Temporary Protection, Derogation and the 1951 Refugee Convention

By Edwards, Alice | Melbourne Journal of International Law, November 2012 | Go to article overview

Temporary Protection, Derogation and the 1951 Refugee Convention


Edwards, Alice, Melbourne Journal of International Law


Temporary protection is generally associated with protection of limited duration and standards of treatment lower than those envisaged in the 1951 Convention relating to the Status of Refugees ('1951 Refugee Convention' or 'Convention'). In some mass influx situations, Convention rights have been suspended pending the resolution of the cause of such movement. The United Nations High Commissioner for Refugees has both acknowledged and called for temporary protection in such situations, including in respect of states parties to the 1951 Refugee Convention and thus for persons who would customarily benefit from Convention protection. The Executive Committee of the High Commissioner's Programme recommends it as the minimum protection every asylum seeker should receive. A longstanding question provoked by the granting of temporary protection instead of Convention rights in such situations, which this article seeks to answer, is whether states parties to the 1951 Refugee Convention can justify --as a matter of law rather than pragmatism--suspending Convention rights to asylum seekers and/or refugees in mass influxes? In answering this question, this article examines in particular the technique of derogation. Even though the 1951 Refugee Convention does not include a general derogation clause equivalent to those in international human rights treaties, it is argued that two provisions of the Convention--arts 8 and 9--nonetheless provide for derogation. In the alternative, it is posited that via subsequent agreement of states parties, implied derogation allowing for temporary protection in mass influx situations is now an accepted feature of the Convention regime. Even in recognising the legal power to derogate from Convention rights in mass influx situations, this article sets out the limits on derogation under international law and argues that these limits equally apply to derogation under the 1951 Refugee Convention.

CONTENTS

I     Introduction
II    Defining Temporary Protection
        A Mass Influx
        B Temporary Protection and Complementary Forms of Protection
        C Temporary Protection and Prima Facie Recognition of Refugee
          Status
III   Temporality, Temporary Protection and the 1951 Refugee Convention
IV    Derogation and International Law
V     Derogation and the 1951 Refugee Convention
        A Derogation, the 1951 Refugee Convention and the Travaux
          Preparatoires
        B Article 8 of the 1951 Refugee Convention
        C Article 9 of the 1951 Refugee Convention
VI    Implied Derogation by Subsequent Agreement of States
VII   Limits on Derogation and the 1951 Refugee Convention
VIII  Conclusion

INTRODUCTION

'Temporary protection' has a relatively long history as a concept of international refugee law, yet its meaning and legal basis are far from well defined. Regularly touted as 'an exceptional measure' and 'a pragmatic tool' (1) to respond to the extraordinary circumstances of a mass influx of asylum seekers, its relationship with the 1951 Convention relating to the Status of Refugees ('1951 Refugee Convention' or 'Convention') (2) and/or its Protocol relating to the Status of Refugees ('1967 Protocol') (3) has not yet been resolved.

Legal discussions that have taken place have tended to be in the realm of lex ferenda rather than lex lata. In other words, international discussions on temporary protection have revolved around what such a regime, if it were to be regulated at the level of international law, should ideally entail--who should it apply to, what situations would it cover, what would he the minimum content of rights envisaged and when would status end? (4) In fact, the international community embarked on consultations on the meaning and content of temporary refuge/protection on at least three occasions, in 1981, (5) 1996-97 (6) and in 2001. (7) Temporary protection was also raised in a number of international expert meetings in 2011 on climate change and displacement and international cooperation and burden-sharing, respectively.

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