asylum-seekers, usually identified solely by their nationality and date of arrival, as refugees without resorting to a case-by-case examination of their claims under the Convention. See Durieux and Hurwitz 2004, at 117–122.

  103. 103.

    Article 17(1) TP Directive.

  104. 104.

    Still hoping that they could dispense with a procedure altogether, some Member States wished to discourage asylum seekers from formally lodging a claim. Article 19 provides, therefore, that the ‘status’ of TP beneficiary and that of asylum seeker cannot be enjoyed concurrently: if one lodges an asylum claim during TP, one falls back into the asylum seeker category. The sunny side of this provision is that it supposes TP standards of treatment better than those available to asylum-seekers.

  105. 105.

    See, in particular, Article 14 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222; and Article 21 of the 2012 Charter of Fundamental Rights of the European Union, 2012/C 326/02, 26 October 2012.

  106. 106.

    Article 6 TP Directive.

  107. 107.

    Fitzpatrick 2000, at 305.

  108. 108.

    ‘UNHCR Head of Policy calls for more solidarity for Syrians among EU States’, www.icmc.net/article/unhcr-head-policy-calls-more-solidarity-syrians-among-eu-states. Accessed 10 July 2014.

  109. 109.

    Edwards 2012, at 602.

  110. 110.

    Ibid., note 35 (emphasis added).

  111. 111.

    Ibid.

  112. 112.

    Ibid., at 612.

  113. 113.

    UNHCR, Discussion Paper, Roundtable on temporary protection, 19–20 July 2012, para 5, www.unhcr.org/506d85849.html. Accessed 10 July 2014.

  114. 114.

    See Article 6A of the 1950 Statute.

  115. 115.

    Ibid., para 24.

  116. 116.

    Feller 2011, at 9. Note, however, that the example given is ‘seriously at-risk persons fleeing devastation and disaster’—i.e., persons unlikely to require the protection of refugee law.

  117. 117.

    UNHCR, Discussion Paper, Roundtable on temporary protection, 19–20 July 2012, www.unhcr.org/506d85849.html. Accessed 10 July 2014. This was the first of two meetings of experts convened by UNHCR in San Remo, Italy, evidently in response to the Assistant High Commissioner’s call.

  118. 118.

    Ibid., at 8.

  119. 119.

    Ibid.

  120. 120.

    Ibid., 9. See also UNHCR, Handbook—Voluntary repatriation: international protection, 1 January 1996, www.unhcr.org/3bfe68d32.html. Accessed 10 July 2014.

  121. 121.

    This is acknowledged in the latest UNHCR guidelines, which posit that ‘[t]emporary protection/stay ends when … [i]t is determined – on the basis of an objective assessment based on clear indicators – that the situation causing the displacement has ended, and voluntary [our emphasis] return is reasonable and can be carried out in safety and dignity’. UNHCR, Guidelines on temporary protection or stay arrangements, February 2014, www.refworld.org/docid/52fba2404.html. Accessed 10 July 2014.

  122. 122.

    Kagan 2014.

  123. 123.

    See UNHCR, Discussion Paper, Roundtable on temporary protection, 19–20 July 2012, www.unhcr.org/506d85849.html. Accessed 10 July 2014.

  124. 124.

    Ibid., para 26.

  125. 125.

    The other three justifications are (i) that the persons concerned are not refugees within the 1951 Convention’s definition; (ii) that the situation is fluid and requires a ‘wait and see’ attitude on the part of receiving States; and (iii) that a group protection response is deemed most appropriate because individual status determination would be impracticable or overly burdensome.

  126. 126.

    Ibid.

  127. 127.

    Ibid. (emphasis added).

  128. 128.

    Regarding the drafting history of the Convention on the issue of derogation and the (defeated) UK proposal to insert a clause permitting the same ‘at times of national crisis’, see Hathaway 2005, at 261; Durieux and McAdam 2004, note 66; Edwards 2012, at 618–620.

  129. 129.

    Article 9 of the 1951 Convention.

  130. 130.

    Edwards, on the other hand, develops the same argument at length. See Edwards 2012, at 620–624.

  131. 131.

    On the principles of exceptional threat, non-derogability of fundamental rights, proportionality (including temporariness), non-discrimination, and proclamation and notification, see Durieux and McAdam 2004; and Edwards 2012. The purpose of derogation regimes in human rights law is ‘to prevent States from curtailing individual freedoms for reasons of national interest, as opposed to motives for the common good’. MacDonald 1997, at 226 (emphasis added). On the dubious concept of implied or informal derogations which in any event would be subject to ‘the same limitations [as] express derogation’, see Edwards 2012, at 625.

  132. 132.

    Human Rights Committee, General Comment No. 29: States of Emergency (Article 4), UN Doc CCPR/C/21/Rev.1/Add.11, 31 August 2001. See also Criddle 2015

  133. 133.

    Durieux and McAdam 2004, at 23.

  134. 134.

    It can only add to the confusion that UNHCR should expand the personal scope of TP arrangements to cover ‘mixed population movements, including boat arrivals’ and victims of ‘other humanitarian crises’. UNHCR, Guidelines on temporary protection or stay arrangements, February 2014, para 9, www.refworld.org/docid/52fba2404.html. Accessed 10 July 2014. See also Article 6A of the 1950 Statute.

  135. 135.

    Standing Committee, Progress report on informal consultations on the provision of international protection to all who need it, Doc. EC/47/SC/CRP.27, 30 May 1997, para 5.

  136. 136.

    Kjaerum 1994, at 447.

  137. 137.

    Durieux and McAdam 2004, at 24.

  138. 138.

    See Noll 2003.

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Durieux, JF. (2015). Temporary Protection: Hovering at the Edges of Refugee Law. In: Ambrus, M., Wessel, R. (eds) Netherlands Yearbook of International Law 2014. Netherlands Yearbook of International Law, vol 45. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-060-2_9

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